RESIDENT MAGISTRATE’S COURT.

New Zealand Times, Volume XXXII, Issue 5172, 19 October 1877, Page 7

RESIDENT MAGISTRATE’S COURT.

Wednesday, October 17.

(Before Messrs. R. J. Duncan, J. Martin, C. W. Schultze, and the Hon. E. Gray, J.P.’s.) HORSEWHIPPING A MEMBER OP PARLIAMENT.

James Mackay, was charged with assaulting Thomas William Hislop on the 13th instant. The defendant is a justice :of the peace, and the complainant is a member of Parliament.

Mr. Stout appeared for Mr. Hislop, and Dr Buffer for Mr. Mackay.

Dr. Buffer said bis client would admit the assault, but would plead provocation of a gross kind, though of course the assault could not be fully justified. He would submit to any fine which the magistrates might think fit to impose. Mr. Stout said his client was not willing to take any such concessions from the other side. He would be able to prove that no gross provocation had been given to the defendant. Mr. Stout then went fully into the case, and asked the Bench, it it was thought necessary to punish the defendant, not to inflict a fine, but to sentence him to a term of imprisonment. During the course of his remarks counsel referred to the onesided account of the occurrence which, he said, had appeared in the New Zealand Times. He then proceeded to call evidence.

The Hon. Mr. Fisher, a member of the Ministry, stated that on Saturday last he was walking along the street with Mr. Hislop, and the defendant came up. Witness thought the defendant wished to speak to complainant, and he stepped aside. He heard an angry discussion, and Mr. Hislop saying that he would not apologise, as that was no place to settle the matter. Mackay then said Hislop had slandered him, and told him to hold up his hands, for he intended to horsewhip him. Mackay struck at Hislop with a whip, and a scuffle ensued. The whip, which appeared to be a new ohe, got broken in the scuffle. Hislop had shown great forbearance, for he had Mackay in such a position that he could have punched his head, The parties separated, and Mackay said: “ You are a scoundrel, sir. I have horsewhipped you, and now I will go home.” There were about a dozen eyewitnesses, and someone in the crowd said it was the beat thing Mackay could do.

Cross-examined : I did not. interfere, as there was no time. I offered no remonstrance, but stood quietly by. I do not remember that anything was said about a letter. I heard Mackay demand an apology. Maokay appeared to be excited, though he at first appeared to speak civilly. I cannot swear to his exact words. They were to this effect : “If you do not apologise, hold up your hands, and I will horsewhip you.” Hislop replied that he would do what he liked with his hands. I did not: bear what passed before the loud talking. I cannot say anything as to the effect of the blow, but the intention. evidently was to flog Mr. Hislop. I wi 1 not swear that I did not exclaim, “Mr. Hislop, take the whip from the fellow.” Ido not recollect,making use of that expression. I swear that Maokay called Hislop “a damned scoundrel.” ■ '

