SUPREME COURT.

Lyttelton Times, Volume X, Issue 633, 1 December 1858, Page 3

SUPREME COURT.

FttlDtAX, NOV. .26. . BAKER V- SCHRODER,

Miv King, this morning.cominenced.his address i to the juryMay,, it'please, your honor, and gentlemen of the jury^the issue'which, you have to try in this case-is a very simple one; it amounts to this:. Did tlie defendant assault the plaintiff? if so.-is he entitled'-to any, and what damages? If the issue* simply: rested there,the only thing you;would have, to would be what amount.of damages you .will .give the, plaintiff; but the "defendant gave notice that he should produce evidence in mitigation of damages, and that the matter so to be offered in evidence was that the plaintiff did on or about the Ist day of June, 1858, commit an indecent assault upon one Mary Schroder, the daughter of the defendant/ and- that the assault committed by the defendant j in this action was committedrunder the influence Of feelings of irritation as the father of the said Mary Schroder. That incidentally alters the issue you have to try, and,in effect makes,the plaintiff the defendant and the. defendants the plaintiff. If you think the plaintiff did commit the alleged assault upon the defendant's daughter, the question will be, although • you must find a verdict for the plaintiff, whether you will give him damages. 1- think you will see that mine, is a,vefy painful and delicate task. 1, have to defend the plaintiff, whose character has hitherto been irreproachable, from a charge calculated to ruin for ever his worldly prospects, and for which he seeksa verdict at your hands, so that the calumny may be removed, or'his character remain .blasted forever ; and although I may have, seemed to weary . you by, an appearance of unnecessary tediou&ness ■in my examination of the different witnesses, yet I trust you will give me credit for a desire that everything should come out, as against the plaintiff, and that if I have erred, it has been an error' of judgment, from an over-zealousness in my client's cause, und if it has had the effect of tiring your patience, you must pardon me for so doing ; the blame"rests entirely with me. I look upon this case more in the nature of a domestic enquiry, than as a strictly legal one ; an enquiry into the character of the plaintiff as a clergyman, and whether he is a fit person to continue in his station in''society,-and''to-perform- the responsible duties he has peen appointed, to perform. In a legal point of view there is no justification for the brutal assault committed by, the defendant, and Isay there is no moral justification—had he the next morning after his arrival from Nelson gone to the plaintiff, in "the heat of passion, on hearing ;the rumour, and horsewhipped him, there might,have been a moral justification ; but no! though.there was-an offer made through a gentleman holding the important office of. llesident Magistrate, that there should be an investigation into the circumstances of the case, and although the plaintiff sends him a written statement of facts connected. with the rumour that was then afloat, yet he deliberately meets the . plaintiff coming from his church,- and horsewhips him in a most;erueL manner.'1 -/We have in cvi- . cence that the plaintiff-heard- of the report for the first time on the 29th July, from some of the Archdeaconry Board: who waited on him, and that the 'result of thisinterview was that one of its members, the. EevT Mr. Stock, waited upon the defendant' to ask him:to--investigate" tbematter ; but this he refused, to do, and said he would wait and send for his wife to interrogate the children. This.was, without doubt, a discreet and prudent step on the part, of the defendant. Does he -waif for! his wife's arrival, and then signify his willingness .for an investigation? No! he waits until his wife arrives, and,then on the very next morning- commits the assault. Why was Mrs. Schroder not put into the witness box' to tell you what the child, Mary Schroder, had said to her? If she had been, 1 should have shown you that the children had not been brought up with that maternal care, , with regard to'their moral character, that they ' should have been. [Mr. Travers reminded Mr. , King that he might have subpoenaed Mrs.- Schroder]; I did not ■ subpoena her, not only on account of the difficulty on so short a notice (she residing at Nelson) but because I fully expected she would, as she ought to have done, accomcompanied the children; and I took it for granted that I could have had access to her for the purposes of this trial on my arrival. From the time of the defendant's arrival and hearing the report, until the assault, a month elapses, viz., from the 13th July to the 13th August. You will find from,the evidence of Miss Burbidge , that she had communicated the circumstances; of the alleged assault to the defendant immediately on' his arrival, namely the'l3th July; yet a whole month elapses from the arrival of the plaintiff till the day of the assault; and I say, looking at the conduct of the plaintiff, at the rejection of .the investigation, and the position of the parties above all in point of size and muscular strength, can you come to any other conclusion than that the assault was a most savage and brutal one? When I come to point out to you the nature of the evidence, I am convinced I shall show you that the evidence brought by, the defendant in justification of his conduct and in mitigation of damages is worthless; and that you w ill give the plaintiff the full amount of damages he seeks, viz., £500. We haye in evidence that this action was brought on the 14th August, the next day after the assault, a course adopted by plaintiff with the advice of his friends. He put himself into the hands of the Archdeaconry Board,who advised him to have the matter investigated by a jury of his country men, and patiently try whether the calumnious; reports had any real foundation or not; Did Mr, Baiter shrink from that advice? No! the very ;next.day the writ was served upon the defendant; and what was the defendant's conduct with to the action? The writ was servedon the 14th of August, and as late as the Ist 'Sept. the defendant f saith that he is not guilty." Under the rules of Court, he was bound to givb notice that it was his intention to brtog this chargo against the plaintiff in mitigation of damages; but you will see that, thoy rush .to tho llesident Magistrate's Court, and bring a criminal chargo against him, and what was their object? To endeavour to provont Mr. Baker from going on with tho present action by prejudging tho enso. The result of the proceedings in the liosident Magistrate's

