The Daily Southern Cross.

Daily Southern Cross, Volume XXIII, Issue 3122, 19 July 1867, Page 3

The Daily Southern Cross.

LUOEO, NON UBO. If I hare ban «nhi(iiMhed, y»t.th«e tiu A thotuand betconi from th« ipark I bora.

FRIDAY, JULY 19.

By way of recapitulation, we will briefly state the substance of otir article on martial law, published a fortnight ago, and then we will resume our remarks on this important subject. "We showed : 1. That it is by no means certain whether the Crown itself has, by virtue of its prerogative, the power of declaring and exercising martial law. 2. We then drew attention to the circumstance that, in Governor Eyre's case at least, a prima facie power to proclaim martial law was conferred upon him by two legislative 'enactments — the Jamaica Act of 1780, and the Colonial Militia Act of 1845. 3. Having thus established the right of Governor Eyre to proclaim martial law, the next questions which arose were, what is martial law ? f what are the powers of those proclaiming and exercising it ? and what the immunities and liabilities of those subject to it ? In reply, we defined martial law to be the suspension of all law except the will of the military superior, and we quoted several eminent authorities in support of this view of the question. 4. Next, assuming that Governor Eyre was authorised to proclaim and exercise martial law, and taking it for granted that our definition of martial law is the correct one, we pointed out the extreme injustice of the criminal proceedings taken by certain misguided persons in England against Governor Eyre, Colonel' Nelson, and Lieutenant Brand. There is but one case to be found in the English law books, in which an- attempt is made to define the exact limits within which the authority of, a governor or other person invested with, supreme command, may be properly exercised during a state of martial law. This case, Eabrigas v. Mostyn, is referred to by the writer in the Gornhill. The case does not go very far. It does not say what are the limits of the exercise of authority by persons acting by virtue of a proclamation of martial law, nor does it give us any explanation as to the state of facts that would or would not justify, in a disaffected district, and for purposes of public peace, the proclamation of martial law. "We regret that wp, have not before us a report of this celebrated case, but we do not think we shall err in accepting the deductions of the writer in the CornhUl as correct. He says that Lord Mansfield, who delivered the judgment o£the Court, decided three important points : 1. Thatx the authority - ol a governor, or other person in supreme command, isj during

