Décember 7, 1208.] evidence) which has made the case plainer than it was on the first hearing. when this information was not forthcoming. Nor could there be any. "innuendo" to the effect that he has been in- fluenced by his Junior. The Chief Justice is only primus inter pares. The Full Court as at present constituted enables the Chief Justice to have the assistance of the Puisne Judge; discussion on abstruse legal questions often makes points clearer than they were when first dealt with by one Judge. And for the reasons given in my former letter the fact that the Chief Justice with the assistance of the Puisne Judge confirms his former decision cannot in any circumstances render the appeal a farce.
2. The defects of the present system are patent; but with much respect, they are not those which Your Excellency has pointed out. And the emphasis, which has been laid upon them by Your Excellency cannot fail to be very detrimental to the prestige of the Court among both Europeans and Chinese, which it has been my constant aim to maintain at the highest level 3. With reference to the last paragraph of the letter under reply Your Excellency is always every good in assuring me that my opinion is not well-founded when I say that the Govern ment shows no consideration of the Chief Justice. I can only say that 34 years exper. ience does not bear out Your Excellency's courteous intentions. The question is one which I have very much at heart, and so long as I am Chief Justice of the Colony I shall continue to do so. Let me put to Your Excellency two instances which will explain my meaning.
For years I have pointed out that the Chief Justice has to do the work of two Judges. Acting on information which was never submitt- ed to me Sir M. Nathan practically informed the Secretary of State that this was not a fact. I have at last through Your Excellency's courtesy been shown this information, and have pointed out that it was inaccurate from beginning to end. I have received no answer, so that I must assume that my opinion is dis- regarded. Even the carefully draw-up Tables which I had prepared and which support my statement have elicited no comment. Even as one Judge doing the work of two at certain periods of the year I have to work "double tides" to get through the work. One of such periods which has covered the last 3 or 4 months is just over and yet Your Excellency has in- formed the Council in spite of my re-iterated opinion that there is no immediate necessity for a third Judge. The effect of this on my mind can only be that the opinion of the Government is that I only want a third Judge appointed to save myself work. Surely Your Excellency will agrees that this is a case of want of consideration for the Chief Justice.
Let me take another case. There was a suggestion in one of Your Excellency's letters that an Appeal Court could be formed with the assistance of the Judge of Shanghai. I learn from Your Excellency's speech in Council that the suggestion has been forwarded to the Secretary of State in the concrete form that the Judge of Shanghai should come to Hongkong to sit as an Appeal Judge twice a year. If Your Excellency had asked my opinion before sending this suggestion forward, I should have pointed out the difficulties in the way of making the scheme effective, and the inconveniences which must result from it: that changes must be made in the law and Code of Procedure and that it can only work by most seriously hamper- ing the other business of the Court. This quite apart from the inherent objection to the scheme. But the scheme has apparently been approved at home, and I shall have to work it. As in the cage of the third Judge, the opinion of people who knew little or nothing of the matter was held of more weight than mine, so here: when, as is inevitable, I point out the unworkable nature of the scheme as sent from home, I shall probably be told that others think differently.
Your Excellency will I think agree with me that I have some cause for the view I have so
frequently expressed that little consideration is paid to the Chief Justice's opinion it matters relating to the administration of Justice. I have, &o.,
CHINA OVERLAND TRÅDE REPORT
Government House, Hongkong, 6th October, 1908. SIB, I regret to learn from your letter of September 29th, that my explanation of the ❘ actual words used by me in reference to the Court of Appeal and which I had believed would entirely dispose of Your Honour's cause of protest have not had that result. -
2. Your Honour contends that no one who is familiar with the work of a Judge" could attribute to him any but the highest motives when hearing an Appeal, whatever his decision might be. But the words used by me ("innuendo and "alleged" &c.) made it I had hoped amply clear that I was not referr. ing to well informed persons but to disappointed litigants and irresponsible critics. I expressed in fact only the views which I have under. stood yourself and Mr. Justice Wise to have affirmed. The words of the latter in this connection (forwarded to me as an enclosure in Your Honour's letter of the 29th February, 1908,) were:-"As at present constituted the Appeal Court consists of the Chief Justice and the Pusine Judge, from one of whom the appeal necessarily lies, and the Chief Justice has a casting vote. The result is that anyone "who has the money will appeal against the decision of the Puisne Judge (in consequence of the casting vote) but that no one will appeal against a decision of the Chief Justice unless he intends to carry the case to the 'Privy Council.".
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3. In reply to your third paragraph I can only repeat the statement made by me in my observations on the Estimates after giving due prominence to the fact that Your Honour held the view that a Third Judge was necessary to cope
with the work of the Supreme Court,viz.that after consulting those best qualified to advise me I considered the weight of opinion was in favour of the view that a Third Judge was not immediately neces- sary, but I hoped that when the new Courts were finished the Colony would be in a position to incur the expense involved. Your Honour Was as you cordially admit informed of the arguments which had been adduced in this connection and had an opportunity of fully disposing of them. Your letters were for warded to the Secretary of State and you were so informed, and I am therefore at a loss to know what further reply you expected, the absence of which leads you to the conclusion that your opinion is disregarded, So soon as the reply of the Secretary of State is re- ceived it will of course be communicated to you, but in the meantime I presume from the telegran (which I at once sent to you on receipt) that after a perusal of correspondence he has adhered to his former view that the apointment of a Third Judge can be temporarily deferred. In this matter which you select as a flagrant instance that the local Government "shows no consideration to the Chief Justice," I can find no possible ground for such a conclusion.
