LIBERTY OF THE SUBJECT.

New Zealander, Volume 1, Issue 38, 21 February 1846, Page 2

LIBERTY OF THE SUBJECT.

Much interest lias been excited by the circumstance of fourteen persons being Brought to Auckland, at the end of January, fromUhel Great Bairier, being committed by the local! Justice of the Peace there, for breach of contract with their master, to three months imprisonment, and hard labour, at the jail of Auckland. These men were convicted and sentenced j under the " Summary Proceedings Ordinance," which .seems to have been framed, as if communication,- between the interior as well as distant parts of the colony, and the superior, courts .of law and justice, in Auckland, were as«easy and as rapid as in England. Without entering at all into the merits of the case, which occasions these remarks, — we consider that the 1 8th and 1 9th clauses of this ordinance, ought to be immediately amended, for they are jiot compatible with the due ad- . ministration of justice in a new colony, the i population of which is so scattered, and in' many instances, far distant from the seat of, government, where the higher courts are; holden. It is contrary to the principles of the ( English constitution, that those being under| its laws, should not have strict and.'full justice] meted to them, or that they should be deprived I of redress by the verbal technicalities of faulty enactments. [ In the present instance, the men convicted, j could not by any possibility, comply with the j law, as laid down by the ordinance. Thei 1 9th clause enjoins that notice of appeal shall i be given within three days, after the conviction.! The men were taken before the magistrate on the 21st January, were convicted and sentenced, and on the 28th arrived in Auckland. Subjoined, we lay before our readers a copy of the Judgment of the Supreme Court, on mo- 1 tion of the prisoners for a writ of certiorari, I against the Justice of the Peace, Capt. Nagle ; , and also, their subsequent memorial to Gover- [ nor Grey. We shall only observe, that as the i Magistrate at the Bairier, was sending the! prisoners to Auckland, we think he ought, on , conviction of these men, to have explained to i them, the 1 9th clause, so that they might have ■ availed themselves of the benefit of it.

In the matter of MacdougaU and others. His Honor the Chim' Justice gave Judgment m the following case, on Feb. 13, IS lt». This is an application for a writ of certiorari, to be addressed to Jeremiah Nagle. Esq , Justice of the Peace, to require him to return into this Court cci lain examinations taken before him, and a conviction grounded thereon : under which conviction the person's on whose behalf the motion is marh 1 , are now imprisoned, at Auckland. It appears that. these persons were engaged to seive Robert Menzies, in certain works now carrying on in the Gieat Barrier Island. Each workman was bound by a separate agreement signed by himself and by Menzies, or his agent. On the 21st January last, they were brought before a magistrate', upon iiie' complaint of Menzies, for refusing to complete their agreement, and wer« convicted. They weie committed accotdingly, but did not ai live in Auckland, until the 2Slh of the same month, at which time the days limited for commencing an appeal from the Magistrate's decision had e-.pired, The grounds of this motion are the following : Ist. Il js contended that the agreements between Menzies ami these men we're at an end before the conviction ; Menzies himself, having (as is alleged), actually discharged the men. It is sw orn, that on the 19th January,' Menzies told the mon " that ihey were no longer to look to him as tlu'ir muster, that he had no more to do with them, L or the works. 1 " - Another deponent, James Laurence, swears, that lie heard Menzies, call all the workmen together, (the pnsoheis and deponent bei q amongst the .number), and sa>, "Now men. I hope ijlidt joii will not h >ld me lesponsible for any thing as you have done hi'her to, for Mr. Aberciombie has stated that I am not able to fulfil my contract, therefore 1 have no "more to do with the vessel, nor with am of you men. lam not able to go thiough with my contract, therefore \on can work, or do as )ou like." Now to say the contract was atan end, the m*- • ment these words were uttered, would be to adopt a construction, very unfavourable to workmen in like circumstances, and a construction too ' not supported by law. These men, (some, if not all,) had come from Sydney to this colony, to uoikioi u ceitain number ol c.ilendai months, at certain wages. The contract had been in part pe> formed on both sides. It was no longer then in the power of either party to put an end to that contract, witlmut the consent of the other. For the rule is, that in lescmding or making a contrnct, both parties must concur. (Franklin, v. Udler, 4 Ad. and EM., 606). The utmost that ilieoe woidh could amount to, was this, — that Menzies was willing to discharge the men, if they, o.i tiieir part, would discharge him. But

