West Coast Times. FRIDAY, AUGUST 10, 1866.

West Coast Times, Issue 275, 10 August 1866, Page 2

West Coast Times. FRIDAY, AUGUST 10, 1866.

We are still debarred from making any general comments upon the singularly interesting case of " Reynolds against Simon Tuangau." The jury were discharged yesterday morning, through inability to agree to a verdict, and the case is to be re-heard by a new jury to-day. Whatever impression we may have of the course pursued by the Judge, in pressing a particular view of the case upon the jui-y, and " directing " them, not only upon questions of law, but upon the interpretation they were to put upon facts proved in evidence — it would be obviously unseemly so long as the case is still subjudicc, to discuss its merits or the mode of its conduct to the pcss'ble prejudice of either party to the suit. We shall have enough to say on the subject when the fitting time comes ; but what we have to say we reserve for obvious reasons.

Thee is one matter, however, in. connection with this trial to which we may refer without impropriety or offence. Mr Harvey, the counsel for the defendant, Simon, expressed a wish that the case might be heard by a mixed jury — his client being a Maori, and the plaintiff being a European, His Honor expressed his symp ithy with Mr Harvey's regret that the necessary arrangements for empanelling a jury de medietatc lingua had not been made in time. lie referred to a case in Dunedin, where v mixed jury had returned a very intelligent verdict, where the foreman of the jury was himself :i Maori, and where he expressed himself

anxious to explain to the Court tho grounds pn which the verdict had beeu arrived at.

With great deference to his HoliOr, wo must express our conviction that in this greenstone case, the substantial interests of justice would have been very little likely to be served by the presence of a mixed juryj ury in the box. We do not, of course, presume to raise the question as to the legality of a jury so constituted, to try a case between two- subjects of the Queea, the issue to be determined being purely one of English law. The standing definition of a jury de medictate linguae is that of " a jury half composed of foreigners ," and it is laid down in the books that the privilege of being tried by such a jury " may be demanded by foreigners, when indicted for felony or misdemeanor," According to another authority, the definition is " a jury composed of half natives, half foreigners, used in pleas between a foreigner and a denizen." Is the Maori, then, " a foreigner ?" Is the administration of either the civil or the criminal law in New Zealand based upon such an assumption ? Is not Simon as much a " denizen" of New Zealand regarded as a colonial possession of the Crown, as James Reynolds ? And would the circumstances, therefore, have justified the demand if it

had been pressed, for a jury composed o f half f orei gners . It may be that tho Judge's regret — for we have no very precise record before us of the actual words usod by him — referred only to the circumstance tint the jury empanelled to deckle a case between tTO suitoi'3 of different roces did not consist of an equal number of European- and of Mcori subjects of Ihc Queen. Regarding the view expressed by his Honor, in even this modified

sense, we must respectfully dissent from it. The question to be tried between the plaintiff and defendant was one simply of English law. His Honor himself in his charge to the jury, quoted the English text books upon the questions — what created a property right in a chattel found on , the surface of the Queen's land ; and what desertion of such chattel amounted to a surrender or abandonment of that title. But it was apparent throughout the trial that a law, or " custom" possessing all the most sacred sanctions of law, prevails amongst the Maoris, which no six Maori jurymen could possibly ignore or forget to an extent that would enable them to bring a mind devoid of prejudice to the adjudication of a case, in which not only were the interests of one of their own race weighing in the balance against the interests of a pakeha, but in which justice could only be done to the European by the application of a law alien to their own inherited usages. We could imagiue no artificial contrivance better adapted to defeat the equitable administration of English law, than the introduction inio the jury box of six Maoris to assist in trying such an issue as is raised in the case Reynolds versus Simon.

The custom of the "tapoo" was fully explained in the course of the trial. Any Maori attaching this sign to any article found, establishes an inalienable right of property in it, which all other Maoris hold to be sacred. According to English law, any right acquired in an article found, by labor exended on it, or any other act of appropriation, becomes void unless continuous possession is maintained Mr South held that it would be monstrous to apply the Maori custom to a European as a law binding upon him against his own national law. His Honor so far assented as to declare that the Maori custom was of no legal effect or weight in an English Court ; but he admitted evidence as to its •existence, as a fact throwing light upon the cardinal question in dispute, as to Simon's intention to abandon the greenstone, or his idea that he was abandoning it when he left it unprotected, to go digging elsewhere. But is it likely that six Maori jurymen would have made this nice discrimination, between a " custom" admitted as a piece of evidence from which certain inferences might be drawn, ' and the same custom imported into the case as an element bearing upon the legal issue ?

