The Globe. FRIDAY, JANUARY 17, 1879.

Globe, Volume XX, Issue 1534, 17 January 1879, Page 2

The Globe. FRIDAY, JANUARY 17, 1879.

The action of the Government in regard to the condemned-man Welsh, recently convicted of the murder of his wife, at Waikawa, is unusual enough to demand public attention. The facts of the case, so far as they have been made known, are that Judge Williams, before whom the case was tried, stated in the report usual on such occasions that there was no reason why the death sentence should not bo carried out. Notwithstanding this report, however, the Government decided that the sentence should bo commuted to penal servitude for life, their reason being a supposition that the prisoner was insane. It is further stated that the Ministry having tendered advice recommending this commutation to the Governor, his Excellency has objected to accede to the recommendation. There, so far as is certainly known, the matter rests, and in the meanwhile the wretched man is kept in a state of uncertainty as to his fate from week to week. We observe that two Southern contemporaries, in discussing this matter, have emphatically condemned the course pursued by the Government. One argues that it is a monstrous and unheard-of thing that the report of the Judge upon the case should bo disregarded. Another contends, first, that because the plea of insanity was not set up on the prisoner's behalf at his trial, although the Judge complimented his counsel on the defence made, therefore it should not bo entertained now; and, secondly, that if the prisoner is really insane, his sentence should not be commuted to penal servitude for life, but to confinement in a lunatic asylum during her Majesty’s pleasure. We are not at all disposed to denounce the course pursued by the Ministry in the same wholesale manner as our contemporaries, and it certainly appears to us highly improper that, while the man’s fate still hangs in the scale, the Ministerial action should bo made the subject of a party attack. We do not say that the Ministry are wholly right, but wo are far from regarding them as wholly wrong, judging even by the very limited information, tending to justify their course, which is accessible to the public. It may, in the first place, be pointed out that there is a strong proha-

bility that the Ministry have been influenced by considerations which are not yet generally known. Medical reports and petitions may have been sent in without the public having any cognisance of them. Such considerations may bo good or bad, but until wo are either sure that none such exist, or that, being in existence, they are bad, it is premature to pronounce any decided judgment upon tho case. Dealing, however, with the arguments of our contemporaries, and first with the alleged constitutional impropriety of disregarding tho Judge’s report under any circumstances, wo may say at once that the argument appears to us utterly unsound. It may bo impossible to produce a precisely parallel case in New Zealand, but evidently the stress laid by our contemporary the Timaru Herald upon this circumstance shows how very little consideration ho had given to the subject. Had New Zealand a constitutional history extending over some two or throe centuries, there might be something in the argument; but to say in cases of this kind that because a particular course has never been followed in a career of five-and-twenty years, therefore it never ought to be followed, no matter what strong arguments there may be in favour of it, is to talk sheer nonsense. But why does tho Herald make no reference to English precedent in this matter? We should be sorry to insinuate that his anxiety to make a point against the Ministry rendered him oblivious to the fact that the death sentence has there been frequently commuted, even in quite recent times, notwithstanding the opinion of tho Judge presiding at the trial that there was no occasion for it. It is notorious that reprieves have boon constantly granted after executions have been determined on by the Cabinet, and the day actually fixed —granted oven within a few hours of tho time when the sentence would have been carried into effect. But apart from this, it is plain that if the Cabinet simply had to discharge the function of acting on the Judge’s report, the protended consideration of any case whatever in Cabinet would be simply a dreary farce. Wo admit that as between the Crown and Ministry there is need for clearer definition of function, in constitutional colonies, with regard to the exercise of tho prerogative of mercy; but as between tho Executive and the Judiciary we are not aware of any such need, because there is no ambiguity. The Executive have unquestionably a discretion, independent of Judges’ reports, in regard to advising that the sentences of the latter shall bo carried into effect, or commuted, as tho case may be. Similarly unsound, it appears to us, is the contention that because the plea of insanity was not set up in Welsh’s defence at his trial, therefore it should not bo taken into consideration afterwards. As for the compliment of the Judge to tho defending lawyer, it has nothing whatever to do with the matter. It is evident that if there is anything in the argument of our contemporary it must be extended beyond a plea of insanity raised after trial. It must either involve the contention that no consideration which was not adduced in a prisoner’s defence at the time of trial, should bo entertained subsequently by the Executive, or it can have no force whatever. The plea that this or that was not advanced in a prisoner’s favor at trial, and should therefore bo disregarded by the Ministry is either good in all cases or in none. We do not think are contemporary would maintain that if evidence, creating a strong presumption of Welsh’s insanity, has come into the possession of tho Ministry since the trial, they would be justified in disregarding it. Clearly the ends of justice will not be served by hanging a man who was irresponsible for his act; and if Ministers have substantial ground for believing that this was so, they would be altogether right in not permitting a mere official etiquette to prevent commutation. This must be apparent when it is considered how utterly unjustifiable it would be if they, holding the power of life and death, for the sake of a mere formality recommended this man’s execution, believing at the same time that ho was not morally guilty of the crime for which he suffered.

As to the last argument, that Walsh should either be hung or sent to a Lunatic Asylum, hut that the middle course of condemning him to penal servitude for life is illogical, it certainly has a strong show of reason. What degree of force there may bo in it must, however, largely depend upon the nature of that information, which wo infer that the Ministry have, but the public have not. Their decision certainly does appear to bo so far inconsistent: but here again it cannot altogether bo overlooked that many instances of a like character have occurred in the course of English history, and that this illogicality is simply obedience to precedent. Wo do not think that this excuse is quite sufficient, and so far the course followed appears to want justification, supposing always that a final determination has been arrived at. For the full elucidation of this somewhat unusual business we presume that the public must await the meeting of Parliament, when the papers will doubtless be asked for and obtained. Meanwhile we trust that wo shall not be accused of undue prepossession in favour of the Government when wo say that wo can see nothing in their action in the matter to require the unsparing condemnation which it has called forth. On the facts of the case, as they wore elicited at the trial, there was very much to lead to the supposition of the murderer’s insanity, and oven if the Ministry have no further information bearing out that supposition, we should not bo prepared to say that they had done anything worse than possibly to lean a little too much to the side of mercy.