THE Daily Southern Cross.

Daily Southern Cross, Volume XXXII, Issue 5725, 28 January 1876, Page 2

THE Daily Southern Cross.

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FRIDAY, JAyCAh'Y 28, 1870.

] r is, perhaps, not «'oneially known, except m legal circles, that in 1871 the Parh.imunt of the Colony passed an Act authorising that, m enilcises, five-sixths of a jmy empannelled shall be entitled to give a \ ei diet, h.i\ ing .-ill the force and etleet of a a li diet unanimously given l>y such a jury Neither do we suppose is it geneiall} Known that a decision of the Judges of the Appeal Court in Wellington, last No\eudiei, simply rendered that Act almost nugatoiy, if not entirely so. AVe find this latter f.ict recorded in aback number of the jY< c Xvnlmul Tinif>, containing urepoitof the judgment of the Court of Appeal delivered in November List in the Appe.il case Woiksav v. Ci m M in which a verdict of iive-aixtha, of, indeed, eleven out of the twelve had been accepted by the Court below. The judgment of the highei Court of Appeal completely reversed the decision, and because of one of those lemarkable technicalities winch rise to the attenuation of excessive refinement, practically nullified the Act, and frustrated the object to secure which it ones its existence. For the sake of clearness we copy the Act entire, for it happens to be brief — An Aoi ro amend the Lvw rm vtini, 10 Ji mis. Wheie.is it is expedient to buhstitiite the venlict of a l.ngo in ijonty of jm les for the evist ing .sjstoin of unanimity of juiies in civil causes : Jie it theiofoie en icted by the Uener.il Assembly of Now Zealand, in Parliament assembled, and by the .tutlionty of tlio siuno, as follows :- 1 The shoit title of tins Act sliall be ''The Junes Act, 1871 ' '„' 'I'lu veidi^tof not less thin hve-'ixtlis of .my jmy emp.uinellod to tiy .my issuer, or to iiKjuiio of oi assess d.un.iges in any civil c.iuno, sh til be t.iken .iml accepted as, and shall have ill the (oiiKcqiiencos of a of any such jmy under the existing laws i elating to juues — pn>\id d tli it no \cnh( t, not .uiivcd at ini.unnioiisly, shall be taken till the jmy have letned foi l [jonoil of it le ist six hoim uul have inti mitid to the jndgi ])iisMliii{; at the tiialth.it they have consideied then venlict, and that theie in no piobabihty of theii being unanimous. One would think that, from the preamble, the object of the A<t, the clear intent and meaning of the legislatuie, was as definitely stated as it well could be. The Act, if it meant anything, meant that a large majority of a jury should be per-

