WEDNESDAY, FEBRUARY 23, 1848.

New Zealander, Volume 3, Issue 181, 23 February 1848, Page 2

WEDNESDAY, FEBRUARY 23, 1848.

He just ami Umi not • Let all the cuds "ion ,ums't at, be tliy Country's, Thy God's, and Truth's.

Optimus, atque Intergrcs Icgum sanctissiimis; oinni.i quanquam Tcmporibus finis tiaciaiuliiputabtit incline Justitia. Juv. SO. We confess our disappointment at the Lite judgment delivered m the Supreme Couit. JVot at the y< lus;il of the mandamus, Tor no less was exp- v'tcd ; we were: fully prepared for that deiioion, although hardly so much for the groupus on which tliat decision was based : bat /c cannot help feeling- that it was not delivered in that free and decisive tone which an English Judge is not only privileged, but required by his very position, to adopt. It is in no captious spirit that we write ; none can be more sensible than ourselves to the value of the Chief Justices* labours, not only ii Ills appointed sphere of action, but in other extra-judicial matters likewise, where his volunteer exertions may yet prove of unspeakable value to the colony. But still we cannot disguise from ourselves, that in avoiding what was in reality a constitutional question, through unwillingness to embarrass an authority whose existence he need scarcely re cognise, he has not sustained the dignity of the highest and most independent office which it is in the power of the Crown to bestow. For the whole of the judgment is characterised by a reserve, approaching to timidity ; while the latter portion of it, more especially, labours under an ambiguity of meaning, arising out of the extreme caution with which the words are chosen, which we believe is even now misleading those whose business it is to unriddle the law, which we arc all fielively supposed to know. The judgment may be divided into two parts, so distinct from each other, as to be capable of separate examination. The firit is carefully confined to the sole point which appears to have remained at issue, leaving untouched the question which was attempted to be raised as to the conduct of the cleik of the Court of Requests, when he refused at the bidding of the Governor to issue sum* xnonses as before, but giving and explaining the main objection to issuing the writ. O,f the abstract propriety of such refusal, we may assume that uo doubt can remain ; hut the grounds of that refusal, as laid down on Wednesday last, we have not been able clearly to understand. To attempt a sustained legal argument in this piece, would be of course absurd, but we think that we can point out the difficulty in very few words, to those who have already examined the subject. The objection made is this ; that " it does not appear to be the practice of the Court of Queen's Bench to direct such a writ to any ministerial officer of an inferior Court of law. The reason is given in Bacon's Abridg. in these words : — ' For the superioi Court to interpose in obliging such inferior officer would he to usurp the authority of the Court, which has a proper jurisdiction over its own" officers, and which alone ia answerable to the superior court for the execution of such authority.' " Now this had already been anticipated in the argument of Counsel, where it was asserted that the said clerk in the Court of Requests was not in the position of the ministerial officers above alluded to, being appointed by the Governor alone, not by the Judge of the Court, who had no controul over him or power of removal. Tliis again appears to have been met in the judgment by a reference to the clerks of inferior courts in England, who are not removeable by the judges alone, without the approval of the Lord Chancellor, and against whom, nevertheless, we must assume, that a writ of mandamus would not lie. The parallel seems to us imperfect. It is evidently intended to put the case of the Court of Requests ia Auckland, on all fours with the County Courts in England. The difference however, consists in this. There, the judge appoints his own officer, andean likewise dismiss him, subjectively to a contingent approwl ; lie has power over his own o/licer, — concurrent at least, though not exclusive : whilst here, on the contrary, the clerk is originally appointed by the Governor, neither has the Commissioner, for any thing ihat we can learn, any thing whatever to do with his removal. We had ourselves expected to have seen refusal of the writ sustained on different grounds. Taking for granted that we must be wrong in our own view of the question, we still are prompted to produce it, inviting reference, as a mere matter of curiobity, to the case we are about to cue. In the Ki*ig v. Dr. Walker, (Bacon's Abridg. Mandamus,) we read that " where a Mandamus issued to the Vice-Master of Trinity College, Cambridge, comiumding him to «Xfccu!:e a sentence of deprivation, pionounced