a time of insurrection, practically unlimited, save by tlie necessities of Ms position. - 2. That for excess of jurisdiction he is amenable, after his jurisdiction as governor has ceased, to the King's Courts, at the suit of private persons who may have received damages from his acts ; and, 3. That the question as to whether he has exceeded the legitimate bounds of his authority will be for the Court to decide, on a plea of justification being raised, based on the circumstances in which the district or colony was placed during the period of his command. It is worthy of remark, we think, that the case of Eabrigas v. Mostyn would appear to interpret tEe civil liability only of governors, acting under the circumstances of G-overnor Eyre, for it was an action at the suit of a private individual to recover damages, and not a criminal prosecution at the instance of the Crown. We are not prepared to say, in the absence of a report of the case itself, how far this circumstance affects the value of Lord Mansfield's judgment, when it is sought to apply it to the solution of the general question of the powers and liabilities of governors and others proclaiming or exercising martial law. Such is the very unsatisfactory state of the law of England on this important matter. There is absolutely no judicial decision to be found on the point as to whether or no the power to proclaim and exercise martial law forms any part of the royal prerogative, whilst the judgment delivered by the Court of Queen's Bench, in the only case which has the slightest bearing on the subject, is vague, incomplete, uncertain, and unsatisfactory. In this colony this uncertainty of the law, and the attendant danger of officers and others acting by virtue of proclamations of martial law, has been felt to be a most serious evil. The New Zealand Legislature has attempted to rectify the inconvenience by passing Acts of Indemnity from time to time, and the Government of the colony, in the face of thig ambiguity of the law, did not dare to carry out the sentence passed by the court-martial at Opotiki on the Maoris who murdered the Eev. Mr. Volkner and Mr. !Fulloon, but sent the prisoners to be re-tried by the Supreme Court. Surely it is high time that the law of England on this head was placed on a more satisfactory basis, by an enactment of the Imperial Parliament, sufficiently comprehensive to affect the whole British Empire. Surely it is time that Parliament should define the exact limits of a jurisdiction so purely arbitrary and despotic, and yet of which the exercise in so many instances is imperatively required. Surely it is only* just that public servants, placed at times in the midst of terror, of strife, of anarchy, and of confusion of every sort, should in such tempestuous seasons be furnished with a compass by which to steer their course. Then a governor or a general officer acting bona fide, would be assured of the sanction and protection of the law, and he would not be placed in the dilemma of being disgraced and ruined for life on account of his forbearance, or of being hanged for over-zeal by a jury. It is a very easy^ thing to prophesy correctly and to decide calmly after the event. When an insurrection has taken place, and all is over; when everything is known ; when anxiety, fear, danger, hurry, all are past ; then come forth the wise, the heroic, the patriotic, the philanthropical, the philo-Maoris, and the members of the Aborigines Protection Society generally. " How undecided the officer was !" exclaims the first ; " He ought to have charged at " once," cries the second ; "That red-coated " butcher mustbehanged," screams a member of the Aborigines Protection Society. Now, each of those individuals may be right or wrong according to circumstances; but, though their minds are made up after full inquiry, yet with all inquiry they disagree. What, then, is the position of a governor or other officer who, in the midst of confusion, must at once decide ? A very painful and difficult one ; and therefore his duty and his powers, his immunities and his privileges, should be clearly defined. On the other hand, it is just to the subjects of the British Empire, of whatever race, or creed, or language, or colour, that they should know under what circumstances they are liable to to be brought before tribunals, or persons, invested with absolute power. They have an undeniable right to be informed exactly as to the powers which may be exercised against them under a proclamation of martial law. It will then be their own faults if they cease to be entitled to those safeguards that are the very source of justice. It is often indispensably necessary, during seasons of rebellion or of external strife, for the government to suspend the jurisdiction of the ordinary courts of law ; but it is of high J importance to watch with extreme jealousy the disposition to which most governments are prone — to introduce too soon, to extend too far, to retain too long, so severe and perilous a remedy. Por when the nonmilitary man finds the law of the land abolished, and himself brought to trial before a court composed of men whose profession is war, and finds that he is amenable not to written law, but to the will and summary habits of those armed judges, his situation is indeed appalling. For these reasons, therefore, we sincerely trust that in the British Empire, as in Erance, it will be clearly laid down by a legislative enactment when, by whom, and under what circumstances martial law shall be proclaimed ; whilst at the same time the consequences of such a proclamation are exactly regulated. We think that the position ' of G-overnor Eyre and his subordinates, during the insurrection in Jamaica, was a perplexing and a cruel one. We are glad to find that the magistrates at Market-Drayton had the good sense to abstain from sending Governor Eyre to trial ; and we admire the manliness and honesty of the grand jury at the Central Criminal Court, who threw out the bills so i impudently preferred against Colonel Nelson and Lieutenant Brand. So long as the Aborigines Protection Society confines itself to the perpetration of " duties " and. " missions," such as those it has just performed in relation to the interest- i ing savages connected with the Russian ! Circus — the alleged victims of civilised barbarity — their antics will of course be only the occasion of much innocent amusement to the community at large. But when they go the length of persecuting, by means of legal forms, so good and brave a man as Edward John Eyre, for the faithful and conscientious performance of his duty to the Crown and j to his fellow-countrymen, they are likely to incur something more unpleasant than contempt as the reward of their heedless, extravagant, and mischievous conduct. Every qne of the members of the Jamaica Cpmiinittee is liable to be criminally punished fdr 1 J

■ a conspiracy, or to a civil action for malicious prosecution. But Inoiigh sums of money have been liberally offered to enable Governor Eyre to punish the members of the Jamaica Committee, (most of them belonging to the Aborigines Protection Society,) he has wisely decided on letting them alone. The fact is, that after the great Eyre failure, and the recent ridiculous exhibition they made of themselves in connection with the Russian Circus, the strictures of the Aborigines Protection Society have ceased to have any weight at all. People in England now regard their denunciations of governors and of colonists not as the censures of a body of men raised by their wisdom and their benevolence to an elevation from which their reprimands descend like a wholesome shower, — cool, cleansing, and invigorating, — but as the slanders of a malignant set of fools.

