CORRESPONDENCE. Letter II.

Daily Southern Cross, Volume VI, Issue 431, 15 August 1851, Page 3

CORRESPONDENCE. Letter 11.

TO THE EDITOR OF THE "SOUTHERN CROSS." "Wild, indeed, aliray* kept as much truth a* poisible in etery thing ; and this, he laid, wai turning the cannon of the enemy upon tliemielrei." Hitiory of Jonathan Wild, the Grt&t. Fulcra Layer ni, Da mihi fallere, da sancto juttoque videri, Nootem peccatii, et fraudibui objtce nubem. Hor. Epitt. Let timber be pulled down from hit home, and, being let up, let him be hinged thereon. Bzra'i'ch. vi, v. 11. Sir,*— "None of the old commentators," says Dunlop, in his Roman Literature, " could publish an edition of Plautus, without indulging in a dissertation 'de obsccenis.' " In every D.elphin edition of the classics we are informed that " consultum est pudori . serehissimi J)elphim,"— L \m.t, in the Plautus, they< are concentrated in one focus, "in gratiam" as it is expressed, "provectioru cetatis" under the imposing title,* " Pkmti obsccena." Being aninjled to edit an expurgated editionjoffthe Blue Books, in order, for the sake of the national honour, that the back-

sLdings of .British public officers should not j be exposed to the jibes of foreigners, it is at least gratifying to learn that there is good J commentatorial authority for collecting the objectionable passages together In an appendix. Which faves, in fact, ihe trouble of an index : not exactly "in gratiam provectioris atatis" l but fo.r the guidance of the future historian of New Zealand. Let us begin by a despatch with which Sir George Grey flanks a memorial from certain inhabitants of Auckland, complaining that th|jGrOvernor ; by merely his own mandateysHßi suspended the Ordinance establishing Courts of Request. This being a remarkable document, not only because of the adroitness with which it is worked up, but because of the Constitutional importance of the subject it relates to, I propose examining it at greater length than will be usual with me, and ask you, for once, to reprint it, entire, along with these observations. this despatch I do not hesitate to characterise as one of the most shuffling compositions I ever read. The writer is accused of an illegal act — the heaviest charge, save that j of Untruth^ that could be brought against the Governor of a British Colony. And how does he deal with the charge ? Does he deny the illegality ? No j for he cannot. Does he avow it ? No j for he is not honest enough, but shirks the question, by talking about his "intentions," and picking holes in the memorial. The single expression, in Earl Grey's answer, that "he had exceeded his powers, as indeed he himself seeaaed ; to have been aware," will sufficiently mark his Lordship's sense of the evasion. Seemed to be aware of wJuit he knew ! It is manifestly compounded of after thoughts, from first to last. The writer was driven for excuses, aud hunted them up, assigning, not what were his reasons, but what might have been his reasons. And, in his eagerness to seize upon all that came to hand, he forgot to see that they were consistent with each other. Let us follow him, step by step, among them. Sir George Grey asserts that "his intention was, to endeavour to secure the liberties of her Majesty's subjects, not to injure them." To secure them, in autocratically abolishing one Court of Law, and transferring its business to another Court ! It must have required some nerve deliberately to have laid down the position. And to such another Court. For a more oppressive jurisdiction than that of the Resident Magistrate's Court, in the hands of an ill-disposed administrator, could hai'dly have been contrived. It approaches to a despotism, within its own range ) there" ia fio appeal from it ; .hearsay evidence; is admissible ; all civil and many criminal questions may be entertained in it; no provision ig nlade for confining the office — at present held ill Auckland by a military mail — exclusively to legal men; the magistrate may commit a debtor to the felon's side ; he may commit to the common jail, for one morith, any person who, in his opinion, shall wilfully insult him while sitting in Court ; while finally, to clench the whole, the wielder of such enormous powers, -who may be called upon to try even political ! cases, •is not rendered independent of the Governor, but, by special enactment, holds office only during pleasure of the Crown. Let me not be misunderstood. Ido not find fault with the Court, being, upon prin- | ciple, a high prerogative man, and a willing I conceder of power to the Executive. Ido ! not find fault with the way in which the powers of that Court have been adminisI tered, for, upon the whole, it has given satis- | faction. I merely wish to shew What the ! Resident Magistrate's Court actually is, and !to expose the untruth T of the writer's asserI tion concerning "the liberties of Her Majesty's subjects." "And this," Sir George goes on to say, "may, I think, be assumed to be the real opinion of the public on the spot, from the fact that although the memorial purports to be that of the undersigned inhabitants of Auckland,' only ten names are attached to it." What is the meaning of this ? Why "although"? The memorial is precisely what it purports to be,— that of the undersigned. But Sir George, in the extremity of his exigency, must needs insinuate that it purports to be something 'more. I should be ashamed to touch upon any thing so trumpery, were it not necessary to accumulate instances of one of the most curious features about these despatches, — the writer's art of creating false impressions on a careless reader. How it came that only ten names were attached .to the memorial, is worth relating. I myself was told, upon what I considered unquestionable authority, that the Governor, when .-made aware of the strong sensation which his illegal mandate had created, had expressed an iritention of again bringing the Court of Requests Ordinance into operation. This step, when once talferi, would of course have taken away all reason for memorialising, the Secretary for the Colonies on the subject. Yet it was" a matter of moment not to lose so fair ait opportunity of forcing Lord Grey to perceive thdfc the Government of this Colony was, in point of fact, a pure despotism, and that its law's 1 might bd suspended atthe,will of its-rulcf. I therefore strongly urged the necessity of sending the memorial into the Colonial S^cretarv^s office without an hour's delay j arid it was sent accordingly i I likewise urged the expediency of sending it in with only a single name attached, to give if currency jso as -to anticipate the cavil by

