The Westport Times AND CHARLESTON ARGUS. MONDAY, MAY 18, 1868.

Westport Times, Volume II, Issue 248, 18 May 1868, Page 2

The Westport Times AND CHARLESTON ARGUS. MONDAY, MAY 18, 1868.

The charge of Judge Richmond to the grand jury at Hokitika is of sueh importance, and at the same time so able and masterly a production, that no apology is needed for its insertion in full to the exclusion of some local matter. His Honor said : Mb. Foreman and Gentlemen of the Grand Jtjbt.—The ordinary business of this Circuit Court will not require from me any lengthened observations. I am happy to say that crime, so far as the calendar indicates, continues to decrease, and there is but one of the ordinary cases which requires any remarks from me. It is a capital offence—a charge of murder—and the principal, indeed, I may say the sole evidence against the prisoner, is supplied up his own confession. I have carefully looked over the depositions, and upon the face of them I can see no reason why that confession should not be received in evidence. It does not appear to have been extorted by any threat, or induced by any promise, but to have been made voluntarily in'narrating to another prisoner the circumstances under which the offence was committed, The confessions of persons charged with offences are always to be received with a certain amount of circumspection. There are not wanting cases of persons falsely accusing themselves of crimes. But as such an admission of guilt as is deposed to in the present case, is prima facie evidence, you will probably find it to be your duty to bring in a true bill. So much for the ordinary business of the court. But there is an unusual addition to the business of this Circuit Court, to which I must now direct your attention. The Crown has found it necessary, in the circumstances of the district with which you are all well acquainted, to take proceedings against certain persons charged with political offences. I shall first notice the indictment against cortain persons charged with having, on the Bth March, taken part in a procession to the Hokitika Cemetery, for the purpose of there erecting a monumental cross in memory, in ' loving memory,' as they style it, of three men who were lately execuced at Manchester for the murder of Police Sergeant Brett. In explaining the legal character of the charge, I shall first say a few words as to the general law relating to offences against the Government. Tou are aware that the highest offence which can bo committed against the Government is treason. The most important species of treason at the