The New Zealand Agricultural Society's annual ploughing and draining match takes place to-day, in Mr. Eume's field, near Otahuhu, when the following prizes will be given :— For ploughing : Frst-class, wheel ploughs— 1st prize, £3 ; 2nd prize, £2 ; 3rd prize, £1. Second class : Swing ploughs — 1st prize, £3 ; 2nd prize, £2 ; 3rd prize, £1. Third class (boys under 18 years of age) : 1st prize, £2 ; 2nd prize, £1. Fourth class : Turn wrest plough— prize, £3. For draining : 1st prize, £3 ; 2nd prize, £2 ; 3rd prize, £1. The following are the rules for the guidance of the ploughmen : — " 1. Tickets for their respective numbers to be drawn on the field, at halfpast 9 o'clock, a.m. 2. The lots will all be numbered and pegged at each corner, the numbers in each class commencing from the flag. 3. The ploughmen will be permitted to have any assistance in setting up their poles ; the poles to be set on both hands before starting, the right-hand ridge to be ploughed first. No assistance after starting. 4. The land to be ploughed in two complete ridges. Quantity, half-an-acre. Time, five hours. 5. The gun for starting will be fired at 10 a.m., and for finishing at 3 p.m, Any man who has not then completed his work will be disqualified. 6. Any ploughman committing a breach, of the^ foregoing rules will be disqualified. Stewards' decision to be final. An extra prize of £5 will be given for the best ploughing in the field. Persons who intend to compete in the draining match must be on the ground at half-past 8 a.m., and at 9 a.m. draw tickets for places and commence their work. Length of drain, 35yds.; depth, 3|ft. Two-inch pipes to be laid in. Time, 5 hours." The dinner takes plaoe at the Criterion Hotel, at half-past 4 o'clock. We daresay many of our readers will have observed in our advertising columns a notice to the following effect— "Wanted, a curled hair spinner, man or woman j" and will have wondered with us what it all meant — whether the gentlemen of the long robe in Auckland had given another heavy order for horsehair wigs, or a startling innovation of fashion upon the wondrous chignons of the ladies necessitated the preparation of some equally wonderful device of art to assist nature. The mystery was all explained yesterday, however, when Mr. J. W. McCormack called at our office with a small bundle of curled horsehair, which, he had prepared as a sample for inspection by the upholsterers of Auckland, with the view of obtaining orders and commencing in the production of this article on a large scale. Mr. McCormack, we are glad to learn, is an expert at his calling, having in 1852 obtained the first-class certificate at the Me.oourne Exhibition, and had previously secured medals from the Agricultural Society of Limerick, the Kilkenny Agricultural Sooiety, and the Art Union of Dublin. At the latter place he had to compete against a strong muster of English manufacturers. ' The specimen which he left at our office yesterday was so well prepared that he was at once commissioned to produce a quantity for one of our leading upholstering firms, and doubtless further orders will be received during the -week. It is satisfactory to learn that no delay need be occasioned from want of a sufficient supply of the raw material, as arrangements have already been made for the purchase of one or two tons of hair, at present in the hands of Messrs. Ireland Brothers. Hitherto it has been the custom to ship the hair to the United Kingdom, for sale, and where, after having been curled and spun, it has again found its way to Auckland; but it is to be hoped, from the support accorded to Mr.McCormack in his new venture, that this costly course of procedure will henceforth be unnecessary. Yesterday was the weekly sitting of the Resident Magistrate's Court, but none of the cases were of general interest. Several judgments were given in cases heard on the previous Court-day. Constable Spray, of Onehunga, brought information to the Police-office, yesterday, that he had found the body of Joseph Turner (who was reported to be missing), at 2 o'clock on Wednesday afternoon last, in some tea-tree scrub, about two miles beyond the Whau blockhouse. Deceased was lying on his back when found, but there wera no external marks of violence. It appears that deceased had frequently complained of a pain in his left side ; and' on July 7, when dining al Mr, Pierce's hotel, at Muddy Creek, he was heard to complain of being ill. From all appearances, deceased has been dead for about eleven days. The body was removed to Onehunga early yesterday morning, and an inquest will be held today, at the Royal Hotel, Onehunga. It will be remembered that Jane South, who stands committed for trial, on the charge of arson, was allowed bail in two sureties of £200 each. The friends of the prisoner, however, have not been sucoesslul in finding sureties, and she still remains in custody. A deserter from H.M. 14th Regiment, who had given himself up to the constable ai Mongonui, arrived in town yesterday in the schooner ' Ivanhoe,' in charge of the mate of the vessel, who had been sworn in a special constable for the purpose. He gives the name of Thomas Bayman. An accident, which might have resulted more disastrously, occurred at the Great World Circus during the representation of the Battle of Waterloo on Wednesday night. It appears that, owing to the carelessness of a youth, a quantity of gunpowder, which had been spread to imitate the explosion of a battery, became ignited, and the flame burstin the face of Mr. Marks, plumber, who was adjusting the battery at the time prior to use. A meeting of the Newton Literary Association ia , convened for this evening, when the subject for debate will be " Centralism or Provincialism." The following appears in the Hawke's Bay Provincial Government Gazette ;— Return of arrivals and departures of vessels at the port of Napier for the quarter ended 80th September, 1866: ArrivalsAuckland, 41 ships, 4,024 tons ; departures—Auckland, 47 ships, 4,483 tons. Return of imports of New Zealand produce at the port of Napier, for the quarter ended 30th September, 1866 : Auckland —Biscuits, 11 tons, £308; bricks, 5,000 in number, £72; flour, 84 tons. £1,520; horses, 4 in number, £100; shingles, 93,000 in number, £93; timber, 180,000 feet, £1,260. Return of exports of .NewZealand produce from the port of Napier, for the quarter ended 30th September, 1866 : Articles exported to Auckland— cattle, 972 in number, £4,860 ; pork, 5cwt., £10 ; sheep, 4,509 in number, £3,381. Return of emigration and immigration at the port of 'Napier during the quarter ended 30th September, 1866: From Auckland — males, 68; females, 11; emigrated to Auckland— males, 49 ; females, 4. It would appear that, despite Major Tighe's warning to •Volunteers infringing clause 72 of the Volunteer Regulations, several members of the corps have.nightly assembled, at the Great World Circus, in anns' and accoutrements, for the purpose of taking part in the representation of the Battle of Waterloo ; and he hai now found it necessary to issue a notice to the effect that all Volunteers so assembling will be recommended to the Government to be expelled fiom the' force. ' At a late meeting of the Council of the Victorian Acclimatisation Society, a letter was read from Dr. Chalmers, of Allahabad, stating he had sent atiother cage of black Indian partridge by the mail steamer. The secretary reported that eighhteen of these birds had safely arrived. A letter from Mr. G. S. Coppin was read, saying he had shipped at Sydney fourteen Woriga pigeons for the society. All 'of them had been received in good order. ' Mr. Coppin also expressed a hope of being able shortly to send some of the large prawns from New South Wales.. A letter from Mr. WngLt wai read, offering an elephant for Bale, which offer was declined by the Council. Several applications were msde for Angora rams, and the Council decided to. dispose of these rams at 30s. each. In consequence ofthe'preis'of other business, it was necessary to f pdstpone the appointment of a co'ufctry collector.

