THE COLONIST. NELSON, FRIDAY, MARCH 11, 1870. A STRANGE CHARGE.

Colonist, Volume XIII, Issue 1300, 11 March 1870, Page 2

THE COLONIST. NELSON, FRIDAY, MARCH 11, 1870. A STRANGE CHARGE.

The intellectual capacity, and calm judgment of his Honor Mr. Justice liiebmond Have gained for him a public doDsiderattlbn and respect' second to tliat enjdy^d; "by"no; judge in the Colony. It is therefore with' the greater amount of surprise that, the public at large have heard and read ther remarkable Charge which his Honor made to the Grand Jury at the Bitting of the criminal sessions last week, "t^h'ether His' Honor's present feeble health (which we all deplore) has interfered with his customary perspicacity and mastery of facts, it-is impossible to say. But of this we are cer-_ tain a greater amount of what seems to us misconception of facts, and a greater depar* tiire from the true basis of a charge to a Grand Jury, w^ never' before observed "ifci any-of the charges delivered by' hjs Hoftprv We confess to perusing it with surprise, i» either the facts of the VVangapeka case must not have been fully known to his Honor, or he must have greatly misconceived themi In truth, Judge Richmond appears to have stated an "A.8." case, a supposititious occurrence,—for most of his assertions; with scarcely an exception, appear all to be qualified, proceeding on; an " if"—a " peradSrenture." And yet after all this hypothesising) his Honor spoke in; such a way as to tend to the conclusion that the act of the miners was illegal and was the " act of pirates and banditti." We quote the following sen tences in categorical order fro in the Charge:— / , 1. A large body of persons hare aeserted » supposed right— 4l may be an actual right—*&XMt the Superintendent of the Province, acting aa deles gateof the Crown, by forceof arms. ■ =f 2. Firearms had been prepared, though happily not used for the purpose, against public offloerf: Tins may have been done legally or illegally; it tn»y hive been done necessarily or unnecessarily.- - ",."-!/ : S 3. It is by no means enough to justify the actoriin this proceedings that they have votbroiight'themseloes within the scope of the criminal law. i-\ 4. To justify it, it must be ihowu to be not merely lawful in its narrow technical seme, it must appear to be absolutely necessary. 6. It can only be ai a last resort, and in the absence or failure of every legal and constitutional remedy, that banded citizens can b? entitled tooffir an armed resistance to the constituted authorities of the country^ ' ' " " \ ■■■■■•■■-^■■y,- <•-.*<. 6. The act of these persons was clearly unnecessary, even for the protection of their dwn rights. The men' knew well that their*' righti^were' safe in the keeping of the- law of the landv-and iti Courts of Justice; but, if they wanted; more1 thaa their rights, their act was not the act of citizen^ but> of pirates and banditt. ••■ -: ■■•■■' '■L y>:-j.w'i'.<-■Si. 7. I have assumed'that-the act:of resisting the surrey might be legal in a technical sense. Do not ! understand that I think so. Prima fdcie^ such i armed assemblages are in themselves illegal as being to terror of the people. • \ . 8. But ii is said that the act was in defence of % legal possession. Even then resistance must;be; of a ' reasonable kind, and proportioned to the attack. 1 '■ am not to point a gun at'a man whoenteri my paddock, but at the most must only gently lay my handi upon him. 1 9. Supposing that a miner should' take up ground . within a goldfield, it is extremely doubtful in my mind whether such a position entitles him to exolud* a Government survey. A miners' right conveys an extremely limited right in the land. It merely gives him the use of the ground for the purpose of goldmining, while the fee simple remains with the Crown. 10. It therefore appears to me that the Crown had a full right to execute a survey in this case, and that the resistance of the men on the ground was aa illegal as urinecesßary. J ;•' ;•;. There was wo "force of arms." Firearjms had not " been prepared." There was no " armed resistance to constituted authority." There was no " arm ad assemblage." No gtin or pistol was " pointed" at any man. The Judge is wrong in his facts. Aftir the sdryey had been stopped, and after Mr. Broad had made the miners various propositions, ; which were not entertained, an effigy, adorned with a sheep's head and a cow's tail, was burned on a bonfire, and a revolver was fired.at this Guy before it was burned. But there was no armed effort made, and the miners, who took a leading part in defending I rights which results have ' shown to be ; "actual," and not "supposed"—deprecated everything like force, and official testimony is plentiful as to the brderly conduct"of the men. As for firearms being in possession of the miners, it is. well known that as a rule miners possess arms to shoot pigeons or pigs; but none of these arms was ever employed, never even exhibited against the authorities or against the'surveyors, though they might have been had the insane proposal of sending up a body of aimed constabulary been carried into practice, a. pro* poaal in' itself calculated to goad^ the men into active resistance. It deems to us a most astounding doctrine for a Judge to, enunciate from the bencb t that " it is by no means enough to justify", free citizens, " that they'have not brought themselves within the scope of the criminal law:" What is the meaning oi this passing strange assertion, made by a Judge to a grand jury at a criminal session ? If a man does not bring himself, within the scope of the criminal la^v, where is his accuser? wfiftt justification can he require ? Is it come to this, that, according to such i doctrine, a free people must be put on their defence for doing that for which the criminal law cannot touch them? The idea is a mere abstraction, and scarcely in keeping with the principles which are supposed to rui* in a British Court of Justice. As for the question of the miner's right of occupancy, that,is a subject about which, on a goldfield, no doubt can exist. The special laws respecting gold-mining in these Colonies have created a tenure of land not' known to traditional law and practice, "yet partaking largely of the nature of a tenancy' under which, by payment of a license fee, and the fulfilment of certain well-defined conditions and observances, the holder of such license or right is entitled to occupy certain land against all comers. Subject w the fulfilment of these conditions the miner,