Thomas William Hislop, barrister and solicitor of the Supreme Court,and also a member of the General Assembly, deposed that he did not furnish the letters published to the newspapers. The day previous bo the assault, Maokay asked him if he had: stated to any, person that he (Mackay) had on the day, of the noconfidence motion made a member drunk. Witness replied that he,believed be had heard something to that effect; and Maokay, said, “And you repeated it.” Witness said “I heard,you had been drinking on the morning of the day with the party named.”, Maokay asked the name of witness’s informant. Witness said he could not give the name, as he had no authority to do so. However, he would consult his informant on the matter; and if he got leave he would give the name, Mackay said the rumor was unfounded, and he would see to the bottom of it. Witness received a letter on the morning of the I3th. After seeing the account in the New Zealand Times of the affair, witness wrote to the defendant. About four .o’clock on Saturday afternoon, while walking along Lairfbton-quay with Mr. Fisher, Maokay came up and asked witness what he meant by sending such a letter, denying what he (witness) had said the other evening; and demanded an apology and the name of ' his informant. Witness said, “Well, Mackay, I told you if I got leave of my informant Mackay interrupted him, and said that he (witness) had said no such thing, and again demanded an apology. Witness replied that Mackay had bettor see him somewhere else. Mackay said he wanted an apology at once, and witness replied that he would not give one, Mackay then told witness to put up his hands. Witness said he would do what he liked with his hands, and advised Mackay to do nothing that he might repent of. Mackay said “By God, I will horsewhip you,” and struck witness . with a whip. He caught Mackay by the throat with his left hand, and the whip with his right. Maokay then tried to grasp witness by the throat ; but, he was shielded off, and witness took the whip from Mackay and deliberately broke it in two-or three places. Maokay walked off, and when about two or three ] paces off, he said to witness, “ I have horsewhipped you, and I am going.” The whip appeared to be_ an ordinary riding whip. ..He did not believe that he had any conversation with Mr. Rowe before the assault about the matter Maokay complained of. His reasons for believing so wore—First, that he seldom spoke to Mr. Rowe y secondly, that he did not think that Mr. Rowe's moral nature was such as to be shocked' at the recital; and, thirdly, Mr, Rowe was not a member of his (Mr. Hislop’s) party. Mackay might with equal cause have spotted a dozen members other than complainant. Witness was displeased with the account of the interview between himself and Mackay which appeared in the Times. He believed Maokay either wrote it or furnished the particulars. Witness, it anything, had the best of the struggle with Mackay ; but neither party was punished. The position was a disagreeable one, and witness desired to get out of it as soon as possible. This concluded the evidence for the prosecution.

Dr. Duller admitted that his client committed the assault, but he would be able to show ' that it was under great provocation. Mr. Mackay was a justice of the peace, and had been entrusted by the Government for a'long period-with highly important duties. Such a rumor as that attributed to Mr. Hislpp would certainly have the. effect of

damaging a gentleman in Mr. Mackay’s position. He had endeavored to get'an apology from Mr. Hislop ; but the latter not only refused to apologise, but addressed a letter to Mr. Maokay, in which he used language tantamount to accusing him of direct falsehood. He would call evidence to show that the circumstances of the case were different to the version given by the complainant. James Maokay, the defendant, was called, and stated he was a land agent. He had been a magistrate since 1856. On the evening of the 11th inst.,. about 8 o’clock, he was landing in-the lobby of the House of Representatives. He told Hislop that he desired to ask him a question. He asked him whether it was true that he said witness made a member drunk to prevent him voting ou the day of the noconfidenoe division. He (Hislop) said he had, and that he had heard it from another person. Witness then said he must get an apology or the name of the informant. Hislop said he could not furnish the name, and seemed to treat the matter in a cavalier and off-hand manner, as if witness was an inferior. Hislop then walked away, and said in a “haw haw” manner, “Perhaps I will tell you to-morrow.” Witness said, “By George, you will have to tell me to-morrow.” Witness sent a letter to ‘Mr. Hislop on the morniug of the 12th. He found out that it was commonly reported that he had made a certain member drunk. On Saturday, the 13th, he received a letter signed by Mr. Hislop. That letter charged him with telling a deliberate lie. He called at the place where Hislop was stopping, but, the latter being out, he loft bis card. That afternoon he met Mr. Hislop on Lambtou-quay. Told him that he received his letter, and demanded an apology. Some conversation ensued, and Hislop denied making certain admissions about giving the name of his informant. They both assumed a louder tone, and witness reiterated his demand for an apology, which Hislop refused. Witness said, “You must apologise. Put up your hands, I will horsewhip you.” Witness struck him with the horsewhip, and again asked an apology. Hislop refused, and witness gave him three more outs. Mr. Fisher said to Hislop, “Take the whip from the fellow.” In the struggle witness seized complainant by the collar, and pulled out his necktie. After they bad separated, witness said to Hislop, “ You are an unmitigated liar and scoundrel, and I have horsewhipped you.” There was not the slightest foundation for saying that he in any way, directly or indirectly, attempted to make a member drunk.

