IN HOKITIKA.

West Coast Times, Issue 838, 30 May 1868, Page 7

IN HOKITIKA.

The Criminal Sittings of the Supreme Court, Westland district, commenced on Tuesday, the 12th May, in the Supreme Court House, before his Honor Mr Justice Eiehmond. *A special interest was attached to tho sittings of the Court on this occasion, owing to the charges to be tried against the political prisoners indicted for riot and seditious libel. The Court was crowded from the time the doors were opened.

A large detachment of police under Mr Inspector Broham were present, but the utmost order prevailed throughout the whole of th c proceedings. A few ladies were present during the time that his Honor was charging the Grand Jury, but they retired shortly after the conclusion of the charge.

Mr Abbott, the Eegistrar, acted as Clerk of the Court.

The following gentlemen were sworn of the Grand Jury: — Messrs Thomas Loekyer Bright (foreman), James John Bartlett, Michael Cassius, Alfred Cleve, Joseph Churches, Thomas Ecclesfield, John Hall, Everard Whiting Jones, Charles Eouisson, Duncan M'Farlane, Thomas Pringle, George William Shepperd, Eobert Tuke, Jeavial Wilson Virtue, and William Wilkinson.

His Honor then delivered the following charge : —

Mb Foreman ahi> Gektibmek op the Gbakd Juet — The ordinary business of this Circuit Court will not require from me any lengthened observations. I am happy to see that crime, so far as the calendar indicates, continues t o decrease, and there is but one of the ordinary cases which requires any remarks from me. It is a capital offence — a charge of murder — and the principal, indeed,l may say the sole evidence against the prisoner is supplied by his own confession. I have carefully looked over the depositions, and upon the face of them I can see no reason why that confession should not be received in evidence. It does not appear to have been extorted by any threat or induced by any promise, but to have been made voluntarily in narrating to another prisoner the circumstances under ■which the offence was committed. The confessions of persons charged with offences are always to be received with a certain amount of circumspection. There are not ■wanting cases of persons falsely accusing themselves of crimes. But as such an admission of guilt as is deposed to in the present case, is primd facie evidence, you will probably find it to be your duty to bring in a true bill. So much for the ordinary business of the Court. But there is an unusual addition to the business of this Court, to which I must now direct your attention. The Crown hasfound it necessary in the circumstances of the district with which you are all well acquainted, to take proceedings against certain persons charged with political offences. I shall first notice the indictment against certain person! charged with having, on the Bth March, taken part in a procession to the Hokitika Cemetery for the purpose of there erecting a monumental cross in memory of three men who were lately executed at Manchester for the murder of Police Sergeant Brett. In explaining the legal character of the charge, I shall first say a few words as to the general law relating to offences against the Government. You are aware that the highest offence which can be committed against the Government is treason. The most important species of treason at the present day is technically defined, as levying war against tho Sovereign, which, as now understood, includes 'all armed resistance, justified on principle, to the established law of the land $' or, to speak more shortly — rebellion. An inferior class of offences against the government, punishable as misdemeanor, is commonly styled 'sedition.' The term ' sedition' does not specifically describe any offence against the Government, but