THE GLOBE. FRIDAY, JULY 9, 1880.

Globe, Volume XXII, Issue 1989, 9 July 1880, Page 2

THE GLOBE. FRIDAY, JULY 9, 1880.

A very important question, whether considered from a social or merely legal point of view, was again raised in the Resident Magistrates’ Court some weeks ago. Wo refer to tho prosecution of a fruiterer named Marks, who was charged by the police before Mr. Mellisb, R.M., on two separate occasions, for having sold fruit on Sundays. When wo say that the question was again raised, we allude to the fact that some eight or ten years ago a man was fined 5 s by a Christchurch Bench for having sold a cocoanut on a Sunday. This matter of Sunday trading, at all times a somewhat vexed one from a variety of aspects, has however been allowed to lie dormant for a long period of years, not only here but also in Great Britain. AH of a sudden, however, it rose to the surface of men’s minds in a particularly pertinacious manner. The man Marks thought proper to force business in a way little thought of as legitimate by local traders, who, following the traditional habits of the nation, never dreamt of pushing their trade by trying to make commercial profits on one of the seven days of tho week, on the day, in fact, long recognised by the English race as their day of rest. Then the law, or at least those in charge of its direction and maintenance, were moved to interfere, and they did so accordingly. An information was laid by tho police against the alleged culprit, and it was heard before Mr. Mellish, R.M. Tho facts were not disputed, hut the law under which the prosecution, was proceeding was disputed. Tbe police relied upon the dicta of an old-fashioned statute passed in those happy postdiluvian times when people not holding correct views on things ecclesiastical as well as mundane, were simply roasted at the stake by the public executioner. This first information Mr. Mellish flatly laid aside, holding that the statute quoted by the police as good and sound law was inapplicable to tho circumstances of the colony. The Act referred to is one passed in the reign of Charles 11., a well meaning man according to the dim lights of those days, whom tho historian represents as replete with fanciful and hazy notions on a variety of anti-religious subjects. The fruiterer was therefore acquitted. A few weeks elapsed, and the Crown, moved by pressure from certain quarters, took the matter in hand. The Government, wisely enough, thought that a question such as that of open trading on Sundays, was a very large one, one in truth affecting the whole colony, and one furthermore which should he settled once and for all if existing legal machinery was to he got to hear upon it. The Crown therefore especially retained Mr. T. Joynt, of the firm of Joynt and Perceval, for tho purpose of testing once more the powers of legislation extant. The fruiterer was again brought before Mr. Mellish. Lengthy legal arguments ensued, tho result being that Mr. Mellish absolutely reversed his previous decision, and ruled that the antiquated legislative relic of His Majesty Charles 11. was, after all, good and sound law, and was in his opinion one of the multifarious enactments ruling the land. We are not prepared to dispute that any judicial administrator should in any way vaecillate in his opinions ; certainly he is bound by the pledges of his office to dispense what he may deem to be righteous and legal rulings. But at the time we could not help agreeing with tho many who regretted the total absence of finality in Mr. Mellish’s way of treating so stupendous a question as this Sunday trading one. We have no sympathy whatever with those who—law or no law on tho subject—keep their business places open, unless there he reasonable grounds for their doing so. Yet on the other hand, considering that a magistrate’s ruling is not worth tho very paper it is recorded upon as a legal precedent whereby other tribunals or tho public can bo in any way guided, we thought it to bo deplored that Mr. Mellish should not have seized the opportunity thus propitiously placed before bim to send tho caso up to the Supreme Court, wherefrom a final decision might have been obtained, which final decision would have at once settled tho difficulty. The fruiterer, it was acknowledged, was a poor man, and in no way prepared or desirous, perhaps, to go to the trouble and expense of appealing against his conviction in tho Lower Court. Patriotism has its limits, especially among men of tho class to which tho so-termed Sabbath breaker belongs. So, notwithstanding tho eager efforts of tho Government to set this Sunday trading matter at rest, for all practical purposes it remained as much unsettled as ever. Last week, however, another ami third prosecution was instigated against Marks, and tho game of judicial see-saw was recommenced. The ease was heard this time before Mr. Whitefoord, one of tho Canterbury “peripatetic ” R.M.’s, and a gentleman, wo may say in passing, who has won golden opinions during tho last