We are all agreed that the appointment of a Third Judge would be most desirable;-but it is my duty to examine the comparative urgency
405
Chief Justice in matters affecting the adminiss tration of justice" but I fear that it is beyond my power to remove what appears to have become an idée fixe in your mind.—I have, &c.,
F. D. LUGARD,
Governor, &o.
His Honour
The Chief Justice.
Chambers, Supreme Court.
Hongkong, 28th October, 1908. SIR,- much regret to find on perusing Your Excellency's speech on the second reading of the Appropriation Ordinance on Thursday 8th October that Your Excellency did not take the opportunity of correcting the impression left on the readers of some of the reports of Your Excellency's speech, that in your view appeals to the Full Court as at present constituted were a farce. I had hoped that for the reasons, and and with the materials which I had supplied to Your Excellency in my letters on subject, some allusion would have been made to the subject,
2. Your Excellency's remarks, as published in the papers, are as I have already pointed out in my letter of 29th September calculated to ando the work which I have done in promot- ing confidence in the Full Court in spite of its admittedly unsatisfactory constitution. Very shortly the Full Court will have to deliver important judgments in a case on appeal from my decision at nisi prius, which has been argued before it at great length. It may be that I shall differ from the Puisne Judge; it may be that I shall maintain my former opinion; but as to both of these questions the matter is still under consideration. But should these things happen the suggestion engendered in the popular mind by the report of Your Excel. lency's speech, and especially in that of the disappointed litigant, will inevitably be that the appeal has been a farce. I should therefore be obliged if Your Excellency would lay the correspondence on the Table of Council. It is of the first necessity that the appeal to the Full Court should be considered by all, whether well or ill informed people, as a serious matter, and not as a farce.
3. I note what Your Excellency says on the subject in paragraph 2 of your letter of the 6th October: but regret that I cannot agree with it. I do not think that the remarks actually made by Your Excellency are at all calculated to promote confidence in the Court, for they suggest criticisms of the Chief Justice's judg ments which would not otherwise occur to litigants or even ill-informed people. But the actual words used by Your Excellency are not before the public, as no one except members of Councils see the local Hansard.—I have, &c.,
F. T. PIGGOTT, Chief Justice. His Excellency
Sir Frederick Lugard, K.C.M.G., Governor of Hongkong.
Government House,
Hongkong, 2nd November, 1908. SIR, I have the honour to acknowledge your letter of October 28th having reference to the a number of extremely desirable requirements words used by me in a speech regarding the in relation to the finances of the Colony-and I constitution of the Full Court. I am anxious to have come to the conclusion so far as my meet Your Honour's wishes as far as seems to personal view is concerned (the final decision me practicable, but since as you point out the resting with the Secretary of State after perus-members of the Council already have the cor- ing Your Honour's arguments and the Table to rected version of what I said before them in the which you refer) that in the coming year the Hansard there seems no object in laying it Colony cannot afford a Third Judge. Provision before them in a separate paper. Your Homur has, however, been made for a Deputy 'Official is anxions as I understand that it should be Receiver on Your Honour's recommendation. made knowu that 1 did not use the words attri- 4. As regards the second case cited. I did buted to me in the Local Press that the appeal make the suggestion regarding the Shanghai to the Full Court is a farce, and I will Judge in my letter to Your Honour of 8th if you so desire cause a letter to be written February last. I did not go into it in detail to the Press quoting the words in Hansard, until I should hear from the Secretary of State Sessional Papers consist of the annual report as to whether the idea was possible since Your from Departments and other permanent records Honour had stated that you considered it to be of the Colony and I do not think that the out of the question for & Foreign Office Judge correspondence in question is of a nature to be to come here unless there were reciprocity, included with them. which was impossible. At your desire I have cabled to the Secretary of State to inform him that you would wish to express an opinion regarding the working of the scheme before its details are decided.
2. With reference to the question of a Third Judge I have the honour to enclose in original for your perusal and favour of return a private letter I have just received from Sir H. de ̈ Sausmarez together with a copy of the despatch from Secretary of State dated 18th September, 1908. I personally agree with the view express« · littleed by Sir H. de Sausmarez.—I have, &o.
F. D. LUGARD, Governor, &o, His Honour The Chief Justice.
F. T. PIGGOTT, 5. I have replied at some length to the Chief Justice.concrete instances brought forward by Your
Honour in support of your view that consideration is paid to the opinion of the
His Excellency
Sir Frederick Lugard, K.C.M.G.,
Governor of Hongkong.
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