GENERAL ASSEMBLY

Wellington Independent, Volume XVII, Issue 1755, 19 August 1862, Page 3

GENERAL ASSEMBLY

LEGISLATIVE COUNCIL, Tuesday, August 12, 1862.

The Speaker took the chair at 2 o'clock. Present — Hon Chief Justice Arney, J. Tancred, Major Richmond, Col. • Russell, Captain Baillie, Col. Kenny, J. Menzies, y. Cutfield, H. Sewell, J. Johnston, J. C. Crawford, and R. Stokes.

Major RICHMOND moved the adoption of the Interim Report of the Select Committee on Standing Orders, which was agreed to. The hon H. SEWELL moved that leave of absence be given to the Hon. D. Pollen during the session.

Sergeant Atchison's case.

The Hon. CHIEF JUSTICE in moving—

" That all Correspondence subsequent to the 22nd May, 1861. between the late Government, the Superintendent of Wellington, and Mr. B. A. Ferard, late Acting Resident Magistrate at Wellington, touching the remission of a fine imposed by Mr. Ferard on one Fredrick Atchison, together with all official Memoranda made by the late Attorney-General (Mr, Sewell) on the same subject: and also a letter or copy of a letter, addressed by Mr. Ferard to his Excellency the Governor on the 25th October, 1861, be laid on the table.

explained the reasons that had induced him to make this motion. He had deferred doing so until the latest moment from a desire not to do anything to interrupt the good feeling which existed between the late Attorney-General and himself. It would be in the recollection of some members of the Council that in the last session certain resolutions were moved by Mr. Whitaker reflecting on the Superintendent of Wellington for the remission of a fine imposed by Mr. Ferard . the Resident Magistrate on one Fredrick Atcheson Inspector of Police in the case of Newey v. Atchison. In the course of the discussion he had been asked by some members to express an opinion on the question. In refeiring to the resolutions passed by the Legislative Council last session respecting this caso, His Honor alluded only to the firat of them, and took occasion to observe with respect to them that though stringent they were the truth, and therefoie he voted, for them, but that in doing so he was actuated by no personal or party feeling, and he showed this by being the first to suggest to the late AttorneyGeneral (Mr Whitaker) that if he (Mr. W.) thought the public interests would be sufficiently served by the expression which had been evoked of the opinion of the Legislative Council, and thereupon should prefer to withdraw his resolutions or to modify them, he should acquiesce in such a course. With reference to the Nelson case (Mr. Saunders) he observed that when Mr. Justice Johnston found the course taken by the late Governor amounted as he conceived to setting aside the judgment of the Supreme Court, he immediately sent him the (Chief Justice) for presentation to the late Governor the resignation of his office, which, however, he felt justfied in withholding, and in presenting to the Governor simply one of remonstrance. But when he brought the matter under tho review of the Council the late Government did not venture to justify the sotting aside the ruling of the Supreme Court, but Mr. Whitaker adopted such a tone and explanation of her facts as disarmed any severe criticism. His Honor then entered at great length into the circumstances of the case, quoting from the official correspondence and papers, and Mr. Ferard's remarks thereon, and expressed his doubts whether it was in the power of the Government or even of the Governor to set aside the decisions of the Couits of Law; and said that when the late Goverment advised the Governor to take tho course that had been persued in this case he believed tiny had advised him to do an illegal act, and that no such powers were given to the Governors of a Colony. Mr. SEWELL said that he ehould with great satisfaction second the motion for the production of these papers, being satisfied that they would contrast favorably with the speech of his Honor the Chief Justice just delivered, and with the resolutions referred to of the Legislative Council of last session. The respect in which he (jMr. sewell) held the high office which his Honor the Chief Justice filled would prevent him from replying in the spirit and tone which his Honor's speech would naturally produce. He condemned in strong terms the resolutions of 1861 as having been adopted under the influence of strong per-f sonal and party feeling. Tho Superintendent o t - Wellington had been condemned in language o extreme heat, without being heard and without out the circumstances of the case being enquired inlo. Of course such a proceeding led to ulterior consequences. The Superintendent of Wellington naturally rebelled against such injustice. On his (Mr. Sewell) assuming office, he found an application pending from the Superintendent of Wellington to the Government praying the Government to confirm his (the Superintendent's) act in remitting the fine in Atchison's case. Hs (Mr. Sewell) was then obliged, in the exercise of duties cast on him as Minister of Justice, to review the circumstances. ( Incidentally Mr. Sewell expressed his opinion against the union of the two functions of Attorney-General and Minister of Justice. They ought in his opinion to be separated. However, being so compelled to deal with the case he proceeded to enquire into it in a spirit of perfect impartiality, and with an earnest desire to do justice without personal or party bias. The conclusion to what he had come, he had embodied in a memorandum which had been transmitted both to the Superintendent and to Mr. Ferrard. He had the satisfaction of stating that he had been found fault with by all parties. That was the best test of his impartiality, ihe Chief Justice had quoted garbled extracts from the memorandum omitting all which was material for his (Mr. Sewell's) view of the case. In point of fact he (Mr. Sewell) had formed an opinion that all parties were in a degree wrong, from the Inspector of Police to the Legislative Council, which last not least had committed a grave error in adopting the resolutions of last session. He regretted that Mr. Ferrard should have taken unreasonable umbrage at his (Mr. Sewell's) remarks. He accepted cordially trie Chief Justice's testimony to Mr. Ferrard's merits and regretted that the public should be deprived of the services of a valuable officer from feelings of exaggerated sensitiveness. But in his (Mr. Sewell's) position he felt himself called on to make those remarks which had given Mr. Ferrard offence and he was satisfied the Council would concur in the propriety of the course adopted when they understood the facts as they presented themselves to his (Mr. Sewell's mind. (Mr Sewell) then stated the circumstances as they appeared to him from a careful examination of the papers. The facts were these. Two persons — a man and a woman — husband and wife — he supposed had been leading an uncomfortable life, the wife living apart from her husband. The wife had entered into a contract for the leasing of a house. Disputes arose with the landlord, and the landlord, as it would seem, with the assent of tho wife, desired to resume possession of the house, On a certain day the landlord called on the Inspector of Police to assist him in obtaining possession of the house. On going to the house it was found locked. The man was then in the act of removing furniture through the windows. The house was opened and all parties entered, and then with apparently the wife's assent, the landlord requested the Inspector of Police to remove tho man from the house. The landlord declared he did not, and would not recognise the man as his tenant. The Inspector of Police then removed the man from the house, without undue violence. For this he had been summoned before the Resident Magistrate, fined, and was on the point of being committed to prison, when the Superintendent of Wellington — whose officer the Inspector of Police was — interfered, and paid the fine. Now, the opinion which he (Mr. Sewell) had formed in this case, an opinion which the Chief Justice had

