EXTRAORDINARY PROCEEDINGS in the SUPREME COURT at WELLINGTON.

Lyttelton Times, Volume II, Issue 85, 21 August 1852, Page 5

EXTRAORDINARY PROCEEDINGS in the SUPREME COURT at WELLINGTON.

The wonted placidity of Colonial life has been considerably ruffled and disturbed at Wellington by the arbitrary proceedings of Judge Stephen, who, our readers may recollect, figured in a lii'anner more conspicuous than commendable some months ago at Otago, and who subsequently replaced Mr. Justice Chapman at Wellington, when that gentleman proceeded to Tasmania. As the proceedings of the Judge divectly affect the people of this Settlement, to whose judicial authority they are subjected, we offer no apology for inserting in extenso the very able and powerful remarks (and the more able and powerful from their moderation) which our contemporary, the Independent, makes upon these proceedings. The preliminary fact of the ease is this. " Mr. Samuel Robinson, draper, of Wellington, was summoned to attend the last sitting of the Supreme Court as a common Juryman ; but having at that time no one to attend to the extensive retail establishment of which he had charge, he applied to the Sheriff to be excused, who informed him that he had no jurisdiction in the matter, and that his proper course would be to state in a letter to the Court the reasons why he wished his attendance to be excused. He did so, and the Court ruled that the reasons given were totally insufficient—that no man could excuse himself on such trifling grounds. This decision was, no doubt, under the circumstances, a proper one ; and Mr. Robinson himself admits its justice. But at the same sitting, several gentlemen who had been summoned failed to attend, without having even written to he excused, while a number of others did not attend in time. The whole of the latter were excused at once without any inquiry ; but two of the former, viz. W. Fitzherhert, Esq.,j.p., and C. Clifford, Esq., j.p., were, together* with Mr. Robinson, lined £10 each for nun-attendance. On Monday, the 28th ult., Mr. Justice Stephen sat m Court, ■when the above-named gentlemen w^re heard on affidavit, shewing cause why the fines imposed should not be levied. The excuse Mr. Fitzherbert gave was deemed sufficient.au accident having occurred to a member of his family. Mr. Clifford, who had gone on business up the coast after having been summoned as a Grand Juror, could not, or at least did not, get back in time—his excuse was, however, deemed sufficient, and his tine, as well as that of Mr. Fitzherbert, Wiis remitted. Mr. Robinson's excuse was deemed insufficient, and the mitigated fine of £b was, in bis case, inflicted. It must be distinctly understood that up to the present time Mr. Robinson does not dispute the justice of the Court's decision. On the contrary, he believed that the full fine of £10 might have been justly levied by the .Court, if it had thought fit to do so. But Mr. Robinson felt the infliction of the penalty bitterly galling, when he found that Mr. Clifford, whose case he considered was analogous to his own, and whose excuse tor his non-attend-ance was no better than the one he had made, was let off scot free. Mr. Robinson was therefor^ impressed with the belief that impartial justice in the disposal of the two cases had not been manifested by the Court; and, at the same tune, smarting under the infliction of the penalty, he concluded that he had been made an example of because be was only a common retailer, and that Mr. Clifford was let off scot free because be was a magistrate, and moreover a highly influential gentleman with whom it would be dangerous to trifle. Whether these impressions were, or were not erroneous, it is wot our present business either to enquire or to decide. Most people, perhaps, under the same circumstances, would have been similarly, impressed, until time had been allowed for the clear, calm, and full exercise of their reasoningpowers on the subject, which could not be done while they were smarting under the infliction of a real or supposed injury. But Mr. Robinson ,

conceived that His Honour would deem it dangerous to meddle with a gentleman like Mr. Clifford, he being not only very wealthy, intelligent, and powerful, but also veiy popular, having distinguished himself on former occasions in battling for Free Institutions, and in exposing and denouncing abuses in high places. Mr. Robinson would seem to infer, in the letter he published in the Independent, on which the proceedings were instituted, that the observations reported to have been made by Mr. Justice Stephens at Otago (in answer to a charge of assault, arising out of a dispute between two females), ' that he could not wait for the slow and tardy process of the law,' was not becoming in a Judge; and that this might obtain a wider publicity than would be convenient, or at least agreeable."