present clay is technically defined, as i levying war against the Sovereign, which, as now understood, includes ' all armed resistance, justified on principle, to the established law of the land/ or, to speak more shortly—rebellion. An inferior class of offences against the Government, punishable as misdemeanour, is commonly styled/ sedition.' The term ' sedition' does not specifically describe any offence against the Government, but includes a whole class of offences ; amongst others all incitement to rebellion, whether by word or deed. Sedition may be popularly described as a sort of midway station between disloyalty and actual treason. All incitements to rebellion are highly criminal misdemeanours at common law. Now, when you have heard the evidence, you will consider whether it is sufficiently made out that those who took part in that procession to the Hokitika Cemetery, did so for the purpose of expressing their approval of the act for which the three men suffered the extreme penalty of the law at Manchester—for the purpose of honoring as patriots, and exalting, as martyrs, men who, by the law of the land, have been condemned and executed as murderers. If so, without doubt, the act of taking part in that procession was a seditious act, and a misdemeanour. It was a direct encouragement to others to imitate the act for which, Allen, Larkin, and Gould suffered, or are alleged to have suffered. It said more plainly than words—to every enthusiastic youth with Irish blood in his veins—' Go thou and do likewise ; become worthy of the wreath of the patriot, of the martyr's crown.' The simple reasoning of Bishop Moriarty, when condemning the desecration of the rites of the Eoman Catholic Church in the cause of these three men, seems to me unanswerable 'if they were not murderers,' he says, ' if they were true patriots; if they did an act not to be condemned, but to be praised, We ought to follow their example.' Gentlemen, to this worthy bishop, and to many other members of the Roman Catholic Hierarchy and Priesthood, we ought to feel grateful that they have done what they could in these troubled times to mollify the excited feelings of the more ignorant members of their church. The State, I say, owes a debt of gratitude to these men; all the more because memories of the past, and even present experiences, might have impelled them to take a very different course. But here I must interpose an observation. The reasoning Which establishes that the act imputed to the defendants was an act of sedition, would, I think, be perfect if it could be shown that the act of Allen, Larkin, and Gould was an act of resistance to the law of the land—more especially if it could be shown that this resistance was on political grounds. But the Crown' may not be in a position to give legal evidence of the exact nature of the offence for which these men suffered, or even of their having been executed, although tke fact is notorious to ns all. The case then will, in such event, stand thus—that the defendants represent the British Government to have hung certain men for a deed which entitles those who did it to be venerated as patriots and martyrs. But if convicts ought to be so venerated, the Government that hung them ought to be execrated. The moral clearly is that such a Government ought to be resisted to the death. Thus the whole transcation becomes an acted libel inciting to rebellion. In the view I take of the case, therefore, the ceremonial described in the depositions was an illegal thing—a high contempt of the Queen's Government —illegal if done by one or two persons, certainly not the less illegal if done by a multitude marshalled and arranged. There is a narrow sense in which the term 'unlawful assembly,' is used in our text-books on criminal law where it is defined as being something Which I may describe as an abortive riot—a riot in which the rioters have failed to effect their purpose. In this sense the defendants have not been guilty of an unlawful assembly ; but in a broader sense the public assemblage of a number of persons to do an act of a seditious nature is ' an uulawful assembly.' Therefore I concur in what Mr Justice Fitzgerald is reported to have laid down in a recent charge to the Grand Jury at Dublin. His Lordship is reported to have said—' That if a number of persons assemble to promote a seditious purpose, such as to create disaffection, to incite the inhabitants of the country to hatred towards their fellow subjects of Great Britain, or to asperse justice, or embarrass its functions by bringing its administration into contempt, every such assembly will be unlawful and a misdemeanor in common law.' Yet, tlio offence in such a case is the seditious act for which the assemblage takes place, and not tho mere act of assembling. I understand that there

are several counts in the indictment to bo proferred to you against tho defendants, varying the technical nature of the charge against them. There will bo a count charging a forcible entry under the statute of Richard 11. (Here his Honor entered into some explanations respecting these counts.) But, as all the counts are founded on the same transaction, I shall not trouble you with any technical disquisition, but shall counsel you to send the defendants to trial on all the counts, if you should be of opinion that the charge of sedition is prima facie, supported by the evidence adduced. Gentlemen, I have enlarged on the gravity of the offence charged, and it may occur to you—and should in fairness be allowed that many persons may probably have taken part in this affair unreflectingly ; and that even the principal actors may have been scarcely aware of the real import and gravity of what they were about. This is very possible—since even Her Majesty's Ministers in London seem to have been for a time in doubt as to the extent to which these processions were illegal. Though ignorance of the law technically excuses no one, yet this consideration should weigh heavily in any consideration of the real culpability of the defendants. I mention the matter now merely to remind you that it is no part of your duty to form such an estimate. The question is for those on whom it will devolve to apportion the measure of punishment to be inflicted, should a conviction ensue. It will be your duty to find a true bill should you be of opinion that there is sufficient evidence prima facie to support the legal charge. I now ph,ss to a second charge of a political character, founded on the publication in the Celt newspaper of a series of articles—leading articles, I , believe, which the Crown maintains to be seditious libels. Now, in determining whether you will send the defendants in this case to take their trial, you Will have to consider, first, the evidence of the publication by the defendants ; and secondly, whether the articles in question may be fairly regarded as seditious libels. In determining this latter point, it is my duty to assist you by explaining the general law of libel, but it is for you to apply that law to the particular publications, and to say whether or not they transgress the fair limits of public discussion. Were I to go back to the dicta of eminent judges half a century ago, I might give you, on their authority, a definition of ' seditious libel,' which would include a large proportion of the political writings of the day. I might , tell you that everything which tends to bring into contempt the government of a country, or any of its institutions, is a seditious libel. But at the present day no jury is asked to act upon so sweeping a definition. I shall , propose to you—(and I feel sure, with the approval of the Crown) —I shall , propose to you to apply a far narrower test, a far less vague criterion. It is well-knoWn that in the mother country, and here also, political writers practically enjoy the amplest liberty of criticism on the conduct of the Governmentj the administration Of the law, and the institutions of the country. There is no doubt that the strict bounds of the law of libel are frequently transgressed, and sometimes also the reasonable limits of fair and temperate discussion. But if public men are sometimes malignantly assailed —if the administration of justice is sometimes flippantly criticised, if the institutions of the country are sometimes unfairly depreciated, perversely misrepresented, or ignorantly condemned, these Occasional abuses are tolerated because it is felt that they are a small price to pay for the inestimable boon of perfect freedom of discussion. They are tolerated even without enquiry as to the good faith of the writer, and notwithstanding in many cases strong suspicions of bad faith. And on the whole the British press nobly justifies its freedom by the way it uses it. But, gentlemen, there is one grand condition which public opinion, not less than the law, exacts from the press—it is this, that there shall be no incitements to violence. The moment that it is apparent that a public writer means to inflame men's minds, and lead them to, or towards, the overthrow by force of the existing institutions of the country, he has gone beyond the limits —I do not say of the law merely—but of that large toleration which the present age enjoys He may advocate what changes he pleases in Church or State, so long as he seeks them only through the medium of the rational convictions of his fellow-citizens. Nay, more, he is not bound down to a dry, passionless appeal to reason. He may seek to kindle imagination, to excite emotion, to awaken conscience. But there is one thing forbidden him—from the fruit of one disastrous tree must he abstain, in this Garden of Liberty -he must avoid incitements

