THE HABEAS CORPUS CASE.

Press, Volume I, Issue 21, 12 October 1861, Page 3

THE HABEAS CORPUS CASE.

It is a pleasure to turn from the vapid assertions of one contemporary, to the columns of another, in which W e find a subject on which they differ from us argued with moderation and candour; and such is the character of the article in ' The Standard,' of Thursday last, on the Habeas Corpus case. We still think ' The Standard , is mis-informed as to some facts, and is misled in its judgment; but we shall have to admit that we have been mistaken on one point ourselves. 1. To take their statements, then, in order. ' The Standard' is mis-informed when it states that any application was made to the Supreme Court for a writ of Habeas Corpus until the morning after Clark was let out. The solicitor may have intended to apply* ma y k ave B P°ken to the Registrar about it but the application was not made till Clarke had been out of gaol about sixteen hours.

2. We quite believe that the solicitor and the Jud°"e did not know that Clarke was out of gaol. "We cannot imagine that the solicitor knew it, because he could hardly have voluntarily placed himself in so absurd a position; and had the Judge known it he might have been inclined to treat the application as a contempt of court. All we can say is, that we hope and expect the lawyer will add to his bill a large item " to anxiety of mind for having been placed in a false position," and that he will charge hia client at least a double fee for having neglected to report his liberation. The absurdity of the position is equally patent whether the Solicitor knew the state of the case or not.

3. We have again made what enquiry we can, and are persuaded that the Judge gave no intimation whatever of what his final decision would he. His Honor, we are told, pointed out to the Solicitor a difficulty likely to arise in the case, and pointed out a case in which the three Judges at Auckland had expressed a doubt whether an Act similarly worded could be held to apply to New Zealand. Every lawyer knows that such remarks from the Bench, accompanied by the question whether the motion is intended to be pressed, are ordinarily taken by the Counsel as intimating the points on which the Court expects to hear a case argued. If the solicitor had wanted really to get the writ issued, he ought to have argued the point; but he did not argue it at all; he simply withdrew the application: and instead of its being " absurd to press the application against such an intimation by the bench," the obvious course appears to us to have been for the Solicitor to have specially directed his argument to the point on which the Court seemed to be in doubt—it waa in fact the only was to obtain a decision, and had the point been pressed, the Court would have been forced to give one. The public are certainly wholly misinformed that any opinion has yet been expressed by the Supreme Court which binds the Court to a decision one way or the other. We hold that the Court is perfectly free to issue a writ of Habeas Corpus upon a bona fide application, properly argued. Of course we do not know whether the writ would be issued or not; but, if we are locked up, we shall certainly apply for it with an expectation of being successful, in no way lessened by what has occurred in this case.

Next, as to the Magistrate's part of the business, we confess our surprise at the document published by ' The Standard.' Our information, that Clarke made an apology of some sort, was to be relied on; we still believe it. Our information that the commitment was made out for eight hours was correct; and we are surprised to find that the conviction does not agree with the commitment.

'The Standard , says, " Can anything be more dangerous and illegal than that a magistrate after inflicting a punishment under the influence of heat, and thereupon signing and sealing a formal conviction as tor a legal offence should vary his sentence, &c." Now, if < The Standard' will consult its legal adviser, it will be told that the conviction in these cases 13 never made out until long after the sentence ; and m petty cases is often not made out at all. If a judgment is questioned or appealed from, the magistrate can make out a formal conviction at any time. This we believe is the practice not only here but in -England. In the present case the conviction was not made out till some days after the event occurred. \V hen the Magistrate resolved to alter his sentence from one month to eight hours, he had full power to do so before the conviction and commitment were 6l gned ; but we imagine that the conviction ought to

have agreed with the commitment, and that the introduction of the words " one month" instead of eight hours was an oversight. The point is one of no practical importance whatever. If Clarke feels aggrieved that his punishment was not according to the conviction, we can only suggest to him a ready means of making them coincide by going back to gaol till the month is up. The Magistrate will no doubt accommodate him.

We cannot accept our contemporary's challenge to defend Mr. Hamilton; nor can we accept the justice of their attack on him. In sober truth the whole question depends on what was said, and the manner in which it was said. The Magistrate is, in our opinion, right to defend the dignity of the Court by committing to gaol any man who is openly offensive and impertinent coramjudice. There is little blame attaching to a man who is angry when he is insulted; all men are so; and magistrates are men. The Magistrate is bound to commit to prison for open contempt of court; and he must necessarily be the sole judge of what constitutes a contempt. We were not in Court on this occasion, and therefore are unable to express any opinion as to whether Clarke deserved his sentence or not; nor can we imagine any Court continuing to exist unless it is the sole judge of its own digj nity. There is no one for whom we have less sympathy than for a man who insults a Court of Justice. He not only behaves personally like a enob, but he inflicts an injury on the community ; and we had far rather that an irritable justice gave him a little more than he expected, than that the power of the Court to protect itself should be lessened one iota. There is nothing the public are more largely concerned in than maintaining the dignity of the Courts of law, and securing them proper respect; for without this the public cannot get justice administered. The Courts belong to the people; they exist solely for the benefit of the people ; and we can conceive no one less deserving of or less likely to obtain popular sympathy ! than a man who is incapable of restraining his vulgar impertinence in the precincts where justice is administered.