clearly showing that the real object was, nofr to obtain an expression ofpublic opinion, but to bring the matter tinder Lord Grey's no^ tice, and, likewise, on the^ground that where a breach of law was involved., cumulative opposition was not required. As> however* the tiames 01 d few lead* ing men in Auckland were immediately obtainable, my opinion, perhaps with reason, was overruled. i . With regard to tne trifling change's with which Sir George Grey attempts to colour his assertion concerning "the liberties of Her Majesty's subjects," I readily allow— though prepared to shew that the writer is not alto- 1 gether master of his subject — that substantially they are for the better. The practice, however, of the two Courts is nearly the same, with the exception that where the Commissioner was restricted to awarding three months'" imprisonment, the Resident Magis 1 trate is able to award four. But I cannot perceive how these subordinate topics concern the question. "These defects in the Ordinance," says Sir George, "made me propose to the Legislative Council a provision for the establishment of Courts for the recovery of small debts of a wholly different kind." Now I say that these defects were not the cause of such proposition That the one Court was not intended to "replace" the other, — that the two were intended to remain in simultaneous 1 operation, is proved by the 25 th clause oi the Resident Magistrate's Ordinance : la every case of any claim or demand'whatsoever of a civil nature, in which neither of, the parties ■hall be of the native raoe, and where the defendant •hall reside beyond the distance of ten mile* from the office of any Court of Requests, and where the debt or damage claimed, thall not exceed twenty pounds, it shall be lawful for any such Resident Magistrate, or any two or more Justices of the Peace, to hear and determine the same, by way of summary proceeding. Out of his own mouth he stands convicted. Again, had the one Ordinance been framed in view to supercession of the other, it would have contained a superceding clause. "Early in the present year," (1848,) says Sir George, "I received a despatch from your Lordship intimating that it (the Resident Magistrate's Ordinance) should receiye her Majesty's assent. I then lost no time in bringing it into operation, instead of the Court of Requests Ordinance." I I have no means of ascertaining the date of the receipt of that despatch ; and therefore merely observe that the order by which the Court of Requests was closed, was given on the 3rd January, 1848. The* despatch may have arrived on one of the three first days of that year, but I_can find no record of the arrival of a mail. There would seem to be something aukward about these dates. The Ordinance was passed November 7, 1846 ; brought into operation, in the province of New Ulster, November 17, 1846 ; the intimation that it would be confirmed was received on the Ist, 2nd, or" 3rd of January, 1848, and confirmation was notified in the 'Gazette,' Feb., 5^ 1849. i "Your Lordship," continues Sir George, .''will therefore see that the memorialists are in error in stating that they have been compelled to accept a simple mandate of mine, in ; lieu of an Ordinance." The passage in the memorial is as follows: That your memorialists have viewed this proceeding with pain and surprise. Firitly, because they are unwilling to lose the benefits of an Ordinance that hai given general satisfaction, or to accept a simple mandate of his Excellency in lieu thereof. And, secondly, because they consider that it is unconstitutional for the Government of any Colony to be allowed to interfere with, or to suspend, by A \ mere exercise of the will, the operation of a Court 1 established by law ; and that this act of Governor Grey is therefore an arbitrary assumption of power, both illegal and dangerous to the liberties of thd people. The sentence is carelessly worded, and is grammatically liable to Governor Grey's retort. But the complaint of the colonists was, that he should have abolished the Court of Requests by mandate, instead of by a repealing Ordinance- He knew that as well as myself, but nevertheless descends, in character, to quibbling with the memorialists. A man who had intended conveying full information to the Home Government, would have reported on the question, not alone upon the memorial. The design to mystify is manifest. "The fact is," continues the" despatch^ "that one Court has beeii replaced by another of similar and equal jurisdiction, but which is more'in accordance with the present state 1 . of English law.'" . This assertion of equality in jurisdiction I will prove to be a gross untruth. In the former Ordinance the words conferring jurisdiction were these : — " All suits where the debt or sum alleged to be due and owing shall hot exceed- £20," with the following exceptions.' let — The debt must not be the ..balance of an account, or the demand origi a nally exceeding £100. 2nd — Nor the matter one wherein " the title to real property shall be in question." 3rd — Nor can the cause of action, if exceeding £20, be divided so as to bring it within the jurisdiction of the Coutft. The jurisdiction conferred by the latter Ordinance on the Resident Magistrate is "In every drtse of any claim or demand whatsoever of a civil nature," where the debt or damage claimed shall -not exceed, £20. There is no exception.' To a lawyer the case is proved. An unequivocal false statement stands apparent. The jurisdiction of two small debt Courts could .hardly be more dissimilar. The pubHe^howeyer^may required little more explanation. Assaults, slander, libel, crim.con., title to land~any case in fact where- damages are claimed -^can be

