SUPREME COURT.

New Zealand Herald, Volume III, Issue 898, 29 September 1866, Page 5

SUPREME COURT.

Friday, SErTKMBEU l'B. (Before His Honor Mr. Justice Jloorc.) His Honor took his seat on tho Bench at 10 o'clock yesterdiy morning. NATIVE CIHCITIT COCItT. —ITAI!EAS COItrUS. John Priestley was btuiight up from Mbuint EJen Gaol under a h<thc<ts, issued from tho Court on Monday last, anil made returnable ve-terdiy. Tho prisoner was tried and convicted before tho Nativ Circuit Court, Hauraki, on th« GtH of Soptomber, o conveying coastwise in a vessel called tho Alow, in the Pinko (in the'nativo district of Hauraki), u number of guns, revolvers, powder caps, and warlike stores, by which he becama amenable- for u breach of the Arms Act, IriuO. Mr. McL'urmick, on behalf of the prisoner, appeared to take objection to tho conviction and commitment, Mr Gillies appeared for Mr. Mao.kav, President l.airutrate Ino Judge Riding, with "two native assessor* lit tho «J oUrl bejo , 0 whlcll tho vv - uowv was !iri -:. c „ed. A preliminary discussion to >k placo upon a formal matter, namely, whether a document signed by the person named in the recital with tho name, and a circlo befjro it containing L S (locus Bigilli), could bo taid to be given " under hand und seal." Tho commitment set forth that the. prisoner had boon

tried by James Maeky, Esq , and two native assessors, at tho Native Circuit Courtj in tho Pialco, in the native district of Uanraki, before a jury of twelve " good and loyal men " of tho said distrier. I'ho objections to the return taken by Mr.McCormick on behalf of tho prisoner wore in substance the same as those made upon tho motion (or tho writ to issue. U's first objection was that these Courts have no jurisdiction over British boru subjects. The Nativo Circaits Courts exist under an Act of tho Legislature of 180S, and an Amendment Act of 1802. It wii.s nowhere mentioned in tho Act that tVeso Courts would hava jurisdiction over British born fcubjects. Tho object of the Act Waa to preserve tho Queen's peace in places " where tho Nativo titlo is not yet extinguished." This phrase

should bo taken as implying a specific lirni:ation, ineluding within it provision for the iiitivo ruco only. It should ho shown that the Stiituto applied to Europeans. The 13th clauso gave power to try all eases of a civil nature " where the parties are of tht) Native race;" and ihis provision made an express distinction between Native aud European. 15y the Act authorising the " Native Assessor's Court," assessors had no jurisdiction, civil or criminal, oxcept over persons of tho Native race. Tho provisions of tlio Act of 1862 were so extraordinary that one could hardly believo the Legialat •• r o could have ever intended them. * 0 aDD i v to British uubjeets Tho «otop- w had'power to order., An-.? rp bo iiuJ- up - f thuru Wlls lt t ,' o(il .j om , yi ana a verdict could be givon by two-thirds of tho jury : tho first of these provisions ul'cuting the right of challenge, and the second striking at tho root of tho piivilcgo by trial by jury. Again, tho Court might order a civil action to change into a criminal one. These, it were contended, were powers opposed to the spirit and letter of the British Constitution, and oouldiioverhavc beon contemplated by the Legislature to be put into the hands of tho Resident Magistrate and two native asseaaora ovor the liberty of British born subjects'. The Amouciinen Act gave powers of trying ull oileneeß except those involving punishment oi' death. The eetind ground of objection was that tho offenco with which tho prisoner was ch rged was not cognisable by tho Court. Tho Mill beciion of tho Arms Act was to tho effect that every person who Bhould remove, or cause to be removed, or assist in removing, warlike stores inland or coaßtwiseshould beguilty ol'a raiademoanour, unless it was ibr tho purpose of self-dofeuce or of sport. Tho punishmorit for the olfenco was imprisonment " and " fine. Tho prisoner was imprisoned only. This objoction was good, although tho prisoner might Have the benefit of the omission. Then, although the second Act enlarges tho first, its powers are given subject to 'ho provisions of tho first Act. The third objection was that tho description of the presiding judge was insufficient. Tl\o commitment ! set forth that the prisoner was oonvicted by J. : Maekay, Kb,}., a Resident Mugistrate, and two ; native assessor©, &o. It should have appeared that \ Mr. Maekay had been appointed to that Court in t duo form, or that he was the Resident Magistrate of , that district, or that tho Court wats hold, under his . authority Riven by statute. Mr. Gillies said that ho was not before the Ccurt ; for the purpose of defending tho policy of these particular statutes. liight or wrong they w c re law. The ground of Mr. McCormick's objections wero, ho considered, altogether erroneous, as they rested upon • tho notion that British laws wero not in force in J native districts. Although there might bo Bpocial laws for those places, such an tho Native Districts

Hegulation. Aec,- still, the authority of the British/law was. supreme; These .Native. Circuit Courts had Jurisdiction which, was applicable to persons, whether •JSntivdi dr European, unless,expresslr excluded. The preamble which had been, cited as making a distinction, with -r.-speet to persons, ruther strengthened than otherwise the case, in favour of CAmmitment Was it to be said that laws which applied to land out of which most of the disputes likely to exist shonld: originate, was t.o include one. owner and not another,-.. The Native District Kegulati.oh Act applied more directly t.o persons than thi -i- Act,, and. was avowed for the purpose Of promoting civilization among the natives. The Europeans who might bo subject to the operation ofthese Acts was expressly described as' persons " dom- ' jotted'" in such districts These locd and native. I disputes required a special legal machinery, und whatever might be said of the Acts, they were at leai't tho offspiirlg of tho necessities of the folor.y. nesides, the Cqiii't could hot recognise any distinetioi'. between. IMtishyborn qr native- subjects of Her l[.,;]e>ty. It whs not to be supposed that aa linghshmin's son who might be born in the coloiiy should have any special rights or be subject td any particular deprivation. JEvery s.ubject of Her Majesty was entitled to the protection of the law. Inifoed,. there, was greater excuse for a native charged with an oifence of the kind than there was for it European, as it might h» presumed (be former acted in total ignorance of the law, As to the offence not being one that was cognizable lo the Court below, the jurisdiction was given to determine and. punish alt fehmies, crimes, misdeexcept those punishable by d-'ath, fjr which aj.iue <>{ £$ would bo inflicted, lfure tl.e limitation oi the jurisdiciiiiii was downwards. 611 qll'e.iicos lor which a sum. of five pounds could be inflicted, were cognisable hy the Court. As to tho objection to the authority of th« Resident Magistrate, the language, of the statute is to tlie effect t'latsoine one Who holds the commission of Resident Magistrate was to be appointed, not for (he district, but to hold the periodical courts.. Ho was not the judge, but a Ucsidf-nt Magistrate, nominated to tho performance of a particular.duty. The clause in theslatnto did not show that tho resident magistrate must be of and for a ilistric, the same as ajustic- of the pea'eiu Englaud must be ot ai;d tor a county. As to tho objection taken to the sentence, the words of the Act were that tlio Court should imprison for threii years, and Cue at its discretion tho defendant a s'un not exceeding £stiO. 'the discretion applied to the infliction of any line whatever. His Honor said that in Wheatcroft's case he had felt it necctsary to Bfttisfy the Act to iuilict both fine and imprisonment. Mr. McCormick having replied, his Honor said that the matter being important, he would not decide it oil' hand. Ho was obliged to proceed to vVellington on Tuesday next. He would try and give judgment oil Monday morning. The prisoner was remanded to prison until Monday morning.