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Decisions of NSW Supreme Court
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On Friday last, Robert Wardell, and W.C. Wentworth, Esquires, Barristers at Law, presented themselves to the Supreme Court, and having been sworn in as such, were also admitted in pursuance of the terms of the Charter, "to act in the character of Proctors, Attornies, and Solicitors, in the said Court."
Immediately upon admission, Dr. Wardell moved that the Gentlemen, at present practising as Solicitors, and acting as Barristers, be compelled to retire from the Bar confining themselves to their own province in the Profession as Attornies, &c; and yielding to the Barristers the two fold privilege of exercising their functions as Barristers, and practising as Attornies, Solicitors, &c. The Learned Gentleman founded this motion upon the tenth section of the New Charter of Justice (to which our Readers can refer), pointing out and explaining the defectiveness of that clause; urging that it was only consistent, now that four Barristers were in the Colony, that the Attornies should retire from acting as characters to which they had no legitimate claim; and that it rested with the Court, from the construction of the Charter, to make that division and distinction which the Learned Gentleman contended the time was now ripe for.
The Doctor's Learned Friend (Mr. Wentworth) briefly followed the exposition of the intention of the framers of the Charter; and moved that a Rule be granted to shew cause why the Attornies should not forthwith retire from the Bar. - Rule granted. His Honor appointed Tuesday last for the purpose of hearing the Gentlemen on the other side.
At 11 o'clock on Tuesday His Honor took his seat on the Bench. The business relative to the late motion was then brought forward. The Attorney General, the Solicitor General, Dr. Wardell, and Mr. Wentworth, with the whole of the Attornies, were present. Mr. Garling, as the senior Solicitor, first addressed the Court by way of replication. He observed that he once thought of quietly retiring from the Bar, as there were Gentlemen every way qualified for the higher duties of Barrister now in the Colony, but that when compulsion was talked of, he felt it his duty to resist every such attempt, unless it was the opinion of the Court that the Attornies should concede the point, and give up that privilege which he must till then hold as a right.
Mr. W.H. Moore followed Mr. Garling, by observing, that he had left England, under the sanction of His Majesty's Ministers, with a salary of £300, at a time when the Colony was most deplorably off for legal skill; and that for ten years past, he (with Mr. Garling) had practised as Solicitor, and exercised the duties of Barrister, not only with satisfaction to the Courts of Justice, but also with the entire approbation of the Public; that he had been approved, admitted, and enrolled in the present Court with all the powers specified in the Charter; and that he felt not the least disposition to retire from the Bar; but, upon the contrary, that he most strenuously insisted upon his right still to enjoy those privileges which had never before been questioned.
Mr. Rowe succeeded. This Gentleman kept the Court (at least the auditory, which was crowded and respectable) in almost unceasing laughter. He appeared much animated, and two or three times bordered on waxing wroth, but opportunely remarked he entertained no hostile feeling. Mr. Rowe gave his reasons, appealing to the Charter, why he could not brook to so much indignity as to retreat from the post of honor which he had enjoyed, with the approbation of all parties, for several years.
Mr. Norton dispassionately, but firmly, resisted the attempt thus made to dispossess himself, and Brethren, from those immunities which they had, as a Body, held for ten years.
Mr. Chambers deliberately, and much to the point, contended that the motion was unjust. He founded his arguments upon the Charter, at least the tenth section, and made it appear that the Court could not, without "reasonable cause," compel the Attornies to retire from the Bar.
Mr. Allen was very brief in his rejoinder. He merely stated, that he was one of those who had expressed a willingness to retire; but now as the other side insisted upon their rights, he also contended for the same privilege in common with the other Gentlemen.
Mr. Wentworth, as was settled on Friday, then rose to support the motion and answer the Solicitors. The Learned Gentleman elaborately, and with undoubted ability, attempted to rebut all the arguments that had been adduced on the other side. He insisted that it was only just, that the Gentlemen who contended for their right, should be dispossessed of that which was not their right; as it never could have been intended by the framers of the Charter, in the event of Barristers coming out, that the Attornies should be allowed to exercise a function which did not belong to their body; that the tenth section of the Charter was evidently bad grammar, as had been shewn by his Learned Friend (Dr. Wardell), and therefore it was expedient to go back to the previous section to supply the hiatus that obviously existed in the tenth section; and that it remained with the Court to fill up that breach, in effecting which there would be no difficulty in at once meeting the views of the motion. The Learned Gentleman was occupied nearly two hours in wading through Acts of Parliament, Commissioner Bigge's Report, and the Charter; in the course of which considerable ardour and abundant talent were pressed into service.
It is to be regretted that our limits will not allow of affording our Readers even the outline of the able, impartial, and perspicuous elucidation of that part of the Charter affecting this case, which was given by the Chief Justice. We can only just notice, that His Honor observed, that he hoped the period was not far distant when the separation now sought for, would be obtained; but that the present Charter of Justice did not admit of that construction which the Learned Movers gave to it. His Honor spoke particularly as to the omission in the tenth section of our Charter, at the same time comparing it with various Indian Charters, where the defect evidently was supplied. If we understood His Honor correctly, it was suggested as extremely probable, that, by the expiration of the existing New South Wales Act, the present subject of contention would meet with that consideration which it deservedly merited. The Rule was discharged.
Upon the above case, silence, we thought, would become us best; but, upon secondary consideration, it was esteemed, in the order of things, as well to drop a few remarks upon a subject to discuss which all the legal talent and mental energies of the Colonial Bar were concentrated. Our annals could never before boast of such a day as Tuesday last! The keen ingenuity the laborious exposition of the Law the flights of fancy the satirical rubs the bursts of oratory the convincing and thundering arguments the profundity of science all, all conspired to overwhelm the reflecting auditor with sublime conceptions of the future! The Genius of Australia was conjectured to form one of the auditory; but, for certain reasons, continued invisible. There was only one circumstance that had a tendency to disturb the pleasure of listening to such a display of forensic eloquence, viz. unaffected regret that the Legal Heroes (for they certainly fought) should have differed among themselves, just as if all the clients had become transformed into honorable men, and there was nought more profitable left than to enter the lists with each other!! It was a high day to the clients, as neither plaintiff nor defendant had to settle costs. But to be again serious: the olive branch has ever been significant of peace; how much is to be deplored, then, that so valuable an exotic has not yet been brought, by some kind hand, to our shores, and carefully cultured, that its friendly fruit might abound?
As far as the question affected the Public, perhaps we may be allowed to venture our opinion one that is tolerably universal that, in the event of a Bar being established here upon the same footing as in the Mother Country, such an arrangement would have been inevitably depressive to the rising interests of the Colony. We are not old enough, neither are we in the possession of sufficient wealth, to sustain an independent Bar. Had the Rule been made absolute, so far as preventing one party from trespassing on the rights of the other, it is our conviction, that the Attornies would not have lost a mite by the retrograde movement; but we, the Colonists, would have had to maintain the Barrister a tax not well, as yet, to be tolerated. The experience of three years, as wisely suggested by His Honor the Chief Justice, will not, however, be lost in influence with the Home Government.