Wellington Independent FRIDAY, APRIL 28, 1871.

Wellington Independent, Volume XXVI, Issue 3185, 28 April 1871, Page 2

Wellington Independent FRIDAY, APRIL 28, 1871.

We did not intend referring again to the telegram libel case, but our contemporary the Melbourne " Argus" of the 13th has an article on the subject which we feel called upon to notice. Some time ago when we pointed out to our contemporary the misconceptions under which he laboured with regard to the action of the New Zealand Government in the matter of postal services, he handsomely acknowledged that we had cleared away much long-standing misapprehension. We hope to be as successful on the present occasion. We must premise our remarks, however, by explaining that our contemporary must not again assume as, as he did on that occasion, that they "represent the opinions of the JNew Zealand Government" or of any one of its members: they are simply the opinions of " that highly favored journal

the Wellington Independent." The first misconception, and one that runs through the whole of the article, is that the prosecution of Mr Barton is " a political prosecution or persecution." The libels complained of were not attacks by a political opponent upon the policy or general action of the Government. Attacks of this sort, very fierce and unfair indeed have appeared, and still appear, with impunity in the columns of the " Daily Times." The personal history even of individual Ministers has been most indecently commented on, and, to the disgrace of the press of New Zealand, the most calumnious and ridiculous reports have been circulated by its " own" correspondents of the proceedings of Ministers, even when assembled in Cabinet, which, if true, could only have beenlearned by peering through the key-hole. But the charges made in the two articles for which Mr Barton is prosecuted are specific charges of breach of trust, theft, dishonesty, and dishonor in conducting the business of the Telegraph Department on two specified occasions. The "Argus" absurdly confounds them with other charges connected with Mr Stafford's speech and other matters actually not known to the writer of these articles, until a longtime after their publication. "We beg to recall our contemporary's attention to the following extracts from these articles : — "The bitterest opponent of the present Government would hesitate to believe that a transaction of this nature, which cannot appear in any other light than that of an in famous breach of trust, could take place under its administration. We believe that we have legal evidence, however, to prove the astounding fact that the Government not only suppressed the news for several hours throughout the colony, but that it appropriated to its own use the telegrams to which it had no more right than it has to the pocket-handkerchiefs or the watches of private individuals." Aud the second article thus concludes: " The Independent received the whole of our telegrams, word for word. The conclusion, therefore, is clear. The telegrams were obtained through the special favor of the Government, which ordered j the Telegraph to supply the Independent with a copy of our telegrams, in defiance of common honesty as well as of written law. We are quite aware of the gravity of the charge : we make it because we are prepared to prove it, and intend to do so." Our evening contemporary subsequently informed us, " We are authorised to state that the Press Association has commenced a prosecution, under the Telegraph Act, against the operator at the Bluff station for the recent unfair tampering with the mail telegrams." When it became apparent, however, that the proceedings would not be instituted, we expressed an opinion that the Government could not do otherwise than direct the Attorney- General to institute a prosecution against the " Otago Daily Times" newspaper for the purpose of enabling that paper tojustify itself for making so serious a charge. We thought then, and we think still, that when a Government has undertaken, by direction of the legislature, the carrying on of such a business as the Telegraph, the Post Office, Railways, or Insurance, it must, when assailed, , have recourse to the very same remedies as would an individual or a \ company carrying on such business, with this distinction only, that, while an action for the recovery of damages would be a more appropriate remedy in the case of an individual or a company, inasmuch as its loss is essentially pecuniary, in the case of the Government a criminal prosecution is the more approi)riate proceeding. No doubt it has for many years past become almost an invariable rule with Governments formed after the English model, to abstain from recourse to the courts of Uw for redress when the political action of such Government is assailed in the public press. This rule has, on the whole, at any rate in England, worked well. It is found that the better class of papers use the liberty they enjoy with discretion. But, however strongly we advocate the adherence to this rule we recognise that it is not applicable when the conduct of a Government in the carryiug on of such businesses as those already referred to is stigmatised as dishonest, fraudulent, and corrupt. We have seen with surprise that in one or two of the newspapers of the colony, and notably in this leader of the "Argus," this distinction is not admitted, and that it is contended 'that any prosecution by a Government thus attacked is an attack on the liberties of the press. We hold, on the contrary, that . the Telegraph Department is a business entrusted to the management of the Government by the voice of the people, and when calumnious charges are made, calculated to destroy its usefulness, they would be unworthy of their office if they did not seek to bring the offender to condign punishment. Let us suppose the Telegraph were the property of the " Otago Daily Times" Company Limited. Were any newspaper to assert that " they stole telegrams," that " they were guilty of a breach of honesty," that " their management of the Telegraph is neither honest nor honorable," that " they ordered the Telegraph to supply a paper with a copy of its rival's telegrams, in defiance of common honesty," would the directors be discharging their duty to their constituents if they did not try to detect and punish the slanderer ? The Government are in exactly the same position as this company would then be, and these are the very terms applied to them. They are therefore compelled in the interest o( their constituents, i.e., the people of New Zealand, to institute proceedings against a writer who tries to "bring them into disesteem" which constitutes the crime of libelling a government), and (hereby to destroy the business the legislature has put under their management. But can such a proceeding be called either a political prosecution or persecution ? The " Argus" has taken its facts from its "own corresijon-