to civil war > he must counsel no appeal to brute force ; he must seek the attainment of his ends by action on the higher nature of his fellow men —not by cunningly arousing within them the blind instincts and uncontrollable sions of the brute creation. The writers of the Celt might, without any chance of molestation, have advocated the peaceful attainments of all the ends they are supposed to aim at. They might have advocated the Repeal of the Union—or even the establishment in Ireland of a Republican Crovernment. We know that the dismemberment of the empire is constantly discussed, both at home and in the colonies—discussed by writers of the greatest eminence. The establishment of Australia, or Canada, as a separate state, is a pfopossl not differing in kind from that of severing Ireland from hei? connection With great Britain. No one supposes that there ia anything seditious in the fair advocacy of such measures. C-entlemeri, it is not in respect of the ends sought, but of the proposed means to those ends, that the Crown may have fair grounds for this prosecution. Look, therefore, to the means advocated in the articles impugned. And if these Writers seem to advise or encourage civil War ; if they seem to you to advocate—not reform— a but revolution: then your duty Will be to put the authors upon their trial. Gf-entlemen, I have nothing further to say to you, you can now retire to your room, where I have no doubt the Crown Prosecutor will send some bills for consideration.

As we have previously stated we intend to offer no further comment on Mr Kynnersley's conduct in connection with the Addison's Flat riot, till the Assembly has delt with the memorial. At the same time we think the following able and dispassionate leader extracted from the JVestland Observe?, well Worthy of reproduction. "In this the first number of the Westland Observe?* we deem it to be our duty to say a very few words in explanation of the views which we hold in reference to such events as those which have led to the trial of certain persons for political offences. "We should at the present time, during the progress of those trials, refrain from saying a single word on the subject* but we are compelled to allude to it for this reason: —-Weare anxious above all things not to sail under false colors. We would far rather fail in our undertaking altogether than obtain a*teinporary support by taking credit, or allowing credit to be assumed for us, for holding opinions whfch We do "'not hold.