Court amounted to nothing. I cannot .use the depositions except for the purpose of testing the credibility of the witnesses. When, gentlemen, the defendant found that the proceedings in the llesident. Magistrate's Court amounted to nothing, he says, let us come in to give evidence in mitigation of damages! What did the plaintifT do?' Did he say by the rules of Court you are shut out? - No. He wished the fullest and most minute enquiry, and therefore, permitted it, though the defendant was not legally entitled to offer .such evidence. All of you must have seen how anxious the defendant was in his examination, to let slip anything which might damage the plaintiff in your estimation and lead you to believe he was capable of the charge, and that he had been layipg a train for the commision of the offence he -is charged with; although the learned Counsel for the defence admits that he does not believe there was any premeditation. With regard to Mary Schroder, I am placed in a very painful position. I would not believe that, she.could have concocted such a lie, unless she had. some motive for doing so. You well know that from some unaccountable cause, children very, often do state things of a most outrageous character, and when enquired into they often prove, to be either delusions of the mind, or fabrications. I should be very loth to say that Mary Schroder was teliing a lie; but would j rather believe that she was labouring under some delusion; I would prefer to look upon it in I that light, but lam bound to look at it on all sides, and if lean shew, you from the evidence 1 that she has told untruths with regard to other , matters, I think I shall be able to prove to you that the charge against the plaintiff might at ! first have been of a trivial character on the part of the child, but ,that it has gradually grown up and swelled into its present form. You have before you a variety of statements of Mary i Schroder's; arid in order to arrive at a just 1 decision in the matter you must look at the facts , and say whether such a thing could have occurred; taking the character of the plaintiff, together with the fact that the child was ill in his house, in an extremely weak and debilitated state, and the improbability of the affair altogether, having regard to all the circumstances of the case. You. must sift the evidence as far as you can, and not-be prejudiced againgst the plaintiff if in my desire to have everything out, I may have seemed to go too much into detail. It appears from the evidence, that plaintiff visited Miss Burbidge's school, and conversed with and read- to -her, and her scholars —was there any harm in that ? was he not there as the clergyman of the district? We have it in evidence that he prepared one of the Miss Schroders for I confirmation. That about the 27th May, Mary Schroder had been ill, and there can be no doubt that in conversation between the plaintiff and Miss Burbidge, in reference, to Mary's illness, [ something took place about the visit to the i plaintiffs; and although Miss Burbidge wants to I | make you believe, with the object, no doubt, of ] endeavouring to show that he wanted to get | them at his house, that the proposal originated with the plaintiff, yet what could be • more natural: than that a suggestion was made to Miss Burbidge that the girls should pass a day or two at his house fora change? There can be no doubt that the proposal was approved of by Miss Burbidge, and that the invitation was —tho result of tt natural nmiagomont-hot-n-ccu licrand the plaintiff. We find that they go up there, that Mary was confined to the house, and that Catherine and Amelia went out walking with Mr. Baker ; that Mrs. Langley was in coni stant attendance upon Mary—and that on the Monday previous to the Ist June, the father, (the I defendant) for the first time for 12 months, ■ arrived at.Wellington from Nelson, and visited j j them at plaintiffs house, only staying there a ! ! short time and laaving suddenly; that Mary was I very much affected at liis departure and cried very much; that on the Tuesday Kate and Amelia, for the first time perhaps in Mary's life, certainly for the first time since her arrival in Wellington, left her alone to go to school at Miss Burbidge's. We find that on Monday she had received a letter from Miss Burbidge, the contents of which we could not get at, but there can be no doubt that it had some reference to her returning to Miss Burbidge's,, because Mrs. Langley tells you she had read it, and that was her impression of the contents, and this seems likely as Catherine had also received a note to return: to school. We have in Mary Schroder's depositions, sworn before the magistrates at Wellington, that she had read the letter from Miss Burbidge on the Tuesday morning, on the sofa, and before going to sleep; but she says nothing about it on this occasion. In point of fact there is one view of the case which may account for the whole, without putting any stain! upon her, and which I would willingly believe to be the correct one; that she has been acting under the influence of some strong delusion, rather than that she should leave this court under the imputation of having told a. deliberate falsehood. We have it in evidence that at this time her state of health was extremely weak and debilitated, that she does , not get up until 11 o'clock, when she sits at the table in the sitting room, working at some beads; that being shortly tired of sitting up, she was placed on the sofa by Mrs. Langley; and a most important and serious part of the evidence is that Mrs. Langley placed a large shawl completely over her and tucked it well under her, of which fact there cannot be a particle of dispute, because Mary, herself a wears this. What was operating on the mind of Mary Schroder while she lay on the sofa? We have evidence that she was low spirited and crying the day before, on account of her father leaving her. This, in all probability, was still operating on her, and besides she must naturally have felt lonely, her sisters having gone to.school that morning for the first time during the visit. It is possible she was in that low nervous state which must have had an effect upon her system. She states in her own evidence that sho was subject to dreams, and it is not at all improbable that having been reading Miss Burbidge's letter in the morning she put it in her pocket, and that sho may havo dreamed that somebody was taking tho letter out of her pocket. What is curious in tho transaction is that ia her examination on the present trial she has not sivid a Binglo word about ' i the lottor or hor putting it into her pocket. Has she boon told that it would not be proper to state