In consequence of publishing this letter, Mr. Robinson and Mr. McKenzie, one of the Proprietors of the Independent, were summoned under a Judge's order to appear before Mr. Justice Stephen, in Banco, " to answer for unlawfully and contemptuously publishing a certain letter, charging- Mr. Justice Stephen with partiality and corruption.in his office as Judge, with respect to a certain line imposed by his Honor on Samuel Robinson, for non-attendance as a Juror." The case came on on Saturday, the 24th July, when Mr. King appeared for Mr. Robinson, and Dr, Evans for Mr. McKenzie.

Mr. King objected to the regularity of the proceeding, contending that the Judge had no power in chambers to issue such an order, and that the affidavit on which theorder was made was defective on several grounds. He applied for time to argue these objections. His Honor refused to grant time for such purpose, as he had had sufficient time from the date of the order being served on the defendant. Mr. King thereupon declined saying anything further on behalf of Mr. Robinson, whom the Judge directed to be called in Court, and upon Mr. llobinson not answering, bis Honor directed an attachment to issue against him returnable on the following Tuesday at 11 o'clock.

In the matter of Mr. M'Kenzie, Dr. Evans applied that the rule should be enlarged, on the ground that he had not liad two days' notice, which the Court granted, stating, at t're same time, that he might have at once granted an attachment against the parties on having evidence brought bej fore him of the contempt, which had been done by affidavit in this case; but the Court was not desirous of pressing the defendant, and the rule was enlarged until Tuesday at 11 o'clock, when the same parties appeared, and Mr. Robinson's case was calle i on. His Honor directed the affidavit upon which the proceeding was founded to he read, after which his Honor read from Stevens' Commentaries and other authorities, what the law was relative to attachment, and called on the defendant to answer to certain interrogatories which had been filed, his Honor remarking that he would allow the defendant a short space to consider whether he would answer them after his having heard the consequences of his refusal to do so. Mr. Robinson, having been advised that the whole proceedings were irregular, respectfully declined to answer, upon which liis Honor directed that he should be committed to her Majesty's gaol for one month, and to be then brought up to answer the said interrogatories. In the matter of M'Kenzie, Dr. Evans took several objections, Ist—that the affidavit on which the rule was granted was made by a single Judge in Chambers ; 2iyd—that it professed to be granted upon reading the affidavit of James Spiers, and did not specify that it was on reading the alleged scandalous matter. He also objected th:\t there was no instance of proceeding in a summary way for contempt, except where there was some proceeding then before the Court, that the principle on which the Court then proceeded was that the course of justice had been obstructed. The learned Counsel referred to Faulkener's case, Tyr. 5, 919 ;—Van Sandan v. Turner, 6, Queen's Bench, 773, and ] other authorities. His Honor decided, with regard to the first point, that the order might be obtained in Chambers by a single Judge being made returnable before the full Court; and iipon the second point, that the affidavit of Mr. Spiers being referred to in the order, and being a verification of the publication of the newspaper report, by referring to his affidavit the offensive matter was sufficiently referred to; and, further, that however rules of Court might be made for the guidance of the practitioners of the Court, they could not be considered as binding the Court's power in bringing the matter sufficiently before them to answer all the purposes of justice.

With respect to the third point, his Honor quoted from Blackstone's Commentaries, by Stephen's, vol. 4, p. 800, that on contempt by speaking or writing contemptuously of a Gourt, or Judges act-

