To the Editor of the Nelson Examiner.

Nelson Examiner and New Zealand Chronicle, Volume IV, Issue 189, 18 October 1845, Page 130

To the Editor of the Nelson Examiner.

Sir — Your slashing article in last week's paper, meant as a reply to my remarks upon this case, labours under the trifling defect of entirely overlooking the only question at issue, viz., whether in trial for assault the accused has a right to plead provocation in defence. I cited Blackstone to show that "if one strikes me first, or even only assaults me, I may strike in my own defence ; and, if sued for it> may plead son assault demesne, or that it was the plaintiff's own original assault that occasioned it." You discover, however, that I was greatly in error in citing the foregoing passage, upon which I had "unluckily stumbled; in which the author was treating of the law of battery in reference to its civil remedy as between the beater and the beaten ; and that, if I had extended my investigation into the fourth volume of the ' Commentaries/ I might have saved myself ! the trouble of writing a letter.'* ' Now, unfortunately for you, it was this very fourth volume which referred me to page 120 of the third volume, from which I quoted those passages that you consider so irrelevant. In the fourth volume, page 216, sections 5, 6, 7, Blackstone, treating of assaults, batteiies, wounding, says — " With regard to the na :ure of the three first of these offences in genera 1, I have nothing further to add to what has alre ady been elsewhere observed (third volume, page 120); where we considered them as private wrongs, or civil injuries, for which a satisfac tion or remedy is given to the party aggrieved. But, taken in a public light, as a breach of the King's peace, an affront to his Government, and a damage done to his subjects, they are also indictable and punishable with fine and imprisonment." If I had confounded private with public wrongs, as you erroneously suppose, I sho aid, most probably, have consulted the first chapter of the third volume, and quoted the following :— \ " 1. Self-defence. — The defence of one's self, or the mutual and reciprocal defence of such as stand in the relations of husband and wife, parent and child, master and servant. In these cases, if the party himself, or any of them his relations, be forcibly attacked in his person or property, it is lawful for him to repel force by force ; and the breach of the peace which happens is chargeable upon him only who began the affray. For the law, in this case, respects the passions of the human mind ; and (when external violence is offered to a man himself, or those to whom he bears a near connection) makes it lawful in him to do himself that immediate justice to which he is prompted, by nature, and which no prudential motives! are strong enough to restrain. It considers thatjthe future process of law is by no means an a dequate remedy for injuries accompanied vrith force; since it is impossible to say to what length of rapine or cruelty outrages of this nort might be carried, unless it were permitted a man immediately to oppose one violence \ rith another. Self-defence, therefore, as it is ju Jtly called the primary law of nature, so it is not, neither can it be in fact, taken away by the Law of society. In the English law particular^ ■, it is held an excuse for breaches of the pence, nay, even for homicide itself; but care must be taken that the resistance does not exceed the bounds of mere defence and prevention ; for then the defender would himself become an aggressor." But considering Conway's crime as within <* the category of public wrongs, I read only ,co much of the third volume as was specially referred to by the author as containing all he had to say respecting assaults, batteries, wounding ; and in that way missed the foregoing admirable passage, which will not, I am sure, be lost upon Nelson jurors. Nothing could more beautifully illustrate the humane, generous, manly spirit of English law; a spirit which it is the immediate interest of every man in the community to maintain inviolate. I I ask the Nelson jurors whether it was in accordance with that spirit that Conway iva« denied the right to plead in his defence Crow's original assault ? Was it that spirit which informed them by the mouth of the judge 1 hat