Whether the processions which took place at Charleston, Hokitika, and Westport were illegal or not, whether they are punishable or not, we hold most distinctly that they were wrong and mischievous. Nothing that we have ever read has given us greater pain than the statement made in ail official letter by Mr Kynnersley 'I am not aware that it is illegal to show respect for the memory of any man, whether that man has been hanged, or has met his death ill any other manner • and I had stated beforehand that I could see no objection to the procession if it was conducted in an orderly manner.' Contrast with this the weighty words uttered by Judge Richmond in his charge to the Grand Jury. * Toil will consider whether it is sufficiently made out that those who took part in the procession to the Hokitika Cemetery did so for the purpose of expressing their approval of the act for which the three men suffered the extreme penalty of the law at Manchester—for the purpose of honouring as patriots> and exalting as martyrs > men who by the law of the land have been condemned and executed as murderers. If so, without doubt, the act of taking part in that procession was a seditious act, and a misdemeanour.'

We axe constrained to say no more at present on this subject. But on the other hand, we may add this, and in what we say we shall most carefully guard against introducing anything which can possibly affect the cases either for or against the prisoners. We are convinced that a very large majority of those who did take part in these pre* cessions did so without the slightest knowledge that they were doing anything illegal or wrong. How should they know when they were not forbidden, nay, were actually, at Westport, encouraged to take part in these processions? The first of these processions was held at Charleston, and the others have naturally followed from it. Indeed, if we are not mistaken, the promoters of the Hokitika procession appealed to what had been done at Charleston as an example to be imitated at Hokitika. If the Nelson officials had done their duty and forbidden the procession at Charleston, we feel certain that no procession at all would have

been held : and if steps had been taken in time, to prevent the procession at Hokitika we believe that that would not have been held either. And it is a matter of very great regret that the encouragement given to the processions in the Nelson Province, and the absence of any positive 'discouragement by the Government in this County should now be resulting in criminal prosecutions.

"We uuderstand that the special correspondent of the West Coast Times has published an exhaustive and full report in that journal, respecting XVestport and the late riot, but as we have not for some time past had regular files, and have not been able to secure a chance copy containing the report in question, we are unable to make any extracts from it. We regret such is the case, but cannot help it. Mr Emanuel of the Little G-rey Hotel is first in the field with amusement in honor of Her Majesty's birthday, and advertises a ball to be held this day week, the 24th falling on Sunday. He has every hope of obtaining the patronage Of the Volunteers, and the ball is intended to be in every way worthy of the occasion. A/man named Thomas Cain, who has only recently been released from Nelson gaol, was arrested on Saturday last on suspicion of being the man who attempted to stick up Tnmlins on Thursday night. Whether thefe is much evidence against him or not we do not know, but he will be brought up to-day at the Resident Magistrate's Court, when the case will be investigated. At the Resident Magistrate's Court on Saturday, Hugh Delaney was •charged under the Vagrant Act, with having no lawful visible means of support. He proved, however, that he had been at work for some time for Mr Sloan, the overseer for public works, and Mr MLean, and the case was dismissed. A man named Nelson, for drunkenness, was fined 10s., or 24 hours.

Through the courtesy of Captain Kerley of the Bruce, we are placed in possession of the latest southern papers though not of regular files; amongst others the first number.of the new Ifokitika daily paper—the Wesiland 'Observer, Which was published on Saturday last. It is exceedingly well got up, carefully and ably edited, and is in every respect a most creditable •addition to the ranks of "West Coast journalism. We need scarcely say that we wish it every success, and only hope that Hokitika may always be as well represented as it is now by its Wo morning atid two evening papers. The p.s. Bruce, as we anticipated, did 'not make a long stay on the beach, and put in an appearance yesterday as brisk as ever, without the slightest sign of damage or other injury from the occupation of her beach claim. She left Hokitika at 4 o'clock on Eriday calling at the Grey, and did not start from the latter place till Saturday afternoon. Shortly after getting out, one of the cabin passengers, named Grade, fell from the bridge and injured himself so severely, that Captain Kerley put back to Greymouth, and Mr Grade was sent to the hospital there. On examination it was found that he had suffered fracture of the knee and other injuries. The Bruce consequently could not leave G-reymouth till yesterday morning at seven o'clock, and reached the wharf about four in the afternoon.