SATURDAY, MARCH 11, 1848.

New Zealander, Volume 3, Issue 186, 11 March 1848, Page 2

SATURDAY, MARCH 11, 1848.

Jungentur jam gryphes equis. A memorial to the Colonial Office has been prepared, and now lies for signature, praying that the Court of Requests— abolished or suspended by mandate of the Governor — might be ngain brought into operation as heretofore. Much as we have always deprecated public meetings, agitation, or disturbance of any kind, as being inimical to the real interests and happiness of the Colony, we feel bound to express for once our cordial concurrence with*' The Opposition," in support of the present means which it has adopted to obtain redress. For this is all fair ; the most critically conservative eye would fail to detect factiousness or turbulence lui king beneath; there is nothing in it but the legitimate exercise of Englishmen's right to carry their complaints to the foot of the throne. There can be no doubt but that the Governor's act was rash and unadvised ; there c-m be little doubt but that it was illegal ; while the cavalier manner in which the change was effected made it even more difficult to stomach. And the impolicy of such an openly autocratic procedure— forced upon us without even an attempt to disguise an arbitrary ace under forms of law, is made even more apparent by the contrasted quietness with which a similar abolition was suffered to pass in the south. — There Captain Grey condescended to go through the form of consulting the Colonists about the matter, smoothing them dow i with a little preparatory talk, snaking them believe that they played the leading part in the piece, while he himself was merely prompter ; and having succeeded in persuading them that all was done in deference to their own wishes, was able to compose them into utter forgetfulnessofthe unconstitutional nature of the whole proceeding. There is a curious mixture of caution and rashness in His Excellency's character ; and this time the latter quality has taken the upper hand. To borrow an expressive metaphor from " the ring," he has got his head in Chancery at last ; nor is it easy to see how he is to get it out. Reason as he will, he cannot escape this dilemma : that if the Court be not abolished, the Resident Magistrate cannot act for it ; that if it be abolished, he has taken upon himself of his own will to supersede an Ordinance of the Legislative Council. He has therefore brought down both parties upon him — we vindicate our national character, even in this out of the way corner of the world, splitting into small parties as naturally as into great ones at home ; if there weie but three Englishmen in an island, one would be elected Speaker, and the other two would " divide"— and now finds himself in the awkward predicament of the whale when attacked by the thrasher and swordfish at once; the one beating upon his back with blows that may be heard for miles away ; the other, when he dives to avoid being bruised to death, diving deeper still, forcing him, by continual pricks beneath, to rise again and brave the rougher treatment of his fiist assailant. The idea of abolishing the Court of Requests appears to have been conceived long since j dating at least so far back as the passing of the Resident Magistrate's Ordinance. His Excellency at that time threw out some hints of his intention, but, the opinion of the Crown's legal adviser being unfavourable, the question was supposed to have been finally set at rest. Never was a greater mistake ; on the contrary, he was still big with the fate of Courts, bore it many months, and was at last delivered of this unseemly bantling of the brain without the help of legal midwifery* without callingthe learned Attorney General's obstetric talents into play. It is matter of small surprise that the babe should die an untimely death. It is understood that some attempt has been made to excuse the hurried infoimality of the proceeding, on a plea that the Ordinances in question was of a grinding and oppressive character. Considering the scale of terms of imprisonment, at the rate of five pound a month, but not in any case to be extended beyond three months, this extreme severity is hard to see. The excuse, however, is propped up by instancing the case of onej Harris, now in custody under warrant of the Court of Requests.

