RESIDENTS MAGISTRATE COURTS' ABUSES.

Daily Southern Cross, Volume XIV, Issue 1088, 1 December 1857, Page 3

RESIDENTS MAGISTRATE COURTS' ABUSES.

To the Editor of the Southern Cross. Sir,— On the Bth instant, a distress, under the warrant of H. B. Aubrey, Esq., Resident Magistrate, was placed in my house, and another in the house of my servant, and as the circumstances which led to this proceeding are of a most disgraceful nature, and very peculiarly illustrative of t>*e way in which justice is administered in the Resident Magistrate's Court here, and a strong comment on the extraordinary and unconstitutional power placed in the hands of the Resident Magistrate, perhaps you would allow me space in your columns to make a few observations on these circumstances. About a jear and a half ago, you politely published a I letter from me, showing the inefficiency of the law to give us any redress in the matter of pig-trespais, a monster grievance here. Shortly after this, H. R. Aubrey, Esquire, was appointed Resident Magistrate, and I represented the matter to him, and asked him in a private way to explain it both to Europeans, and NRtives ; for if allowed to go on, it would cause endless disputps, 'and perhaps lead to serius disturbances with the Natives.which might be prevented by a few words from a person in his position. Mr. Aubrey positively refused to do so, as he said he did not consider it part of his duty. A few weeks after this, in a case heard before him, Mr. Aubrey decldied from the Bench that " a post and three rails was not a sufficient fence against pigs," and that " to drive pigs out of your fields with a dog was a most unjustifiable action. '* On representing this and other matters to his Excellency's Government, I <im informed that Mr. Aubrey "distinctly denied' 1 having made such delarations. I then sent the written statement of a witness present, duly deposed on oath, stating that Mr. Aubrey had made the above declaration, and earnestly requesting that we should be brought face to face in the presence of our superiors, to ascertain on whose shoulders the falsehood really rested. I was then then informed that it was quite impossible for me to be confronted with Mr. Aubrey. Thus I was left in a much worse position than before, being deprived of the little protection the law gives, by the ignorance or caprice ot the Magistrate, and exposed to the daily risk of collision wilb the Natives, who very naturally suppose that the magistrate had laid down the law correctly on these points. So things went on, I constantly dogging the pigs, whenever they appeared on my fluids, and the Natives as cosstantly trying to extort money from me on the strength of Mr. Aubrey's legal opinions. In this they never succeeded to the value of a farthing. And after many months of constant dogging— in which I was most ably assisted by my servant Samuel Bunting— the pigs were completely banished, and for several weeks not one has been seen on the place. Thus the object was gained in spite of all difficulties, till May 21st, on which day I attended at the Resident Magistrate's Court to answer a charge of Te Rau Fauna, who accused m» of killing eleven pigs belonging to him, and valued at £12 sterling. The magistrates on the b.ench were H. R. Aubrey, Esq. and John Grant Johnson, Esq. I will give the substance of the evidence in as few words as possible— though the hearing of the case occupied four entire days, and part of the sth. Te Rau Pauna (nati\ c, not sworn) stated that he saw me kill two pigs in my field on one day, one in the morning and one in the afternoon ; on both occasions he was near the same place, and each tune about fit teen yards from me, yet he passed on without saying anything, because he said it was of no use. On another occasion he said he saw me kill one of his pigs near my stock-yard, he being 200 yards from me at the time, with three fences between us, and he knew it to be one of his, "because all his pigs were in the hnbit of going there." He said he knew I had killed all the \ rest, "because they did not return to the settlement to be fed." He could give no idea of dates, and I may as well say here, once for all, that in all the cases against myself and my servant, there was not a single date given. Moses Tahu (native, being sworn) amused the Court with the adventures of some of his own pigs, and stated that at various times he had seen the whole eleven pigs dead about the native settlement. At this stage of the proceedings, the plaintiff stated that he had no further evidence to bring, but the bench insisted on calling more witnesses. Hunia (native, not sworn) stated in the most offhand way that he had seen me kill the whole of the eleven pigs in my own fields, though he does not appear to have been present when the plaintiff said he saw me kill three of them. Lydia (native woman, not sworn) stated that she and Takumana were present on one occasion, when my servant caught a pig and took it away. Takumana stated that it watr myself, and not my servant, and that I had no one with me. This closed the evidence for the plaintiff. Now, Sir, there is nothing tangible in all this, for there is not a single definite charge. Certainly, the plaintiff says he saw me kill three of the pigs in my own fields, but he did not speak to me about it, and as he was within fifteen yards of me, I must have been very blind not to see him ; the absurdity of thi<? is selfevident. Hunia says he saw me kill the whole eleven on mv own land, yet he was not with the plaintiff when he saw the three killed ; and Moses Tahu swears that he saw the dead bodies of the whole eleven at the native settlement. I made a few remarks on the absurdity of the evidence, and said "I would consider it an insult to the common sense of the Bench to enter into any detailed defence." You may judge of my astonishment, when, instead of at once dismissing the case, the Bench decided that "it was clearly proved that I had killed three pigs, the property of the plaintiff, and that I should pay £6 sterling as compensation. I stated that I considered the case had been decided against me on grossly insufficient and contradictory evidence, and on that ground I positively refused to satisfy the claims of the Court. • I was then informed that there was another charge against me, but that I need not hear it till I had so many days' notice. I said I would much prefer that it should be settled at once, as it appeared nothing was required but the unsupported charge of the plaintiff, therefore any defence was useless.

