The Lyttelton Times. TUESDAY, FEB. 4, 1879.

Lyttelton Times, Volume LI, Issue 5599, 4 February 1879, Page 4

The Lyttelton Times. TUESDAY, FEB. 4, 1879.

A higher authority than the presiding Justices has laid down the rule to be followed in the acceptance of bail sureties. Our attention has been drawn to the fact that our report of the proceedings on Friday omitted to mention that a paragraph from Mr Justice Johnston’s “New Zealand Justice of the Peace” was quoted by Bassingthwaite’a counsel, and that the Justices felt themselves bound to accept the guidance of that paragraph. When in the forenoon the Justices and the counsel for the prosecution and defence were reading the clauses of the “Justices of the Peace Act, 1866,” by the light of their own unaided reason, bail was refused. The Justices, following precisely the line of reasoning which we placed before our readers yesterday, came to the conclusion that they could not, in common justice, approve the sureties offered. They held that, having a discretionary power, and not being satisfied that the bail offered would ensure the appearance of the accused for trial, because the sureties were not sureties at all, they had a perfect right to reject the sureties—and they did so. So far, then, our article did the Justices and Counsel an injustice. When the question was reopened later in the day, the counsel for Bassingthwaite produced Mr Justice Johnston’s handbook, from which he quoted the following clause: " But it would seem ” —the paragraph relates to the examination as to solvency of sureties—“ that he (the Justice) has no right to examine them (the

sureties offered) upon other topics, such as their moral character or political opinions,! and that the fact of their being indemnified by the accused — even if it should make the Justice doubt whether the accused would ever come up for trial —is not a sufficient reason to justify him in refusing what would otherwise be reasonable sureties.” In the presence of such a specifically authoritative statement as set down in the words we have italicised, the Justices felt that they could not act according to their judgment, and, though very reluctantly, they approved the admittedly would-not-be sureties. The position is therefore very much more serious than we thought it when our article appeared yesterday morning. It is not now a question of the error in judgment, of a Justice of the Peace, but of the pronouncement of a high legal authority. - In the “ Notice to the reader,” at the commencement of the second edition, it is stated that "in no case has a positive statement of law been made, the authority for which will not easily be found through ordinarily accessible text books.” We are, therefore, bound to believe that the directions in the matter of bail which we have quoted are based upon precedent and the ruling of duly qualified authorities. Whether every Justice of the Peace is bound to follow these directions is one thing, but that any Justice who chooses is warranted in following them is quite another. If the Juatices in the present case had held out, there is no doubt that great good might have resulted from their action. If Bassingthwaite’s counsel had pressed the matter, then we should ultimately have had the ruling of the full Court of Appeal upon a point in which the. Magistrate’s sense of justice is antagonistic to his reluctantly accepted ideas.of his duty. About the law of the matter we have nothing to say. We have simply to accept the ruling of a high authority presumably backed by other and higher authorities. The only course left is to comment on the law as it is thus laid down. The law is, not to put too fine a point upon it, simply unjust and immoral. The law paves the way for the escape of criminals, and tells men that they can assume what false pretences they please in a certain set of circumstances. The object of bail is, as we observed yesterday, not to sell an accused person his freedom, bnt to ensure his presence on the day of trial. The law provides, with this object, that the bond of an accused man is not sufficient to ensure that he shall be forthcoming when wanted. The law orders that some one or more persons must give bonds for . monies, to be forfeited, as well as the monies of the accused person, in case of his disappearance. It is clear that a guilty person will think little of money in comparison with what awaits him if he remains, that he will forfeit his money and go. The security that he will not go is -that some one else will lose a considerable sum of money if he gets off. The reason why a man must find a surety or sureties is obvious. Tet the law, it is laid down authoritatively, allows a man to be his own surety. When the committing Magistrate, according to law, fixes bail at a certain sum for the accused, and another equal sum for certain others, he really means, according to law, that the accused is the only person who is to lose anything in a, certain event. It would be very much better to require no sureties, and let men bail themselves out on their own recognisances. Then immorality would be prevented. Immorality is of various kinds. To do a thing on false pretences, for example, is immoral, and to lend one’s name to another, in order that that other may pay what the lender of the name ostensibly has to pay, is a false pretence. The acceptance of a surety by the State is a contract, by which the State gives a man his temporary liberty, and the surety agrees to pay a certain sum of money if the. temporary liberty becomes permanent. If the surety is prepared to pay the money out of his own estate, he may be a party to such a contract. If be is not, then he is not the proper person to enter into such a contract, and the representative of the State ought to have—but it has been authoritatively lain down has not —the right to refuse to allow him to do so. The State clearly ought to have the right to insist onthe production pf thereal person who is willing to pay in a certain event. He is the proper person, and the only person, to enter into a bail contract. Anyone else entering into the contract does so under a false pretence, and commits an immorality. He is even allowed by the law to evade the law. The law says that there must be a surety other than the accused person, and also that the accused person may be the surety, provided he obtains the use of someone else’s name. It is the law, but it is a stultification. The opening words of the paragraph quoted, it may be urged, imply a doubt, on the ground that “it would seem” is not a positive utterance. If there is a doubt it should be cleared up without unnecessary delay.

