THE STANDARD. WEDNESDAY, DECEMBER 24, 1873.

Poverty Bay Standard, Volume II, Issue 116, 24 December 1873, Page 2

THE STANDARD.

WEDNESDAY, DECEMBER 24, 1873.

u We shall sell to no man justice or right s We shall deny to no man justice or right: We shall defer to no man justice or right,”

In each of the two last Sessions of the Supreme Court at Napier, a charge of “ Malicious Shooting ” has been entered on the record. In the first, —that of William Benson shooting and wounding a bullock, —the Grand Jury found “ No Bill.” In the second —that of Duncan Fraser shooting a horse —the Judge gave sentence of nine months’ imprisonment.

To the lay mind, and especially to those familiar with the circumstances which culminated in the shooting in each case, there is something very inexplicable in what seems to be a wide difference in the treatment of two acts the prime features of which, a priori, are somewhat identical.

Analogy is, perhaps, the only means that a large majority of the public have of learning so much of our written and unwritten laws which decide the rights Mid guard iiie privileges of either nations or individuals, as is necessary to good citizenship. Laws are, speaking generally, sealed books to the multitude. As with Physic, so with Law itself. We turn to our law-giver in the day of tribulation, as we call in the physician in the hour of sickness; and we trust in confidence that a specially-acquired wisdom will guide the judgment of each. The un-

lettered, and unprofessional man, can glean facts, based upon nice points of law, only by observation. He, in course of time, is possessed of the belief that analogous circumstances require analogous treatment. But there is a point of divergence between Law and Physic, as certain diseases require diagnostic treatment, the essential elements of which must, of necessity, differ according to the physical ailments of the patient. Analogy in disease cannot be depended on with that certainty of finding a ready made panacea to effect the same cure in all cases, as analogy in our other troubles of life, which are supposed to run in parallel lines to a well-defined and undeviating law, and whose similarity demands precisely the same application of it under all circumstances.

Assuming that the reports of the proceedings in the two charges quoted above, are a correct version of His Honor’s dicta, we confess that our ideas of the doctrine of analogy have received a somewhat vivid illustration of the fact that we may be arguing upon false Theses. With this, however, we do not care so much to do just now, as to draw the attention of the public to another fact, and that is that the same cause does not always produce the same effect. There is a mediaeval axiom extant, that “ uncertainty destroys law,” the application of which to the circumstances leading up to the charges now under consideration, is rather instructive than otherwise. It will be in the recollection of our readers that Benson, when he shot at, and wounded the bullock, was protecting his property which he considered was being trespassed on and injured, and to

which Captain Read laid claim ; and so determined was he to prevent the trespass and injury being continued, that he procured a second gun, after the first one had been taken from him. The analogy of Fraser’s case with this, we maintain, is complete. Fraser, made desperate by the constant driving of his sheep, and trespassonand injury done to his property, and under precisely the same circumstances of personal disagreement with Mr. Breingan, who asserted a counterright to the land, shot the latter’s horse in the protection of his rights, by virtue of a covenant with some of the very natives who were aiding Breingan in the trespass. We do not for a moment attempt to justify Fraser in his perpetration of a very rash act, neither is it our province to call in question the soundness of the judgment which, unhappily, falls with such tremendous severity on the head of the offender. But it is alike our duty and our privilege to draw a comparison between the doctrine of justification by force, laid downby His Honor,Mr. Justice Johnston in charging the Grand Jury in re Benson, and his lurid denunciation of a similar act, and under similar aggravating circumstances, in re Fraser. We therefore place in juxta-position the reports of the two charges as they have already appeared in •the public papers :— Benson. Fraser. •‘The act might or “There appeared to might not have been have been a certain malicious. If there amount of provocation was no real pretence of in this case; but the

title the act was offence was one not to malicious. If there be tolerated. Removed was ground for such a though people were claim, the question was from the appliances of one merely of civil civil life, it was no justrespass, unless supple- tification for them in mentary facts could be taking the law into their brought to show malice, own hands. * * * How far a man was Eventhough defendant justified in using force had been owner of the in a case of this kind land in fee simple, he it was important that would have no possible the public should know, right to commit the If a person came with act with which he was a team of bullocks to charged. * • * This pull down his (His case was one of very Honor’s) house, he considerable importance would be entitled to —both in law and in use all reasonable force, fact. It would be a even to shooting the sad thing for society if bullocks, if necessary, people were permitted to repel the aggression, to take the law into • * * If - a jury their own hands, as the were satisfied that the defendant had done, act was committed with The fact of an act being no evil intent, but committed in support merely to protect what of a 6ona fide claim the accused had fair sometimes went far to and reasonable ground remove the element of to suppose were his malice; but did not repersonal rights, it lieve the guilty person would be their duty to from responsibility for find no hill.”— Hawke’s the consequences of his Bay Herald, July 4th, acts. He had great 1873. cause for thankfulness to God that he had not been guilty of murder. As it was, however, he had most grievously broken the laws of the land. Offences of the nature of which he had been guilty must be put down with a strong hand, as, if they were allowed. to become rife, people would ndt.. be found to live in that part of the country were such things existed.”— Howie’s ' Bay Times, 12th December, 1873. We now ask our readers to attentively mark the similarity of the act, and the dissimilarity of the result in each case.

And with the clear, emphatic, reading of the law in the former, we may be allowed to say, without any disrespect to His Honor’s ruling, that it seems to be an extenuating feature in the conduct of any man acting under shelter of its authority as Fraser did. Nay more, we express our firm conviction that had His Honor laid down the same law of property protection in both instances, the Grand Jury would have thrown out the Bill against Fraser, as the former jury did against Benson. The difficulty is apparent ; and the questions naturally suggest themselves, which of the twain is the correct version of a man’s right, or no right, to protect himself and his property ? Where do civil duty end and criminal responsibility begin ? His Honor charged the Grand Jury in July thus: “if a man came “ with a team of bullocks to pull down his “ (His Honor’s) house he would be en- “ titled to use all reasonable force, even “to shooting the bullocks if necessary to “ repel the aggression." And in his summing up to the petty jury in December, His Honor guided them to a verdict of guilty by stating that “ it would be a sad thing for “ society if people were permitted to “ take the law into their own hands as the defendant had done.” Benson shot a bullock, that was dragging his house away, “to repel the aggression,” and was right! Fraser shot a horse used in driving away his sheep, also “ to repel the aggression,” and was wrong! Under these circumstances we sincerely hope that His Excellency the Governor will exercise his prerogative in mitigation of the sentence passed on a most respectable, inoffensive, aud honest-hearted settler.