j" it will make no difference if the jury should chink the injury was intended for Crow ?" If prow had received the blow, and brought the •action, would it then have made a difference ? Your defence of Judge Chapman's learning from my "aspersions" was altogether unnecessary, as my letter did nowise impugn the judge's learning (which I believe to be highly respectable), but simply its employment on that occasion. When the judge laid down the law of intention from Blackstone, nothing could be more clear and rational ; but, when he attempted to deduce therefrom that the prisoner could not plead the original assault, that it made no difference for whom the blow was intended, the reasoning appeared to me strained and illogical ; jand 2A£sitwasl designated judge-made law; v faulty phrase I admit ; judge-made justice, or judge's justice, would have been the proper one. Judges are all honourable men, most grave pnd reverend signiors; yet they are not altogether exempt from human frailty : as witness the late State prosecutions, where the Irish judges tried and condemned O'Connell and others by means of a packed jury; or the trial iif Home Tooke and others, not to go back to uhe days of Jefferies or ship-money. Why are i mch exhibitions now so infrequent ? Because, together with the greater enlightenment and ] lumanity of the times, which extends to the judgesj udges and those in power as well as to the people, there is an increasing desire on the part of (he latter to be fully informed respecting the administration of justice: they begin to understand that "no rank or elevation in life, no uprightness of heart, no prudence or circumspection of conduct, should tempt a man to i conclude that he may not at some time or other I>e deeply interested in these researches :" they peruse the law reports and criticisms of the press with the deepest interest; the result of this direction of public opinion and publicity being the banishment of former fraud, corruption, and villany from the higher courts of <3reat Britain— l wish I could add— and Ireland. Impressed with these views, I make no apo1 'jgy for laying my remarks upon the late trial n>efor6 the public ; however crude and imperfect tjhey may be, if they contain any spice of truth, tjhey will do good, which is their sole aim and object. I am, &c, j Nelson, Oct. 15. Spectator. I [If our correspondent will dabble in law, he should either quote all or quote none. The law qf self-defence is a very wise and necessary proVision when confined to its proper limits; but what its limits are, " Spectator " has omitted to state. His favourite Blackstone shall supply t'ne omission. " For which reason," says he, " the law requires that the person who kills another in 'tis own defence should have retreated as far as he conveniently or safely can to avoid the violence of the assault, before he turns upon his assailant. * * * A^d though it may be cowardice in the time of war between two independent nations to iLce from an enemy, yet between two fellow subjects the law Countenances no such point of honour: because the king and his courts are the vindices injuriarum, and will give to the party wronged all the satisfaction he deserves." We need not, we presume, inform " Spectator," that the law is thfe same on this point, whether it be a case of actual killing, or mere wounding. The correct statement of the law, as it affects criminal cases, is this : — If a man assaults me, and I cannot possibly escape or prevent the assault by flight or other means, I have a right, in order to defend myself, to repel force by force. But if I could have escaped or prevented the assault, or if I do more than is necessary to defend myself, I am not justified in retaliation. And thus, if a man strike me a blow in order to provoke me to fight, I am not justified in fighting on such provocation ; for, as Blackstone saiys in the passage just quoted, the law will give ail the satisfaction I deserve for the blow I have received. This was solemnly decided in one case, which is to be found somewhere in the law books: a jman tweaked the nose of another as an insult, and the party insulted retaliated ; in the scuffle he killed his antagonist. It was held that he was ndt justified. Now as far as we heard Conway's case, it was precisely this: Crow struck him a siipgle blow by way of provocation, and expressly to) induce hint to fight, but he did not assault him in i any such way as rendered it necessary for Conway to repel force by force in self-deface ; nor did Conway, as far as we recollect, attempt to ro.he any such defence, but merely rested on the provocation, which the judge, taking the right view of the law, did not put to the jury. But it should t.Uo be recollected that Conway, previously to the row with Crow, had been using his endeavours to provoke Harding to fight, which, however, failed. The respectable party sat down to all-fours, and Conway's cheating was the cause of the row. But " Spectator's " own quotation shows that -self-de-fence must not go beyond "provocation;" and Conway's seizing a billet of wood to break the other fellow's head with, when he found he had unexpectedly caught a Tartar, must at any rate be considered as having rendered him " an aggressor." Thelawof self-defence never was intended to decide the merits of pugilistic encounters in gin shops betne?n convicts and beach-combers; nor can we jperceive either the good sense or the good taste of endeavouring to excite public sympathy in favour of such fellows, in whose case no reasonable man doibts that substantial justice (and in our opinion ' strict technical justice too) has been done. We hardly need remind our readers that this Conway was an old convict ; had confessed in a letter, since sent to the Governor, that he had been guilty of the robbery of Spershott's money, for which he was acquitted, owing to the principal witness having left the settlement; that he restole the recovered money from the room adjoining the cell in the lock-up ; that he was the person who organized a gang of robbers in this country, on the plan of the Australian bushrangers ; and that, when deprived of ihe knife with which he attempted to stab, and actually wounded, the gaoler, he seized upon the hand of the latter with his teeth, and tore it so thni. it was necessary to bandage it for some days. Moreover, that he showed as much skill and cunning in his various outrages as savage and brutal ferocity; and boasted often that no handcuffs could be kept on him, or any goal hold him within its

walls. We certainly think that it is a very mawkish and spurious humanity which has prompted " Spectator " to the abuse of ingenuity he has shown in getting up a complaint of the infliction of a punishment really less than> his deserts upon so dangerous and desperate a ruffian — a punishment, moreover, which at any rate he must have incurred had the other charges been proceeded with, from the clear and unquestionable evidence against him. — Ed.] _____^_^___