EXTRAORDINARY PROCEEDINGS IN THE SUPREME COURT AT WELLINGTON.

Otago Witness, Volume 06, Issue 73, 9 October 1852, Page 4

EXTRAORDINARY PROCEEDINGS IN THE SUPREME COURT AT WELLINGTON.

(From the Nelson Examiner.)

A case of considerable importance has occurred in the Supreme Court of Wellington, which will be by no means calculated to raise our new Judge, Mr. Stephen, in public esteem. A retail storekeeper, named Robinson, had failed to attend on the petit jury when summoned, and out of this arose proceedings which, with our notions of liberty, are certainly startling. We take the facts from the " Wellington Independent," July 28 :—

" Mr. Samuel Robinson, draper, of this town, was summoned to attend the last sitting of the Supreme Court as a petit 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 be 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. Fitzherbert, Esq., J.P., and C. Cliffoid, Esq., J.P., were, together with Mr. Robinson, fined £10 each for non-attendance. On Monday, the 28th ultimo, Mr. Justice Stephen sat in Court, when the above named gentlemen were heard on affidavit, shewing cause why the fines imposed should not be levied. The excuse Mr. Fitzherbert gave was deemed sufficient, an 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, fecmacl sufficient, and his fine, as well ds that of Mr. Fitzherbert, was remitted. Mr. Robinson's excuse was deemed insufficient, and the mitigated fine of £5 was in his 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 mieht have been justly levied by the Court, if it had thought fit to do so. Eut 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 v^vr- for hi- 1 non-attendance "was no Ik-Hi r tL.Tii th-j r.no lij bad ! 1 , \ia« i"l r< ! ? scot free. Mr. Itobinson was, thereiore, 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 time, smarting under the infliction of the penalty, he concluded that he had been made an example of because he was only a common retailer, and that Mr. Clifford was let off scot free because he 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 not our present business either to inquire or to decide. Most people, perhaps, under the same circumstances, would nave been similarly impressed, until time had been allowed for the clear, calm, and full exercise of their reasoning powers 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 very 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 our journal, on which the proceedings were instituted, that the observations reported to have been made by Mr. Justice Stephen 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. 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 feel 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.'*

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[Continued from the Fourth Page.]

On the 24th of July Mr. Justice Stephen sat in Banco, when Mr. Robinson was summoned to appear under a judge's order, " to answer for unlawfully and contemptuously publishing in the ' Wellington Independent,' of the 9th of July, a letter signed S. Robinson, charging his Honour Mr. Justice Stephen, a judge of the Raid Court, with partiality and corruption in his office, with respect to a fine imposed by his Honour on the said S. Robinson for non-atten-dance as a juror on the 7th of June." Mr. M'Kenzie, the printer of the " Independent," was also summoned to appear for publishing the said letter.

Mr. King, who appeared for Mr. Robinson, objected to the irregularity of the proceeding, contending that the Judge had no power in chambers to issue such an order, and that the affidavit on which the order was made was defective on several grounds. He applied for time to argue these objections. His Honour 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. Robinson not answering, his Honour directed an attachment to issue against him, returnable on Tuesday, the 27th, at 11 o'clock. Dr. Evans appeared for Mr. M'Kenzie, and applied for the rule to be enlarged, on the ground that he had not the required notice of two days. This was granted. On the 27th, Mr. Robinson was brought up in custody of the Sheriff, he having been apprehended on the Judge's warrant immediately after the Court rose on the 24th. Mr. M'Kenzie attended with his solicitor, in obedience to the order, to answer the charge of " unlawfully and contemptuously publishing," &c. Mr. Robinson was first called upon to answer the interrogations put to him by the Court, and on his refusing to comply, on the ground that he believed the proceedings to be illegal, he was committed to gaol for one month, at the expiration of which he was again to be brought before the Court to answer the interrogatories which may then be put to him. Mr. M'Kenzie was then called upon, when his solicitor, Dr. Evans, took a course similar to Mr. King, and objected to the validity of the Judge's order. On the 2nd August, Mr. Robinson appeared jn Court to answer the interrogatories put to him, and having done this, and so purged himself of his contempt, was discharged ; but both the writer and the printer were summoned to appear on the 27th to receive judgment for the original offence. The Judge then fined Mr. King, Mr. Robinson's counsel, £20, for advising his client to disobey the orders of the Court.

