:
}
anything apparent in this order or in those pro- ceedings anywhere, Chun Afuk was a natural bora or a naturalized subject, and therefore not subject to the authority oxercised. On this question of the defect the non-statement as an adjudication that the man prohibited to reside is an alien, the court can judicially come to no deci- sion. It was not reserved at the trial and has not been properly argued; it would, however, have been a point in favour of the prisoner's discharge for the decision of His Excellency in Council if the decision of the court on the point reserved were not in his favour. In this argument the abso lute power of the Governor to prohibit any and every foreigner from residing in this Colony has been assumed to be absolutely vested in him. The only question is one merely of form, whethor this particular document complies with the provisions which the legislature has imposed. I have referred to other forms of prohibition to reside within the colony. In some cases the con- struction which appears to me to be the proper one appears to have been adopted, in others not, as the general rule or the specialities of the special case happened to be prominent. The Governor is in no case responsible for the form, for which he relies on the officer submitting it to him, and that officer not being a lawyer it is too much to export legal accuracy in doubtful cases from him, and so inaccurate forms are perpetuated. The old maxim applies, " A. blot is not a blot until it is hit.""
His Lordship referred to the Supreme Coart Reconstruction Ordinance, and said he must exercise the power there given him and givo a oasting vote against Mr. Justice Snowdon's decision. It was a most painful thing. He protested against it when the Ordinance was passed, and he could not but feel that everywhere there ought to be one judge only or else at least three. However, he was obliged act under that Ordinanco, very much against his own feelings. The conviction must therefore be quashed.
Some conversation then took place as to what was to be done with the prisoner, who was not pre-
sent.
The Chief Justice said he was just as liable to be sent away now as ever he was, and if the At- torney-General wished to consult the Government in reference to the matter, the Sessions could
be adjourned until Friday, and the Goremment could say whether they would have another order drawn according to the legal decision of the court.
The Attorney-General said the difficulty was,
the conviction being quashed, whether the man was not entitled to his discharge.
The Chief Justice said he was not present to be discharged.
Mr. Justice Snowden thought he could be detained a reasonable time for certain purposes,
as for instance, if another charge were to be brought against him.
The Chief Justice said the prisoner was not entitled to his discharge until the end of the Sessions. As the matter stood, the prisoner, a man who had been sent away, would be at large in the Colony and might be so at large, unless there was another order. It was for the Attor ney-General to say what should now be done.
The Attorney-General asid that of course he could only represent the matter. He could do nothing personally.
The Chief Justice said the prisoner ought to have been present. He could not be discharged
now.
The Attorney-General said it was not the fault of the Crown that the man was not present, as it had been sugested by the Crown Solicitor that he should be. "He (the learned Attorney) must refer to a higher authority, and if his Lordship would adjoam the Sessions as he proposed to a day when the man could be brought down in custody, he thought that would be the best course.
The Chief Justice said that was a monstrous power that a man should be sent away without having an opportunity of saying anything in his defence-sent away, in fact, in his absence. The absurdity to which this penal statute might be carried was ludicrous.
The Attorney-General said he did not stand there to defend the Legislature.
Mr. Justice Snowden said he thought the Ordinance went to the extent he stated.
The Chief Justice said in that case every
natural born subject might be expelled because
ho had no opportunity of showing that he was
auch.
The Sessions were adjourned until Friday at three o'clock.
45
89
No comments yet.
Private notes are available after approval.