dent" of Dunedin, and has been misinformed. But as the prosecution is still pending we shall endeavor to avoid expressing an opinion on the facts disclosed at the preliminary enquiry, or what we conceive to have been proved, or what disproved. There is one admission, however, in our owns letter which is \ery important. He says " this prosecution may perhaps be justfied as a necessity of the case, the charges made agaiast the Government being very serious in their character, such as could not have been passed over without investigation." The " Argus" itself also admits the necessity and propriet}' of a prosecution in the following terms : — " So much for the charges against the Government which form the grounds of this prosecution, and, no doubt, had they been false, a heavy punishment wouW have been rightly aioarded to all ivho took part in their promulgation. We readily admit that no Ministry could sit quietly down under such imputations, and if they thought a criminal prosecution for libel the best way to rehabilitate their character and restore public confidence, we should not feel iuclined to quarrel with their choice of means." We commend these observations to the consideration of all those who entertain the feeling that even though the charges bo false, the Government ought not to prosecute for the libel. The necessity and propriety of a criminal prosecution having been thus admitted by the "Argus," his describing it as a " political persecution" is manifestly inconsistent and unjust. Mot having an accurate or complete knowledge of the facts, and being insufficiently informed on the subject of which he ventures to write, he condemns the prosecution because it was instituted against the editor and not. the proprietors, and by the ordinary mode of prosecution instead of by the extraordinary proceedure of an esc officio criminal information filed by the Attorney-General, and because the person who laid the information was a clerk in the office of the Crown Prosecutor, and consequently Mr Bavton, though the prosecution should be proved malicious, would not be able to recover damages. Now it so happens that at the application made by Mr Barton for a prohibition, Mr Justice Chapman stated his opinion that the ordinary prooeeure was more consonant with the feelings of modern times than the procedure by an ex officio criminal prosecution. By having recourse to the ordinary procedure, the advantage is given to the defendant of a preliminary investigation before a magistrate and before a grand jury. He may thus have the opportunity of retracting the charge made, if found to be untrue, without being put to the costs of proceedings in the Supreme Court. The learned judge also stated that it was absurd to expect the Attorney-General himself to lay the information ; and that there was no objection to the information being laid by the person who did lay it. Indeed the witness who purchases the copy of the libel, and who proves the principal fact, seems to us to be the proper person to lay the information. The " Otago Daily Times" is owned by a limited liability company, and being such, it could not be compelled to appear before a magistrate to answer to a charge of libel. The Government was compelled therefore to proceed against the editor, or,abandoning all thoughts of prosecution, remain under imputations which the " Argus" admits "no Ministry could sit quietly under." This explanation will probably satisfy our contemporary that there was in this respect sufficient reason forthecourse taken. The only misconception now remaining is that which inspired this very illogical and absurd aentence : "In order to quiet the scruples of a communicative sub-editor, the novel expedient was adopted of granting him her Majesty's free pardon for an offence of which he had not been found guilty, and which consequently had no existence." We hare already shown that both in England and New Zealand a similar coursG has been taken, and that in principle the practice is unobjectionable. Whether the Governor's commission gives him power to grant a pardon before conviction, or only after conviction, it is unnecessary to consider. We find that in all the neighboring colonies, as in this, it is a very common practice to offer free pardons to accomplices. Now, as not one of the Colonial Governors can, according to this reading of the terms of their commission, grant a free pardon before conviction, it follows, of course, that they cannot promise one. The practice which our contemporary so eloquently condemns in New Zealand 1 actually exists in Victoria, and in point of fact it will be found that the Victorian Cabinet has also acquired " the infamous distinction of having prostituted the prerogative of the Crown, and degraded the courts of justice,"and done all the other dreadful things implied in granting pardons to accomplices. The " Gazettes" of New Zealand contain numerous offers of pardons, and we are quite sure the " Gazettes" of Victoria will also show that this is "no novel expedient." Chief Justice Arnoy recognised this course when a pardon, countersigned by the late Premier (Mr Stafford) was put into the hands of a witness in the witness-box, and he is the last man that could be suspected of conniving at any practice which would " degrade the courts of justice." The Secretary of State for the Colonies has, as may be seen in New Zealand Blue Books, formally approved of Sir : George Grey's proclamations of free pardons, without convictionor even a prosecution, and we think Sir George Bowen will very easily indeed "justify to the Sccre,tary of State this flagrant abuse of the Queen's prerogative of mercy in face of the explicit instructions laid down for his guidance in its exercise." Our contemporary lays down a maxim which is certainly entitled to be characterised as "novel." It is, in fact, " the latest novelty" the discussion of this subject has given rise to. He says, " the novel ex* pedient was adopted of granting Her Majesty's free pardon for an offence of