includes a whole class of offences ; amongst others all incitement to rebellion, whether by word or deed. Sedition may bo popularly described as a sort of midway station between disloyalty and actual treason. All incitements to rebellion are highly criminal misdemeanors at common law. Now, when you have heard the evidence, you will consider whether it is sufficiently made out that those who took part in that procession to the Hokitika Cemetery, did so for the purpose of expressing their approval of the act for which the three men suffered the extreme penalty of the law at Manchester — for the purpose of honoring as patriots, and exalting as martyrs, men who by the law of the land have been condemned and executed as murderers. If so, without doubt, the act of taking part in that procession was a seditious act, and a misdemeanor. It was a direct encouragement to others to imitate the act for which Allen, Larkin, and Gould suffered, or are alleged to have suffered. It said more plainly than .words, to every enthusiastic youth, with Irish blood in his veins, 'go and do thou likewise. Become worthy of the wreath of the patriot, of the martyr's crown.' The simple reasoning of Bishop Moriarty, when condemning the desecration of the rites of the Eoman Catholic Church in the cause of these three men, seems to me unanswerable — ' If they were not murderers,' he says; 'if they were true patriots ; if they did an act not to be condemned, but to be praised, we ought to follow their example.' But here I must interpose an observation. The reasoning which establishes that the act imputed to the defendants was an act of sedition, would, I think, be perfect if it could be shown that the act of Allen, Larkin, and Gould was an act of resistance to the law of the land — more especially if it could be shown that this resistance was on political grounds. But the ! Crown may not be in a position to give legal evidence of the exact nature of the offence for which, these men suffered, or even of their having been executed, although the fact is notorious to us all. The case then will, in such event, stand thus — that the defendants represent the British Government to haro hung certain men for a deed which entitle those who did it to be venerated as patriots and martyrs. But if conyicts ought to be so venerated, the Government that hung them ought to be execrated. The moral clearly is that such a Government ought to be resisted to the death. Thus the whole transaction becomes an acted libel inciting to rebellion. In the view I take of tho case, therefore, the ceremonial described in the depositions was an illegal thing-«-a high contempt of the Queen's Government — illegal if done by one or two persons, certainly not less illegal if done by a multitude marshalled and arranged." There is a narrow sense in which the term 'unlawful assembly' is used hi our textbooks on criminal law, where it is defined as being something which I may desoribe as an abortive riot — a riot in which the rioters have failed to effect their purpose. In this sense the defendants have not been guilty of an unlawful assembly ; but in a broader sense the public assemblage of a number of persons to do an act of a seditious nature is 'an unlawful assembly.' Therefore I concur in what Mr Justice FitzGerald is reported to have laid down in a recent charge to the Grand Jury at Dublin. His Lordship is reported to have said — 'That if a number of persons assemble to promote a seditious purpose, .such as to create disaffection, to incite the inhabitants of this country to hatred towards their fellow subjects of Great Britain, or to asperse justice, or embarrass its functions by bringing its administration into contempt, every such assembly will be unlawful and v, misdemeanor in common law.'

