NEWRY V. ATCHISON.

Wellington Independent, Volume XVI, Issue 1611, 23 August 1861, Page 2

NEWRY V. ATCHISON.

This paltry case has been made the hottest subject of debate, in the Upper House, this Session. On the Ist of this month their Lordships resolved bj a majority of one that " This council having had under its consideration the ' Papers relative to the remission of a fine by the Superintendent uf Wellington, in the case of Newiy r. Atchison,' resolves : — . ]. That the proceedings of the Superintendent were unauthorised and unconstitutional.

2- That, in particular, the attempt of the Superintendent to revcise the decision of a court of justice on the ground assigned by him — viz., that having read the depositions taken by the bench of justices 'he was unable to perceive that the charge was in the slightest degree supported ' was an unwarrantable interference with the due. course of law.

3. That having regard to tbe recent appointment of tbe Superintendent of Wellington as one of the responsible advisers of the Governor, this Council feels justified in declaring its opinion that a similur use oFtbe prerogative, even by competent authority, would be highly prejudicial to the due administration ofjustice. These resolutions demand of us some notice. Their political animus is obvious ; but however political and personal the motive which induced Mr. Whittaker to bring them forward, the fact remains that the Legislative Council has, by the well known New Zealand majority, passed a grave censure upon Dr. Featherston. The debate is not published. We are alike ignorant of the grounds on which ex-Attorney General Whittaker attacked, and ex-Attorney General Swainson defended ; all we know is that the defence must have been a convincing one, inasmuch as the seconder of the motion attempted towards the close of the debate to move an amendment, modifying the terms of the Resolutions, but was prevented by the Speaker from so doing as being inconsistent with the rules of the House. There is to us some advantage in not knowing the "reason why." We are the better able to ask our readers, to take a plain common sense view of the matter, confident that in this case, as in many others, plain common sense will be deemed by them a safer guide for a man in His Honor's position, than the quirks and quibbles of the law ever can be.

The papers which have been printed by the Assembly contain correspondences between the Superintendent and the Resident Magistrate ; the Resident Magistrate and the then Attorney General (Whittaker) and the General Government and the Superintendent. We intend eliminating from these the first two. We have no desire to bring the Resident Magistrate's Court here into bad odour. We are on the contrary desirous of maintaining the authority of the Law and the wielder thereof ; and as we do not think the publication of the letters which Mr. Ferard addressed to the Superintendent — disrespectful and insulting as they might possibly appear to most people — would increase the personal respect in which it is so very desirable the looal administration of justice should be held, we purposely omit all reference to any part of the correspondence, other than that between the General Government and the Superintendent. We print

1. The depositions before the Bench. (B. A. Ferard, Esq., and the Hon. J. O: Crawford).

% The decision o.f the General Go.* vernment on the case.

v 3. Dr. Featherston's justification. 4. Authority by Governors Grey and Wynyard to remit fines &c. and their perusal will enable our readers to form an opinion without haying it biased by the angry tone which some of the letters present, on questions irreyalent to the merits of the case before us.

The case is described by Mr. Ferard as " pne of forcible ejectment of the complainant (Newry) by the Police, from a house in the occupation of complainant or his wife, at the request of a landlord Avho was apprehensive that the character of his property would suffer in consequence of the complainant's quarrelsome and' violent conduct." " The Police (he adds) would seem not to have used more violence than was necessary to eject him,"

On this official description of the case we join issue. We do not pretend to go into questions of law. Lawyers disagree on the law of the case, wid we are not

presumptuous enoiigh io attempt i 6 decide ; but we shall shotf,, in verY few; words, that when tfce Hedd of the Police' was fined £$, and costs for ejecting Newry without unnecessary violence from a house in the occupation of hid separated wife, at the request of a landlord who was apprehensive of damage, the police were only carrying out their instructions ; and if in so doing they infringed the law, justice to them demanded that the fine should be remitted— the power to remit which had been delegated to the Superintendent and never/revoked;, ' :'•-. ••'■•'" : - • . '-/■ ■'■■.■;;'••''

Every policeman cannot be supposed to be a lawyer; but every policeman should know something of the powers he possesses. Accordingly in 1852 Sir G. t Grey directed that the information which it was necessary that a policeman should know, should be published for the infer* y mation of the force. These "Rules and Regulations of . the v Constabulary .Force. ... „ in New Zealand" are those which are still acted upon, and with which every policeman! in the Wellington province, at least, is .bound to make himself acquain- . - tedj Q&e of the sections of these Rules : instructs him thus — '..":.■

80. If a person forcibly eater the house of another, the Constable may, at the request of the owner, turn him out directly ; if he has entered peaceably, and the owner request the Constable to turn him out, the Constable should first request him to go out, and if be should not do so, be should turn him out;, in either case using no more force than is necessary for the purpose. • and another of the sections encourages him to do his duty. 75. Generally, if the arrest is made discretly and fairly in pursuit of au offender, and not from any private malice, or ill will, the Constable need not doubt that the law will protect him. . ..

Whether the section first quoted is or is not law the constable cannot be sup- . ; posed to determine; but he does Isnow that the, Governor says it is law, and that lie is to act accordingly; and that if he does so honestly "the constable need not i doubt that the law will protect him.". . The depositions of Miliward, : Mac* , . Donongh, and McElwain, show that the owner did "reifuest the constable to turn him (Newry) out. 1 ' That "the constable first requested him to go out/? and that in turning him out "no more force than was necessary for the purpose V was employed. The terms of the instructions (section 80) above quoted were fully acted up to ; and the police, -« there can be no doubt therefore, had a right to expect that " the law woulcl • protect them." If there were any doubts as to whether the information given to the police was sufficient to warrant them ' in acting, the case might wear a slightly different aspect, but the owner of the house distinctly told Atchison that he did not know Newry as his tenant, and that he had threatened to burn the house . down. A clearer case in which it was the duty of a constable (according toliifl, i instructions) to eject a man from a house, could not well happen in actual life. ' After Atchison had been fined for ejecting Newry, he applied to the Super- ' intendent for that protection which Section 75 assures him of, and the Super* intendent immediately remitted his fine, Could anything be more " constitutional" than this, Their Lordships could not have had these police regulations be* fore them or they never would have pas-; sed such absurd resolutions as those... above alluded to— resolutions which must make them a laughing stock, wherever tne circumstances are known.

We do not intend to call attention to the personal and political feeling which the late Government displayed in pouncing upon the only case in which Dr. Featherston has exercised his prero* gative during a period of six years and a half— attempting to deny his power, while they had sanctioned thirty "by other Superintendents during Governor Browne's term of office. Nor do wo think it necessary to do more than refer to the reprints which follow ; merely re* marking that the whole case is a fit dope, to the life of a Ministry who never lost an opportunity of striving to bring Provincial Governments, and especially the Provincial Government of this Province, into contempt, *