We believe that the Government has been much misled by listening to an exparte statement — to the prisoner's own account of his incarceration, which is much to this effect : — that he bought certain lands over which the Crown's right of pre-emption had been waived by Governor Fitzßoy ; that he gave bills in payment ; that in consequence of the vendor not being ahle to give him a title, he was unable to take up these bills when due ; and being sued on one of them, now lies in jail : forgetting, however, to mention that he suffered judgement to go by default, and that he only paid the penalty of his own carelessness. The real case, putting it into as few words as possible, is this. William Harris, in partnership with an American, agreed to buy a piece of land situated in Lucas's creek, and to give in payment bills to the amount of o£lso payable at different terms, ranging from three to fifteen months; it being, however, specially provided in the agreement that the vendor should not guarantee jthe title, or be bound to hold the buyer harmless against any acts of the British or New Zealand Government This land was bought not for the sake of the acres themselves, but for the sake of the wood upon them, a large quantity of which was accordingly cut and sold; but none of the bills taken up with the proceeds. The vendor findingtha 1 ; the property was fast becoming valueless, and that his own chance of payment was diminishing every day, offered "to let byegones be byegone," to take back the property, with such timber as was still left upon it, and to give up all the bills. The answer received was this, that he would be cut down if he attempted to set foot upon the land. It is not surprising that the only course which then remained open should have been adopted, by appeal to a court of law. Anothfr objection that has been made to the practical operation of the Court of Requests is this, that so few cases eventually come to a hearing. The fact is undoubted, and, to our mind, one of its greatest advantages ; an argument in favour, rather than giound for complaint. If the summons alone be generally a sufficient quickener ; if litigation be checked in the bud and the incurrence of additional expense avoided, it is not the clients who are likely to cry out. If the mere holding up of the rod suffice, it is only cruelty to beat the child. There are inconveniences consequent upon the sudden and unexpected closing of the Court, which would have been pointed out to Captain Grey, had he thought fit to make known his intentions more openly, many of which likewise might have been provided against, without necessiting long delay. Let v* suppose, — as with respect to this same Harris hus actually happened, that the weekly allowance for the support of the prisoner be not paid up; how is the prisoner now to obtain the discharge from custody to which he is entitled ? Application for an order must be made to the Commissioner, who alone had power to grant it, — for the Chief Justice himself has none, — to an officer who must be again restored to his functions, before he can venture to act. As the matter now stands, no legal povv^r can release him ; either he must await expiration of the full term of confinement, or government must pay the debt itself. Let us suppose again, — and this likewise is no fictitious case, — that judgment only should have been obtained in the Court of Requests, but that owing to the sudden suspension of the clerk, warrant of execution should not have been issued ; how is it now to be obtained ? We answer, that the debtor goes scot free ; safe, not only from this, hut from every other court. The creditor has no redress, although the government has actually pocketed the fees, which are monthly paid into the Treasury. Let us suppose that a debtor be about o escape from the colony, and that immediate access, in the words of the Ordinance, cannot be had to a Judge of the Supreme Court, for the purpose of obtaining an order for a writ of arrest; how is a warrant now to be obtained ? The Commissioner had power to issue it, but the Resident Magistrate has none ; the bird may imp his wings, and be off at his own good pleasure. Another minor grievance, though not an unimportant one, deserves to be made mention of. It is this ; that the Resident Magistrate must send debtors to the criminal side of the gaol — for his authority extends no further, if we read the Summary Jurisdiction Ordinance aright, — and that he may commit them to hard labour, should he be minded to act with severity. His power is at once insufficient, and over large. After an attentive perusal of the Resident Magistrate's Act, it does not appear to us that it was ever framed with the intention of enabling that Court to interfere in mercantile affairs. A Court of Conscience seems rather to have been contemplated, for the speedy and equitable settlement of cases in which Natives only, or Natives with Europeans are concerned. It must be allowed, that by one of the last clauses, summary jurisdiction in civil cases generally is given, but only where the defendant shall reside beyond the limits of ten miles from any Court of Requests, and where the debt or damage shall not exceed £20. And what class of cases, under this restriction, are likely to come within a Resident Magis-

trates jurisdiction? Petty disputes perhaps among sawyers, wood-cutters, or PakehaMaories, the only persons likely to be resident at such a distance from the larger towns • but certainly not matters of much commercial' importance. Now it will be observed that the Court of Requests Ordinance contains a special clause, barring that Court from taking cognizance of any suit where the debt sought to be recovered shall be the balance of an account or demand originally exceeding • while the Resident Magistrate's Court Ordinance, which complainants are at present compelled to fall back upon, contains no reservation of the sort, but is even relieved by the supposed abolition of the other Court from the restriction of the ten mile clause. If then, for instance, we suppose a quarrel between partners, the Resident Magistrate will now have power to rip up the whole partnership account by adjudicating on a balance, through which suits involving thousands of pounds may be brought in his court. And this leads us to another objection, i which seems to have escaped general notice. A Court of Requests could only be bolden before a Barrister or Solicitor of the Supreme Court; it being thought, and very justly, that such power ought not to be entrusted to any but a legal man. It was given to a person of competent knowledge, supposed capable of appreciating the very nice points which sometimes arise in the law of arrest. j But how can any one unlearned in the la'wv —a military man it may chance to be,— how can he be expected to know, whether an affidavit, for instance, discloses sufficient cause of action ; or to detect any such informality as would legally [entitle the prisoner to his discharge ? The next step will be to try Chancery suits by Court Martial. We do not, however, wish to insist so much on these collateral inconveniences — which, might perhaps have been obviated by care and timely preparation of the change —as upon Captain Grey's arbitrary interference with the law of the land. For it is not impossible, though we are leath to hazard an opinion not yet maturely formed, that under an amended Ordinance, with a legal man upon the bench, or even with a clerk of competent legal knowledge to advise, the business might be safely and simply got through ; the new fashion of recovering small debts might ultimately prove as convenient and effectual as the old, and that with a clear saving of expense to the Colony. What we have mainly complained of throughout, is the illegal manner in which the abolition was enforced— and the hasty, offhand orders, issued by the Governor, as usual, on the eve of departure (or another settlement,' as if he were unwilling to be troubled with objections, or to be called upon to provide against practi cal difficulties. We are therefore anxious that the memorial should be numerously and respectably signed, that an unconstitutional precedent 'might be blotted out from our history. We are anxious that the Court should be again restored, no matter for how short awhile, as a warning against any future attempt to over ride the law. Let us not be mistaken ; we are not of those who would confine the powers of the Governor of a young Colony ; on the contrary, we would gladly see them increased : but to seize is one thing, and to receive another. The law is laid down for him ; and as he finds it, so let him take it and abide by it.

We call attention to our report of the arguments of counsel, which were heard by the Supreme Court on Tuesday last, in the suit of scire facias to set aside Mr. Clarkes crown grant. We are now for the first time in possession of the opinions of the Crown Lawyers at home on this much agitated subject, which it is to be hoped will be soon finally set at rest. Anything is better than the enduring irritation which the non settlement of the question provokes among all parties that are any way concerned with it.

The Reiident Magistrate, and thr. Inspector of Police, are itill using their most vigilant endeavours to trace out circumstances tending to throw further light upon the melancholy fact of the late murder of Lieutenant and Mrs. Snow and child. The woman, Margaret Reardon, is detained in custody, and we believe that other traces have been discovered which may lead to the conviction of the perpetrators.