Ilm fly c ipablo oi i;i\ in_r a \ eidn ' so ast'> pi event the possibility of one or two continuation. |iuois fioni dehheiately fiushaling iiistii'e, .ind sotting .it defiance (lie honest iou\ietions of ten <,v L -le\en of rlieir fellows. I n New South Wales in the e.uly dajs, if v. is it<> l.av nccuirciiee for an " old hand, ' who h id made money, and was found (|ii.ilitied foi tlu> \uv) list, to on tor the juiy n;oia will) the vest of tlie jurors, light hih pipe, .'ind seating him&ulf "My mind's made up. Not guilty, »ay I." And oftentimes " not guilty" it was, by the sheer pnsistenee of one man against t\\el\e. In Scotland the practice has been from <nne nnimmoii.il, both m tail and cinnind eiuses, that the niajoiity of a | u i > of litteen ynos a \erdict. Eight to seven .settles the question, although we belie\e such a \erdict is iare. lint with a juiy of tifteen, possessing the power of <^i\ ing a by a bare majontj, statistics .show that the method vroiks well, and tint there are fewer failures of |U-.tice than under the English system. The one mode, the Scotch, has the m\\ outage of empowering the jury to return, in eiiminal cases, one of three verdicts, "Guilty," "Not proven," and "Not gmlt\." Jncoinplete cudence !i\es the middle \ erdict of " not proven" which, while it clears the prisoner fioin any second impeachment on the paiticular charge for which he has been once tried, leaves him fiee in the e^e of the • law, but with the •weight of what ma\ be called moral oudenee against him. It relieves the ]uiy fiom giving a decl.uation of "Not guilty" when they feel that, m the absence of one lit Ic le<_,al link, unnnpoitant.is to moril belief, but legally of some techn'L il value, while not warranted to cist the prisoner as guilty, they cannot aeqmt Jinn and declare li:m "" Not guilt}." They therefore .say " Not pro\en." The \ eidict «tf "Not guilty," by a Scotch jury, which possesses the other alternative of " Not pi oven," is a clear acquittal. IJy the English law, "Not guilty'' cannot always mean this, .and an English juiy is thus often obliged technically to declare a prisoner "Not guilty," when really in their hearts they may believe that he was. " Not pro\en" would release them fiom a practical declaration of innocence in case* \>h re "the facts ol 'cited pointed far more to guilt tha-i innocence. To ictuui to the Act befoie us, which this decision of the Court of Appeal lendeis of non-effect if tone juror chooses to sta.ul out, we discover that extreme of leiinement of argument which may be tenned chopping logic, and lenving reason and common sense to shift for themselves It is a meie question resting on the word " |iny," as it occurs the last time in the clause of the Act. It is contended by the Cm ii Ji snci: who gave judgment, and with whom Mi: Justice. John.. "on and Mr. •Justice Williams agree, that as the word " |iuy" means the whole twelve, the " giainuiiitiuil construction of the proviso. " foi the intimation of non-probability of agi cement is to be made "by the same persons who ha\e letned." This, of cour.se, means the whole tuehe, and tint give* one man of them the same power to frustrate the dear intent and meaning of the Act, and to neg.itne the possibility of I .1 large majoiity giving a verdict just as if the Act had never been passed. Mr. Justice Gillies dissented from the decision of the majority of the Court, and in his lemarks on the subject he is very clear. Respecting grammatical constiuction, he admits, and rightly admits, that " a strictly literal and giammatical construction of the words of the pro\ iso supports the appellant's contention, that the whole of the jury, and not h\e-st\ths of them," must make the I necessary intimation to the judge. lint he contends that, while not "assuming " the legislative intontion, and then " bending " the expressions used to suppoit such assumed intention, we must not, "on the other hand, by a merely literal and grammatical construction, violate the real intention of the Legislature if that intention is otherwise made manifest." We believe with this \iew the •sast majority of the legal piofession will concur. It accords with the common sense and reason of the unprejudiced inquirer. The preamble of this \ct pi unly sets forth the intention of tlie Lo'jisl Uuic and the object sought m legislating. Th" 1 nbne is not less deal. The foimer says "it is expedient to substitute the verdict of a large in ijority of juries for the existing system of unanimity of juries in civil cause-. " The latter on the margin of the text of the second clause says, "Verdict of ma|oiity to prevail" Of course, wt know lint 111 law the uibrie cannot be put aganis' tlie te\t ; but tho ->e quotations go t.» make manifest the real intention of the Le^islatme Judge Gil LIKS quotes fiom pieeedent, wlneli bears out his view. He linds the l>\ito\s of E\( !ii:qukh saying, " Km the sine and tine mterpretatio i of ill stitutis in geneial, be the) [ienal <n In ni'liua), lestiictive or cnl.uging of the common law, foiu tilings aie to be discerned and consideiod. ' These four things aie thus set down " I AVIi.it w.is the common l.iw liofuio the in iking of tlie Act ' " -\ Whit w is tlie mi-.Jiu>f .in.l detent against wliu h the' emiiiiio! 1 \ in did lmfc i>.o\ ide ' " .{ Whit le-medy tho I'.ulunieiit liith lesohed ind nipoiiitoil to cuio the div i*. > ' and, " I The tuic leason of the ltMiiedy ' Judge Gillii:-. then shows at length th.it tho law, as it stood, produced a mischief and a failure of justice if one juror w.is obstinate ; that the lemedyof that mischief was a \eidict of h\e->i\ths, and that the true leason of the icmeily was the necessity of preventing the continuance of the mischief. Caie is taken in the Act, as Mr' Gilliks shows, to guard against a lash and inconsiderate veulict by seeming h\ horns' consideration ; and, in oil* view, hi 1 clinches the question by asking "if ii is rea-.ortable to suppose that the Legislature intended to put the power of huding a verdict on the hiii'm subject in dispute in the hands ot live-si\ths of the jury," and yet meant that on the maun question of merely intimating non-agreement to the judge, the opinion or obstinacy of one |iuor should up'et the possibility of a decision on the main qnestion in the manner which foimed the back-bone of the Act. W e behe\o that Judge (Jillies is perfectly light in his dissent and the reasons he es theiefor. They are appeals to the piactic.il judgment of business men. As tlie CouiL of Appeal, howevei, has decided otherwise^ and foimed a pieeedent on a meic technical interpretation by which tho tine intent of the Act ii overturned, it will be necessary for the coming P.nliament to amend tlie Ait .so as to make it the literal direction of the law that an intimation to the judge by five-sixths of | the jury, that agreement ih not probable, shali at once be followed by a "livesixths " verdict. Mr. Giluks, by the \\ aj r , was the father of the Act ; ho very cleaily explained its object to tho Home at the time ho introduced it, and if lie does not understand, its truo drift and meaning, we do not know who should