tried by the one Court; by the other they j could not. The cause of action, though it is only fair to say that the present Resident Magistrate does not allow it, may be divided. Balances, under £20, of larger amounts — possibly involving questions in which thousands of pounds may be concerned —fell urithin the cognizance of the one Court; of the other they did not. Yet Sir George unblushingly asserts that the two Courts have equal jurisdiction. "No one" (on an application to the Supreme Court to obtain a mandamus), says Governor Grey, " appeared before the Court on behalf of the Government." Implying that the act of abolition stood so well upon its own intrinsic merits, that there was no need for the Attorney-General to appear. But I say that he could not have ventured, for very shame, to appear. There were two questions to be considered with regard to his appearance in Court : — the bare law point, which he would have won, on account of the technical defects of the case ; and the merits of the case, upon wMch he would have lost. The law adviser of the Crown could never have risked being taunted by the opposing counsel with the illegality of the act. " The Chief Justice," says Governor Grey, " refused the mandamus which was applied for." Again forgetting to state that the application had been dismissed on technical grounds. "In the same manner," says Governor Grey, "if the great majority of the inhabitants of Auckland and its vicinity had requested me to re-establish the Court of Requests, I would have complied with their request." Ay! or even the small minority. He threw out lures on every side to obtain such petition, in hopes of being enabled to retract a false step under the guise of a graceful concession. But the most ' watchful care was taken that the colonists should not petition for what they had a right to claim. As a last resource, he mentioned the matter in Council. I myself spoke with one of the unofficial members immediately after the adjournment, who coincided with me in opinion that the Governor should not be allowed to rs-establish the Court under a false pretence. What shall I say to the last paragraph ? To those who are curious in the art of evasion, it is a perfect study. He defends himself from a charge, that was never made ; he neither affirms or denies the charge that was made, and assumes the appearance of injured innocence with a plaintiveness that is of the highest comic to those who are acquainted with the circumstances. The colonists complained that the order was given, verbally, on the beach, after the accidental conversation that took place upon the subject, in consequence of the delay of the boats, and appeared to me to be more annoyed -?ith his high-handed fashion of abolishing a Court of Law — with the aping of Oliver Cromwell, as they called it — than with the act itself. That on the occasion of hi« Excellency Governor Grey tearing Auckland on the id of January last, far the purpose of rutting ihe Southern settlement, he gare rerbal directions to the Commissioner (?) of the Court of R queiU to close bis court. That is the true charge ; he does not deny it, but defends himself from the fictitious charge of "having adverted particularly to the subject." Mark, besides, the quiet way in which he alters the phraseology of the statement, from "closing the Court of Request," into "bringing the Resident Magistrates Court into operation." The propositions may be identical ; but the writer well kaew the difference of impression conveyed. Jit was one of the measures which it appeared to him "essential to carry out carefully." So carefully, that suitors who had paid money in Court fees toobtain judgments, but had not issued execution at the epoch of the change, lost both their expenses and their debts by the abolition of the machinery by which alone both fees and debts could nave been obtained from the defendants. The " hardship" of the case referred to does not affect the question ; but, in the * New-Zealander/ March 11, 1848, a very | different statement of it may be seen. I have,nothing to do with the memorialists. I differed in opinion from them, and would not have signed that memorial, even had it not been a rule with me never to sign any memorial. I publicly stated my opinion at the time, that the Resident Magistrate's Court, under an amended Ordinance, would be much preferable to the old Court of Requests, protesting merely against the illegality of the Governor's act. But my observations are on that account entitled to only the greater weight. Lord Grey, in the return despatch, trusts that the Local Legislature will have taken such steps as may have been necessary to remedy the error apparently committed." To the present hour nothing has been done. Why does not Governor Grey frankly admit that he exceeded his powers, and make due amends for the act ? The re-es-tablishment of that court, were it only for a single hour, would amply satisfy the colonists, provided it were legally abolished at the end of that hour. Suffer me, finally, to observe that nothing demands a higher organization than the generous acknowledgment of error. The natural impulse of the thoroughbred gentleman is at once to come forward, to confess- it,

and to repair it ; whilst that of a lower 1 caste mind is still to contend with pertinacity in a false cause — to battle out blunders — and to sacrifice "right" to the appearance of having been in the right. Metoikos.