Such are the particulars of the case in the fewest possible words. We shall not undertake to say whether the Counsel or the Court was in the right in the very lengthy discussion which arose upon the validity of the Judge's order, although we believe, both in Wellington and here, the majority of the profession are of opinion that the Judge was wrong. But, supposing him to have the law on his side, we have heard but one sentiment as to the exercise of this power by his Honour. While the ordinary tribunals of the country are sufficient for the redress of wrongs, whatever may be the station of the injured party, it is to those and those alone an appeal should be made. The spirit of the present age will not tolerate the arbitrary and Star Chamber practices which prevailed formerly, and although judges very properly continue to be invested with extraordinary powers, it is with a tacit understanding that these powers shall only be used on extraordinary occasions. " It is excellent To have a giant's strength ; but it is tyrannous To use it like a giant."

(From the Lyttelton Times, Sept. 18th.)

By the " Munford" we have Wellington papers to the 4th instant. On the 27th August, Mr. Robinson and Mr. M'Kenzie appeared to receive judgment, the former for writing, the latter for publishing, a letter reflecting upon a decision of Judge Stephen. The "Independent" says, — " Mr. Stephen occupied two hours in delivering his judgment, and answering the numerous objections which the Counsel for the defendants — Dr. Evans and Mr. King — had urged against the mode of proceeding in the present case, maintaining, from numerous authorities which he quoted, that the course he had adopted was perfectly legal, and was of the most lenient character. " The sentence of the Court was, that in the case of Mr. Robinson he should pay a fine of £20, and find bail himself in £100 and two sureties of £50 each, to be of good behaviour for twelve calendar months, and to be imprisoned until such bail be given, and such fine paid. In the case of Mr. M'Kenzie, that he

should find bail himself in £100, and two sure-

ties of £50 each, to be of good behaviour for * twelve months, and to be imprisoned until such bail has been tendered and accepted. Both defendants have been sent to gaol. " On one occasion during the proceedings an expression of feeling in favour of the defendants was widely manifested by the persons present in Court, when Mr. Justice Stephen ordered the Sheriff to take them all into custody, and observed that the inhabitants of Australia, convicts as they were, or were said to be, knew how to behave themselves with more decency than the people of this colony, at leas bo far as he had seen of them." Our contemporary is waiting for the official report of the judgment, ere proceeding to detailed observation thereon, « or so much of it,

at least, as may be "vouchsafed to us from the written notes ; for we doubt considerably whether any body will dare to give us all those extemporaneous flights, garnished with so many flowers of rhetoric, with which the audience were regaled, though not all of them persuaded or captivated, during the delivery. The table is prepared, and the dissecting knife is ready, and we are only waiting for the subject, in order to begin that demonstration which the public are expecting, not merely in the interest of science, but likewise with a view to the indulgence of a liberal and enlightened taste in this department of anatomy. " We cannot, however, dwell upon things so perfectly disagreeable as those which we have been compelled to advert to. If a grave lawyer should think fit to stand upon his head, or to dance upon a tight rope, at the Britannia Saloon, we should not feel more painful emotions than we did on a recent occasion. But we forbear, and ask the public to deal kindly and. compassionately towards a Judge, for the sake — not of the man, but of the sanctity of the office which he sustains."

A large meeting was held on the 28th of August to consider the decisions. Resolutions •were passed, affirming that the " arbitrary pro» ceedings in the Supreme Court are calculated to shake public confidence in its decisions, and to bring it into contempt." A Committee was appointed to " collect information and to prepare a report of the proceedings," and " that &r& r subscription list be opened to pay the fines and' to indemnify the bail in the case of Thomas M'Kenzie." Sixty-two pounds were at once subscribed to the Indemnity Fund, and sixtythree subscriptions, limited to 2s. 6d., to liquidate the fines. An adjourned meeting took place on the 3rd inst. to receive the report of the Committee, which was read, but has not yet been published. 153 persons had subscribed 2s. 6d. each towards the fines, and the Indemnity Fund had reached £106. Messrs. Robinson and M'Kenzie would be liberated from gaol in a day or two. Subscription Lists have been opened in Lyttelton and Christen urch, to pay the fines and costs imposed by Judge Stephen, and to indemnify the bail in the case of Mr. Mackenzie. Several sums have already been subscribed.

