7. Now, a Judgment stands against Mr. POLLARD on the records of the Supreme Court inflicting a fine (a very small one in reference to his position it is true) but so standing, the only way in which the decision can be brought before any superior Judicial Tribunal in the first instance is an appeal upon which a record will be transmitted to and become a record of the Judicial Committee, and upon such a proceeding, and upon such a proceeding only, is it competent for Mr. POLLARD to question my Judgment by Affidavits to be properly sworn and filed in what will then be a Judicial proceeding and on which the Privy Council can advise Her Majesty judicially.
8. This was the course, I believe the only proper course, which I distinctly indicated to Mr. POLLARD, but which he has deliberately declined to adopt.
9. In the interests of the body of Colonial Judges, to which I belong, I must decline to acknowledge Mr. POLLARD's right to adopt any innovation on this settled mode of procedure in these cases, unless His Excellency the Governor or His Grace the Secretary for the Colonies shall request me to adopt any other course.
10. This was the course of proceeding in the case of RAINEY v. The Justices of Sierra Leone, (in 8 Moore's Privy Council Reports 47,) which case I had in my mind in quoting, indeed it was cited in the case of ex parte MCDERMOTT 1 L. R. App., p. 260 (1866) to which I referred in my decision, and it has been, I believe, the course adopted in every other case.
11. With the consent of the Judge appealed against it is competent for the Privy Council to decide the legal question arising on my Judicial decision. There is the more reason why this course should have been adopted because on the 2nd of July, immediately before I gave my decision, Mr. POLLARD said he appeared under protest and denied the power of the Court to proceed at that time and in that manner against him for contempt alleged to have been committed at any time previous to that day. He thereby raised an issue of my legal right to fine, which never having been abandoned by him, remains as a subject for legal decision on appeal.
12. Abandoning his proper course of appeal, Mr. POLLARD has presented a Petition to Her Majesty the Queen which is clearly not a Judicial proceeding, and he has himself deliberately incorporated by reference as an exhibit his Petition into his Affidavit making it thus part of an Affidavit—an illegal Affidavit as will be seen—and he has induced eleven other Gentlemen to make, and they have made Affidavits also illegal. These Affidavits and these only constituting his case. All these Affidavits were sworn before Mr. KAYE, a Justice of the Peace for this Colony.
13. By the 5 and 6 W. 4 c. 62, the Act to make Provision for the abolition of unnecessary Oaths all extra Judicial Oaths except in specified cases (not including the present case) are prohibited, and every Justice is prohibited from receiving any Oath touching a matter whereof he has no jurisdiction. In R. v. Nott Car, and Mar. 288, Mr. Justice COLERIDGE held a Justice guilty of a misdemeanour under this Act, the Jury found that he had inadvertently administered the Oath and the Justice was sentenced to One Month's imprisonment. The case was afterwards discussed in the Queen's Bench in R. v. Nott, 4 Q. B. 768 and in 19 Law Jour, N. S. Mag., cases 143 and there at p. 146 Lord DENMAN said "a mock tribunal might be erected without any real jurisdiction, before which the character of an individual might be ruined without redress" were such a course to be allowed. That this is the Law of England appears clearly in 3 Rus. on Crimes pp. 113, 114.
14. It appears therefore clearly the Law of England, that the taking and administering extra Judicial Oaths as in this case is illegal and criminal in England, and it is clear that this Law was brought to this Colony on its foundation with the rest of the then Law of England, then applicable.
15. I object to Mr. POLLARD's documents therefore:
First. Because appeal to the Judicial Committee of the Privy Council was the appropriate and only appropriate remedy where there would be a record to be referred to, even if it should decide that it had no authority to adjudicate and if and when the Secretary of State might ask its advice subsequently.
Secondly. Because Mr. POLLARD and all who have made Affidavits, which include the whole of his Petition to Her Majesty, have made Affidavits which are illegal and criminal acts, and such illegal Affidavits no one can legally recognise or look into for any purpose.