Lkum U'lVh proceedings arts getting uu- ( uiiuiionly warm in Victoria. The people «t N'lctoiui ni.iy attempt to follow the example ot the Opposition in New Ze.il.uul, by obstructive efforts, but they cannot do

tiim^s w ith Ui.it iIli i at unit i wiiah, <'\tn in keon p.uly w.ufaie, hasnc\ei jtt lucn foi gotten in .New Zealand's I'aili.unent. Hot ndid lusty u.inK may sometime-, hud to hot <uul lusty lcpusals, lint tin limits of Parliamentary language were pretty well ol.soi \.il \n absolute fight in the li»l)Ly, and ln.t%\c<ii .i M.instci and m\ cx Almi'lci. won!.] ho -,nni tiling nnlio.nd of hcio. \i>t to such .i height docs feeling run in Mi Ilimuni' th.it wo lind not onl) vci) Ini li tilings -.iid nightl\ m the Mikim on hotli ides, Imt an u\ Coinniis^ioiU'i of (.'us toin-. shuck a Minister in the lobbj, .uulhad to apologise to Ihc lloine for Ins pains The Mun-tiy umujiKiin of the tyranny of the imnoiity, which it fu^es supplies by (ilis£iucti\« iniasuresof tallviny against tune, and by-and-no money will be available for payment ot tlu> pulihc oioditor. People ate beginning to ask w hat will be the result of this ? and veiy piobably they will eio long ihul a reply in the unpopul.uity of tlic nl)struntionists, who are stopping .ill biisiiuss It is not a pleasant spectacle

