The Evening Star. FRIDAY, MARCH 17, 1871.

Evening Star, Volume IX, Issue 2522, 17 March 1871, Page 2

The Evening Star. FRIDAY, MARCH 17, 1871.

Our conteraporaiy the Daily Times yesterday, under the heading “ The Governor’s Right of Pardon,” published an article from the Wellington Evening Post, We hardly think the matter worth discussion, especially as Mr Barton appears to us to have gone the wrong way about his work, and to have written to the political head of a department at Home, instead of appealing to the only tribunal capable of dealing with the question he raises, the Privy Council. There are, however, those in Dunedin who attach an importance to the question that a few facts will tend to divest it of; and as these are supby an article published in the Wellington Independent of March the Ifch, we reprint those portions bearing m the question in lieu of any further lomments of our own. After sumUarislng the array of authorities reerred to in the Evening Post, the ditor says .* — But what is it all about? may well be 3 sked. We answer shortly. The editor of j ie Otago Daily Times having charged the 1 Government with stealing one telegram, and i eeping back another from the Post until i ley had given it to the Independent word I ir word, and having described the action of I le Colonial Secretary as even worse than that of a thief who steals a pocket hand- r srchief,” and hiving fimher said, “ This is t grave charge, and we are prepared to prove . Having done all this, he is being pr r cuted criminally for libel, and iustea ihantly leading on the fierce attack jjr Dvernraent (as the Evening Post 1 a r ‘ pect), now cowardly tries to If behind the anonymous “ * Iry fact tlmt ho wrote tin, "f , to be wrung from r ‘ aD,l l . t 'J“ 3taut witnesses insf l*e lons article swer no question -ne cyulenee of reB nselves. To ‘“ote.l l>y eouusel to ith, and tlnr ■“ th , at ,' vo ' 111 l <=nmmate e by brinf’-' compel them to tell tne Iprit wi+ ' ■* to further the ends of jusn£ f v .ng honsa the crime to the actual ac p jn a view to- his condign punish- . *rce panions- were made out and ,jd to them, and the pretext of dreada criminal prosecution, under cover of which they refused to answer questions 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 he committed. —viz., “ for anything he might state in connection with the case ” Indeed, it hard to divine what offence he could commit in the witness box except perjury. Is therefore our lean ed 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 learns that it was not. Although we have stated what was, as a matter of fact, the purport of the pardon, it is just possible that our contemporary, bewil dered by his researches amongst 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 as a witness, to refuse to answer any question which may criminate himself. Every person who takes any part ill the printing and publishing of a libel may be 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 mere taken against the Government, it became apparent that proceedings must be taken by the Government against th'* 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 aeumen —unless by those engaged in the setting up and printing the articles 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 compellable to give evideuce. 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 to “learned in the law” as our contemporary, with his Henkvh 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 prac-

tice 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, 1860, and May, 1861, and the Southern.' Cross of 1868. Thence we take one English and one Colonial case. In 1860, in the well-known Beverley election case at York, a witness called for the prosecution, having been cautioned 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 bound to answer the question. In the libel caseS now pending, Mr Bathgate, Secretary to the Times Company, refused to answer the very harmless question, “ Was Mr Bautox 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 ansuerod. Now for a Colonial case. Let our contemporary refer to the Daily Southern Cross of March 17, 1868, 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 he living in perilous times, for it appears that Edward William Stafford is as great an invader of our rights and liberties, won us by “the mailed barons at liunnymed •. »• as William Fox. What 1 Is it pos'.oJh that we find the Hon. Mr Stafford. god of our idolatry,” “ attempting Vmvive a dangerous prerogative, which •' land sank under the vigoro * $ freedom,” &c. ; Our oon? «"»“■£ ally asks, “ Are we in* we only been dreamr batons • , a V we are but basta- -»& wake up to hnd reading the f- xdR. Wc shad see By Southern Cro allowing extract from the been “ bid js, “wo shall see that we hj vve “Hi j bastards” since 1858 !

.4 IT on Gill ruled that the witness was oouml to answer the question if he ..ought it would criminate himself. «• -a kitakek said the Crown would waive the prosecution as against this 'vudnesSj and all penalties and forfeitures would be remitted, and then the witness was bound to answer all questions put to him. _ “ Mr Gilufs said his learned friend had no power under the Act to remit a penalty or forieitare. That could only be by the Governor. The Commissioner of Customs had not the power to do so. “ Mr WTiitakbk 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 pavdou. “ His Honor then directed the witness to answer any questions put to l him, as they could not now affect him.”

Mr Gillies does not appear to have been so taken aback on that occasion as Mr Macassky, the counsel for Mr Barton, was on the present case, to the intense amusement of the spectators in the Court.