against the Bishop of Ely, as Visitor of the College, against Dr. Bcniley, the Master of that College ; .and it appeared on the fncf j of the writ, and by the return, that the Bishop himself, or the King were Visitors — the Court hold, tl.at no Mandamus would lie ; for, taking the Bishop to be General Visitor, as the wi it supposes, he is the proper peison to carry his own writ into execution,having power iam in capile guam in membris ; and if the ViceMaster refuses obedience to his mandate, he may pronounce sentence of deprivation against him, and he will be immediately ousted by the judgment, or, taking the Crown to be Visitor, the Vice-Master may be punished by Commissioners appointed by the Crown ; one of which ways the Court held to be the proper one to compel the Vice-Master to do his duty." Now we are quite aware, that in this case likewise, the parallel sought is not so perfect as could be wished— still it might be worth while to enquire, whether it be not with the Governor alone, putting him in place of the Crown, that the remedy must lie. Such would certainly have been an appeal fiom j Philip drunk toPiiilip sober — still, in spite of the improbability of success, it would have borne no open absurdity upon the face of it. The latter part of the judgment we hardly know how to characterize — nor is it to us alone that it has proved a mystification. His Honour seems to have travelled something out of the way, in the first place, to record his opinion as to the propriety of rendering the Clerk of the Court independent of the Commissioner : and then again to make a side hit at the learned Counsel who argued the case, for representing so strongly the rebellious tendencies of Mr Tye. Now, when we call to mind the observations which Mr. Bartley really made, we cannot see that the reproof, good-natured as it was, appeared in any wise merited, What he said with reference to the complete independence of the Clerk of the Court, was simply this — " That he did not expect that Tye would have done so rude an act — but, that if he had felt so disposed, he might have snapped his fingers at the Commissioner, and bidden him defiance, inasmuch as he was beyond his control !'' It has likewise been observed that he travelled out of his way to notice the cessation of Mr. Berrey's Commissionership, such ret signation or dismissal not having been disclosed in the affidavit, beyond which he had no right to know anything. In this objection, there is. perhaps, a little hypercriticism. A complete judgment had already been delivered, strictly in accordance with form; and if, after that, the Chief Justice chose to proceed and enlighten us, though in never so rambling a strain, as to the law in this or any other case, we ought rather to be grateful than to complain The leal ground of complaint is the ambiguity of the terms in which this extra-elucidation is conveyed, leaving us nearly as much in ignorance as it found us. What for instance, is Ihe real meaning of the following phrase, — "Mr. Berrey has ceased to act as Commissioner, and the Government notice very distinctly implied, that no new Commissioner will be appointed." Mr. Berrey has certainly not resigned ; he has not been dismissed ; and, if he ceases to act, it is simply because Tye by issuing no summonses, ceases to bring any one before him. The cessation insisted upon, is merely of a negative, not of a positive chaiacicr, from which no manner of conclusion can be strictly drawn. We read a little further, and we learn that " the Court of Requests being no longer in operation, there are open to Messrs. Graham legal means of recovering whatever may be due to them on their demand. If the modes of proceeding which now remain, are found less convenient than that which was afforded by the Court of Requests, the remedy must be sought elsewheie." The expressions are cautiously chosen, — and as equivocally as if they had been supervised by Governor Grey himself. We crave leave to observe, that information conveyed from such a quarter~ex cathedra- should leave no room for misapprehension, but should be expressed in the most explicit and unmistakeable terms. For what is the remedy so obscurely hinted at ? and in what a position are we now left. At the present moment, we do not know, and cannot learn, whether this Court of Requests, said to be no longer in operation, has likewise ceased to exist; neither can we attempt even to guess at the remedy suggested, until that doubt be fitst distinctly resolved. In the judgment, its non-exis-tence appears to be implied ; but matters of such importance, if alluded to at all, ought not to be learned by implication, but by downright assertion. On the other hand, however, we had brought ourselves to believe, that Ordinance can only be repealed by Ordinance, or Statute by Statute ; and that the mere abandonment of their functions by the officers of that court would still leave it as much a court as it was befoie. If indeed, it be still in existence, the remedy is cleai ly not to be found in the Resident .Magistrate's Court, which has no power to