which he had not been found guilty, and which comeqiiently had no existence." In other words, because an offender has not been found guilty of an offence, the offence has no existence, and cannot therefore be pardoned. This is, of course, absurdly illogical. The offence must exist before the trial of its existence. We hope this Jonathan Wild sentiment does not exist in ally strength in Victoria, although there are circuin stances connected with that colony (and to which we do not wishmoredistinctly to allude) which make us fear it may. The " Argus" thinks the people of New Zealand must be " a very peculiar people indeed." We hope that they are not peculiar in this respect, that they deem the committal of a crime to be the real offence, not the unfortunate accident of being found out and proved guilty. We hope we have succeeded in removing some of the misconceptions entertained by our contemporary. We feel sure that, if he were better informed of the facts, he would write in a different strain. We trust he will now acknowledge that the prosecution, wh'oh, he admits, was forced upon the Government, has been rightly directed against the editor, and not the corporate com pany of proprietors ; has been made to assume a form far more favorable to the accused than the obsolete and I oppressive ono ho recommends ; and that in its conduct no lawful privilege has been denied either to the accused or his witnesses. We do not care to notice the unusual language into which our contemporary has been betrayed with regard to ourselves, or his elegant allusion to the " felonious patronage" we are said to receive. We are content to wait for our vindication till all the facts arc mado manifestin the Supreme Court at Dunedin. While we regret that the "Argus'" should have beon misled in this matter by its own correspondent, we can scarcely say we are astonished, the statement he gives of the case being a tissue of misrepresentations most ingeniously spun together. We are only surprised that a journal of the high reputation of the j " Argus," on the mere assertions of a correspondent, whose style by the way suspiciously resembles that of the articles complained of, should think it probable that a could do a thing so disgraceful as to warrant such , extraordinary vituperatiou, j