Whārangi 1: Biography
Salmond, John William
Lawyer, university professor, law draftsman, solicitor general, judge
I tuhia tēnei haurongo e Alex Frame,, ā, i tāngia tuatahitia ki Ngā Tāngata Taumata Rau Ko te wāhanga , 1996.
John William Salmond's contributions to many branches of the law in New Zealand, together with his international eminence as a legal theorist, entitle him to be regarded as New Zealand's most eminent jurist. He was born on 3 December 1862 in North Shields, Northumberland, England, the son of William Salmond, a Presbyterian minister, and his wife, Jane Paxton Young. The family migrated to Dunedin, New Zealand, in 1875 on the Corona, and William began a long career as a teacher of theology and moral philosophy. John Salmond attended the High School of Otago (later Otago Boys' High School) from 1876 to 1879, and then the University of Otago as a junior scholar, earning a BA in 1881 and MA in 1882.
In 1883, having won a Gilchrist Scholarship from the University of London, Salmond travelled to England to study law. He obtained the degree of LLB and became a fellow of his college, then returned to New Zealand in 1887. In 1888 Salmond offered his services 'with or without salary' as a teacher of law to the University of Otago. Although this was at first declined, Salmond was eventually appointed to a lectureship in constitutional law for 1889.
In 1891 Salmond entered legal practice in Temuka. On 28 August that year he married, in Dunedin, Anne Bryham Guthrie, whom he had met in London; they were to have two sons and a daughter. Between 1891 and 1897 Salmond carried on a varied country legal practice. He appears to have been a popular and sought-after lawyer, and conducted many successful cases. He took part in civic affairs as president of the Temuka Mechanics' Institute and as a member of the Temuka School Committee and the South Canterbury Education Board.
It was in Temuka, too, that Salmond wrote two short but seminal books, Essays in jurisprudence and legal history (1891) and The first principles of jurisprudence (1893). In these he criticised the then-dominant theory of John Austin, to which he had been exposed while in England; according to this the essential feature of law is the ability of a 'political superior' to enforce obedience to its commands by the threat or fact of sanctions. Although Salmond criticised the Austinian model for its failure to account for non-coercive and ethical functions of law, he adopted its definitional rigour.
In 1897 Salmond was appointed professor of law at the University of Adelaide in South Australia, a post he was to occupy until 1906. This period saw the publication of Jurisprudence: or the theory of the law (1902). Apart from the lucid account of the legal system that successive editions of this work were to provide for generations of law students in the English-speaking world, the book developed influential concepts that subsequent writers on legal theory were to adopt. In particular, Salmond analysed rights by distinguishing four different kinds of advantage that law might confer: 'liberty, when the law allows to my will a sphere of unrestrained activity; power, when the law actively assists me in making my will effective as against others; right, in the strict sense, when the law limits the liberty of others in my behalf; immunity, when the law in my behalf refuses power to others to be used against me.'
A second seminal concept in Jurisprudence was that of the ultimate legal principle, defined as a 'self-existent rule…without legally recognised source'. For example, the rule that acts of Parliament have the force of law could not itself be based on an act of Parliament.
In 1906 Salmond was approached by New Zealand's chief justice, Sir Robert Stout, who suggested he should accept appointment to the founding chair of law at Victoria College in Wellington. During his short occupation of the chair Salmond was highly regarded by students, one of whom recalled that 'the lucidity, the grasp, the wit, the kindliness, and the all-embracing scholarship of the man acted with tonic effect upon his students'. He also received groups of students at his home or in his office for more informal discussions. Both at Victoria and Adelaide, a facility for retaining a deadpan expression while students laughed at some droll expression was mistakenly taken for humourlessness. In fact he was able to see humour in most things.
In 1907 Salmond published The law of torts, in which he arranged much heterogeneous material under a set of principles. The book appeared in its 27th edition in 1992. In 1911 the law faculty at Harvard University voted to award the book the Ames Prize for the most meritorious English-language legal publication in the preceding four years. In 1914 the Swiney Prize was awarded to Salmond by the Royal Society of Arts in London for Jurisprudence.
Salmond's time at Victoria College ended when the attorney general, Sir John Findlay, a personal friend, persuaded him to accept appointment as counsel to the Office of Law Drafting early in 1907. Amongst the important legislation he drafted was the Native Land Act 1909, done with the assistance of Apirana Ngata, which involved the recasting of over a hundred confused and sometimes contradictory statutes relating to Maori land. The Cook Islands Act 1915 created a complete legal code for the Cook Islands, which had become part of New Zealand in 1901. Although Salmond strove for simple and direct language in law-drafting, he recognised the need for the specialised language of law to express the subtleties and complexities of legal ideas and principles.
In 1910 Salmond became solicitor general, heading the Crown Law Office. This now incorporated the Office of Law Drafting and was responsible for all the Crown's legal work, some of which had previously been conducted privately. He became powerful beyond his nominal role: when Hubert Ostler expressed hesitation about joining Salmond's staff because he did not wish to be subject to civil service rules, Salmond told him, 'You needn't worry about that. I run the civil service.' As solicitor general Salmond was one of the government's chief advisers in the prosecution of a sugar monopoly in 1912. During the major strikes of 1913 he gave positive opinions as to the constitutional propriety of using a naval force to keep order and of enrolling special constables. He also relied on common law authority to justify, in cases of necessity, state action which would otherwise be illegal.