that? Has she always given the same statement of the transaction? No; then yon have a right to doubt whether she has not been suffering from some delusion of the, mind, and has mistated facts. In her evidence before the Resident Magistrate's Court at Wellington, she says "I was lying on the sofa and Mr >Baker was writing in the room—there were three tables in the room— he was writing at'the one by the window. I had some notes in my pocket from Miss Burbidge. I read these notes to myself and then put them in my pocket. I was on the sofa when I did this. I then lay down and put a shawl over my feet. I fell asleep about a quarter of an hour after this;" but in her evidence before you she states that Mrs. Langley put the,shawl over her feet and tucked them up in it, and in this she is corroborated by Airs. Langley. Now you may see there is nothing inconsistent with the fact that she might have been dreaming under the delusion that somebody was taking the letter out of her pocket. Why has Mary Schroder not stated to you anything about her pocket? was it because she may have discovered that the plaintiff's putting his hand into her pocket would not dp for her to tell you, and she has therefore omitted it,in her evidence. She states she slept from 12 o'clock till 3—a very long sleep —and as the usual dinner hour was one o'clock it.was long past the usual time when she was accustomed to take nourishment; her body would therefore be so much the more debilitated, which might be one of the causes of her dreaming. (Mr. King here pointed out some discrepancies in the evidence of Mary Schroder, as compared with her depositions in the Police Court at Wellington, having reference to the actual assault; and pointed out that her statement that she had told her sister exactly what her sister told Miss Bur- ■ bidge was a manifest inconsistency, because both Catherine and Miss Burbidge swore that Mary did not tell Kate in Miss Burbidge's presence. Mr. King submitted that such inconsistencies amounted to something more than a mere want of recollection, and went far to show that truth was also wanting. He proceeded to remark upon the part of one of the Bench of Magistrates at Wellington in putting a leading question to Mary Schroder, which she had answered in the affirmative, and which he contended had suggested the thought to her that Mr. Baker had touched her, which she had not before stated, but had persisted in since her examination. Mr. King then went on to say:) You must take the whole of the evidence into your serious consideration, and say whether you believe the plaintiff, who solemnly denies the whole matter, and having regard to the serious discrepancies which appear in the various statements of Mary Schroder, whether she has not been labouring under some delusion or is actually maintaining a wicked falsehood. Can you believe that a man possessing a particle of manly feeling, particularly enjoying the character which the plaintiff did, would for a moment think of ill-using a sick and enfeebled child in his own house? Did he- try in any way to have the room to himself? People do not do these things on the spiir of the moment; had the. plaintiff been desirous of acting indecently he -would have behaved very differently to what he has done. There would have been some rudeness on his part.towardji the girl previously—something to indicate that he" meditated it; but so far from that^the conduct .of..tiio-pi«iatiiF-w-«a-of-tnirtr'*Cliaracter that no one would think him guilty of meditating the charge. .When he went to her tin the sofa, and asked her what was the matter,. did he do any thing but what any right think?ng man would have done? He rang the bell—if he had been guilty would he have dared to do it? and what would have been more natural for the child, if Mr. Baker were guilty, than to have said to Mrs. Langljy, when she came in, Mr. Baker has been rude to me? If she had said that, I don't think, gentlemen, you would have s.?en me here to-day defending the plaintiff's c ise. When asked what was the matter, she said she wanted to go home, showing that her mind was uneasy —that she was suffering under some delusion, arising from a morbid-imagination, caused by her debilitated condition. When Mrs. Langley came in and suggested that Miss Burbidge should be fetched, if Mr, Baker had been guilty, would he have gone for her? Was not that the conduct of an innocent man; would he not have been afraid to leave the child for fear she should tell Mrs. Langley what had been done to her? If he had been guilty he would have sent Mrs. Langley, in order to get an opportunity of tutoring the child, and preventing her by some means from betraying him. But look at the deportment of the plaintiff; when he went to Miss Burbidge, was there any attempt on his part to influence her mind as to what Mary might tell her? Would he not have made some statement , to induce her not to believe it, that the girl had i accused him of taking liberties with her, and that Miss Burbidge was not to believe her? If he had done this, it would be some slight indication of guilt; but, I ask you, gentlemen, was not his conduct consistent with innocence, and what any one of yourselves would have done under. the same circumstances. Supposing Mary Schroder woke up crying—that she hardly knew what she was crying about, but having created a stir by sending for Miss Burbidge, she felt frightened lest she should be scolded for crying for nothiug. May she not have alluded to the plaintiff's putting his hand into her pocket to get the letter as some excuse. One thing is very clear, that at that time there was no imputation but that of his putting his hand np her dress. She may have been anxious to go home, to leave the plaintiff's house, and expected the statement to have the desired effect. We have in evidence certain statements and contradictions which you must receive with great care and doubt; they are not mere discrepancies, which must always occur when a statement is repeated at some distance of time, hut such as compel you to use great caution before you give credence to Mary Schroder. Her first statement was that she dined at plaintiff's on the day in question, and that her sisters dined with her; and now she swears that her sisters went to Miss Burbidge's j every morning to school during the visit. She must have known that both these statements ; woro totally untrue. With regard to the apples that were sent to plaintiff's, it is true it is a small matter, hut oue of some little importance, as-Miss Burbidge led you to believe that Mary did not go to puimtilTs after the Ist June, but