If British civil law is to be administered, i" can hegt be administered by a British jury. The case is very different where a criminal issue is raised. Such was the case in Dunedin, referred to by his Honor. A mixed jury is quite as competent as any other to deal with a question of fact — such as whethera man stiuek a deadly blow, or rifled another man's pockets. But there are cases in which questions of fact become practically questions of law for the jury to pronounce upon. One of the law books says. " The judge has no right to decide the fact, nor the jury to decide the law ; but in some cases the juiy cannot be prevented from practically deciding both." buch is precisely the present case. The question turns wholly upon this po'nt — what constitutes, in a legal sense, "abandonment" of an article in which a property right has been created by some act done 1 And on that question, Maoris bringing into the jury-box their vivid sense of their own immemorial law and of the sacredness of the "tipoo," would necessarily be unfitted to be impartial umpires in any issue between one of their own race and a European, requiring to be looked at simply and solely from the stand point of English law.

I "We hear a report is current at tho Totara jtliat 13ozs. of gold was taken off a shaft sunk /near tho new road. It is, however, not [authenticated, although exceedingly likely, as the Hat thereabouts is known to be rich. The tramway, which^ lias for some time been in course of construction from Bonoghuo's to tho boach, is, wo arc hnppy to say, nearly completed, and will be rbady for traffic in tho course of a fortnight or thveo. weeks. It has

been carried out by private enterprise. The Itosstoxvn Tiuprcvomout Committee are hard at *oi-k striving to introduce long-needed measures for the improvement of the townHhip. It is proposod to form and metal tho streots ns soon us the requisite funds can be raised. It is satisfactory to learn that the efforts made by tho Totara inhabitants W erect a hospital in the distt-id't, have been crowned with sUcc'dsS, ftild that in a week or ten days the hew building will be ready for the reception of patients.

Sergeant Clements, tho officer in charge at Long Beach, Okarita, reports that tho population of tho different beaches from the Three Mile, on the north, to Bruce Bay, south, numbers about 2110 souls. It is, however, gradually decreasing, so much of the beach ground being worked and deeei'ted-^Orillcspid'S 1 , especially, where miners can make but small wages, is rapidly being deserted 1 . Hunt's Beach and Bruce Bay ai-e steadily on the decline. It is reported) says the above officer) that a rush is Betting iv to Jackson's Bay, but there is no certainty about it.

The fortnightly escort from tho Totara arrived in town ycstcrJuy, having in charge between 2000 and 3000 ounces. On the wav up, a mishap occurred, which very nearly resulted in another mysterious disappearance of a bag of gold, which, as in tho former case, would perhaps ltave turned lip again in the shape of; anew rush to sonfe hitherto undreamt oil locality. Fortunately> however, tho bag was seen to fall through tho saddle-bag by Ser-j geant Wilson, who at onco gave the alarm just as the party riding the pack -horse discovered that something was Wrong, from feeling the saddle tutu suddenly over, very nearly " spilling" him in consequence. The holo in the saddle-bag being stopped, and tho gold (GOO ounces) replaced, the escort again started, and reached town without further accident. Tho bag of gold we have alluded to belonged to tho Union Eanb, and we feel mttuh ourjni?crl {hat former experience has not taught Hie iweessity of providing sound bags to cuir' I.he gold irhe:i imcW' iransmHion from th" ciit-dHricli to town.

T'io public nicctuigfrliicll sliOuM liivo been held yectc'-cVr afternoon, at the Prince of Valos Opora House, to take into conoideration the best way to secure a plentiful supply of water for tho town in, the event of fire, was so scantily attended that no business was transacted, and the meeting (such as it was) adjourned until a more favorable opportunity presenlod itself. We presume that to the inclemency of the weather may be attributed the very meagre response made by the public to tho advertised summons.

Cobb's Christchurch coach, which arrived overland on Wednesday night, brought over as passengers, Messrs Philips, Aldrich, Cyrus, Sprot, aud the Rev. Mr Qrant k The driver reports the road good from end to end.

La3t night, the new and handsome drapery establishment which, thanks to tho enterprise of Messrs Byrne & Co., has sprung out ot the ashes of the old Corinthian Hall, was lit up for tho first time, and although not yet fully stocked, presented a very imposing appearance. The shop is the largest yet completed in Hokitika, beautifully fitted up and hung with six very handsome kerosene chandeliers, whilst the front of the building is most imposing, excellently finished, and really an ornament to that part of the town. The new establishment still retains tho well known original name, which is inscribed in well cut letters upon the coping of the building. We wish Messrs Byrne & Co. ever/ success in their spirited enterprise.