Note: Where available, the PDF/Word icon below is provided to view the complete and fully formatted document
Friday, 20 July 1906


Mr KING O'MALLEY - The honor-' able member. This is what may happen. A litigant may have a case in one of the lower courts and win. His opponent may thereupon appeal to the County Court, and the respondent may be again successful there ; and there may be a second appeal to the Supreme Court of a State, before a Bench of five Judges, with the same result. By that time seven Judges will have pronounced for a particular view. Finally there may be an appeal to the High Court, where two Justices may take a view differing from that of the seven Judges who have already dealt with the case, while the remaining Justice may side with them. In that event, the hitherto successful suito would lose his case, although eight Judges in all had decided in his favour, while only two were opposed to him. The question arises, would! the two know more than the eight, or the eight know more than the two? Some of the most important decisions in the history of the United States were given by a bare majority, with a Bench of nine Judges. The United States authorities had no constitutional power to issue paper money and make it legal tender, but after they had issued millions of greenbacks, at the time of the war, they were able, by increasing the Supreme Court, to get a decision of five to four making greenbacks legal tender, a previous attempt to obtain such a judgment having failed.


Mr Conroy -- The great masses of the people paid very dearly for that decision.


Mr KING O'MALLEY - I will not deny it. Similarly a majority decision the other day upset all former notions as to the powers of the States Courts in regard to the granting of divorces. Now, before divorce can take place in many of the States, both husband and wife must have lived in that State for six months. But formerly a marriage could have been upset when the husband was living in Dakota and the wife in Texas. If the puisne Judges are to be mere echoes of the Chief Justice, it will be better to have only one Justice on the High Court Bench. We do not wish to appoint to that Bench men who will be subservient to a strong Chief Justice. We require men who will stand up for the rights of the people.

Judges taken from the Benches of the Supreme Courts of the States may be moreor less influenced by their past environment, and probably will not be ready to oppose the Chief Justice. The best training place for future Justices of the High Court is this Chamber. I am not looking for a job myself, but, in my opinion, a legal member of this House has a greater knowle'dge of the Commonwealth legislation than would be possessed by a Judge of the Supreme Court of a State, who would have to read up the subject after his appointment. Furthermore, the legal members of this House would have practical knowledge of our legislation, while that of a Judge of a Supreme Court would be only theoretical, and we know that the man possessing hundreds of methods of making money often finds himself up a tree when he enters upon a financial undertaking. The honorable member for Wilmot attacked the Chief Justice for having appointed his own son as associate, but 1 think that it is stated! somewhere in Holy Writ that the man, who does not provide for his own family is worse than an infidel. If I were Chief Justice, and had a son of the intellectual ability and training necessary for the position of my associate, no one else would get that position. One must think of his friends first and his enemies afterwards. All one's kindness should be for one's friends, and one should reserve for his enemies justice without any admixture of revenge. I am in a quandary as to what to do in connexion with this proposal. In my opinion, only one additional Justice is required ; but should I set my views as a lavman against those of the AttorneyGeneral, who is one of the ablest lawyers in the Commonwealth? At any rate. I shall vote for the appointment of an additional Justice, and leave myself open to conviction as to the propriety of appointing two additional Justices. lin. any case, great care should be taken in order that the most capable men may be selected. We ought not to appoint men of no strength of character.







Suggest corrections