ing in their judicial capacity, was one of the instances in which an attachment might issue, as well |as by printing false accounts of a cause then de--1 pending in judgment, thus shewing two classes of cases, in one of which it was not necessary, as contended by Dr. Evans, that there should be some proceeding then before the Court. He quoted further the case of the King v. Clement, 4 Bar. & Aid., in \vhich the Attorney and Solicitor General quoted from 2 Aitkin's, 471, Lord Hardwicke's remark, that there were three different sorts of contempt, one of which was scandalizing the Court itself, a second for abusing parties concerned in causes there, or prejudicing mankind against persons before the cause was heard. Dr. Evans having stated that he did not appear before the Court to justify the publication in question, proceeded to offer some matters in excuse of the defendant, but the same not appearing on affidavit, his Honour stated he could pay no attention to them in that form, but that if it were understood that an affidavit of such circumstances would be made, time should be given until the next day for that purpose. Upon this being acquiesced in by his counsel, Mr. McKenzie was allowed to leave the Court on his parole to appear before his Honor in Chambers. The Independent makes the following commentary upon these proceedings. " The arbitrary proceedings in the Supreme Court of Wellington, and the determined attack on the liberty of the subject, and the liberty of the press, which is involved in these proceedings, we verily believe can be matched by no other that have taken place in an English Court of Judicature, since the abolition of the Star Chamber, except perhaps those instituted by or conducted under the auspices, of the notorious Jeffries ; and when we consider the circumstances and temper of his times even his would scarcely parallel those we have been doomed during the last few days to witness and deplore. "We wish it to be distinctly understood that we call not in question the authority of the Supreme Court, nor would we countenance much less recommend the least disobedience to its orders or decisions, nor the manifestation of any disrespect much less contempt towards the presiding judge. We may show the unconstitutional and unprecedented character of the decisions, but until they are legally set aside they must be obeyed. The precedent of breaking a bad law has too often weakened the force and led to a violation of those which are good. It is one thing to expose the errors of a Judge and the defects of his decisions, but quite another and a different thing to attempt to forcibly set aside, or oppose any decisions which may emanate from the Court over which he presides."

Having given the facts of the case out of which the proceedings originated, the Independent proceeds. " The question whether Mr. Robinson's conceptions, impressions, and inferences were correct or not, is not for us to determine. We do not hold ourselves responsible for the impressions of other people. The question, so far, is between Mr. Robinson and Mr. Justice Stephen. If the latter feels aggrieved at what Mr. Robinson has said concerning him, he has doubtlessly his remedy at law. If Mr. Robinson has been guilty of libelling Mr. Stephen, it is for a Jury of his peers, and not for Mr. Stephen to decide. For a man to be at the same time prosecutor and Judge, is a violation of the first principle of natural justice, and repugnant to the spirit and practice of the British laws.

" We now come to the question whether we were justified in giving insertion to Mr. Robinson's letter in our columns. We deem it to be the duty of a popular journal f allow the most full and free expression of opinion on all public questions, wrongs, and grievances, on the justice, wisdom, and bearings of all public acts, and on the conduct of all public men, in its columns. When this is not practised a free press exists only but in name. An Editor of such a journal ought to be invested with some discretionary power, and should close his columns against anonymous slanderers; but in any communication he may receive and think proper to insert if it be conceived that matter of a libellous nature has been introduced, then, provided the writer's name and address are given in full, lie and he only should be held responsible f3r it. The liberty of the press, particularly where- no other liberty oxists, should be too carefully guarded to admit of its being infringed in a case like this. The attempt however has been made to crush it; for the first time be it remembered in the history of this coiouy has this attempt been made ; and it depends altogether upon how the public view such an attempt, whether the first will be also the last. Little did we think when some three months ago we stated that the liberty of the press was the only privilege which a British settler here was permitted to enjoy, that this also would be attempted to be taken from us. A great writer has said that a considerable latitude must be allowed wirh regard to strictures upon the character of men in office, and in the discussion of affairs, or the liberty of the press would be of no benefit to society. But if the lihertv and censorial power of the p»ess in a free country like England is so beneficial and important, hi this colony, where the people have lio voice in the

making of the laws, nor control over those who administer them, it must necessarily be much more so. Here any attempt made to limit its usefulness, by abridging its liberty, ought to be resented as an insult to our understandings, and resisted as an encroachment on our freedom which we will be brought on no account to tolerate.

" It may be said that the liberty of the press does not extend to the censuring the conduct of a Judge, and that the calling in question his decisions amounts to a contempt of Court. We say yes, if the case is still pending, and is likely in any way to interrupt the proceedings of the Court, or influence the decision of the Jury ; no, if the case has been decided. Not censure the conduct of a Judge, not question his decisions, indeed! why this is almost daily done in England, and with the happiest results. Was not Ramshay only the other day dismissed from his office of Judge in consequence cf the public attention which had been called to his conduct by the Liverpool journals ? Let us see how a Judge was addressed by an Englishman more than eighty years ago.