few years from both the Bar and the public, for the highly satisfactory manner in which he has discharged the onerous duties entrusted to him. And here, at the outset of this renewed and somewhat perplexing prosecution a singular incident occnrod. Mr. Joynt who, as wo said before, had been specially retained by the Government to conduct those Sunday trading cases, was unable to appear. His partner, Mr Perceval, however, stood up for the prosecution, and, strangely enough, it will bo conceded, made the extraordinary appeal in effect to the Bench that, as a similar case had already been decided on law by Mr Mellish, the present Bench were bound to follow suit and convict accordingly. Mr Whitefoord promptly disabused counsel of the idea that common law could bo manufactured in Magistrate’s Courts, or in other words, that what one Magistrato might rule one day could not bo demolished tho next by any one of his con freres ; judicial decisions in short not being binding as legal authorities unless they be decisions of tho Judges. Mr. Perceval, notwithstanding, thought proper to decline conducting the case further than demanding a conviction, and punishment proportionate to tho offence, which was a third one. The Crown thus left in the lurch, tho case however was proceeded with. Ultimately Mr. Whitefoord, seeing fully the importance of tho issues raised, and understanding the inability of the defendant to do that which should certainly have been a duty saddled upon the Crown, that is, carrying the case up to the Supremo Court for a final ruling, arranged that a nominal fine should bo imposed upon Marks, and that costs of the appeal should be remitted. And, suggestively remarked Mr. Whitefoord, “it is a pity that an appeal was not arranged before, and much to be regretted that the Crown to-day declined to argue the case.” And at this stage, so far a somewhat satisfactory one, this semi cause celebre remains. Mr. Whitefoord has thought it expedient to strike a medium line by taking the assurance of the defence that they would take the question of the validity of the Statute of Charles 11. before the Supreme Court. Mr. Whitefoord has elected to take the risk. The issue being purely one of the driest possible law, it would seem that it mattered very little whether one side or the other was overruled. Tho Government having prescribed the prosecution, regardless of costs, too, and in the interest of tho whole community, it is evident that, had the prosecution failed to secure a conviction, the Crown would have appealed without fail. Let this be as it may however, and granting that tho case bo taken up for appeal; either tho Judges will say that tho Act of Charles 11. is inoperative, and then some legislation will doubless be brought up in tho Assembly to either prohibit or confine Sunday trading; or they will uphold the venerable statute. In tho second case let us examine what would, or might, be the consequences. In this Act of Charles 11. and of two others of Charles I—which two latter must bo law if the former bo declared so—we find the following grotesque enactments: Any one ‘‘ driving or travelling on the Lord’s day ” is liable to be prosecuted, and all kinds of ridiculous penalties are attached to tho crime. What about the Sumner ’busses and the Government railways running on Sundays P And again any one “ not resorting to the church,” i.e., an Anglican church, shall be prosecuted for this malfeasance, the prosecution to be in the hands of “ the churchwarden of the parish,” and the proceeds of the fine for the offence “to be given to the poor.” Surely some of our friends the unemployed will lose no time in poring over the highly digestible contents of these fine old English statutes, and worrying our numerous Christchurch churchwardens to some practical purpose. And so on go these interesting relics of past ages Mow we will ask, will any community in this enlightened age be willing to be controlled by laws passed in almost the dark ages, when people who dared to say that the earth moved (let alone that it was flat) were grilled on a slow fire “ by Act of Parliament.” If these obsolete statuses of the Charles’s are ruled by tho Supreme Court to bo “ inapplicable to the circumstances of tho colony,” and therefore void of force here, doubtless, as wo said before, Parliament will soon step in and try to define some measure regulating what is called Sunday trading. Mo doubt some difficulty will arise when the matter is brought before the House for debate, but if the House legislates on the subject in a broad and common sense spirit the effect cannot but be satisfactory. At all events, we shall bo in possession of a workable and definite law on tho subject, and there will be no further straining of antiquated enactments for the solo purpose of running to earth an individual who has, apparently, every right to consider himself within the law when ho has read the law which is presumably now in force by the light of common sense.