16. On Saturday morning the 20th instant just after I had sent to find out the statute, which turns out to be the 5 and 6 W. 4 c. 62, above referred to, Mr. WHYTE came into my Chambers, almost immediately after I had risen from the Criminal Court, in reference to a Bankruptcy case, and I then pointed out to Mr. WHYTE the illegality of the Affidavits being made. He at once intimated that he had been afraid they were illegal and that he had so told Mr. POLLARD, but that Mr. POLLARD had thought otherwise and had proceeded. I also mentioned to Mr. WHYTE the case above referred to in 8 Moore's Privy Council Reports, and I further told him that in my opinion the only course to initiate future proceedings was by a motion for leave to appeal and I begged him to communicate these objections to Mr. POLLARD. Mr. WHYTE then told me that Mr. POLLARD was going in the afternoon to England via Calcutta in the Reiser, but that he would see him and communicate to him what I had said, that if, before he left, he would move for leave to appeal, I would give leave, which was all that would be necessary to initiate properly legal proceedings.
17. I waited for Mr. WHYTE's return at my Chambers. He did return and informed me that he had communicated what I had said to Mr. POLLARD who declined to avail himself of my offer or to vary his proceedings.
18. It is clear, therefore, that:
First. Being apprised of its illegality, Mr. POLLARD deliberately proceeded by Petition to Her Majesty, made by reference part of an Affidavit, and verified by other Affidavits.
Second. Having had the regular course by appeal pointed out by me, first on the Second of July, and secondly, through Mr. WHYTE, he deliberately abandoned his only legal remedy.
Third. That in this state of things, Mr. POLLARD's Petition is, with his knowledge, illegal.
And I submit that Mr. POLLARD has no right to raise any question in respect of my decision and the fine of $200 except and unless it be in and through and after an appeal so regularly made as I have pointed out.
19. I would only add that if for any purpose whatever, Mr. POLLARD's documents should be looked into, it should be borne in mind that the Affidavits were sworn fourteen, seventeen, and nineteen days after the occurrences respectively and that the only public contemporary records of what occurred on the 27th and the 20th of June, and the 2nd of July, are to be found in the China Mail published on the evenings of these days and in the Daily Press in the mornings, next after each of these days. These may have been colored by hostility to me or by partiality and friendship for Mr. POLLARD; but even these when checked each by the other will show that the language and conduct of Mr. POLLARD were not of the mild and respectful character which at this distance of time, the gentlemen making Affidavits may think and state them to have been and they sustain I think in the main what I said on the 2nd of July.
My Judgment which appears in these Newspapers was prepared immediately after the occurrences and was ready for delivery on the 1st of July and it is therefore almost equally contemporary. I feel that from the above reports and otherwise the facts I have stated can be sustained.
20. I may be allowed to state that after a long and not unsuccessful practice at the Equity Bar in England without a difference with either a Judge or Barrister, I was recommended to the Colonial Secretary for Office in this Colony by Lord Justice TURNER, Lord CAIRNS, Lord Justice, Lord ROMILLY, M. R., three Vice-Chancellors, Sir J. STUART, Sir W. P. WOOD, and Sir RICHARD MALINS, and Mr. JAMES, Vice-Chancellor of Lancaster, and I had testimonials from a very large number of Queen's Counsel, my personal and professional friends, whose friendships I still enjoy. Since I came here as Chief Justice I have uniformly been, on and off the Bench, on the most satisfactory terms with the three other Barristers practising here, and, apparently, with Mr. POLLARD, until he drove me to the course I most unwillingly took, and that during the same period, I have had not one question or difference with the five respectable Attornies who practice here. With Mr. POLLARD alone have I ever had a difference; I have occasionally borne much discourtesy from him; but for some time before, and on the 27th of June, we were on friendly terms. It is very strange indeed therefore if, without any cause, I should have treated Mr. POLLARD on the 27th of June in the way he designates as "an arbitrary, intemperate, unjust and tyrannical manner."
I have the honor to be,
Sir,
Your very obedient Servant,
Wm.
Chief Justice.