As solicitor general Salmond was active in advising the government and representing it in litigation on issues arising from Maori claims to land, rivers and other resources including fisheries. Salmond's approach was governed by three main principles. He maintained that the Treaty of Waitangi gave the Crown both imperium (territorial authority), and also dominium (ownership) subject to customary Maori rights; that these rights were in force in law 'only because and in so far as they have been given legal validity by…legislation of the Colony'; and that where these principles produced a result unfair to Maori expectations, appeals could be made to Parliament.
Salmond's expertise on these issues was also employed in developing the British government's answer to the claim made by the United States government on behalf of William Webster under the Anglo-American pecuniary claims treaty of 1910. The New Zealand government was alleged to have wrongly disregarded Webster's alleged purchases of several million acres from Maori tribes prior to the signing of the Treaty of Waitangi in 1840. Salmond's careful analysis of the facts of the case was of great and acknowledged assistance to the British government in resisting Webster's claim, which was finally disallowed by an international tribunal in 1925.
The advent of war in 1914 saw the executive branch of government assume the power to regulate all aspects of national life without reference to Parliament. Salmond's drafting skills were now harnessed to the task of creating the legal mechanisms for the exercise of these powers under the War Regulations Act 1914. Although the wartime prime minister, William Massey, and attorney general, Sir Francis Bell, were later to praise Salmond's advice and resolution during the war, he sometimes took a very broad view of the government's responsibilities. His actions concerning the censorship of the mail of the Protestant Political Association of New Zealand were criticised before an official inquiry in 1917; they were claimed to be 'unconstitutional and quite illegal', and there was a call for the solicitor general to 'act as a public servant and in accordance with the law, not as a master and above the law, like a dictator'. The inquiry reported that the PPA had made irresponsible and inflammatory statements and merely noted the criticism of the solicitor general. Salmond was knighted for his services in 1918.
The whole of the Salmond family was involved in the First World War. Both sons enlisted, while the Salmonds' daughter, Laura, engaged in farm work in Britain. The eldest son, Captain William Guthrie Salmond, was killed in action on the Somme in July 1918. Annie Salmond worked with Red Cross committees and, as secretary of the Sydney Street Soldiers' Club, helped provide entertainment for soldiers in Wellington.
In 1920 the League of Nations conferred on New Zealand a mandate for the administration of the former German colony of Western Samoa. Salmond, required to deal with the constitutional issues, advised the government in 1920 that as a colonial legislature the New Zealand Parliament lacked the inherent constitutional power to legislate for Samoa without statutory authority from the British parliament. Although this advice was questioned by the attorney general, Bell, and by the legal advisers of the British government, it prevailed in determining the manner in which New Zealand assumed legislative authority in Samoa. Salmond's drafting of the necessary instruments was accepted by the British government; Bell subsequently doubted whether 'a greater tribute has ever been paid to a colonial lawyer'.
Salmond was appointed a judge of the Supreme Court of New Zealand in May 1920. He sat for only four years, but his judicial output was considerable both in quantity and quality. Among his notable judgements were Lodder v. Lodder (1921), in which the philosophy of the newly created discretionary grounds for divorce was expounded; Park v. Minister of Education (1922), in which Salmond held that regulations empowering the minister of education to cancel a teacher's certificate were without legal force; and Taylor v. Combined Buyers (1924), where the principles of the Sale of Goods Act 1908 were explained.
Salmond's approach to judicial punishment stressed the importance of deterrence, although he also regarded retribution as legitimate. The apparent severity of his approach was tempered by the advice he offered in a volume of aphorisms, 'My son', said the philosopher, privately published for distribution among friends in 1920: 'Keep your head hard and your heart soft.'
Sir John Salmond's final service to his country was to represent it at the Washington Conference on the Limitation of Armaments, which took place between November 1921 and February 1922. His role as New Zealand's representative on the British Empire delegation was doubly noteworthy. He publicly disclaimed any New Zealand international personality separate from that of the British Empire, and characterised claims to separate international recognition as 'illogical and disruptive'. Salmond also played a significant role in the drafting of the rules adopted by the conference for the limitation of submarine warfare. One American journalist observed that Salmond 'is what is sometimes styled an effective man. Publicly he is a vacuum; officially he is steady, four-cylindrical, all-firing, pneumatic-shod – the sort of man you don't notice, so to speak, until he is absent, in the same way you never notice your tyre until it goes flat.' Before returning to New Zealand Salmond travelled in Scotland and England, attended the royal wedding at Westminster Abbey, had a private audience with King George V and visited France and Germany.
Sir John Salmond died in Wellington on 19 September 1924. Anne Salmond had been hospitalised with a mental illness about 1918 or 1919. Following her recovery, she returned to England, where she died in Bournemouth on 22 March 1941.
A photograph of Salmond taken in his maturity shows him as benign and composed, with a hint of humour in the eyes. Generally reserved and formal in demeanour, he was relaxed and witty in the company of his few intimate friends and was regarded as a bright conversationalist. Although his major contribution to the law was his textbooks, widely used internationally, he had been an influential teacher and, in difficult times, a valuable legal adviser to the New Zealand government. His contribution as a judge was unfortunately cut short by his early death.