Yet, tho offence in such a case is the seditious act for which the assemblage takes place, and not the mere act of assembling. I understand that there are several -counts in the indictment to be preferred to you against the defendants, varying the technical, nature of the charge against them. There will be a count charging a forcible entry at common law, and another count for a forcible entry under the statute of Eichard 11. [Here his Honor entered into some explanations respecting these counts.] But, as all the counts are founded on the same transaction, I shall not trouble you with any technical disquisition, but shall counsel you to send the defendants to trial on all the counts if you should bo of opinion that the charge of sedition is primA facie supported by the evidence adduced. Gentlemen I have enlarged on tho gravity of the offence charged, and it may occur to you — and should in fairness be allowed, that many persons may probably have taken part in this affair unreflectingly ; and that even tho principal actors may have been scarcely aware of the real import and gravity of what they were about. This h very possible — since even her Majesty's Ministers in London seem to have been for a time in doubt as to the extent to which, these processions were illegal. Though ignorance of the law technically excuses no one, yet this consideration should weigh heavily in any estimate of the real culpability of the defendants. I mention the matter now merely to remind you, that it 19 no parl of your duty to form such an estimate. The question is for those on whom it will devolve to apportion the measuro of punishment to be inflicted, should a conviction ensue. It will bo your duty to find a true bill should you be of opinion that there is sufficient evidence primd facie to support the legal charge. I now pass to a second charge of a political character, founded on the publication in 'The Celt' newspaper of a series of leading articles, I believe, which the Crown maintains to be seditious libels. Now, in determining whether you will send the defendants in this case to take their trial, .you will have to consider, first, the evidence of the publication by the defendants ; and, secondly, whether the articles in question may be fairly regarded as seditious libels.^ln determining this latter point it i 3 my^ifuty to assist you by explaining tho general law of libel, but it is for you to apply that law to the particular publications, and say whether or not they transgress the fair limits of public discussion. Were I to go back to the dicta of eminent Judges half a century ago, I might give you, on their authority, a definition of 'seditious libel' which would include a large proportion of tho political writings of tho day. - 1 might tell you that everything which tends to bring into contempt the Government of a country, or any of its institutions, is a seditious libel. But at the present nay no jury is asked to act upon so sweeping a definition. I shall propose to you — (and I feel sure with the approval of the Crown) — I shall propose to you to apply a far narrower test, a far less vague criterion. It is well known that in the mother country, and here also, political writers practically enjoy the amplest liberty of criticism on the conduct of the Government, tho administration of the law, and the institutions of the country. There is no doubt that the strict bounds of the law of libel are frequently transgressed, and sometimes also thereasonablelimits of fair and temperate discussion. But if public men are sometimes malignantly assailed, if the administration of justice is sometimes flippantly criticised, if the institutions of the country are sometimes unfairly depreciated, perversely misrepresented, or ignorantly condemned, these occasional abuses are tolerated because it is felt that they are a small price to pay for the inestimable boon of perfect freedom of discussion. And, on the whole, tbe British Press nobly iustifies its freedom by the way iv which it uses it. But, gentlemen, there is one grand condition which public opinion, not less than tho law, exacts from the Press — it is this, that there shall be no incitement to violence. The moment it is apparent that a public writer means to inflame men's minds, and lead-them to, or towards, the overthrow by force of the existing institutions of the country, he has gone beyond the limits — I do not say of the law merely — but of that large toleration which the present age enjoins. He may advocate what changes he pleases in Church or State, so long as he seeks them only through the medium of the rational convictions of his fellow citizens. Nay more, lie is not bound down to a dry, passionless appeal to reason. He may seek to kindle imagination, to excite emotion, to awaken conscience. But there is one thing forbidden him — from the fruit of one disastrous tree must he abstain in this Garden of Liberty — he must avoid incitements to civil war ; he must counsel no appeal to brute force ; he must seek the attainment of his ends by action on tho higher nature of his fellow men — not by cunningly arousing within them the blind instincts and uncontrollable passions of the Brute Creation. The writers in tho ' Celt' might, without any chance of mocstation, have advocated the peaceful attainment of all the ends they ore supposed to aim at. They might have advocated the Eepeal of the Union — or even the establishment in Ireland of a Eepublican Government. We know that the dismemberment of the empire is constantly discussed, both at home and in the Colonies — discussed by writers of the greatest eminence. The establishment of Australia or Canada as a Beparate state is a proposal not differing in kind from that of severing Ireland from her connection with Great Britain. No one supposes there is anything really seditious in the fair advocacy of such measures. Gentlemon, it is not in respect of the ends sought, but of the proposed means to those ends, that the Crown may have fair ground for this prosecution. Look, therefore, to the means advocated in tho articles impugned. And if these writers seem to you to advise or encourage civil war ; if they seem to you to advocate — not reform — but revolution ; then your duty will be to put the authors upon their trial. Gentlemen, I have nothing further to say to [ y° u i JOVL can now retire to your room, whera I have no doubt the Crown Prosecutor will send you some bills for consideration.