treated with scornful contempt, bufc which he (Mr. Sewell) nevertheless still held, was that the Resident Magistrate was in error in dealing with such a case, as a criminal offence. He should, in hia (Mr. Sewell's) opinion, have left it ,to the parties to decide their rights by a civil action. In dealing with it criminally, the Resi- ' dent Magistrate assumed the existence of those rights of the husband which in his (Mr. Sewell's) ) opinion, were only fit matter for decision in a I civil action, and which the Resident Magistrate could not determine. No doubt the Inspector of Police, and the landlord would be liable in an action of trespass if the man were unlawfully removed. Reference had been made to authorities on this point. He (Mr. Sewell) had referred to an edition of Mr. Woodfall's " Landlord and Tenant," in which ifc was laid down distinctly that a wife could not accept a lease without her husband. It seemed that some subsequent case had modified that decision. He (Mr. Sewell) believed that on examination the two authorities would be found to agree. ' That the general rule of law would be found to be that a married woman could not accept a lease to bind her husband, though it might be that in particular cases circumstances might show a privity between tho landlord and the husband, as would entitle the husband to claim the benefit of the wife's lease, and in consequence to charge him with its liabilities But in this case, though it was trus the husband had paid money on oue occasion to the landlord, it did not appear that the landlord had ever acknowledged him as tenant. On the contrary the landlord repudiated any such relation between them. But however that might be, the proper way of settling that point was by a civil action. So far from the case quoted by his Honor being afc variance with his (Mr. S.s) opinion, that case was in fact consistent with his opinion. For that was tha case of a civil action. The Resident Magistrate, however, took a different view, dealt with the matter criminally, and imposed on the Inspector of Police a fine, with imprisonment in default of payment. At this point the Superintendent intervened — rightly or wrongly does not matter for this purpose. He declared his intention of paying the fine. Notwithstanding the knowledge of such intention, the Resident Magistrate, after fixing a day for payment of the fine, on that day proceeded Himself to direct the arrest of the Inspector of Police, in the presence of his force, with a view of committing him to prison. It appeared to him (Mr. Sewell) clear from the documents that this proceeding was the result of feeling and temper on the part of the Resident Magistrate. In his judgment it was a great indiscretion. Viewing it in that light he felt himself bound to express that opinion to the Resident Magistrate — not thereby intending to impute— as the Chief Justice, in exaggerated language, suggested — malversation of office, but a grave indescretion. In his (Mr. Sewell's) opinion, it was a grave indiscretion in a Magistrate personally to direct and superintend the arrest of tho head of the Police in the presence of his own force, with the view of sending him to gaol for non-payment of a fine which he had been informed was about to be paid — no matter by whom. Now as to the course taken by the Government in confirming the Superintendent's remission of the fine. The real point of the case had been carefully kept out of sight throughout the whole of the Chief Justice's remarks, until the latter part of his speech, when at length allusion was made to the grounds on which the Superintendent considered himself entitled to act in the matter. The facts were these:— ln 1853 Sir George Grey, during his then administration of the Government, thought fit to delegate to the Superintendents of Provinces, a power or remitting small fines, subjeot in each case to the Governor's confi mation. Such a power was in his, Sir Georgj Gr-y's opinion, proper to be vested in some local authority, it being impossible otherwise to provide for exigencies requiring immediate action at a remote distance from the seat of Government. Concurring, as he (Mr. Sewell) did, in that general principle, he nevertheless ventured to think that such a power should not be vested in elective Superintendents. Be that however, as ifc may, such was the course taken upon mature consideration by Sir George Grey. Acting Governor Wynyard had expressly confirmed thia authority to Superintendents, and Col. Browne, under the advice of his former Ministers, had practically recognized and acted upon it in several instances, particularly in the case of Mr. Stafford himself, the head of the late Ministry formerly Superintendent of Nelson— the power of the superintendent to remit fines had been recognised and confirmed. Now, in his (Mr. Sewell's) opinion, tho government of which his hon. friend (Mr. Tancred) was a member, was greatly to blame in this matter. Holding the opinions which they did, and in which he (Mr. Sewell) concurred, that such an authority was not^ properly to be delegated to the Superintendents—it was incumbent on them expressly to withdraw it. Having allowed it to continue, they could not hold Superintendents responsible for tha exercise of such power The Superintendent^ Wellington would reasonably suppose that this authority was vested in him, and might be exercised by him without exposing him to such severe and unwarranted censure as was conveyed by the Resolutions of last session. Under these circumstances, in his (Mr. Sewell's) opinion, the Government was bound to give effect to the Superintendent's remission of fine in this particular case. As regards the opinion expressed 'by the Chief Justice that .the Governor and the Government in remitting this fine had violated the law, he referred to the Governor's commission, v-hich expressly authorises him to remit fines. If the Chief Justice seriously entertained such an opinion, it was indispensably necessary that reference should be made to the Home authorities to set that question at rest. It was in his (Mr. S.s) opinion too clear to admit of doubt. On the other hand he admitted that the power was one to be exercised with great discretion ; in particular in all cases the Judge or Magistrate of whatever degree, ought to be referred to. It would have been, he (Mr. Sewell) thought, fair and candid if the Chief Justice had read passages from his (Mr. Sewell's) Memorandum expressing that opinion. > Mr. TANCRED regretted that there was not time to allow him to go so fully into this question as had been done by the previous speaker; but he wished to correct some allegations that had been made, particularly that the resolutions of the former session had been dictated by party feeling. Ho waa of opinion that the Council was justified in expressing tho opinion they had done in that case as the new Government had disclosed a tendency to underrate tbe decisions of the tribunals of the colony. It was his impression that a reckless system of pardoning had been pursued by the late Government, The action pursued by the former Government had been reversed, by which they had informed the Superintendent that he had wrongly exercised his powers. The Assembly had decided that it was incompetent for the Government to interfere. The question however could bemore fully discussed when they had all the papers befoie them.