The following letter, addressed to the Editor of the " Nelson Examiner," is taken from that paper of the 11th September : — Sir, — Amongst the strange differences which exist between the Constitutions of the colonies and the Constitution of the home country, none is more distinct or remarkable than the profound secrecy which the colonial authorities are able to maintain in all public business, as com- j pared with the publicity which prevails in the public business of England. In the honi<. { country, on the slightest grounds for dissatisfac" tion, papers and evidences are required by the Representatives of the people, which lead at once either to an immediate approval, or to an immediate and public censure. In a colony, on the contrary, the door is throughout shut in the faces of the dissatisfied party, and the channel provided them for the transmission of their grievances and complaints, to a Colonial Minister distant some 16,000 miles, is through the identical party against whom the complaints are made. A most ingemous system of delusion and frustration of the colonial public has hence sprung up, which would be scarcely credible were it not for our own experience of it, and the occasional revelations of those Parliamentary Blue Books which, according to an homely phrase, " hold up the candle to the Devil," or, in somewhat more polite language, " bring to light" the " hidden works of darkness," which, but for these public documents, would have remained as unknown to us as the whispers of our most private slanderers. Despatches pass and re-pass, and come and go, and all of them most deeply concerning ourselves, without the slightest intimation on the part of the writers, either for our caution, or guidance, or satisfaction; and it is only after the lapse of a year or two — that is to say, long after the information can be of any use to vs — that we for the first time perceive the strings which have been pulled, and the arguments, suggestions, and suppressions which have been made use of, and generally to our disadvantage. This system appears to be sustained chiefly by sundry convenient opportunities and privileges peculiar to colonial authority, and which seem to have been unscrupulously resorted to on all occasions, and which, on consideration, will now rather lead us to the conclusion, that the Colonial Minister is often a personage rather to be compassionated, or more " sinned against than sinning," than as an agent active against us, as we have often been led to believe. The first in order of these colonial opportunities is the aforesaid compulsory rule, that the chief colonial authority shall be the channel of communication, even in complaints against himself. If the colonists, suspecting an abuse of this privilege, should presume to send to the Colonial Minister an accredited advocate, that distant and inaccessible authority closes the door for all such conference, and refers the advocate and his explanations back to the previously rejected channel, •with the bland repulse that his duties leave him no leisure to attend to such private or public deputations. The Minister thus becomes as entirely isolated and removed from the settlers as possible, and necessarily a partner only with the channel of communication ; whilst there as naturally arises from this " saw" in. our four-handed political game at whist, the most beautiful opportunity to all Colonial Governors, of quietly and satisfactorily shaping everything in favour of every selfish official interest, and adversely to all our satements and wishes, until the isolated and unconscious Colonial Minister, reading and be-