that they did so is ia evidence, corroborated by Mrs. Langley; and the plaintiff" himself says he was under the impression that the Miss Schrodersr brought the. apples after the Ist of June, until he heard Catherine's evidence, which raised a doubt in his mind on the subject. Miss Burbidge's second letter to the plaintiff, written after; the Ist of June, commencing—'• Dear Mr. Baker,—The. three little girls with the yellow .hair (meaning the Misses Schroder) request you will kindly accept a few apples from their fairy home"— shows that the letter was written with the apples, and sent to the plaintiffs by the girls as a mark of respect and gratitude for his kindness towards them. With regard to those letters, no one can regret more • than I do that they were produced; they were not produced by me spontaneously, but I was forced to it by objections raised by my learned friend, and I trust you will acquit me of any indelicacy in that respect; they incontestable prove the fact, that whatever Mary Schroder stated of the plaintiff, Miss Burbirlge did not believe it, and you could not have better evidence that Miss Burbidge believed Mary Schroder was addicted to untruthfulness. The evidence of Mrs. Langley confirms thi3, and further proves that she was obstinate, and whenever she got anything into Tier head it was almost impossible to get it out. You have therefore evidence enough before you to justify■ you in coming to the conclusion that Mary Schroder was not considered worthy of belief, the best evidence of which is, that Miss Burbidge, believing that she wa3 to be married to the plaintiff, and to be the future partner of his home, did not credit it ; had she credited such a statement, would she have behaved to him as she did, could she have so acted if sl:e thought him guilty ? but yet when he found it necessary to take the scales from her eyes, 13 it not curious that the report concerning" the plaintiff should get into circulation, that it should emanate in the first instance from Miss Burbidge's housekeeper ? Now look at Miss Burbidge's conduct —she does not write to the defendant, the father of Mary Schroder, or to her mother, immediately, or tell anybody else ; but the only person she tells it to is Mr?. Langley, whom she requests to. keep it a secret. No doubt the Miss Schroders talked of it in the school, and thus it may have got wind. I think the child's statement was at first of a trivial character, but that it grew, as such things often do, and became a grave and serious charge affecting the plaintiff's character, and very position in life and society. We all know children are liable to dreams ; that while asleep the mind is affected by some disturbing influence, and when awake they cannot give the particulars. There are many peoplebelieve that circumstances have happened which have been only dreams—so vivid have they been ! There is.a half dreamy state in which the mind gets impressed in certain ways, all of which are totally contrary to truth. If you will allow me, I will read "a few extracts on the subject of dreams, iv order to endeavour to account for the delusion, which I would willingly believe in, rather than that the child is telling a deliberate falsehood. The Jirst is from Sir Walter Scott's work on Demonology and Witchcraft, and is as follows :—"lf we add, that such a vision.may take place in-the course of ..one of those lively dreams, in which the patient, except in respectto the single subject "of one strong impression, is, or seems, sensible of the real particulars of the scene around him, a state of slumber which often occurs. If he is so far conscious, for example, a.*-to know that he is lying on his own bed, and. surrounded by his own familiar furniture, at the time when the supposed apparition is manifested, it becomes almost in vain to argue with the visionary against the reality of his dream, since the spectre, though itself purely fanciful, is inserted amidst. so many circumstances which he fee!s must be true beyond the reach of doubt or question. That which is undeniably certain becomes in a manner a warrant for the reality of the appearance to;which doubt would have been otherwise Attached." ." There is one circumstance in which the sense of touch as well as others is very apt to betray its possessor into inaccuracy in respect to the circumstances which it impresses on its owner. The case occurs during sleep, when the dreamer tonches with his hand some other part of his own person; he is clearly, in this case, both the actor and the patient, both the proprietor of the member touching, and of that which is touched." Mr. King also read some extracts on the subject from the Penny Oyclopcedia. He then, commented sharply upon the leading question asked by one cf the"Bench of Magistrates at Wellington,"and said that those proceedings were taken with the object of preventing this action being proceeded with. He then concluded—l shall not occupy your time further, gentlemen, but merely point out to you that in coming to a decision on this painful ease you will have to consider whether you think the plaintiff, a clergyman of ■ the district in which he resides, of irreproachable character, whose conduct has always been remarkably kind to children, who often had parties of children at his house, is guilty, as the c'efendant would have you believe, of indecently assaulting his daughter, a crime so inconsistent with the circumstances of his position, upon a child in such a weak and debilitated state as she must have been, whether any man possessing a particle of feeling would have acted in the way the plaintiff is represented to have done; it is against human nature. It may be said that such things have occurred before;: but parties who commit these offences always lay a train, and there is always something in their conduct and demeanour to show that they might be'guilty of such a charge, and when such has occurred many are led to say they are not surprised at it. If the defendant in this case could have have brought evidence of this nature against the plaintiff he would have done so; but you have the evidence of Mr. St. Hill, and even his Honor himself could testify to the plaintiff's demeanour and character; and, if there was any thing in the charge that would lead myself to believe it, you would not have seen me here to defend him, not only as his counsel but as a personal friend. If there is any doubt in your minds, you ought to let it weigh with you in plaintiff's favour. Don't come to a hasty or hurried conclusion. The plaintiff's life, nay move than life, is in your hands, and as you come to a conclusion so will his fitturo position in the world he until his death. If yon

think the defendant guilty of the assault on the plaintiff and that he was not justified in committing it, you are bound, as a warning to others not to take the law into their own hands, to give the plaintiff the full amount of damages he seeks, as a punishment on the defendant for having acted most hrutally and cruelly. I shall now leave the case in your hands, believing that you will act fairly and impartially between both parties. Mr. Travers addressed the jury and said: May it please your honor and gentlemen of the jury. It now-becomes my duty to address you as to the evidence which has been adduced in favour of the defendant's plea of mitigation of damages. I consider my learned friend Ims brought the case before you in a-very fair and impartial" manner, and although I felt bound to interrupt him when I considered he was going into irrelevant matter, I think under the circumstances in the manner he has laid the case before you he has acted fairly. It is needless for me to repeat that this is a very painful case, it affects society generally, and requires much, more serious consideration than an ordinary case of the kind. The plaintiff is, in reality, upon his trial for a most serious moral offence, and if the Charge alleged against him is sufficiently proved in your minds, he will stand convicted of a moral as well as a legal crime. It is a matter of great importance, having reference to the position of the plaintiff as a Clergyman of the Church of England, that you should' come to a right conclusion. You are enabled by the law to find a special verdict, stating your reasons for giving that verdict, so that you. «nay, if convinced of the plaintiffs innocence of the charge, add to small damages a statement that you consider the charge unfounded and thereby acquit him of the crime. In the performance of my duty to my client, I shall havo to call your attention to the leading points in the evidence, not for the purpose of enlightening you, for I am quite sure from. the great attenion you have paid it is not necessary; but to place them before you in a light which from the length aud manner of the examination they may not have been presented to you. You will have observed that the evidence consists of two classes:

