Wellington Indepednent THURSDAY, MARCH 9, 1871.

Wellington Independent, Volume XXVI, Issue 3143, 9 March 1871, Page 2

Wellington Indepednent THURSDAY, MARCH 9, 1871.

Whoever wishes to enjoy a joke perfectly exquisite, let him invest a penny in the purchase of the " Evening Post" of Tuesday last ! For the sake of our country readers wl?o may not have the opportunity, we reprint elsewhere a few extracts from the article we particularly refer to y aud hope they will accept our assurance that they are copied verbatim. The article will doubtless find a place among the " curiosities of literature." The legal lore displayed may be inferred }»y the following acts appealed to against

a doctrine that has never been questioned, and against a practice both customary and constitutional. Here they are, and we hope our readers will he as much diverted by reading them as we have been : 7 and 8, Geo. IV, c. 28, s. 13. Magna Charta, 39th clause; 2 Edwd. 111., cap 8 and 11 ; Kic. 11, cap. 10. But what is it all about ? may well be asked. We answer shortly. The editor of the " Otago Daily Times" having charged the Government with stealing one telegram, and keeping back another from the " Post" until tbey had given it to the Independent word • for word, and having described the action of the Colonial Secretary as even worse than " that of a thief who steals a pocket handkerchief," and having further said " This is a grave charge, and we are prepared to prove it." Having done all this, he is being prosecuted criminally for libel, and instead of valiantly leading ou the fierce attack on the Government (as ; the " Evening Post" led us to expect) | now cowardly tries to screen himself be- J hind the annonymous " we," and the very fact that he wrote this libellous article has to be wrung from the evidence of reluctant witnesses instructed by counsel to answer no questions that vrould criminate tlieinselves. To compel them to tell the truth, and thus^ to further the ends of justice by bringing home the crime to the actual culprit with a view to his condign punishment, free pardons were made out and handed 1 to them, and the pretext of dreading a criminal prosecution under cover of I which they refused to answer questions i put to them by the Crown Prosecutor was then taken away. As a matter of fact, the pardon was of an offence committed, viz., for aiding in publishing the very libel for writing and publishing which the defendant . was charged. It was not, as is so absurdly and ignorantly assumed, of an offence to be committed, viz., " for anything he might state in connection with the case." Indeed, it is hard to divine what offence he could commit in the witness box except perjury. Is, therefore, our learned contemporary under the impression that the pardon was intended to operate as a license to commit wholesale perjury ? If so, he will be comforted when he he learns that i£ was not. Although we have stated what was as a matter of fact the purport of 1 the pardon, it is just possible that our ! contemporary, bewildered by his researches among the dusty records of the Edwards and the Henrys, may not yet clearly understand why such a pardon was given. We venture, therefore, to take the liberty of offering him a little information on the subject, acquired by a little research into a " pocket lawyer" and our own unsophisticated common sense. The law in its mercy permits any person who, having taken part in the commission of an offence is called i as a witness, to refuse to answer any question which may criminate himself. Every person who takes any part in the printing and publishing of a libel may oe charged with the offence of publishing the libel, as the law in this case makes no distinction between principals and accessories. The " Otago Daily Times" published a charge against the Government which the writer undertook to prove the truth of, and which he threatened to make the subject of proceedings in the Supreme Court. No proceedings were taken by the newspaper proprietary, its editor, the writer of the article, or any other person, though the charge was repeated, and the threat renewed from time to time. As no proceedings were taken against the Government it became apparent that proceedings must be taken by the Government against the newspaper or the writer if he could be ascertained. The Government preferred to institute proceedings against the alleged writer rather than against the Joint Stock Company to which the paper belongs, doubtless considering that the shareholders were by no means so blameworthy as the actual writer of the article. The prosecution was instituted against Mr Barton. If he was the author one would have expected from the tone of the articles that the authorship would not only have been admitted, but that such authorship would have been openly boasted of. It appears however, that Mr Barton, either through fear or shame, would not admit the authorship, and consequently it had to be proved. How could this be done, we would ask our contemporary, with all his legal acumen, unless by those engaged in the setting up and printing the article in question — that is without calling as witnesses the persons who were themselves guilty as having aided in its publication ? They could not be compelled so long as they were under danger of prosecution, and that danger could only be removed by a pardon. The prosecution must either have failed, or those witnesses must be rendered compellablG to give evidence. The only legal and constitutional course, therefore, was to offer them a pardon, and thereby compel them to answer the questions put to them. The AttorneyGeneral may not be so " learned in the law" as our contemporary, with his Henrys and Richards, but surely he might have been supposed capable of conducting this prosecution in a manner not " utterly illegal !" But our contemporary's own law we ourselves modestly venture to dispute. He says: — "The prerogative of mercy can only be exercised by the Crown after conviction." We contend, on the contrary, that it is by no means unusual in practice to grant pardons before conviction. We can refer to instances in which such pardons have been given both in England and New Zealand. In proof of this we do not ask our contemporary to ransack the archives of hoary antiquity, but to turn up the files of the " London Times" newspaper for August, 1800, and May, 1801, and the " Southern Cross" of 1808. Thence we take one English and one Colonial case. In 1800, in the well-known Beverley election case at York, a witness called for the prosecution, having been cau-