been in the habit of dogging pigs, only on three occasions have natives been present, and they are not ■poken of at all in the eridenoe. And I here defy Mr. Aubrey to bring forward such proof as would cony ct either myself or my servant of killing a single pig, belonging to natives ; and I can lay that, except on my own land, I have never let loose a dog on piga, neither have 1 ever had pirs gn!n«j nt large. After judgment was pastil, May 22 antl 30, of course I expected the law would be put in force at once. The pigs came down upon me worse than ever, and the same course of constant dogging was to be gone through agnm. .Months passod and I heard nothing of the matter. The pigs were sig lin banished, and I was on the most friendly terms with the native* generally, including my oppotvnts in the throe cnse9. Evidently they had given up all hope ot extorting money froja me. either by force of law, and were content not only to do without it, but to keep back their pigs. Such was the state of things when, on Ojtober.B, upwards of five months after judgment was passed, a distress yas put in my hands, and of course nothing remained bMt at once to satisfy the claims of the Court, which I did ; this amounted to £10 17s. Now, Sir, what could be i the reason that this was not done at once instead of I keeping things in such an unsatisfactory state of suspense. Could it be" that the Magistrates engaged in this iniquitous proceeding were ashamed of what* they had done, and shrank from the exposure which must follow the consummation of sach injustice ? Now, it is peculiarly hard, after having twice done away with the nuisance, in spite of all difficulties, that we should be subject to it again, and obliged to go | through the same course ot dogging pigs, answering ; summonses, and satisfying distress warrants, or going to i prison; for, of course, if the pigs return, which it is ! natural to suppose they will, [ will pursue the same course which has twice before *nded in complete victory. Now if a private settler, only aided by his servant, could do away with the nuisance, how easy would it have been for a Magistrate to have done so r Sir, had Mr. Aubrey represented the thing to the natives, as he refused to do long ago, there cannot be the least doubt that thay would h*ve kept their pigs away then, but instead of this he aggrava'ed the case frightfnlly by his wanton and uncalled for misrepresentation of the law, which led to the audacious proceedings which have since taken place. It may not be generally known that a Resident Magistrate, and one a mere Justice of the Peace, can decide any case of a civil natnre under £100, in which one of the parties is of the native race, and a Resident Magistrate alone can decide any similar case, under £20; th r atin conducting such cases no want of form can quash the case ; that evidence can be taken, " whether the same shall be strictly legal evidence or not;" that unsworn evidence may be taksn for what the Magistrate thinkss it is worth ; and that, in no stage of the proceedings, can the case be removed to a superior Court— that, in fact, there is absolutely no appeal. See " Summary Proceedings Ordinance," passed June 21, 1842 ; " Resident Magistrate's Court Ordinance," passed November 7, 1846; 41 Unsworn Testimony Ordinance," passed July 15. 1841. Now, Sir, whpn you consider thatisuch tremendous and irresponsible power is exercised by single men, in Courts which, though nominally public, are virtually secret ; for, in our case at all events, the distance, the difficulty of access, and the want of public accommodation almost prohibit any one, not personally interested, from attending and entirely deprives us of legal assistance. We are thus left to fight our own battles against absolute power, and the odds aie fearful, if there is previous prejudice on the part of the Magistrate As the laws of New Zealand will give us no redress, I here appeal to my fellow colonists to raise their voices against such an iniquitous system, a system which, against every principle of justice, places our property, nay our very liberty, in the hands of men who, almost in secret, can exercise power unheard of since the feudal tyranny of the middle aged — men who are not * bound even by the form of law, and who, with such power, are not only not ashamed to exercise it to the fullest extent but do not hesitate to exceed it, for I contend that, in the cases abovemtntioned, the Magistrates have exceed d their power. You have my full permission to üblish the evidence enclosed with this, if you think proper, and should it not be satisfactory to the magistrates, their simple redress is to publish official copies of the depositions, &c, which may then be compared with my notes In conclusion, I challenge either Mr. Aubrey or Mr. Johnson to contradict any of the statements here made. And now allow me to thank you for publishing this letter, which, in spite of all I could, has swelled to an unreasonable length. James Burnett. Wangarei, October 3lst, 1857.

This is to certify that I was prpsent at the Resident Magistrate's Court, Wangarei, and heard what passed in the case of " Te Rau Pauna t>. James Burnett," and " Paura Kai Tangata v. James Burnett," and that I can fully confirm what my brother says in the abore letter on these several points, viz. : — Ist. That when the plaintiff, Te Rau P«iuna said that he had no further evidence to bring, the magistrate's insisted on calling more witnesses. 2nd. That the magistrates wished to proceed with the case of " Paura Kai Tangata v. James Burnett," without making any definite charge, and only consented to do so on my brother positively refusing to allow the ca*e to go on without knowing what it was. 3rd. As to the unsatisfactory style of Mr. Johnson's interpretation. 4th. As to the magistrate talking with the witnesses out of Court. George Burnett. [We have to apologize to Mr. Burnett for delay in the insertion of his letter, which was accidentally mislaid among the muss of papers in our office, and could not at first be found. We make no further observation at present, as it is our intention to take an early opportunity of inquiring into the question of trespass, which, under the peculiar circumstances of this colony, is of serious importance. It is right to state that Mr. Burnett has forwarded to us a copy of the evidence taken before the Resident Magistrate, with permission to publish it. For that, however, we see no immediate necessity. It may perhaps be presently required.— Ed.]