[judges, conflict between - Pedder C.J., criticism by Montagu J. - Montagu J., criticism of Pedder C.J. - equity procedure]

Anonymous (No. 1)

Supreme Court of Van Diemen's Land

Pedder C.J. and Montagu J., 11 May 1838

Source: True Colonist, 18 May 1838[1]

Last Friday, before the Court rose, Mr. Young addressed the bench, praying that His Honor the Puisne Judge would attend at chambers after the Court rose, to take the affidavits of certain clients of Mr. Young, in the answers to a bill in Chancery, both he and his clients having been put to serious inconvenience and expence [sic] by repeated attendances at the Judges chambers, (when it was Justice Montagu’s duty to have attended,) without being able to find a Judge to take the affidavits. Justice Montagu appeared very indignant at Mr. Young making such an application to the bench -- thought it a great hardship that he should be obliged to come across the Derwent to hear an affidavit, when a Commissioner could perform that duty as well as a Judge; he added, that he saw through Mr. Young’s motive in making the application, which he insinuated was any thing but praiseworthy. He said that a Commissioner ought to have been appointed, and that every one was of the same opinion except the Chief Justice, who opposed it from what motive he (Judge Montagu) could not tell; but His Honor’s manner conveyed an insinuation, by no means creditable to Mr. Montagu, nor respectful to the Chief Justice. His Honor bore it all very meekly, as he has often borne similar provocation from his colleague, to obviate the disgraceful scenes that a want of the extraordinary forbearance, which he is often forced to exercise, would inevitably produce, to the discredit of the Court. The Chief Justice, with great condescension, put an end to the altercation, by telling Mr. Young that he would attend at chambers that day to perform the duty required, although it was out of his turn, and his contumacious colleague would not attend to his own duty, nor condescend to ask the Chief Justice to perform it for him. The whole of the profession, and the several litigants in the Supreme Court, are loud in their complaints against the expense and inconvenience to which they are put by Mr. Montagu’s contemptuous neglect of his chambers, and His Honor appears to consider himself above all control or reproof. The whole profession appear to be afraid of him, and it is evident that he also keeps the Chief Justice under subjection by his violence, or he never would have been permitted to trifle with the public interests as he does, with perfect impunity. It is most preposterous to hear a Judge of the Supreme Court talk of the hardship of his having to come across the Derwent to discharge those duties for which he is appointed and paid. We would ask him, is it his public duty that requires him to live on the other side of the Derwent? Is he not rather bound to have his residence in a situation that will enable him at all times to attend to his public duties, without risk of delay or interruption by the vicissitudes of the weather? In no other part of the world, except Van Diemen’s Land, would a judge have ventured to have made the observation which Mr. Montagu made, conveying the impression that his public duty, and the public interests connected therewith, was subservient to his private caprice or convenience. Would any of the Judges in Westminster Hall have ventured to have told a solicitor of the Court on the full bench in term time, that he would not at any time, when the performance of that duty fell to his lot, attend at chambers to receive affidavits or “answers” in Chancery suits? We apprehend that if he did, his conduct would not pass unnoticed in Parliament, and by the Executive authorities. It has often occurred to us, that the Judges of this colony took a great deal upon themselves in limiting to one hour each day their attendance at chambers, (and even during this very short period not giving regular attendance,) it is evident that many circumstances may occur, and very often do occur which renders application to a Judge almost unavoidable, even at the most unreasonable hours -- particularly in the present state of affairs in this colony, when so many fraudulent debtors are absconding with large sums, and the law requires the presence of a Judge to obtain a writ for arresting such fugitives, while the creditor has to suffer the annoyance of seeing his debtor go on board a ship, and get off, without his having the power to stop him, because he did not know of his intended escape until it was past one o’clock, and the Judge had left chambers. We do not know how these matters are managed in Westminster, but we know that in Edinburgh a Judge, during his week on duty in the Bill Chamber, would no more think of making himself inaccessible to suitors, or their attornies, than a centry [sic] would think of abandoning his post in the face of an enemy. Indeed, we know of many cases where the Lord of the Bills has not only risen from his dinner, when he had a party of friends with him, but got up out of his bed at the most unseasonable hour to attend to his official duties, rather than the process of justice should be delayed for an hour. Yet these men, whose duties are far more harrassing and arduous -- men who have grown old and eminent in their profession at the bar, before they were raised to the bench -- not only feel themselves bound to be ready at all calls of duty, but treat with the greatest kindness and condescension the poorest layer’s clerk that has to attend them on Court business, even directing them in the amendment of any oversight or error in their proceedings, rather than bullying and brow-beating them, as one of our Judges, when the fit is on him, takes the liberty of doing to any applicant, without respect of persons. Men who, like ourselves, attach the greatest possible respect to the office and character of a Judge, while the incumbent acts in accordance with that character, cannot but be struck with the absurdity of the awful importance which a young man, like Mr. Montagu, who never held a brief is the English Courts, assumes from his office, placing himself above any authority. We think it is disgraceful to all the profession to have submitted to his freaks to long as they have done, and very justly subjects them to the unqualified contempt which His Honor has so openly and so frequently expressed for the whole profession in this colony.

The Chief Justice would also be subject to great blame for his almost culpable endurance, were it not his motives duly appreciated; for it is evident, that by any other course he would only provoke the irritable mind of his colleague [?] such indecent violence, as would render the Court ridiculous and contemptible in the eyes of the whole community.

As for the government it is a perfect paradox. We may ask where is It? -- and “echo answers -- where? The general opinion is, that while Justice Montagu protects Little Rowlands through all his intricacies in the Court, that Little Rowlands, through the influence of his friend Forster, will protect His Honor in the Cabinet.

This new freak of Mr. Montagu’s, about appointing a Commissioner at a high salary, to assist their Honors in doing nothing, or at least in doing one-tenth of what would be more recreation for them, is more than ludicrous. Besides there are many of the duties of a judge, which at present interfere with Mr. Montagu’s aquatic or rural amusements, that could not possibly be performed by a Commissioner. And does His Honor consider that the Treasury is in such a flourishing state that the government can afford to create another now office to gratify his caprice? -- rather let us have a third Judge, and such a modification of the Courts, that one of them may always preside at the General Quarter Sessions for Hobart Town at least, and also in the Thirty Pound Court, both here and on the circuits through the different districts. This would put an end to the delays or total suspension of justice consequent on the Judges differing in opinion. It will also remove the existing complaints against the constitution of the Quarter Sessions, particularly in Hobart Town, while it would put an end to the absurdities, and something worse, exhibited in the practice and decisions in all the Courts of Request. We are aware that at this moment there would be great difficulty in finding a person to fill the office, whose appointment would give satisfaction. But how long are affairs to remain in the present state? How long will the colonists submit without appealing to the parent legislature against the existing abuses in the Courts?