that which speaks of tact, and that which is presumptive. In all cases of crime, the evidence i 3 in variably confined to one person, because care is taken to limit the knowledge of the crime to the person committing, and the person against whom it is committed; the law has permitted circumstantial evidence to be admitted in cases of this kind, besides the direct evidence of the party against whom the crime is committed; we are bound to find out soaie circumstances which will bring the truth to light, and the charge is either to be proved by direct evidence or presumptive evidence which will lead to a belief of the fact. la cases of this kind, a chief ingredient in the evidence, leading to the presumption of guilt is, that the persou against whom tlie offence is committed, communicated the fact to some person in whom, confidence was placed. Xow, had the defendant's daughter not disclosed it, I should say you. would be justified, not only in looking upon the charge as a fictitious one, but as having been a ■conspiracy'to undo and injure the plaintiff.: because a Jadjriiad beeadeceived in her expectations with regard to his feelings towards her. My learned friend has endeavoured to give that colouring to it; but you have evidence distinctly contradicting such a construction, which the plaintiff has not in any way endeavoured to impeach. Catherine Schroder, whose candid and direct manner of giving her evidence with all the modesty of a girl of 'lier-'-ngo--anJ...inexperience, unshaken in the slightest degree by the"cros"s=exannnat : ioi*-o£.mi r ____ learned friend, told you that one hour from the occurrence the facts were communicated to her by her sister Mary—that she immediately mentioned it to the person under whose care and control she was placed and in whom she had implicit confidence. It was a clever speech of my learned friend; he endeavoured, without seeming to do so, to throw out suggestions that the little girl had not acted discreetly in remaining at the plaintiff's house , to tea that evening. She was there under the. control of Miss Burbidge who was at the time, as she has admitted, labouring under a delusion with regard to the plaintiff, and who would naturally desire to stay, and not be likely to injure the plaintiff in the position she believed she held in his affections. (Mr. Travers here read a cf se in support of his opinion, that a child under ib.3 control of a person committing an offence of the kind agaiusther did not resist, or make an cutely, although she objected, and knew it was wro ig, where the person charged with the crime was found guilty).. What was the position of the child? She. was awake for ten minutes by her own evidence, and there is one fact that is of great weight in support of the truth of her testimony, namely, that the plaintiff was writing; it is represented by the plaintiff that she awoke in a fright, and he went to her; if she had awoke in a fright how could she be able to tell that the plaintiff was writing? that is a most important point, for if she was-suffi-ciently conscious to know that the plaintiff was writing, her mind cannot have been in the disturbed state the plaintiff would lead you to believe. The fact is, notwishstanding the lit tie discrepancies which will always occur when ii statement is repeated at some distance of time, the evidence of Mary Schroder is consistent throughout; do you think that the child could have sat there for hours, subjected to the long and tedious cross-examination of my learned friend,, without contradicting herself if she were telling untruths? I am only astonished that, as it is, she did not; for I have known witnesses who have been treated by Counsel in a similar manner, contradict themselves over and over again in every important particular of their evidence. She must have been awake; and I firmly believe, and I am sure you do, that she was perfectly conscious at the time. It is immaterial to you whether she said the plaintiff placed his hand in a particular place or nut. If she had, in communicating the fact, used gross and vulgar expressions, you inighl, huvu inferred that her'mind was tainted, but on the contrary, she used just the language that would be expected from a tfirl of her ajie. Gentlemen, £ believe that the plaintiff committed the crime he is charged with; ami 1 inn quite sure you do also. Kven he, in his sacred uJUcu, and high

"irracter. as a clergyman, has given way to aiptation. Does he occupy a higher jiosition an those of old.; far" higher -than lie have een tempifea'by the devil. Had he confessed lie erima; had "he told the father that in a •moment of weakness he had been tempted to do •wrong; he would have heen forgiven, end all the painful and unhappy consequences averted. But instead of that, he comes here to holster up his damaged character by pulling down that of two innocent children; and I trust you will deal oat to him that measure of justice which he so richly Reserves. :He has sat there, seeing a woman from whom he had received letters, -which were written to him inthe strictest •confidence, and under a ialse impression which Tiis manner and demeanour towards her alone "must have caused; whose confidence he has shamefully abused, with the hope of repairing "his reputation. He has allowed those letters to "he produced ; he has heard them read.^ indeed, he must have kept those letters, knowing that •sooner or later his crime would come to light, and 'that they would be of use to him. It is the manner of a man as much as anything else that 'would induce a woman to write to him in the way she 'id, and do you, gentlemen, believe that she woutu have written them if she had not receive"d some encouragement? He tells you in "his statement that he called and severely censured her for writing such a letter. But he did not goto her, and say he had received a singular letter from her, disabuse her mind of the false impression she was under, and return her letters; no .' he keeps them, with the hope of being able -to shew that her stateraent'in reference to Mary Schroder was unworthy of credit because she -did not believe it herself; and brings them into Court as a proof of their inconsistency with; her conduct; they are, no doubt, inconsistent without explanation on her part. He disabuses her mind when he has enough evidence in his hands '4.0 throw discredit upon the charge ; he has been :gradually collecting his evidence, bit by bit; he knew it would come out some day; he has been Hooking up books on the subject of dreams and -ghosts, but we don't believe in ghosts in the pre--seni day-; he has failed even to shew that the ■<;hild was contaminated, although the indelicate

conduct of the girl Raven has been brought forward as an attempt to insinuate it. Is it consistent that this rude, wild, untruthful girl that he now describes her to be, was one of " the ■flowers of his flock," a child that he dearly loved, whom he ch»se out of a school of twenty.five others, to go to his house, and treated in every way as his own ?. I am twitted by ray learned friend with not having brought forward other facts as evidence of conduct on the part of the plaintiff of a similar character. I have been prevented from doing so by the forms of law, although I was prepared with such evidence ; but I Snd the law is against me. The point which, I have no doubt, will weigh with you in your deliberation, is that in the evidence of Mr3. Langley, with reference to a shawl, with which

she states she wrapped Mary up when she put her on the sofa; she states that this was about 12 o'clock ; that they dined at 1 o'clock, and the child was then sleeping ; that between the remov&l of the dinner things and the ringing of the bell, she had gone into the room, once, and the child was in the same position on the sofa j she then says when the bell rang she went into the room and Mary wa3 then half sitting and half lying, and the shawl was not in the least disturbed. Now by the evidence of the plaintiff himself we find that he had gone over to her. The child says that she shawl was over her feet