it open to them, to say, — "No, 5011 have brought us here, we are ready to go on, and do our part. We shall hold you to your bargain." Now nothing appears as to this, As to what the men said or what they did, upon this announcement, nothing is shewn Whether they elected to stand by the contract or to abandon it, cahn6t be gathered from these affidavits. 2. It is sworn both by t hellion and by James Lawrence, that the magistrate, being requested in the course of the examination, to call and examine on behalf of (liess prisoners, cei tain witnesses, who were, (as is alsj sworn), then but a short distance off from the place where the examination was taking place,— : reftised to do sp r saying he was satisfied with Menzies deposition. It appears that a witness was examined on behalf of Menzies. This allegation, is one, which I think, called for an answer, but no counter affidavit has been filed, eitlipr »o deny or to explain it. Now when these objections ate considered, (and the latter one is at any rate of great weight), it is plain that they are proper grounds for an appeal, rather than for. a certiorari. It is indeed enacted by the Summary proceedings.Qrdinance, (Session 2, No 4, s. 17), that "no conviction shall be removed into any superior Court by certiorari or otherwise," an enactment which is very genet ally introduced into modern Acts of Parliament, relating to summary proceedings. It is clear however, that clauses of this 'kind are intended only to prevent convictions being set aside, (as they too often were founerlv,) on account of merely verbal and formal defects, in cases where the conviction itself, was within the lawful scope of the Justices.' authority ; but that the writ will still issue, whenever it shall be made to appear, that the Justice of Peace has exceeded the bounds of his jurisdiction, {The Kiny, v. Justices of Somersetshire, 5 B. and Cr. 816. The Khuj, v. Fou)k),,l Ad. and tf'n., 836)'. I notice this point, only with reference to some remarks made in the course of the argument on the effect of this enactmeut. No decision is called for on the point itself the objections here insisted on are of a different character : and the Magistrates jurisdiction in this case is not denied. In short the allegations on which this motion is grounded amount to this, that these men have not had a fair trial, the magistrate having, as is stated in the affidavits, refused to call and examine witnesses on their behalf. It is uotalleged ti.ai the evidence given by Menzies and the other witness, taken by itself, was' not sufficient, but that opposite testimony was not received. , The return then to the certioiari, would not answer the purpose, (if acertiorari could lawfully issue) j the proper remedy would be by appeal, which would bring with it a new trial, and an opportunity of taking fnri her evidence.' It is clear that- in such a case as the present, certiorari does not lie, where an appeal is given, and the objections are not to the jurisdiction, but to the merits. And this brings us back to the difficulties which constitute the haidship of the case : namely, that the lime of giving notice of appeal, was past befoie these men reached Auckland. It is not said that these men could have been conveyed hither earlier than they were, but it appears that they being themselves unlearned men, had jio means of obtaining any legal advice, unlil the time for giving nojice of appeal was gone. I see nothing, to warrant.me in saying that a° newinquiry would have ended more favourably than the former; yet there is a haidshipin having, lpst the opportunity of having that inquiry made.In this respect, however, I have no power, I*l1 * I am bound by the rule as I find it. On the other hand, there appears no ground for a ceiiiorari. Tiie case has been vpr> forcibly argued ; but upon the best 'considerations of what has been urged, 1 do not see how the writ can lawfully ibsue. , K^le refused.