" The writer says, ' You will not question my veracity when I assure you it has not been owing to any particular respect for your person that I have abstained from you so long. Besides the distress and danger with which the press is threatened, when your Lordship is party, and the party is to be Judge, I confess I have been deterred from the difficulty of the task. Our language has no term of reproach, the mind has no idea of detestation which has not already been happily applied to you and exhausted. Ample justice has been done by abler hands than mine, to the separate merits of your life and character. Let it be my humble task to collect the sweets, till their united virtue tortures the sense.' The writer then proceeds to comment on the conduct, charges, and decisions of the Judge in a variety of cases, which might be as appropriately addressed to Mr. Justice Stephen, as to Lord Chief Justice Mansfield, and concludes thus: "It is not for my own sake that I wish you to consider the delicacy of your situation. Beware how you indulge the first emotions of your resentment The paper is delivered to the world and cannot be recalled. The prosecution of an innocent printer cannot alter facts not refute arguments. Do not furnish me with further materials against yourself. An honest man, like the true religion, appeals to the understanding, or modestly confides in the internal evidence of his conscience. The imposter employs force instead of argument, imposes silence when he cannot convince, arid propagates Lis character by the sword." It may be as well to say, that, notwithstanding the wide publicity given to this letter, ", the prosecution of .an innocent printer," was not, proceeded with. The Lord Chief Justice had too much good sense, and knew too well what was due to his station to denounce the law, or stretch the law, for the purpose of gratifying a personal resentment, or overwhelming a justly incensed foe. * * *

" Is a man to be grossly libelled, it will be asked, and not to seek redress ? Decidedly not. A man unjustly accused through the columns of a newspaper can clear himself from the accusation and denounce his accuser through the same channel.; or if he thinks fit he can enter an action for libel and obtain damages for the injury which the publication of the libel has inflicted upon him. As a rule however we think that no matters of a private nature ought to be mixed up in the discussion of public questions, and that no purely private matters ought "to find their way into a public journal. " Had we thought for a moment that the letter of Mr. Robinson was calculated to bring the Supreme Court into contempt we certainly should not have permitted it to be inserted ; but, in the language of a celebrated writer, "they who wish to obtain justice by any mode of proceeding more summary than a trial by their peers are greater enemies to themselves than the libeller they prosecute."

" Whatever motive Mr. Justice Stephen may have had in adopting the course of proceedings he did, and it may have been one of the most disinterested character, to us it is quite clear that if such arbitary proceedings are persisted in, not only the liberty of the press, but the liberty, property, and safety of every man is endangered, and the total ruin of the colony is not uncertain nor remote."

On the 2nd August, Mr. Robinson appeared to answer the interrogatories having reference to the publication of his letter, which, by the advice of his Counsel he had previously declined doing, and, after a lecture from the Judge, was released from custody. Mr. Justice Stephen then turning to Mr. King, said, there still remained a duty for him to perform, which was to impose a fine upon him for advising his client to disobey the orders of the Court. He should order a fine, of £20 to be recorded against him ; and he considered Mr. Robinson to have been the victim of his bad advice. Mr. Robinson was then bound to appear on the 27th, to receive judgment for the original offence. The Spectator having made some flippant remarks upon these proceedings, the Independent replies in a most able article, which we regret we have no space to publish at length; *c, however, give some extracts :— " So far as the public are concerned, the' offence of Mr. Robinson is lost sight of and forgotten. He

has been punished, with a severity that ought to satisfy the most vindictive prosecutor. He has been harrassed with legal proceedings; exposed to the public gaze in Court; incarcerated in gaol, with felons and lunatics—and in such a gaol as could be matched only among- the human styes where barbarism, in Turkey or Morocco, pens up its victims, and those only of the smallest estimated value, intended for sale at the next auction in the slave-mar-ket. His business, in the mean time, has besn left to the accidents of fortune, without his personal superintendence: and, at the end of a week, he has been brought up again to Court, and there by a process whose application to his case is at least of doubtful legality, he has been subjected to interrogatories,—a mode of inquiry abhorrent to the fundamental principles of our criminal law, and only tolerated, in the process of attachment, from regard to those ancient rules of practice which our contemporary would lead us so generally to despise,— and, after apologising in terms that have satisfied the public,'if not the Court, though the Judge himself appears to have accepted the apology, he has been bound over in recognizances to attend on the 27th instant, along with the publisher of this paper, to receive what other judgment Mr. Justice Stephen may think proper to pronounce.

