A WRONG WHICH THE LAW COULD NOT REACH. [From the "Times."]

New Zealander, Volume 8, Issue 670, 15 September 1852, Page 4

A WRONG WHICH THE LAW COULD NOT REACH. [From the " Times."]

Some months ago we laid before tho public the particular* of a case which created a good dtal of deserved indignation by the circumstances alleged. Not to repeat the story at tedious length, we may simply observe, that in the month of April, 1847, a native lad, named Robert Ersk'ne in the sei vice of Captain A. \V. Murray, of the Ist West India Regiment, at Cape Const Castle, was suspected of having committed u theft upon hi-, master ; that he was cruelly toitured at the instance and with the cognizance of Captain Murray and Lieutenant Stewart, of the same corps, to make him confess ; that he was subjected to excessive ill usage; and that when, after much delay ard heavy punishment, he was at length brought to trial, the Court acquitted him. Such Mas the substance of the statement which was brought by Sir Edward Buxlon before the notice of the House. It is not often, we must needs observe, that an African gnevance Buffers for want of agitation, but in the present case the honourable baronet has good reason to show for the tenacity of his suspicions, lie has incessantly urged the subject on the notice of the authorities, and on the 12th of this month a Parliamentary paper was issued, containing information of all the proceedings up to toe present time. That he has taken much by his motion is more than will appear, hut ho has at least succeeded in developing an extraordinary conclusion, nnd our aid shall not be wanting in giving it that publicity which it seems must sland in the place of more formal retribution. When the case was first alleged in the form above described, the authorities of the Colonial-office moved the authorities of the Horse Guards to " institute an inquiry ;" and consultations were held accordingly on the measures to be adopted. The opinion of Sir David Dundat", the Judgo-Adrocate-Generdl, was to the effect that a court-martial, for reasons to be hereafter noticed, could not take cognizance of the alleged misdemeanour, and it was referred, therefore, to the Attorney and soli-citor-General to say, " whether the persons charged with having tortured Robert ErsKine could be tried and punished for it, either upon an information exhibited by the Attorney-General, or upon an indictment found in the Court of Queen's Bench in England 1" and whether, in a case of this kind, " it would be proper to resort to this mode of trial V Sir John Jeivis and Sir John Romilly incontinently returned for answer that the persons so charged "could not be tiled and puni-shed in this country by information or indictment in the Queen's Bench ;" that " no such proceeding cou'd be instituted at common law ;" and that the cast* in their opinion, " was not with ; n the provisions of the statute of 42 George 111., c.85." Baffled thus on those two points, the Coinmander-in-Chief informed the Colonial Secretary that, " under all the circumstances, it seemed to him that the only proper course to adopt would be to require from each of the individuals concerned a full explanation of the whole matter with which they had been respectively chaiged." His grace accordingly addressed himself without delay to the Major-General commanding in Jamacia, where the officers inculpated were then stationed, and obtained their " answers" to the allegations presented, as well as the " affidavits" of two sergeants and one drummer present on the occasion referred to, and the testimonials of certain authorities to the general characters of the accused. This evidence, as might be excepted, went to invalidate the original charges, and to throw suspicion on the complaints of 'the alleged sufferer. His Grace also obtained a report from Captain Craig, recently commanding the troops on the Gold Coast, respecting a medical examination of Robert Erskine's actual condition, together with the opinions of tho surgeon? as to the truth of his declarations. Meantime Lord Grey, on his part, was not idle, lie had forwarded to the Gold Coast the evculpatory statements received from Jamaica, and had directed a resumption of the enquiry on the spot by the ActingGovernor, It is needless to observe that a good many contradictions were elicited, and that evidence which was at first perhaps not free from confusion became still more unsatisfactory when, taken again after so great a lapse of tune. However, to save the reader trom gratuitous trouble, we may simply append the opinions as to the main truth of the matter ; — first, of the Judicial Assessor who drew up the report, and then of the Liutenatit-Govornor who transmitted it to Lord Grey. The former of these gentlemen, Mr. Brodie Cruickshanlc, pronounced that the apologetic depositions of Captain Murray's witnesses *' had been attested with very little regard to truth," that it " was clear that Caplnio Murray and Lieutenant Stewart were perfectly cognizant of the torture to which Erskine was subjected," and that, though "ii would be for the honour of humanity could it possibly be believed that so many persons were labouring under an unaccountable delusion in Erskine's case, no ingenuity of defence could relieve those implicated in this atrocious transaction from the imputation of great inhumanity." So far Mr. Brodie Cruickshank, the Judicial Assessor. Lieutenant-Go-vernor Bannerman's words are fewer, but not less decisive. '* 1 cannot," says he, "with the additional materials placed in my hands by your Lordship, differ from the report of Acting-Lieutenant-Governor Fitzpatrick" (this was this report on which SirEdwarfl Buxton procceiei), " nor do I consider he was misled in any important particular." Robert Erskine, therefore, without crime proved against him, tvas subjected to cruel torture, and was, when tried for the crime suspected , declared not guilty ; but Captains Murray and Bingham and Lieutenant J. W. Stewart, of the Ist West India Regiment, are protected in perfect impunity. The reason why a court-martial could not sit on the alleged offenders was, that this description of trial must, by law, take place within threa years of the offence, and, as the Judge-Advocate-Ge»eral was not consulted till January, 1850, whereas the transaction occurred in April, 1547, there was obviously no time, considering the abodes of the parties concerned, to institute the regular proceedings. Since, therefore, the civil court 6, in the opinion of the law officers, were incompetent to to Judge the cause, and the operation of the military court had been excluded by delay, what was to be done? Apparently, nothing at all. Field-Marshal his Grare the Duke of Wellington is fairly puzzled. " His Grace," says the last communication on the subject, "feels with Lord Grey that imputations of great seriousness are raised and supported by a considerable body of evidence against officers in. Her Majesty's service, but, having considered the whole matter with most anxious attention, and being advised that the officers in question cannot be tried ov punished by a court-martial for an offence committed more than three years ago, his Grace is at a loss to suggest to Earl Grey what further proceedings could be taken against them." Thus, therefore, we fear we must say, ends the enquiry. Sir Edward Buxton has proved his case and established the claims of Robeit Erskine to redress, but the officeis inculpated in what the Judge- Advocate-General himself terms so" heinous a crime," are left in a position to repeat it whenever they think it possible with equal impunity. There appears nothing to be complained of in the exertions of (he authorities. Every effort was made to elict the truth, and, unless we ask why no report was at once made to the proper quarters of proceedings which could hardly have been secret at the time, we scarcely see what more is to be said. Sir Edward Buxton, however, many assure himself that he carries the sympathies of the public with him in his failure, and that the indignation at the wrongs of Robert Erskine is not confined to the members of the Aborignes Protection Society.