WHIRLWIND CASE.

Auckland Examiner, Volume IV, Issue 277, 30 June 1860, Page 3

WHIRLWIND CASE.

(To Editor of Auckland Examiner.} Sir.—ln reply dated Ist March 1 was simply informed that my letter of 28ih had been forwarded to the Ministers. But that letter was crossed by a letter from His Excellency, dated 2(hh February, informing me that my letter of 18th had been referred to the Attorney General and enclosing me copy of the Attorney General’s Memorandum to His Excellency on the subject—copy of which follows : — Mem. An officer having been appointed under the statute for the purpose of carrying the Passengers Act, 1858 into execution, that officer acts on his own responsibility and according to his-own discretion, and the Governor does not personally interfere unless an enquiry into the competency or misconduct of the officer be necessary. No such charge has been made in this case, and the Governor sees., no reason for instituting an enquiry. It may be observed t liat Mr. Turnbull is expressly empowered by the Passengers Act, Sec. 84, “ to sue for and recover any sum of money made recoverable by the act, as return of pissage money —subsistence money, damages or compensation,” and this would have been, under the circumstances a more legitimate mode for Mr. Turnbull to cannon his proceedings thrfn by endeavoring to make use of public officers for the purpose. (Signed) F. Whitaker. N. B. This is where Mr. Whitaker, knowing that I was prevented from doing what he states by ’ himself (and others) misrepresents me and the case to the Governor. I was now waiting communication from the Ministry, and to hasten this I wrote as follows to Mr. Stiffer — 21st. March, 18’60. By letter of date Ist. inst., signed J.Holt for his Honor the Deputy Governor, I was informed that a letter of mine to His Excellency the Governor in chief, of date the 28th Feb. last, had been '* forwarded to the honorable the Ministers.” To that letter I would crave reference, and to add that His Excellency the Governor in chief had since caused to be forwarded to me copy of a memorandum by the Attorney-General, dated 27ih. February which, in effect, entirely corroborates the view I have had the honor of repeatedly urging—viz., that no interference with the statutory officer (the Collector of Customs) is allowable by the statutes.

I have thus the opinion of the highest colonial legal authority, who is also a member of the Ministry, of tire correctness of my view—viz., that the General Government having delegated the direction of the “ Whirlwind ’’case to the Superintendent have committed an error, for the consequences of which they are therefore liable. Looking to the innumerable delays which have already occurred, it seems impossible to judge otherwise than that there is no intention of anything being done on the part of the colonial authorities. Therefore, in the absence of any intimation to the contrary, 1 am sorry indeed to feel compelled to acquaint the authorities that my intention is to take advantage of the early return to England of a friend in order to remit the whole documents to the Imperial authorities —an occurrence which I had already prepared to expect. Mr. Stafford replied this time in direct course of post—but only acknowledging the receipt of my letter of 21st., “ stating it to be your intention to refer your complaint in the matter of Whirlwi id to the Imperial Government.” On the 24th March I again wrote Mr. Stafford — “I have the honor to acknowledge leceipt of your letter o( 2lst. instant, which, it seems to me, is worded as if I had stated my “ intention of referring my co.nplaii tin the matter of the ship‘Whirlwind’ to the Imperial Government/’ without allowing the Colonial Government the alternative of saying whether or not they would remedy the error they had made and its consequent evils, and which error has not been denied by them. Whereas, quite the contrary is the fact, and I think this is apparent in the words 1 used, viz., “in the absence of any intimation.”

“But I expressed an opinion that there seemed no intention of anything being done by the colonial authorities, and I was led to this, because, first, of the Provincial Law Officer’s performances for which you informed me he could not be made resp jnsibls to the General. Government, and second, thegreate mid as it appeared to me most unnecessary delay, ,n a matter so very simple— apart from the consequences of the error committed by the General Government in deputing to the Superintendent a power of control over the statutory officer, which even your Attorney General’s memorandum to His Excellency the Governor states the Governor himself did not possess, except in the event of incompetency, &c., in the officer, and thirdly, the letter °f the Attorney Genera! to me, of which I forwarded a copy to His Excellency and which I am informed was remitted to the honorable the M ’ni< ers. Io Flis Excellency I merely' expressed Unbounded surprise at the contents of that letter, but it *ould appear that it las become necessary to explain to you, and this I shall do as shortly as possible.

I he Attorney General acknowledges the receipt °l.iny letters to His Excellency ot 18th January n, \d 10th February last, and on.these he gives an opinion “which has no relation whatever to thedisbuctly stat d flicts of the case.” The letter of 18th anuary refers His Excellency to a former letter at ed 22nd November, 1859, wherein part of the nature of Hie complaint was curtly stated, and that J e particulars had been published in the Auckland xanuner newspaper. Now, without having letter November, 1859 j as well, as the issues of ? e Examiner in his possession, it was no surprise * at the Attorney General did not fads ? , e case, and the nature of the complaint in full, at it gave rise to unbounded surprise to think that an y professional gentle man would have ventured to ,e mark decisively on a case without being in possession of every document referred to. This, com £ lne -l with the conduct of the Provincial Law OfCer (who seems privileged to act as he chooses. p IK with perfect impunity in the “ Whirlcase), as well as the opinion of many felCo *onists, made me very doubtful whether it " as P os sible to obtain justice in the colony in tbe

matter in question, but I shall be glad to know that it is otherwise and that it will be unnecessary to apply to the Imperial Government. I have therefore to request that yon would have the goodness to inform me on that point and you will oblige. Well, on the 28th Mr. Stafford writes “ the Government cannot interfere in the matter.”"Fo which I replied 30th March— I beg leave to remind you that I have not requested the Government to interfere since I became aware that it was the Government who committed the error of deputing a power which they did not themselves possess. But I have requested repeatedly that the Government should give redress—justice—Jor the consequences of that error, and the Government while not denying the obligation never reply to the point. Having no reply, I again wrote Mr. Stafford on 2lst April, as follows — I beg to remind you that I wrote you on 30th March staling, &c.— The General Government have all along refused redress—justice—on the sole ground that “ the Provincial Government cannot be made responsible to the General Government for action taken by the former in the ‘ Whirlwind’ case.” lam, Sir, Yours truly, Thos. Turnbull. Onehunga, 14th June, 1860. fZb be continued in our next.)