West Coast Times. SATURDAY, AUGUST 18, 1866.

West Coast Times, Issue 282, 18 August 1866, Page 2

West Coast Times. SATURDAY, AUGUST 18, 1866.

In his second summing-up in the case lleyuolds against Simon, better known as the Greenstone case, his Honor Mr. Justice Gresson took occasion to express his regret that the press in Hokitiki had not followed the usual decent practice of refraining from comments on suits still in process of hearing. We may be excused the vanity of assuming that by "the press" in this instance his Honor meaut The West Coast Times — this journal having published an article having some indirect bearing upon the case in question, on the morning of the day on which his strictures were uttered. Assuming his Honor's implied censure to have been directed against the Times, we must pronounce it to have been wholly uncalled for and gratuitous, and indicating a most unhealthy sensitiveness to public criticism. We scrupulously abstained from penning a single sentence that could be capable of prejudicing the case either of plaintiff or defendant — a course for which we claim no inconsiderable credit, bearing in mind the mode in which Mr Justice Gresson conducted this remarkable trial. In no way, directly or indirectly, did we advert to the merits of the case, nor to any considerations likely to affect the verdict of the jury. All we did was to take exception to the expression of regret on the part of the Judge thai arrangements had not been made for the trial of the cause by a mixed jurythat is, a jury composed of half Europeans and half-Maoris. We pointed out that such a jury could not have been empanelled except by private arrangement between the parties — a course altogether unrecognised by English, law ; that the circumstances did not allow oi a jury de medietate lingua, which means a jury composed half of foreigners anc half of Englishmen, seeing that the plaintiff and the defendant were equall) "denizens'' and subjects of the Queen : and, further, that any six Maoris thai could have been put into the jury bos would not have been six " foreigners.' Tt was natural that we should yield tc the temptation of indulging in these comments upon the delivery of an opi nion from the bench so strangely incongruous, as it appeared to us, witr all law and all precedent bearing upon the question raised. We must re^ peat the vie y w we expressed, that if ii had been possible to secure a jury, one half of whom were Maoris, such a tri bunal would have been one most unfit ted to try such nn issue between a Euro pean and native as was raised on this occasion. His Honor admitted , as evidence a certain native custom, whicl -h© pvonounood to be repugnant to th< principles of English law as affecting property, and he laid down the principle that it was English law only that was to be administered by the Court, Evidence as to the native custom was received only as a circumstance tending to throw light upon the point on whicl 1 his Honor throughout laid the greatest stress, viz., the intention of Simon's mind,' or the view entertained by hiir of the consequences of his acts. Anc we still hold that it would have beefn i mtoral impossibility for any six Maori jurymen to. have made this delicate distinction. These comments, we conceive, were le gitimate, and not inconsistent with gooc taste and propriety. Now that the opportunity is afforded us for which we have waited, we will go the length of saying that Mr Justice Gresson's directions tc the jury, not only hr this, but in other cases, were singularly at variance with the ordinary practice of the Bench. In one instance there was an indisposition manifested to receive the verdict of the jury, which took the public by surprise, and created a general feeling of dissatisfaction. We notice that lately, in Dunedin, Mr Justice Richmond made a formal and emphatic protest against the growing practice of jurymen making representations as to the discussions oi the jury-room, and the impressions oi the evidence under which their voices were, given. He. declared that he would utterly discountenance such a proceeding. And, indeed, .we do not think that the Court has anything to do with the " grounds " on which a jury finds its verdict, or any right to call that verdict in question, or to urge its reconsideration. Especially has it no such right when the verdict leans to the side of mercy. According to all law and practice, it is no part whatever of the functions of a British judge to press the conviction of a prisoner, or to hesitate for a moment to receive a verdict of acquittal. Some allowance may be made when the Bench interferes in another sense, and exercises its influence to avert what may appear to it to be a conviction unsustained by the criminating evidence. But in -all cases the soundest course to adopt is to adhere to the established rule, that the jury are the sole judges of the facts upon which the issue of Guilty or Not Guilty hinges. In the civil case of Reynolds against Simon, the jury were in great need of the direction of his Honor upon legal points, because several issues were raised of a technical and intricate character. There was not only the question to be settled as to the actual right of property in the block of greenstone, but the further question as to the " detention" of the stone by the defendant. It will be remembered that on this latter point Mr Harvey applied for a nonsuit, which his Honor did not concede, leaving it for the jury themselves to decide whether the action of Simon, in moving the Re»

sident Magistrate at Gieymouth to issue his warrant to seize the stone, was sufficient to establish tMe fact that he " detained" it. It appears to us that if tho action had been brought against Mr Revell rather thau against Simon, this difficulty would have been eliminated from the case, and the question of ownership been equally left open for trial — because if the property belonged to Reynolds, Mr Revell's act in seizing and holding it would be " unlawful detention" within the meaning of the pleadings. The issue as to the rightful ownership depended entirely upon the question — had Simon abandoned it when Reynolds appropriated it ? And of this question the essential element was, as ruled by his Honor, the "intention" of the man at the time he left the property to seek his fortunes elsewhere. Mr Justice Gresson had very decided views upon this matter, and we are bound to say that he expressed them to the Jury, not only during the summing up but upon every subsequent interview with them, in a manner that approached very closely to an imperative, direction to *. them to find a particular verdict. The jury, were bound to accept his Honor's 1. w as to the presence of an " intention " as being an essential ingredient of an " abandonment." But they had a right, we conceive, to judge for themselves — without dictation, or such an amount of " direction" as was tantamount to it— what inferences as to intention were fairly deducible from the facts which were clearly in evidence before And when his Honor — as he did repeatedly — challenged the legitimacy and legic of the conclusions the jury drew from facts, and expressed his surprise that they coulA not put the same construction upon them that he did himself, we are constrained, very respectfully to submit that he failed to recognise the line that separates the functions of the Judge from those of the panel. It is a most unwelcome duty to criticise the action of men holding a high position on the judicial bench ; but it is a duty that may be legitimately discharged, provided it 'be done without either bringing the office of the Judge into contempt or his person into disrespect. There is no class of public functionaries enjoying so entire an immunity from responsibility — except to public opinion. They are independent of Parliament ; independent of the Executive authority. Except in the most extreme cases, no machinery can operate to bring them under censure. Wisely it has been so ordered. But public opinion, as expressed through its legitimate orgsms, is the grand conservator of justice, and we conceive that we are not exceeding our duty in our present strictures.