To His Excellency George Grey, Esqnire y Lieulenant-Gocernor of ]\eiv Zealand, $c, The Memorial of us the undersigned respectfully Sheweth. That we herore the 19th day of- January last, by agreement in writing, bur not by deed or instrument under 6edl, agreed to serve Robert Menzk'S fur twelve months in certain works on, the Great Barrier Island, or until a Vessel now in the course of construction in the said Island should be completed. , That on the said 19th day of January the said Robert Menziesicame to us, and called" us together, and staled, thaf we were not any longer to consider him as our Muster, thai he had no, more to do with us or the works, saying "now men, I hope that )ou will not hold me responsible for any thing as you have done' hitherto", for MY. Aberorombie has stated thaV£ am not able to fulh'l my contract, therefore I have no more to. do with the Vessel, or with any of you men, I am not atle to go through with tlie contract, thereforejou can work or do as you like"— knd that he subsequently in the evening of the same day stated that he had discharged us. , That weaccoidingly left off woi;k, considering ourselves discharged, , and the agreement' at an end. ' ' That on the 21st day of the same month we were summoned to appear before Jeremiah Nagle, Esq., a Magistrate resident in the .said Great Barrier Island, to answer a charge preferred by the said Robert Menzies against us, for refusing to work for him. That when before the said Jeremiah i Nagle, lisq', the said Robert Menzies and a ' witness on his behalf were sworn and examined, but !the,i said Jeremiah Nagle, Esq , refused to hear any ' witness on our behalf, although four witnesses were close at hand, and ready to give testimony. That we wete accordingly convicted by the said Jeremiah Nagle, lisq., for refusing to work, and sentenced by him to be imprisoned, and ke^t to hard labour for three calendar Months, the conviction falsely describing us as <« indentured servants." That we were in pursuance of such conviction, brought from the Great Barrier Island, (where there was no Lawyer to act for, oi advise us, or any person competent to inform us of the law> or £ive notice of appeal on our behalf,) and on the 28th of January arrived in Auckland, when upon consulting a Lawyer, we discovered that by Local Oidinance, Ses.s. 2, No. ( 5, we were deprived

of the remedy of a writ of certiorari to remove the proceeding befoie Jeremiah Nagle, Esq ,into the Supreme Court, and also that we were deprived of all power of appeal under section 19, of the said Ordinance, which limits the time for giving notice of appeal, to three days after conviction, more than that period having elapsed before our arrival in Aucklaud,and likewise that Me were deprived of our remedy by Action the conviction having been drawn up agreeably to the form prescribed by the said Ordinance. That feeling the extreme hardship of our position, and that without any crime or fault on our parts, but solely from our ignorance of a Local Ordinance and the Act of the said Jeremiah Nagle, Esq., and the said Robert Menzies, we ■were deprived of our liberty, we, with a view that our case might be known, and if possible be remedied, applied for a writ of certiorari to His Honor the Chief Justice, who admitting the hardship of our case felt compelled to refuse our application. That we have been since our arrival in Auckland, and now are, compelled to work as malefactors in company with fettered felons upon the public roads, and are without any relief, or redress, unless your Excellency shall be pleased to grant the same. That such a state of things could not by possibility occur in England, and that as Britons we feel, and are advised, that we have not done any act to forfeit our liberty. That we have in this our memorial omitted many act of hardship and oppression, inasmuch as the same are not enumerated in the affidavits submitted to His Honor the Chief Justice, to the contents of which affidavits thesame not being in any way answered either by the said Jeremiah Nagle, Esq., or by the said Robert Menzies, we respectfully refer your Excellency, and also to His Honor the Chief Justice. Trusting that the above statement has only to be submitted to your Excellency, to obtain for us that relief, which is denied to us, by what we conceive to be an unsatisfactory state of the Law in New Zealand, a Law calculated to injnre not us alone but the public in general. We subscribe ourselves with the greatest respect, Your Excellency's Earnest supplicants for relief. Thomas IVXahony William Me Dougall Hyatt Smith John Perry James Bruce William Munro Edward Higgins James Wem)ss Daniel Reordon Bernard Cally James Pashley Thomas Quail Robert Me Dougall I William Swanson. Auckland, Feb 14th, 18-16.