Dr. Philson, distnet coionei, held two inquests yestcidaj on the bodies of peismis who died suddenly on Wcdnesdav, The first was held at the Prince Aithui Hotel, Hobson street, on the leniams of .lames Wcbbley, a veidict of Died ijom an .itt.ii k of English cholci.i being letnrned The second inquest was held <it the Fieoman's Hi.tel, on the lemains of John 8. Macken/u, when a \enliet was returned to the cileet that death had lesulted irom a mptuie of the heart A special excursion has beeu arranged, b> Captain Casey, to Kaipaia and back on Regatta Day. The excursionists fiom Auckland will lea\ e the wharf at 10 o'clock, and r> tin u again about .") oVIock p in The fairs will be single for the double jouiney buth by steam <uid 1 ulvvaj ti.vin. Tickets of admission to the Flagship at the legatt.i are to be obtained on application to any inembei of the Committee and .it the oilioe on the wluil. We ai e glad to learn that the toad way to the. Ot.ihuhu Railway Station will be so far completed as to be available for passenger use b\ the end of next week. A coroners inquest will be held at the Winds'ii Ca.tle Hotel, at 11 o'clock this mommy, In foie l)r I'liiJson, M D , touching the circumstances attending the death of John McOlean, alleged to Ime poisoned himself by dunking nibohc a' id. One lunatic, thrir diunkaids, and tlnee seamen charged with disobedience on bo.vul the ' Cauuitic wtie tn the lock-up < ells 1 ist night. Some red deer have now been hbeiated among the hills behind Cambridge, and near to Mr. Thorndon's property. Mr. William McKen/ie Commons lias been gazetted lessee and wharfinger of the public wharf at Tauranga. The Registration of Hi. amis Act, 1S71, has been bi ought into operation within the Mmgonui highway distnet. The following regulations liavo been made by the Superintendent, undo the authonty of the S.'Jid section of the Auckland Waste Lands ' ct, 1S7K for the put pose of imposing penalties toi breaches of the regulations foi gianting water lights under I'ait 7 oi that Act: — 1. livery >peisiu c >ininutmg any breach of the said regulations, or an_> pait th-reof, shall -be liable to a pjnalt\ not ex ceeding twenty pounds (120). 2 Eveiy pji&on failing to comply with the conditions of any water right under the said regulations, or with any part thereof, shall be liable to a penalty not exceeding twenty pounds (£20). In another column it will be seen that the hour at which the meeting of the shareholders in the Bay of Islands Coal Company has been postponed from 3 o'clock to half past 'A o'clock this afternoon. The meeting is the eighth annual one, and the directors' repoit and balance-sheet will bo submitted to the meeting. Wo uudu blind that the United Men Seivants' Association aie to open an ofhee m Queen-street next week. Futther paitieulars w ill be duly a<lvutiscd. The assessment list ft>i the Okahu highway dis rict has bien settled, and the latts aie now payable to Mi -M. (Jteene, Queen-sticet The poweis of the Supeiiutondent under the Regulation »il Femes Act, ISlM, ha\e, with tho advice and consent of the Highwa\s Act, 1874, been delegated to the 1'oveity Bay Distiict Board, to be exercised within that distiict, nud not elsewhere. Mr. Ilemy Swanboiough has been appninttd keeper of the public feny at Cambiidge on behalf of the Cambudgo Xoith 'lownslup Uistuet Hoaid We understand that Mr. T>lci, ot the Thames, is about to join Mr. \V. L. Rect>, in piaeticc as solicitor and bauistet. Mr. T}'ler was in partnership with Mr Kees before he took up hit, residence at the Thames. Wo understand that the young man who vms seriously injured by the o\ei turning of a buggy at Onchunga on Wednesday night, to which leference was made in our 'issue of je&tuday was named Thompson Thiee of Ins hJis aie bioken besides being otherwise hint The horse and buggy were un lnjuicd, and the other occupants of the bng^y i scaped unlnnt. The Pitotc stream, Coiomandcl distuct, .in>l the Uangito])iini liver in the pansb of I'.nemorcmo and I'ukoatua hi\e )jeen gazetted as streams which may be used for the ptu poses of the Timber Floating Act, 1ST.! Aln^t meeting of the iatepa\eis in the '1'auho.i highway distiict is coii\ened for the 7tli (A Felnuaiy, to be held <it the house of Mi. Vithur Ijyie The olhces of the City Council aie to be closed on .Saturday, being Anuiversaiy Ddy The piunises of Messrs S. and J. R Vaile, J. Co.sgia\e and Co , W. Rattiay, and K. \\ . Dyson, aie to be opened on Satin day evening for the tiansaction of business. On Wedncsdsy the 'Jml proximo, the buildings in the Allieit Ru lacks known as the Tieasuiy buildings, uid the wooden building used as oIIk'ls by Hie Cominissioneis.are to be sold, and icmoxcd within seven days by the [tuiuhasti. The liquidation in the estate of (leoigc William Colin i, theatrical manager, has been completed The Piodtictiou of Olive Oil in South Australia The So'iih Australian J'd/i-'i i wnte'3: — "Thoie lolonists who take an inteiest in the manufaitnre of olne oil m South Austiaha, and shaie the o])inion of Mr. S. Davenpoit as to the wealth w huh tho industiy will eventually bung to the colony, should visit the plantations at the Adelaide gaol. On tho 10 aeies of olne tiees growing upon the corpoiation Land theie, such a crop has never, we believe, beeu before seen. The trees aie coveied thickly with the fruit. The best portions of another 30 acres connected AVith the pnson aie planted with young trees, which aie beating this season, and the yield geneially is so good that it IS estimated that over 2,000 gallons of oil will be made, wheieas only about 170 gallons was made la^t _veai. The tie* s aie in very fine condition, the giound about them being tienched, manured, and niigated. The oil inauufactuied is of a very siipenor quality, and, in tune, doubtless this uidustiy will add in itei tally to tho levenue ot the gaol es tabhshment. Tho Parsnip .is Cattle Feed: The Muttony paisnip h beconnng ("ays a oi respondent of the Luuncettun Eunn'uur) a tavouiite, and its cultuie is extending In that pait of France the parsnip is so esteemed as almost to exclude other roots. It it substituted foi oats when hoi sea do not woik at the late of 1(511). a day ; it fattens cattle and im,i eases the richness of tho milk. Pigs prefer it to all other food, and they receive 91b. of the eo. iked loot four times per day. Insisting tho winter season well, thu pai-nip is allowed to remain in the soil as long as possible, only removing a supply tor fontdays at a time.