The Southern Trunk Railway.— The first sod of the Otago So Ahern Trunk Hail way will be turned by his Excellency the Governor to-morrow afternoon, at halfpast two o’clock. The emmony, which is to be a very quiet one, will take place near Kensington,- in a paddock belonging to Mr Cargill. After the sod is turned bis Excellency will partake of refreshments in a marquee on the ground with a number of gentlemen who have been invited. There is to be no formal programme nor toasts. The Bishop of Dunedin.-H the necessary arrangements can be made it is intended to consecrate the Kev T. 8. Nevill to the Bishopric of Dunedin on Ascension Day, May 21,

Mayor’s Court.— The business transacted at this Court to-day, was unimportant. Jas. Allison, John Cotter, and Jas. VVeymiss, ■were each lined ss, and Elizabeth Skinner, Ls,or 14 days, for being drunk. A couple of assault cases, a few cases involving breaches of the bye laws, completed the business. r lhc presiding Magistrates were the Mayor and Mr Geo. Brodie, J.P.Suicide. —On Friday lust, a man named Samuel Walker was brought from the Waikaka to Switzers hospital in a state of insanity. He had while in that state used violent means to put an end to his existence by cutting his throat. At Switzers the wounds were stitched up, but the man had to be pinioned to prevent him tearing open the stitches. Walker, who was a stranger in the district, having recently arrived from Victoria, died on Sunday afternoon.

Princess Theatre. Not having been present last night we are unable to give an account of the performance. We believe the ho ise was but thinly attended, and that his Excellency the Governor was not there, deterred, no doubt, by the inclemency of the weather. This evening, in honor of Sfc. Patrick we suppose, wi 1 be performed two Irish pieces : “Cauthleen, the Card Drawer, a Tale of Munster ” and' the “ Irish Emigrant between the pieces the gentlemen composing St. Patrick’s Brass Baud have in the kindest manner consented to perform the Koyal Irish Quadrilles,”

Accidents— A fatal accident occurred on Tuesday, the I.4th inst., to one of the children of Mr W. F. Downes, of Lawrence. During the absence of the mother from the room the poor little thing, which had just begun to toddle about, fell with both its arms into a tub of hot water, scalding them in a fearful manner. The tub had been covered over with a cloth, but the child must have dragged it off and slipped into the water. The child died the next evening. An accident occurred this morning, which points to the necessity for owners of shops being prevented from keeping the cellars open near all day long. A,t present many of these .cellars are regular man-traps, and the wonder is that accidents have been so rare. A boy named Andrew Russell, in the employ of Messrs Mills, Dick, and Co., while on an errand this forenoon, fell down the cellar at the Oriental Hotel, and broke his leg. He was at once taken to the Hospital, where the limb was set; and lie is now progressing favorably. Port Chalmers Regatta. —ln accordance with public notice a meeting was last evening held in Dench’s Hotel, to take into consideration the advisability of postponing the intended regatta at Port Chalmers. Mr Henry Dench, who occupied the chair,

stated the reasons why the committee had called a public meeting, and had submitted for its approval the proposed alteration. The advantages to be gained by the postponement were any—as more money could be raised, better prizes could be given, a greater number of spectators would be enabled to witness the sports, and more time would be given for preparation, so that though a few might be inconvenienced by the change, the general good would be promoted, afld the success of the regatta, would be incXAased. On the resolution passed on March fith, which provided that the regatta be held on March 23rd, having been rescinded, Mr E. Barton proposed, Mr J. Harlard seconded, that the regatta be held on April Itltli, was carried unanimously. "Mr J. Harlard proposed, Mr E. Barton seconded, that this meeting recommend to the favourable consideration of the committee a further sum of money to be voted to the Benevolent Asylum, viz., that 5 per oent. be given from all prizes obtainable, in addition to the 5 per cent, voted from the.gross proceeds. Thishaving been carried,, am I a vote of thanks been accorded to. the chairman, the proceedings terminate!.

We have' been requested to state that "V okirateers will be expected to “attend the hrdil to the Governor i i uniform, and not J n ev/eajjng dress.

Itt will be seen by a reference to our advertising columns that, in reply to a numerously signed requisition, Mr Thomas Bamford has consented to contest the election for the Caversham district. He will, address the electors this evening, at the schoolhouse, Mornington, at eight o’clock.

Messhs Wright, Stephenson, and j Co. will sell by auction, at the Provincial. \ Yards, to-morrow, at 12 o’clock, the booths,, j| the right of charge to the racecourse, grand. | stand, a,ml saddling paddock ; also, the sole light to the race cards in connection with | the forthcoming races.