only. Could a child awake in confusion without al-vering.the-'PnoJ*««*-«^-i*t«--sliawi,"yet Mrs. Lang"Ticy distinctly swore that the shawl remained in the same position; for three hours the child had never moved 1 She (Mrs. Langley) says that she put the shawl all over her, up to her neck, and when she came in she was resting on her arm, which must of course have been out of the shawl, and I-ask you whether you believe it was possible the shawl could have been in thepree'i3e position chat she placed it. Tiie fact is Mrs. Langley is too good a. witness, she gave her evidence far too i oagevly, ivnd'l am sure you did not believe her. What is her position? she is the plaintiff's' housekeeper; and the two points she sticks to, and is so positive about, she expected with his extracts about dcmonology. dreams, and ghosts, might he nb'e to establish his innocence. . I have heard a story on the subject of dreams, which might perhaps suit the plaintiff's ease. 'Three men, an Englishman, an Irishman, and ■a Scotchman, were travelling together, their provisions were reduced to a single loaf, and, as it was insufficient for all three, they agreed, in order that one of them at least might have a "bellyful, that which ever had the most curious ■'dream that night should eat the loaf in the morning. The Englishman related s. most remarkable dream; the Scotchman said he had •dreamed that he had actually gained the loaf-, but the Irishman dreamed that he had got up ■in the middle of the night and eat it, and so he had. (Laughter.) I.don't know whether Sir ■Waiter Scott had this story in his mind when he wrote the passage referred to by mv learned ■ -friend. I traat that you, gentlemen, will dismiss from your minds all such improbable and imaginary ideas, and consider the charge in a common sense point of view as shown by the evido.nce before you, and I am confident you will coma to a right conclusion. lam quite sure his /Honor will lay the case before you in a clear, -distinct, and impartial manner; and after that! ■ani] what you have heard from my learned friend and myself, you will hare no hesitation in coming to the conclusion that the plaintiff has oonv.nitted the crime he has been charged with. lie is guilty, Jtnd he knows it. His Honor then said he had not expected the rase would have closed so soon, and as the evi■tinuee was very voluminous, lie jshoiild like to have <lme to go through it, and would therefore postpone I^B. summing up until the following •day. . . The Court-then adjourned till ten o'clock on ■ Saturday-.

Saturday, Nov. 27. Tli'iM tnorniiju; Mr. Justice- Q reason proceeded to <ltiu'er hi* <.:hur^t.' .to tiie jury, in the follow•OentleniHii, —I must express my satisfaction with tluj eatniest euro which you have bestowed

on this protracted trial, and the patience and intelligent attention with which you have listened all through the investigation from its commencement to its close, JJefore entering into the particulars of the case, I would impress upon you the propriety of the course, which I have endeavoured to follow myself, that is, that you divest yourselvescarefully of all preconceived opinions on the merits of the question at issue, and of-everything like prejudice inyour deliberations. This caution it is particularly '/necessary for you to "observe, since the case is one which has been a common subject of discussion out-of-doors, both here and elsewhere. I myself could not avoid having the matter frequently made the subject of conversation in my presence both at Wellington and in this province, even though it must have been understood by those who raised the discussion that I would be the judge to try the cause. I have no doubt that those who would speak before the judge would talk as freely before jurors. I take here the opportunity of reprobating as strongly as I can the practice, which I find to be by no means uncommon in this country, of discussing the merits of a case openly before those who are to try it. The practice is most-improper and inconsiderate, ,as tending to create prejudice in the mind of any man, everyone being already sufficiently liable to entertain preconceived opinions, against which it requires the strictest care to enable us to guard. Those who talk in the unguarded way of which I speak should remember that every word of theirs may contribute to lead the judjre or the jury to a false j conclusion, though perhaps not wilfully on the j part of any one. I have said this both for the sake of condemning the practice, and at the. same time of cautioning: you against suffering yourselves to be biassed in any direction by preconceived ideas instilled into your minds in anj' such way. I will come now to the facts of the case. You have heard from Mr. King the history and origin of the cause in its. present shape. It wa*s originally si simple action for assault, against which was entered a simple plea of Not Guilty; and thereupon the issues were settled. If the case bad remained in that stage, your duties would have been exceedingly simple: t*ere is no doubt that the assault was committed, and there could have been no difficulty in your arriving at a satisfactory verdict on thai question. But at the last moment, the very day indeed on which I left Wellington, a motion was made before me on the part of the defendant that he should be allowed to come, in under a rule of the Supreme Court, which admits a party, if notice be given at the time of putting in his plea, to offer evidence in mitigation of damages, and if the court allows the plea, he is permitted to do so. In this case the proper time had passed for givin^notice ; but the court was willing to grant the permission if the plaintiff's counsel had no objection ; and the plaintiff did consent,, very wisely I think—for if not, and the case pleaded in mitigation was not to be gone into, the decision come to in any case would have had no effect in clearing the plaintiff's character from the imputations cast upon it by the allegations contained in that plea; there would have been no moral result from the trial; and though damages might have been given, that was not the object desired. I think, therefore,"that the plaintiff acted wisely in consenting to the admission uf the plea. The effect is, however, to alter entirely the position of the case. From a simple one it becomes embarrassed, as the nominal plaintiff is the real defendant, and what would have been the grand feature to be proved, viz.,the assault itself, becomes of no importance • the defendant admits this charge brought against him and seeks only to prove another against the plaintiff; and thus the whole order of proceedings is inverted. This circumstance has embarrassed the investigation of the case, and has given rise to several discussions in the course of it, as to the proper method of proceeding. _ Having -thus pointed out to you the position m which the case stands I will now say a few words as to..its object. The plaintiff's desire m consenting to the admission of the evidence in mitigation on the other side was to have his character cleared from the grave imputations which have been cast upon it—a desire which is perfectly fair and natural. But you will see that if the verdict is given by you simply on the issue paper sent up to you that it will not have the effect of determining the point aimed at; it will noe be pronouncing with certainty ; for, if determining aecordingto the issue paper, you must give a verdict for the plaintiff. Even if therefore you give large damages it wili not prove conclusively that you' declare the plaintiff not guilty of the offence imputed to him; tor it might be simply a record of your opinion that, whatever offence might have been committed, the defendant had no right to take the law into his own hauaa, or that he ought to have allowed an investigation in the manner proposed ; or at any rate that the maieity of the law must be upheld, and brute fo.i ln u 6t ot prevail. 0,, the other hand, if you .^ small damages, xfc ; viil not follow that you bel eve the plaintiff guilty of the crii.ni imputed! for y« may conwder that defendant Jed under and that the provocation was constituted by the 3 ' a? °Hgh Ul<J plainfciff ffa» llofc really V I l" V nite K*"tlemen, whatever your verdict may bo on beWf of the plaintiff, I <U r " Cilt. 3. !in ""certain verdict; pronounce your opinion the case; after finding that tie assaulu was committed on the plaintiff and mi will then I hope find a apodal verdictfr,-' coi-dniK your op.n.on on the evidence before you ot the guilt or innocent of .the plaintiff as to plowed to consider th« «i mp l e p , ir t of the cv . A« it originally ntood, ou tho action for SsS