Cross-examined : I purchased the horsewhip for two purposes. In the first place, I intended to ride out to the Hutt ; and secondly, if I did not get an apology I might have occasion to horsewhip some one. I was asked by a reporter of the Times if I had made a member drunk, and he showed me a proof-sheet of an article headed “ Blank, M.H.R.” I told the reporter that I had received a letter from Mr. Hislop. The language of the last paragraph in the report in the paper is not in my words. I did not see Mr. Perrier at all on the subject. After the row I never told any one that I had licked both Hislop and Fisher. By Mr. Buller ; I had no conversation with Mr. Perrier, editor of the Times, on the evening before the account of the interview with Hislop appeared in the paper. Sir Robert Douglas was called, but he did not remember Mr. Mackay’s name being mentioned by Mr. Hislop in connection with Mr Joyce, the M.H.R. alluded to as being made drunk.

Mr. W. Rowe, M.H.R., deposed that on or before the 11th he was present at a conversation in the lobby of the House of Representatives. Mr. Hislop said, “ What do you think of your friend Mr. Mackay. He took away Mr. Joyce yesterday, made him drunk, and kept him so to get him to vote on the side of the late Government.” Witness said he knew nothing about the matter. Afterwards Mr. Hislop said he bad full proof that Mr. Mackay had done what he was accused of. In answer to Mr. Mackay witness told him afterwards what Mr. Hislop had said. Witness never denied that he gave such information to Mackay. Mr. Hughes, landlord of the Melbourne Hotel, stated that he was, not aware that any drink had been given in his house by Mr. Mackay to Mr. Joyce. Mr. Nation, a clerk in the Treasury Department, mainly corroborated defendant’s evidence as to the assault.

Mr. 'Halse, clerk in the office of the Mutual Provident Society, also gave corroborative evidence. He said he never saw anyone take a whipping so quietly as Mr, Hislop. This closed the evidence for the defence, and Mr. Stout called,additional witnesses for the prosecution. Mr. E. Hamlin. M.H.K., stated that lastnight ‘ Mr. Rowe denied, in the presence of Mr.':Hislop and .Mr. Bunny, giving the information to Maokay, and that he said he did not know ..what he was subpamaed for. Mr. Rowe’s evidence iu this respect was incorrect. The complainant was recalled, and gave similar testimony to the late witness. Sarah Maloney, a barmaid at the Melbourne Hotel, stated that Mr. .Hughes had instructed her not to give Mr. Joyce drink. She never told anyone that Ml-. Mackay shouted for Mr Joyce iu the .morning. Neither did she . say thaCdefendaut and another gentleman with a black beard came to the hotel in the afternoon, and after trying to make Mr. Joyce drunk took him away iu a cab. She was interviewed by Mr. Grace, Mr. Baker, and Mr. Hamlin, and Mr. Mackay’s name cropped up ; but she told them that she knew nothing about the matter.

Mr. Stout said he would call witnesses to rebut the evidence of the last witness. But to this T)r. Buller objected, as it was against all rule for counsel to call evidence to contradict his own witness.

. After some argument Mr. Stout did not press that the witnesses be called. Counsel on both sides then addressed the Bench, Mr. Stout again urging that a term of imprisonment should be inflicted instead of a fine.

Tile magistrates retired for consultation, and after an absence of about a quarter of an hour returned into Court.

The Chairman (Mr. Duncan) said that the, offence was one which must be put down with a strong band. If the defendant had felt himself slandered he had his remedy at law, a fact which he must have known from his position as a justice of the peace for a long time. The Bench were unanimously of opinion that to meet the justice of the. case it would be necessary to sentence the defendant to seven days’imprisonment. The announcement of the sentence was received with several hisses in the body ,of the Court. However, the hissing was promptly repree-ed, and- the Bench intimated if the offending parties were identified they would be punished. Dr. Buller said he hoped it was not the intention of the Bench to add the indignity of hard labor to the sentence.

The Bench intimated that the punishment was simple imprisonment.