we take it, is preciaelv hi the position of a tenant. The right of occupation ia his; the fee simple, as the Judge says, vests in the Crown. If this be so, unless by the forma) warrant or order of a legally constituted warden of the gold field, (proceeding on an application under the act,) or the order of a higlu'r court appealed to, the legal oreii|mn( can oppose, entry on his claim, as freely as an ordinary lessee or tenant can prevent his landlord from entering the premises he occupies, and for which he pays his rent, All the miners did was " gently" to oppose such entry, not by arms, but by joining hands with each other and barring passage, but without force or ill-temper. The opposition was "proportioned to the attack," it was mild and gentle. Had the attack been made by a body of armed constabulary, what then ? How would the Judge's principle of proportion read in that case ? Let us see now who were the parties who went to survey, and what was their authority; this fact being always borne in mind, that the miners contended they occupied land within a goldfield, in which contention, elaborate evidence, official mapß, subsequent survey, and presentjudieialaction within the district, all prove them to have been perfectly correct. Judge Richmond repeatedly asserts that the miners resisted the Government surveyors. If a landlord were to send surveyors on land in legal occupation of a tenant, who, provided the conditions of occupancy were fulfilled, was entitled to hold by himself and his assigns, •would not the tenant have a right to defend, ■uch legal possession by resistance of a "reasonable kind," and "proportioned to the attack ?" Would not that resistance be specially warrantable and " necessary," when the avowed purpose of such intrusion was to deprive the tenant of the land, of which he held legal possession ? "We think there can be but one answer to these questions, and everyone acquainted with the facts knowß that in the case before us there was no disproportionate resistance. The surveyors, too, who went first to the reef, were not Government officials, but private surveyors, employed by the so-called purchasers, some of whom had not fulfilled one important condition of their purchase, even although the land had been rural land, outside of a goldfield. Notably amongst these was Mr. Culliford himßelf, who failed to deposit his survey fees. The surveyors, then, represented people who had no legal rights; they bad neither possession nor the fee , •imple. In the person of the surveyor these I people were trespassers, and were opposed M such. When the Government surveyor was sent, the Judge tells us he was resisted, while under the orders of " the Superintendent of the Province, acting as delegate of the Crown." The Superintendent is only such delegate under the Goldfields Acts, and therefore, can exercise his delegation only on a goldfield, or in proclaiming one. He was not doing the latter, but, as delegate of the Crown, sent surveyors on a goldfield. for the purpose of alienating land which the law gays could not be sold, and also for taking that land from the holders of claims, to the possession of which the constituted warden has now confirmed their rights. The very words that the Superintendent was " acting »b delegate of the Crown," are fatal to Judge Bichmond's assumption. He was acting on a goldfield, and therefore the land could not be sold in the manner attempted; and, knowing that it had been illegally disposed of, that the surveyors were the precursors of attempted dispossession, the men opposed the survey. The clear intent and meaning of the Goldfields Acts, and Eegulations founded thereon, is, that in the administrative business of a goldfield the warden is the proper authority, and the only authority to order a Burvey ot land or water, forming or connected with mining claims. Therefore the properly constituted officer did not order a survey, for Mr. Broad himself declared on oath, at the Enquiry, that he was not present on the ground either as Warden or Eesident Magistrate, or in any official capacity; and he told the miners so "at the time, adding that he was there simply aB a private individual. In one part of his charge Judge Eichxnond says, as we have pointed out, that the men "have not brought themselves within the scope of the criminal law;" in another he says the resistance to the survey was '" illegal;" in a third that that resistance was asserted by " force of arms." It is impossible that those three assertions can be correct. We have shown that the last m erroneous. The two others are antagonistic. It would take far more legal and critical acumen than we can ever hope to possess to reconcile them, and therefore we leave them to deeper logicians. To Bum up. In every stage of the proceedings it has been proved that the miners had right and justice on their side, as is testified to by the all but universal consent of the public, rarely wrong in a matter where plain justice is at issue. It was also shown that the Provincial Government was in error, and, according to all appearances, was acting not the part of impartial arbiter between the partie?, but seemed,to. be,the partizan of the purchasers, a position in itself calculated to irritate a large body of men smarting under a sense of injustice^ -Enforced survey of land, not properly belonging to the Colony, tut in occupation of its ..owners, brought on the costly Waitara war, with its inheritance of yearß of troubles arid taxes in the past and the future. We should have thought that the Judge would have rejoiced hecause moderate and peaceful counsels bad prevailed at Wangapeka, and that no actual disturbance of the peace had occurred. No real injustice has been inflicted on anyone, except on the miners, who have been kept idje for months on a goldfield, and have yet maintained a patient attitude, only it seems to be unjustly censured by a high judicial authority.. ' .-• Judge Eichmond had almost a maiden assize. It is a pity he went so far out of his way to refer as he did to events regarding which he was clearly misinformed, and to° promulgate the extraordinary . doctrine that, men require to..be .justified for not Iftyiog themselves-opes to the criminal law.