In the course of the subsequent proceedings, the Grand Jury entered the Court, and made the following presentment through their Foreman : — To his Honor Mr Justice Eiehmond. Mat it Please yotjb, Honoe, — The Grand Jury thank your Honor for tho assistance you afforded them in your charge in dealing with the several important cases which have engaged their attontion. They receive with satisfaction your Honor'congratulationß on'tho decrease, within the dist trict, of crime of the ordinary type, and regre that a special character should have been given to the present calendar, by the necessity felt by the Crown for indicting certain persons charged with political offences. In finding true bills in these cases, they have been guided aud greatly assisted by your Honor's lucid explanation of the law bearing upon them. The Grand Jury consider it a matter of congratulation both to the Government and the public, that, amid the political excitement, which has (undoubtedly to some extent provailed, the proofs have been abounding on every side of the steadfast loyalty of the great bidk of her Mojestyls subjects in Westland.and of the firm determination to uphold law and order.

The Grand Jury arc fully awaro that your Honor's functions are judicial, and not executive, but they rely with confidence upon the great weight that must bo attached to any representations your Honor may make to his Excellency's advisers as to existing defects in the law that require to be amended or deficiencies to be supplied. They regret to have to report to your Honor, that within their experience tfho new Bankruptcy Act is found to work very imperfectly, and in many instances to defeat the ends of

justice and the just rights of creditors. Whatever may be the case in other parts of the Colony, they submit to your Honor that the provision abolishing imprisonment for debt under LIO is inapplicable to the Goldfiolds, except at tho cost of involving storekeepers in very heavy losses. They regret to have to inform your Honor that the instances are numerous in which the creditor is defrauded by the withdrawal from him of all power of coercion, and in which it is notorious that the debtor, although not in possession of chattels liable to be taken in execution, has nevertheless ample means in his hands of satisfying all just claims upon him. They beg also to call your Honor's attention to the operation of the clause in tho New Bankruptcy Act, which allows twenty-one days after the filing of a declaration of Insolvency, during which period a bankrupt lias full opportunity of making a. fraudulent conversion of his property to tho detriment of his creditors. They submit to your Honor that in many other respects also, the New Act is not calculated to protect the trader, and that it requires very extensive amendment, if not entire reconstruction.

The Grand Jury venture to express a hope that your Honor will use your influence in securing such an alteration of the present law of Insolvency and Bankruptcy, as may afford better protection to the creditor, without pressing unduly upon the unfortunate, but honest debtor.

The Grand Jury also beg to represent to your Honor that the just rights of creditors are often defeated by the want of publicity given to the registration of bills of sale. They would suggest that either no bill of sale should have any valid eifect, unless the fact of its registration is made known by advertisement, or that the register should be made accessible to all inquiriers without fee or unnecessary trouble.

The Grand Jury have learnt with satisfac- I tion that a commission has been appointed by; the General Government to consider and report upon the question of prison discipline in New Zealand ; and they wish, through your Honor, to bring under the attention of tho Government the expediency of a more general utilisation of convict labor, especially in the construction of public works, with a view to the more rapid development of the resources of the colony, the advancement of settlement, and the relief at the same time of the tax-paying class. They would refer your Honor to the case of tho town in which the present Sittings of the Court are being held, where important street improvements are waiting completion, owing to tho great cost of employing labor without a prospect of immediate return, whilst at the same time a largo labor force is at the disposal of the authorities iv the shape of prison gangs, to whose support the population of the town have heavily to contribute. They would respectfully bring under your Honor's notice the fact that many of the colonial settlements have been greatly indebted to the employnieut of labor of this character in tho formation of roads, and the execution of other works of public utility. The Grand Jury have much satisfaction in bearing testimony to the general efficiency of the police force throughout the district, and to the success of their endeavors to promote the interests of justice by bringing crime within reach of the law. They wish to represent to your Honor that special services rendered by members of the force in the detection and punishment of crime might receive some special recognition with advantage to the public interest.

The Grand Jury desire to thank your Honor for the promptness and effect with which your Honor has forwarded to the Executive Government the representations contained in former presentments made to you. They are happy to acknowledge that all cause 3of complaint with reference to the machinery for the administration of justice in Westland have ceased, and they trust that under the existing arrangements, amended by such changes as your Ilonor's own opportunities of observation may lead you to recommend to the Government, law will continue to be administered in equity to tho protection of all classes of Her Majesty's subjects. • In conclusion, the Grand Jury desire to welcome your Honor once more to Westland in your judicial capacity, and to respectfully assure you of the confidence they feel in the firm and impartial administration of tho law in your Honor's hands. Thomas Lockyee Biuana 1 , Foreman.

Hokitika, May 18, 1868. His Honor, in reply, said — I have to thank you foi" your kind expressions towards myself, and I should be happy to be again the instrument of transmitting to the Executive Government the suggestio.us contained in your presentment. It is not my intention to enier upon a detailed answer to your presentment — in fact, I may state that in my position I hardly think it right that a person exercising judicial functions, and whose business it is to expound the law, should communicate with the Government as to what legislation may be necessary, in order to make alterations in the provisions of that law. lean, liowever, have no objection to forwarding to the j| Colonial Secretary your suggestions relative to the Bankruptcy Act. I may stale that, for myself, I have had but comparatively little experience in the working of the new Act in this district, the establishment of a District Court having, I may say happily for myself, relieved me from much of that work which appears to mo to have been so utterly unsatisfactory. I shall now dismiss you from attendance on this Circuit Court until you arc again summoned. I cannot discharge- you, because it may be that your services may be again required. I may, however, thank you, in the name of the colony, for the attention you have given to the business which has been brought before you.