there is no contradiction between the plaintiff and defendant, and the matter would have been disposed of summarily. The defendant gave his evidence candidly, and I must say left a favourable impression on the Court. He admits that the assault was committed deliberately, not till a month after lie first heard of ft—viz., from the 13th July to the 13th •August :he beat the plaintiff for about a minute, and it is stated without contradiction that he struck him from 30 to 40 blows and that the plaintiff was swollen and bruised in the arm in consequence. The horse-whipping was not nominal then as usual, but a severe castigation, it was deliberate, by. an armed against an unarmed man, by a strong against a weak man, by a layman against a clergyman, whoso profession forbids him to offer violence against violence. Plaintiff however does not ask for vindictive damages,- but it will be your duty, whatever your opinion of the provocation received by the defendant was —it would be your duty even if the assault had been made at the moment of hearing the charge —I do not say to give large damages, but such as will vindicate the majesty of the law against the doctrine of appealing to brute force. We came here not to live like brutes and savages, but to plant and rear up around us institutions like those at home, worthy of the enlightenment of the land from which we sprang. It was to rae on arriving here one of the most promising features in the condition of this colony that full respect was paid to the law, and that the colon ists universal!}-displayed a desire to uphold its mnjestv. Let not this sound feeling be lost sight of in your decision upon this case, and give not merely nominal damages but such as will vindicate the majesty of the law. Now, gentlemen, we come to. the more difficult part of the ease, in which I will ask your best attention. The charge is one of indecjnt assault, and I propose to sift the evidence with you as I did by myself. I will first read the depositions of the child before the Resident Magistrate's Court at Wellington, for the sake of comparing them with the evidence given bjr her on this occasion. I would first, point out that there are some slight discrepancies here and there as might be expected, which are not worth noticing: they relate to slight matters, the times of certain trifling occurrences, the order of arrivals, departures or entrances, and so on, which have taken a long time tobrina: out in evidence but which it would be unfair to dwell upon, as I cannot look upon them as of any importance. But there are some discrepancies of a more important character, and these I intend to note.!- - [His Honor then read the account of the alleged assault as given by Mary Schroder before 'the Resident Magistrate's Court at Wellington, and also her evidence during the trial.] In the former investigation Mary Schroder said that Mr. Baker" took the shawl off her feet, pulled out her,., clothes and put his hand in her pocket. But in the evidence Before this court not a word is said about the pocket, not even an allusion, thouj^frrthe"-pocket-was--mentioned so . as to remind her of the form in which the statement was, previously made. Besides "the discrepancy between the two statements in this point, there is another, important -.difference when she relates at different times, the movements of the plaintiff before ringing the bell. Miss Burbidge gives a third version as told to her that night by Mary herself, in bed. (His Honor went minutely into the different statements.) There was another account given to her sister, Kate, but it was very brief in substance. I may say here that I have seldom seen a witness who made a more favourable impression upon me than. Catherine Schroder. There is not the slightest ground for any imputation on her truthfulness, even if such had been attempted to be cast. Indeed, for my own part, I do not believe in the falsehood of any witness, including Mrs. Langley, upon whose evidence doubt has been thrown by counsel. Besides the two important points of contradiction mentioned just now, there are some minor discrepancies, but none, it seems to us, that would not naturally have crept into any true tale told at different times. But besides the direct testimony there is a collateral evidence which must be made use of in coming to any conclusion in the case. As to Miss Burbidge, it is apparent that she did not believe the story for a long time: she said it was 'nonsense'— ' there must be some mistake'; but it might be urged that her recorded opinions at this time were of no importance, that she was deluded by her own f^elin«s and imagination regarding Mr. Baker as she did in the light of her future husband. On this view of her conduct however I think too much stress has been laid. I cannot think so badly of Miss Burbidge as to fancy her so devoid of all sense of duty to herself, the child and society, as to take the course she did if she had any reason to believe that the charge was true. She allowed the children to remain to tea; she would even have stayed the night at Mr. Baker's after the occurrence. Is that the course any woman would have taken if she had given any serious credence to the story ? I cannot think so, making all allowance for her private feelings towards Mr, Baker. Then did KnU-. believe it? On the best consideration- which I can <,'ive to this point, i must c.oi!c!iul« that both perlifips m'iive the story a niojnent'H consideration but did not entertain it Kuriously till long after. Tltim there in the cirttumstimce of tho visit or vi.sits after the occurrence; even if it i.s not shown .that-the girls themxelvcH took apphw to thft plaintiff's hou<<« by tli^tnuelverf alW.th.u lfit June, it 5k curtain tho present was Kent, by them and without compulsion. It m iiu-po.-iKiblo to bolujvo but that a of KhLu'h ajf« and intelligence, if hlio had believed her lister's account, would have remotiHtrated. (II in Honor here referred to tho evidence boar-