adjudicate in such cases within ten miles from any Court of Requests ; perhaps not even in the Supreme Court, — from whence however, a writ has been already issued, thnt I lie question might be tried, — for the defendant may demur to its jurisdiction, and thai with a fair chance of success. We are nil equally in the datk, supposing much, but knowing nothing ; and it ceitainly is hard that we should be made to sufl'er for an enforced ignorance ; that any one should be exposed to the chances of loss and legal expenses vainly incurred, by adopting the wrong mode of procedure for recovery of a simple debt. JJut what shall we say of Captain Grey himself— the prime mover of the mischief — the Robin Goodfellow of Governors — the nrch i promoter of tlie broil — Lord Grey's, not Lord Cranstoun's goblin page, Gil pin Homer to wit, always on the watch to stir up sturt and strife, and always away at a moments notice with the accustomed shriek of tint, tint, lint; the Hecate without her witches — for we believe that the ingredients of this cauldron were compounded by himself alone; is it not strange that he or she — we have involved ourselves in some difficulty about the gender, — should be unwilling to stay for a taste of the pot of bioth so singularly brewed. For the order which has left us all in trouble so ineffable, was given with one foot — not in the stirrup, but on the paddle box — in consistent accordance with established habit and system — a sort of Parthian warfare, shooting his shot and flying at full speed, "(righted at the noise himself had made." To us, tin's fashion of going to work is incomprehen sible; as a mutter of personal taste, we should have much preferred abiding the brunt of the battle, or, at all events, would have remained to see the fun. It may be thought that we are treating an important matter with too much levity. It may be so ; but this fashion of running away from his owi acts and deeds — serious as it has now become — has become a juke of such reverend and ancient standing, that it is beyond reason to ask any one to refiain horn joining in the old-established laugh. The practical retort of Fclton Matthew, who had been wounded by one of these flying shots, is too well remembered to be worm repeating. We miistdigiess for a moment to mention a cinious rumour that has got abioari, winch ue notice meiely to shew how his Excellence's every ad is mis-reprebenled. The casuistical question has certainly been keenly debated before now whether the mis-rep»esenteis, or the mis-represented, are most to blame ; that inquiry, however, we dismiss as over-paradoxical, classing it with the more refined argument of the middle ages-— how many thousand angels could dance upon the point of a vei) line needle. It is however very generally believed that Capt. Grey lias excellent authoiity in his pocket for all that he has done, which he purposely conceals to mislead the chief opponents of his policy — to entice them into action— to raise an outcry which lie will be able to smother with a word —to exasperate the gteat Andaiusian bull, Opposition, into a blind charge, that might eiul in utter discomfiture. It may be so—though we do nol believe it ; but part of the description of a Spanish bull-fight is so much to the put pose, that \* c are iiresislibly prompted to quote it. " lie, the capeador, approached the bull, shaking a bright colored cloak at him to provoke hit, anger, and when pin sued he ran with astonishing rap id it), trailing his cloak behind him, or else abandoning it altogether to his fur\, should he find himself too closely puisued upon, and then spiingin^ at a bound over the banier. To miss the leap, or slip and fall, would have been inevitable death j but he never failed." This time, the. Governor, as well us the Capeador, is safe ; for the pie-sent at least, even if not eventually ; but it is what would be called at the Univeisity, "feather-edging a coiner." A little more caution, hovt ever, might for t!ie future be recommended about getting into scrapes — " taut va la oiudie a I' eau qn' a la fin elle se casse"— and a little mote stoutness in yetting out of them. But we have been talking at landom— playing a play — even such as v\ as proposed by Falbtail' to Prince Hal, and even with 6uch another answ er. "Hostess, clap to the doors ; watch to night, pray to-morrow. — Gallants , lads, boys, hearts of gold, all the titles of good fellowship come to you! What, shall we be men y ?— Shall we have a play extempoie ? "P. Hen. Content ; and the argument shall be— thy 1 mining away. "Fal. Ah, no more of that, Hal, an thou lov'st me."

By the arrival of the Mankin, we arc in the receipt of British intelligence to the sth October last, and Sydney and Van Pii'iYian'b Land news to the 3rd ins(ant, and 26th ult. Of the topics of superior interest, a summary is subjoined. The Sydney Herald of the 2nd instant, announces the extensive failures in England in the following terms : LATEST ENGLISH NEWS. By the oveilund irail from Port Phillip we yesterday received news two days later than that which arrived on Sunday, by the Alert. The money article of the Times ot the sth October, wh\ch, w\jh other extrnctb will be found in another column, is most important. Private letters spenk with great apprehension as to the ii,sue af the months of October and November. A crisis as devastating as that ot 1825 ib feared by some persons, whiUt others assert with confidence that no panic will ensue, but that, except in a few case*, confidence will be restored, and business will go on us heretofnie. We shall await the atriv ul of further intelligence with gre\t anxiety.

Tno following failures took place in England between lit August and IBtli September. C. Douglas, & Co £900,000 Tetley, Alexander & Co. , . 570,000 Coventry and Slippjicrd. . - 200,000 King, Melville & Co. . . . 201,009 Giles, Son & Co. . . . 200,00') T. Hooker and Co. . . . 50,000 T. Usbome, and Son , . . 100,000 Hustle and Hntcliinson » . (50,000 \V. &J. Woodlry . * . 80,000 Fraser, Neilson, & Co., West India . 50,000 Edward Robinson, Mauritius . 40,000 W. R. Robertson, and Co., Baltic . 105,000 Caatellain, Jones & Co., Continental . 145,000 A. A. Gower, Nephews, & Co., Mauritius and general • • 800,000 Allison, Cunbsrlrge, & Co., Valparaiso 50,000 Sanderson and Co., bill brokers . 1,500,1 00 Iteid, Irving & Co- . . . 1.500.0Q0 Gowrr's acci'ptancps amount to X'GOO.OOO ; Reids, .£900,000. Mr. Robinson wai Governor of the Bank of England. Kcid and Gower were diiectors.