" We ourselves have expressed our regret at the publication of the alleged libel, and have done every thing in our power to purge ourselves from the allegation of Contempt of Court; but, still, there remains for us the impending judgment of the 27-th instant, with such an infliction of fine and imprisonment as his Honor may think it just, or prudent, or magnanimous to impose upon us, either with a view to his own protection, or to curb the dreaded licentiousness of the press.

" Fine and imprisonment! These are the dragons that beset our path, ?.nd between which we may have to pass to the performance of our duty ; but, thank God, the press is invincible and -immortal, and no man ever went deliberately to-war with it, in the hope of stifling it, without retiring ignominiously beaten from the conflict.

" We appeal to the public when we ask whether we have not done all tliaf we could be fairly called upon to do, when we refused to publish the letter without the name of the writer, and when we afterwards expressed' our regret at the indiscretion of having printed it. We consider that matter, therefore, as having been obliterated from the record and purged away, and we return again, as journalists, and as if we had never been personally interested in the question, to ask once more of our contemporary, and of ihe public, how is justice, in future, to be administered in this Colony ? —and what do thsy think of the doctrines that have lately beeu enunciated, concerning the freedom of the press and the power of the Judges to restrain it, under the forms of an arbitrary jurisdiction, by proceeding summarily for Contempt of Court, even when the Court is not sitting; and when its decisions

have become a mere matter of history by being finally concluded?

" It must be borne in mind that, in this province, we have but one Judge, and that, practically, there is no appeal. A defendant majr have suffereiMhree months imprisonment and be effectually ruined, before it would be possible to obtain a hearing from the. Chief Justice, at Auckland. The only consolation to a sufferer that remains is a petition to her Majesty in England, and the sympathy that is found in that fraternity c£ th 2 press which will not allow the common cause of liberty to be violated in the person of its humblest advocate.

" There are two points which we have not yet brought under the notice of our readers, as we might have done, to justify the anxiety that we feel on the subject, as a matter entirely and exclusively of public principle. The first is the explanation the Judge himself gave of his views and intentions, when two gentlemen tendered themselves, in compliance with the demands of His Honor, as " sureties for the good behaviour" of Mr. M'Kenzie, for the term of twelve months, to the Court, and all Her Majesty1 s liege subjects; —himself in «?100, and the two sureties in £50 each. The question, however, arose as to how these recognizances might be forfeited, and how the forfeiture would be inforced, Mr. M'Kenzie's Counsel having respectfully reminded the Judge of the practice in England, which would, in some shape or other, involve and necessitate a trial by Jury. His Honor declared, without hesitation, that the Court would hold itself prepared to enforce the penalties, amounting to £200, not merely for any future contempt of Court, but for anything which the law would comprise under the vague term of •' misbehavious" against " any of her Majesty's liege subjects;" and that the Court would adjudicate, at its own discretion, solely upon the evidence of affidavits. The question was put, with all humility, whether such a proceeding would be taken in favour, for example, of a Government officer who might feel himself aggrieved, by what he considered a libellous attack in the paper, and the answer was that " it certainly would." Our Counsel, Dr. Evans, then declared that, as a member of the English bar, he could not advise the gentlemen to enter into the recognizances, the effect of whicn might be to set aside, in important cases, the institution of trial by Jury, aivd to

leave the issue of fact, as to " Guilty or not Guilty," in a charge of libel, entirely to the arbitrary disposal of the Judge. Such a thing was too frightful to be contemplated ; and the gentlemen declined to enter into the recognizances.

The other point, or rather fact, to which we have alluded is, that no sooner had Mr. Robinson been brought up and discharged, on his recognizances to appear on the 27th, than his Honor, the Judge, turned round upon Mr. Robinson's Solicitor, Mr.' King, and fined him £20 for giving his client bad advice!—-for advising his client that the original order was a nullity, and that, therefore, he was not bound to answer the interrogataries."