lieving only each garbled version of all our remonstrances and petitions, without the remotest chance of a contradiction from ourselves or other colonists, is only roused from his misplaced confidence and utter isolation by those outbreaks of popular dissatisfaction which, carrying all before them, compelled his attention towards Canada and the Cape, and which are gathering fast in the same direction throughout Australia. Viewed as an index of the past, each Blue Book which arrives amongst us is, in its way, a curious and instructive study; for on each local allusion referring to ourselves, we have only to compare it with our own recollections, and we may derive from it the most profitable lessons, and thus obtain a knowledge of what we may have to expect from the same parties in all our present or future transactions, and some little inkling of the usage to which all our former petitions and remonstrances have been subjected to during the periods which have past. The following extracts from one or two of a recent batch of despatches will display the tactics which have been put in requisition to contravene the protests of the Wellington Constitutional Association. About two years ago the Wellington Settlers embodied their complaints in a series of resolutions, and, under the compulsory rule beforementioned, forwarded them to the Colonial Minister, through the channel of the accused party,. and the despatch of Sir George Grey enclosing them is dated so far back as December 23, 1850. In commenting upon these resolutions, his Excellency remarks :—: — "As the despatch of the Lieutenant-Governor affords apparently the information which your Lordship would require upon the greater number of the Hesolutions of the Association, it is only necessary for me to report upon those to which I now proceed to allude. In the fourth resolution they state that I refused to allow the Legislative Council of the Province to hold their annual sittings. Your Lordship must be well aware that I should never have dared to commit such an act as this, but my despatch, No. 98, of the 20th of September last, will have put your Lordship in possession of the circumstances under which the Lieutenant-Governor had found it impracticable to assemble a Council at the period he desired." This I conceive will appear, to all resident in Nelson, as a most monstrous and unblushing imposition either upon Earl Grey, his distant and confiding superior, or upon the unfortunate Lieutenant-Governor, his subordinate here. It is notorious here, and must be also in Wellington, that the Lieutenant-Governor did all that was in the power of a subordinate to do, and that he actually took every step which in any way depended upon him. Receiving no instruction from his absent superior, and perceivI ing that the proper and legal time for assembling the Council was passing away, he, with j;£ue anxiety, as was his duty, summoned personally the various members thereof, and amongst others two gentlemen of the highest standing and ability here; who having been accordingly so summoned, arranged their private affairs so as to attend at it, and waited to be conveyed there. On the arrival of the Government brig, which they had supposed was sent solely on their account, they were coolly informed that the Governor-in-Chief had indefinitely postponed the assembling of the Council by his own higher authority ; and, as a consequence, a very general impression prevailed in Nelson that the Lieutenant-Governor had received what is somewhat inelegantly but very emphatically called " a snub," for having presumed to act in such an important matter without such higher authority. The natural effect of this suppression of the Council by Sir George Grey himself was the immediate resignation of both the gentlemen who had been so unconstitutionally and so unceremoniously debarred from attending to their duties connected with it. As we all well remember, each gentleman properly and deeply resented it, by forwarding to Sir George Grey, by the returning Brig, their written protests expressive of it ; and although Sir George Grey subsequently paid to each gentleman a deprecatory visit, and, as was very generally believed in Nelson, for the express purpose of mollifying them, they have never withdrawn these manly and independent protests, and have declined ever since to act as Nominees of Sir George, although a session of the Council has intervened. It seems then really something more than " too bad" for the principal authority of the colony thus to take shelter, as it were, under the wings of the Lieutenant-Governor, who was not to blame, and who is compelled, by bis position as a subordinate, to submit to such an excuse being put upon him, he being, as is but too evident, so far under the official screw of his superior, that he has for some time past been gradually reduced, not only in this respect but in all other respects, into a mere cypher en sufferance, and who, according to the new Bill now pending, will shortly be extinguished altogether as a Lieutenant-Governor, and can only revive again as a Superintendent — a lower office at a lower salary, and which may probably be one of those " valuable suggestions" which Sir John Pakington alludes to in his speech, as recommended by Sir George Grey — the first type of which species of officer, a creation of^ Sir George Grey's, is to be found here in Nelson,^ and probably, politically speaking, in no other) colony in the world. f Sir George Grey having thus disposed of the! charge alleged against him by the Wellington^ Constitutional Association, of " refusing to| allow the Legislative Council of the Province; to hold their annual sitting," which, by the bye, he has been equally guilty of during the last past twelve months as he certainly was at the former period, concludes the same despatch with the following further remarks :—": — " I beg further to call' your Lordship's attention to the