The brethren of Court City of Auckland and other members of the Ancient Order of Foresters _ are vcque.td to assemble at the Court-room at two o'clock on Sunday afternoon next, for the purpose ot a^smUnic the funeral of the late wife of Brother Alexander. A committee meeting of the Acclimatisation Society will be held on Saturday afternoon next, at two o'clock, at the Society's offices, Canada Buildings. A lecture on "The Late War " was delivered last evening, at the Mechanics' Institute, by Mr. F. A. C. Foster. , . . A man named John Bible was taken in charge yesterday by the police, as being a dangerous Dull trade in Melbourne has been a very decidedly unpleasant topic of the week. Importera say there s nothing doing. Katailers swear their gross takings don't pay current expenses, and that, like Greenland bears, they live by absorbing the fat laid on m sunnier hours. The tariff and cessation of immigration are alike blamed for the prevailing dulness. As au parties within and without the walls o£ Parliament are agreed as to the propriety of at once organising a resumption of bonussed immigration, the only wondei. is that so little has been done to that end. When tne Assembly can spare a few minutes from personal bickerings, it is to be hoped that resolutions will bemoved, or motions made, or questions asked, such, as may suffice to stimulate the sluggish Government machinery, and sefan full flow a healthy current ot thatwhichis the life-blood of the colony. But although trade is dull, it is quite requisite to guard against a habit of croaking, to which all men at times are subiect: making the " nothing doing" a substitute for the usual modes of interchanging the " time of day. Our industrious collaborateurs of commercial news for the daily journals sometimes complain bitterly that sales are "only for actual requirements, 7 as if it would be a thing desirable to effect sales for ideal requirements. It may be a constant accompaniment of dull times that business done should be limited to supplies " for trade purposes ;" but even that is better than a more extensive traffic in invoices for swindling or, to use a gentler phrase, scheming purposes. Always disposed to search for a cheering point of view, we would fain suppose the prevailing dulness is mainly a seasonable incident of midwinter, and that returning spring will witness a change. — Australasian. The Great World Circus Company leave Auckland for Sydney on Thursday next, in the barque ' Bella Mary,' which has been specially taken up for their conveyance. Mr. L. W. Eaton will sell to-day, by public auction, at 11 o'clock, at the stores of Messrs. Eaton and Dewolf, apples, pears, onions, butter, jams, &c. Mr. C. Stichbury will sell, to-day, at 11 o'clock, at his stores, paperhangings, electro-plated goods, aneroid barometers, thermometers, saddles, bridles, &c, &e. Messrs. S. Cochrane and Son will sell, to-day, by public auction, at 11 o'clock, at their Fort-street mart, furniture, pianoforte, glassware, silverware, &c. Messrs, C. Arthur and Son have received instructions to-sell, to-day, at 12 o'clock, freehold properties in Franklyn-street and Ireland-street, Auckland; and three allotments in Onehunga.