Until some Justice determines to brave the terrors of the law—and in the matter of the refusal of bail under certain circumstances private malice has a formidable weapon in the law against recalcitrant Magistrates criminals throughout New Zealand will, when admitted to bail, know that the law empowers them to compound for their offences by payment of a sum of money. Those who are accused of crimes, and are innocent, but who desire to avoid the shame and confusion of a trial, will understand that money may be legally made the sovereign cure for their evils. In fact, the criminal classes can cry out with joy, pending the appearance of the bold Justice aforesaid, that there is nothing like money in the affairs of this life. Money is all powerful, it is clear, to open the portals of the prison, to waft the criminal from the dock, to console the State for his breach of its law 3. And that money may perform these sweet works of mercy, the dirty money that some of us affect to trample under foot, men are to be allowed to assume false pretences. It is in the eye of the law, right for a gentleman to stand forward as a surety when he is not a surety, and has not the remotestnotion of being a surety. Theonly

qualification that a gentleman requires to enable him to perform the exciting trick of turning himself into a bogus somebody, is the possession of a certain amount of this same dirty money or its equivalent. The poor must be moral and virtuous, but the rich and the criminal can roll themselves along with their dirty money into a lawyer’s paradise. It is time to hear no more of the dirtiness of money. It is the saint of the law canonised by the authorities in due form, if not with bell and candle, at least with book. Imagination need not travel far for examples of what can now be done. A man who has stolen a sum of money from his employer can use it for legally buying his escape from justice by the simple process of using it to indemnify his sureties. And so it may be said of every class of thief, swindler, rascal, and embezzling poltroon. The honest bankrupt must survey the scene with mixed feelings, for his less scrupulous fellow in bankruptcy is more fortunate. The fraudulent bankrupt has only to be committed for trial by a Justice in order to escape punishment and live elsewhere on a part of the proceeds of his wickedness. This class is the strangest class of cases that can be mentioned in the long category which it is now in anyone’s power to draw up. A man who has filed a declaration of insolvency, who is by his own confession withont a copper, can, when he is charged with taking the money of his creditors, become his own security. As an illustration, we will imagine a case. A man files his schedule. A large sum of money is found on his premises secreted. He. has also secreted some money which is not found. He is arrested, brought before a Magistrate, and committed for trial. Bail is granted on certain conditions, that is to say, his own recognizances for a certain sum, and those of two sureties each for half that sum. Ho uses the undiscovered money to cover the whole of the bonds, his own and the sureties’. His bail is accepted, and be flies the scene. He lives pious and revered in a foreign land, thanks to the money which remained to him after the termination of his simple enterprise. That this can be is an anomaly, and it is the law. The sooner such an anomaly is removed, the better.