Lieutenant-Governor's remark upon the eighth resolution — The Government have been by law deprived of all power over the public lands, or resources derived therefrom ; and whilst the Principal Agent of the Company has neglected his own most obvious duties to the public, he has in the present instance endeavoured to divert attention from himself, by attacking the Government for not doing that which he really was alone able to do." These words of Sir George Grey are really more unfortunate for himself than for Mr. Fox, and are most appropriate rather for conveying the exposure of motives which more correctly belonged to himself than to Mr. Fox, for without the least travesty, and simply by the substitution of a few names, the same words most admirably express the whole point and meaning of the preceding remarks, as may be perceived on inspection, when they are read as follows : — " The public have been by law deprived of all power ove- he Legislative Council, or resources derived therefrom ; and whilst the principal authority of the colony has neglected his most obvious duties to the public, he has in the present instance endeavoured to divert attention from, himself, by attacking the Lieutenaat-Governor for not doing that which he really wa3 alone able to do." It will, however, be only fair to quote the corresponding paragraph of the LieutenantGovernor's despatch, which Sir George Grey alludes to, and so strongly and unfortunately makes use of: — "With regard to the eighth resolution, asserting that ' the late melancholy accident at the Wairarapa Lake is attributable to the neglect of the Local Government of its proper and legitimate duties,' I need scarcely remind your Excellency that the district in which that Lake is situated has never been acquired from the natives, whilst they have always refused their permission to any European keeping a ferry there. I would, however, point out that even if the Government had had the assent of the natives, the means from which the outlay necessary in establishing ferries, viz., the land fund, ought to come, are in the hands of the New Zealand Company, whose Agent in the colony is thus taking a part in casting a stigma on the Government for not doing that which ought properly to be done out of a fund which either he, or the body he represents, .have the whole and sole control." By the reference to this paragraph of the Lieutenant-Governor's, without any further comment than a repetition of the attack upon Mr. Fox, his Excellency appears to have been again " endeavouring to divert attention from himself," by a side-insinuation into the mind of his distant, and therefore unsuspicious superior. Among the charges against Sir George by the "Wellington Constitutional Association, had been the creation of numerous needless and expensive offices, and the consequent absorption of all the public funds, and the non-performance of works of public utility. In allusion to this Sir George Grey does not venture to proffer [ one remark, but adroitly seizes upon the suggestion of the Lieutenant Governor to render Mr. Fox the scape-goat to account for the omission of these neglected public works. How easy thus, at a distance of 18,000 miles, and without the remotest chance of a contradiction, to lament the loss and absence of this important but lost Land Fund. How great the works which might have been effected if but supported by that fund, so long and so unprofitably placed in the hands of the New Zealand Company, and of which Mr. Fox had the whole and sole control ! How naturally would this severe allusion to Mr. Fox account to a distant and indulgent superior, for public works admitted to be non-existent, and for the loud and incessant complaints of such omissions, coming however wholly and solely from selfish, unreasonable, and dissatisfied colonists, for ever complaining of produce delayed from market, by roads, in winter times, one mass of deep tenacious mud, through which their valuably laden drays sink down almost to their axletrees, How admirably this sad reference to the wasted and defunct Land Fund, in order to " divert attention" from those unnecessary and expensive offices and salaries, which alone are really and truly the sole cause why money can scarcely ever be found for important and necessary works, until, as at the Lake of Wairarapa for the want of a ferry (which, no doubt, the natives themselves would have undertaken, if paid for it), or at the entrance of the harbour of Wellington for want of a lighthouse, the valuable lives and property of the industrious and energetic settlers have been destroyed and uncared for, whilst swarms of officials, for a few hours of trifling work, and with incomes accruing therefrom, higher than the most industrious settlers can earn by the hardest and most prolonged labour, or by the longest days of enterprise and occupation, are daily enabled to " eat, drink, and be merry," and to rids and jaunt about the country on excursions of pleasure, and to over-crow and look down upon those who in fact pay them, without the smallest recognition and acknowledgment, even in their own minds, that they are at all so disproportionately and unnecessarily benefittei at the expense of the public purse, but all of whom, on all occasions, combine as a phalanx in ono ever active support and defence of their origi- . nator and supporter, Sir George Grey. & One despatch alone has furnished these reIrnarks, and other despatches are equally fruitful of comment, and can be touched upon at until it shall appear that the public attention is sufficiently awakened to facts which really very important features of all Colonial Governments. — I am, &c, tLAUNCELOT Blub Book. Nelson, Sept. 2, 1852.