Col. RUSSELL thought there had been strong party feeljng in collection with thisjease ; but be had endeavoured to view it apart from party feeling. Mr. CRAWFORD, as the magistrate who had sat upon the bench with Mr. Ferrard on hearing this case, regretted that it had been re opened. He believed Mr. Ferrard to be a painstaking magistrate, and in forming his judgment on the case, ho was of opinion that the Inspector of Police Atchison had erred through excess of zeal, arid that it was necessary to protect the public from excess of zeal on the part of the police, and he had therefore concurred in the judgment. Colonel KENNY' thought that the action which had been taken last Session was a mistake and was attributable to party feeling. Unless care was taken the Council would get into a difficulty. If they accepted the present resolution they must go into the question as they couhi not allow the

papers to remain on the table without taking further action. He believed the most prudent course would be, not to go into the matter, and he should therefore move the previous question. Mr. STOKES seconded the motion.

_ The Hon. CHIEF JUSTICE in reply strongly disclaimed having been actuated by any party or personal feeling in this matter, or of having made any partial or garbled statements. He had been willing to read the whole statement but had refrained from doing so from a desire not to weary the Council. His ouly object in taking action in this case was to prevent the decisions of Courts of Justice from being overruled in what he believed to be an unconstitutional manner.

On the question being put the original motion was carried.

The Orders of the day were postponed to to-morrow, and the Council then adjourned.