tioued by the learned Judge that he need not answer any- question which would criminate himself, refused to answer whether he knew the defendant on the ground that the answer might criminate him, upon which a pardon under the great seal was handed to him, and then the Judge decided that witness was hound to answer the question. In the libel case now pending, Mr Bathgate, Secretary to the " Times" Company, refused to answer the very harmless question, " Was Mr Barton editor of the " Times" on the 3rd of October ?'' and no pardon having been put into his hands he refused ; and as nothing but a pardon could force him to answer the*question, the question was not answered. Now for a colonial case. Let our contemporary refer to the " Daily Southern Cross," of March 17, 1808, where he will find instances of pardons given to persons called as witnesses in the customs' prosecutions, which were instituted by the late Government. "We must indeed be living in perilous times, for it appears that Edward William Stafford is as great an invader of our rights and liberties, won for us by " the mailed barons at Runny mede," as William Fox. What i Is it possible that we dad the Hon. Mr Stafford, "the god of our idolatry," " attempting to revive a dangerous prerogative, which in the old land sank under the vigorous assaults of freedom, &c." ? Our contemporary frantically asks, " Are we indeed Britons? or have we only been dreaming, and wake up to find we are but bastards ? We shall see." By reading the following extract from the " Southern Cross" "we shall see 1 ' that we have been " but bastards" since 180 8 ! His Honor ruled that the witness was not bound to answer the question if he thought ib would criminate himself. Mr Whitaker said the Crown would waive the prosecution as against this witness, and all penalties and forfeitures would bo remitted, and then the witness was bound to answer all questions put to him. Mr Gillies said his learned friend had no power under the act to remit a penalty or forfeiture. That could only be done by the Governor. The Commissioner of Customs had not the oower to do so. Mr Whitaker then produced a pardon under the great seal of the colony, signed by his Excellency the Governor, remitting all penalties and forfeitures that the witness might have incurred. Mr Gillies : The witness is entitled to possession of that pardon. His Honor then directed the witness to answer any questions put to him, as they could not now affect him. Mr Gillie's does not appear to have been so taken aback on that occasion as Mr Macassey, the counsel for Mr Barton, was on the present case, to the intense amusement of the spectators in the Court. We have gone somewhat more fully into this matter than to some of our readers the occasion may justify, but we would ask such to read the editorial article in the " Evening Post" we have commented on, and thay will find there a charge against the Government of unconstitutional and illegal practices, enveloped in such a garb of legal lore that the unwary may be led astray on a matter affecting the administration of public justice. We think, therefore, that for the public good the ignorance and folly of our contemporary in this matter should be exposed. It is impossible at one meal to taste of all the materials of this legal hash. Suffice it to say that our contemporary in all this tissue of inflated phrases had little ground for indignation, and that no journalist ever ventured to write on a subject with which he was so little acquainted. It would appear that at the outset he was somewhat nervous (vertigo being perhaps superinduced by turning up so many musty law books), for he says, that is, the editorial " we" says, " Unless we are woefully mistaken here is the most audacious attempt to override the law that any Government could possibly be guilty of, and one of the most dangerous precedents that could be established." Well, the alternative we have proved to be too true, " we are woefully mistaken ;" but will this " we" ever acknowledge this ? After our late experience of him we cannot hope for such a reformation.