ing upon the exact dates when presertts of apples were sent or taken by the Misses Sch.roders to the -plaintiff.) The preponderance of evidence seems to me in favour of the statement that these apples were taken by the girls alone to plaintiff's house after the Ist June j at any rate it is certain that they were sent with the girls' permission. Then there is the circumstance of the bead ring worked for Mr. Baker by Mary. Though Miss Burbidge suggested the present, Mary made no objection; and though Miss Burbidge says the child looked grave when it was mentioned, still, with our knowledge of the fanciful character of that lady with respect to looks and demeanour evidenced by her letters, you cannot place much dependence on that remark. On the other side we have the plaintiff's own statement on oath as to the assault. (His Honor then road Mr. Baker's evidence throughout,as also that" of Mrs. Larigley.) Now, gentlemen, you have tke deliberate statement of the plaintiff which he confirms by his oath. Can you believe that he has stood there and sworn what is wilfully false? that in addition to committing a vile diabolical act he has consummated the offence by perjury? We know who and what he is. He is an elderly man, a clergyman of the Church of England for "early twenty years; on his character there has been no stain till now. He has been described to you by Mr. St. Hill as being the very last person whom he should have deemed likely to commit such an offence; the testimony of the Bishop of New Zealand, whose commissary he was, is also given to him. Is it likely, I ask, that this diabolical act—for such I must say an act would be of the kind alleged to be committed upon this girl, a sickly child, entrusted to his care, alone with him, accustomed to look up and obey him, —that a deed of this vile, infamous description has been done by him; and that he now perjures himself to conceal it ? Against him we have the account of a sickly child as the only evidence. Miss Burbidge did not believe the story; Kate and Ai?iry herself did not attach much importance to it at first; we have a possible interpretation of its origin, that it was a dream—an illusion. Not a word was said about it for more than a month, till after a time at which we find Miss Burbidge returning a letter from Mr. Baker unopened. Some change had occurred in her opinion on the subjttct; but how, I am at a loss to know. There is no assignable reason. The weakness, fancifulneus, and whimsicality apparent in her letters, offer us no ground i'or accounting for the change, except that she had been worked upon by some one in the mean time. To believe one statement is to impute a diabolical crime and perjury; to believe the other is simply to doubt some whose statements are resolvable at once into a mistake of the imagination. I am stating to you the opinion which I have arrived at with some pains; but it is for you to . decide either you will acquit Mr. Baker of the charge .brought, against him, or.yo.u.will send him out of this court a blasted man with the loss of niore than life itself. (At the request of the jury his Honor read again the first evidence given by the plaintiff, also that of Mr. St. Hill, Mrs. Langley, and JCate Schroder). He added : Miss Burbidge seems to have begun to credit the story about the first week in July, when somebody prompted her. She wrote to Mr. Schroder about this time, but did not mention Mary, asking him to come over simply on account of Kate's illness. He arrived on the 13fch of July, and did not commit the assault till the 13th of August. I will go through any part of the evidence you like, and as often as you like. If you have a doubt as to the criminality of the plaintiff you must give him the benefit of the doubt; at.any .rate find a special verdict. I exceedingly regret that the Magistrates at Wellington thought proper to deal with the case summarily and thus have left it to come before you in this-einbarrassing indirect way. The case was not by any means one for summary jurisdiction, but should have- been sent to the Supreme Court, where justice to Mr. Baker demanded that the charge should have been brought against him criminally, that it might have been thoroughly investigated and decided. It has been a matter of the greatest astonishment tome that the bench of Magistrates in that town could imagine that a case affecting everything short of life itself, even in one sense more than life, was a fit one to be tried and decided on under their summary jurisdiction. The course they thought proper to follow has been a most incorrect one. (Mr. Travers here expressed himself as sharing the surprise at the course taken by the Court below). His Honor concluded by reading a passage on the exclusion of evidence.

The jury then retired and returned at halfpast one o'clock, after an hour's .deliberation. The foreman stated that there was not the Hli>;ht<?st possibility of their agreeing on a verdict, .His Honor—This is a most lamentable conclusion, gentlemen; after the trouble, lime, and expense that has been gone to on this trial, that, it should turn out to be perfectly fruitless. Mr. King—l am very much grieved to hear the result, your JJonor; but if it can't he otherwise decided, we nh;ill be ready to take a verdict on the issue with damages named, without pres',in;r n special verdict. !ji» Honour—l cannot dismisH you yet genf, einen . r havf. no aUenntivo but to send you back again ; |„,|. J mMst . w!c yOl , lo ( , m ,. Hj««i.r IJiij .Mins«.qui.ni..,.H- «,C disa-rmrient, which will b, ; 1.,, render all thai ban IkVimi done at snub enonnoHs expense no heller lhai» iiu^alory. Ib.'jui-y (hen relimj a Hccond l.iiiu'-, anil were abHont till about three o'eloclt, whou tlio follow111^ verdict wuh handed in :— MThc HjMteiul jury find tv vt;»di<:t for the plain-

tiff. Damages £50 (fifty pounds), in vindica. tion ot the law. They consider it quite hopeless to arrive at a special vordict,.having reference to the alleged assault brought forward by the defendant in mitigation of damages. "(Signed) H&nky A. Scott, " Foreman of the Jury." His Honor again expressed his deep, regret so lame a conclusion should have been come to • but saw 'that there was no means of compell' ing a further expression of opinion. Ho then dismissed the jury, and tho court adjourned sine die.

The case of ■ McLean v. Brittan was postponed by consent; Mr. Travers being concerned in it, and being compelled to return to Nelson by the steamer.