Letter from P. Wilson,
to Donald McLean,
dated 13th. June 1854.
13th. June 1854.
My dear Mac,
Your favors of the 16th. and 27th, ulto, were very welcome, and if you go on as you have begun, we shall have no cause to regret your removal from Wellington to Auckland, --- seeing that your communicative qualities have so improved; for assuredly you never wrote to me so long letters before, nor evidenced such economy of the article stationary.
I think you have paid quite enough for your bit of land; but being near the capital, as you state it, very probably makes the purchase, a bargain. Nor, after all, is it much in excess of our own present prices; for Norris sold your little mount of sterility; and it is really little better, and 60 per cent worse, when you had it; and for which you, five years ago, paid only £65, --- for no less a sum than £525. Again, Mr. Hamlyn, last week, bought from John Hicks, eight acres of light sandy soil at the Waiwakaio, for £200,
without a house or shed thereon, with twenty shillings of any man's money. Nor are these the only maravillas of our land affairs; for within these last few days, your recent ship-mate, Pepperwell, offered Wills, at the Hua, eleven hundred pounds of good sterling money, honestly or dishonestly scraped together at the Diggings, for forty five acres of land; and only an old raupo house or whare thereon. The body must be daft or doited; and if so, so is Wills, for, with a better fifty acre section adjoining, he refused the offer. Fancy, too, our early choosers modestly offering their scrip at £8 per acre for the land, which you obtained for us, but which is not yet given out. No doubt there is a land mania epidemic among us; for even the forest, with a few trees thrown, is fetching four, five, and six prices. Peter Elliot gave Langman, on Saturday last, £750 for fifty acres of as broken land as there is in the settlement, and not cultivated, and partly bush. All will subside by and bye, and without benefit to the settlement; and even now we have more flitters than new-comers; for the uncontaminated see that there are other Eldorados besides New Plymouth; and our provincial clique, who fear a shadow, begin to see so also. The opening
speech of our Governor does him honor, and is altogether excellent. His remarks on our isolating propensities are quite to the point; and must have staggered such little-minded cattle as that homunculus of ours, T.K. when they heard it, for Tony is one of those here who objected stoutly to my remarks on opening the road betwixt this and Wanganui; and indeed, so adverse altogether to that settlement, that I sent the whole on to Featherstone; who, I have no doubt, will listen to it. I think I told you I sent the paper home to the Chambers of Edinburgh, and I am now occasionally occupied with an affair of epidemics for the Epidemiological Society of London; but I have been quite disconcerted and put about lately by the needless and most unbusiness-like demands of your authorities, as regards the proportions which white and black patients should pay, on coming into Hospital. I have complied for this quarter, but if they think I am to continue such nonsense, they will find themselves in the wrong box, with a tail to it. By this most needless sort of financial dealing, the Hospital is kept in want of every essential almost, --- for example, I have at this moment, only four or five mattresses, and by the stringent rules of the Government, I am not at liberty to purchase, without
its authority; and that I asked on the 3rd. of February. Such imbecility of management is lamentable, and more so that it must be borne till better times overtake us; and we have now the dawn, thank God, of such.
I enclose you a bit of our last week's paper on the subject of a part of one of our Ordinances, --- viz, --- the 39th. Section of the Impounding Act. The objectionable words are, --- "No one shall turn out, or depasture cattle on even his own town land unless the said land be enclosed by a substantial and sufficient fence, without subjecting himself to penalty." The absurdity of this is manifest; and the case submitted to the Bench by the Superintendent, (who, by the way, is as sensible of the illegality as I am), was to see to get us to construe "tethering" as equivalent to fencing, until the next meeting of the Council, when the above is to be abrogated. Accordingly he called on Flight, and explained his motives; and got a man to tether out his goats, on his own ground, so as to make a case. But F, in verbally requesting my attendance at Court, on the day previous to the case coming on, kept me in ignorance of the Superintendent's motive; and led me to fancy that what we had to decide on was the
meaning of the word "depasture". But had I known it, of course my opinion would have been the same, for was it not an absurdity to act on a law which all the world indoors and out of doors, officials and non-officials, reprobated as a most unjust one; and made, too, in the face of a paramount power, the Constitution Act, which says to its makers you shall not so transgress; or henceforward, if you do, it shall not be efficient. It now turns out that the said illegal section, somehow, inadvertently crept in when the Bill was in Committee; and being admitted as very obviously at unjustifiable variance with the 18th. and other sections of the said Constitution Act; which, by Magistrates, legislators, and people, must be taken as our cynosure, and no less, too, with the well-known and duly appreciated rights of British subjects. I would ask, ay, even the Queen herself, if I was not bound by my oath as a Justice, to propose to my "Ich Dien" benchers that we should, under the circumstance, disregard the Provincial Ordinance Section, and act on the two latter. Fiat justitia verat calum, was the favourite maxim of the great judge, Mansfield, and I think I am in better company than in Flight's, when I adopt it as mine. To tell you the truth, I have seen so much lately of leaning to one
side, that I care very little now of sitting on the Bench, except where I think the safety of the settlement is concerned; and in such instances, on or off the roll of J.P's. would make no earthly difference. I am glad to say, --- and he is the only one I have consulted, --- that Wm. Halse is of my opinion. Indeed, had we had a full Bench, I have no doubt that a commonsense decision would have been the consequence; but there was only silly Sammy; who, in such instances, is next to a nobody. It was of sufficient importance for a formal Summons of the entire Bench. and were I the Governor, I would Let Master Flight know it. But my belief is from the ----- (?) I have more than once witnessed, that F. had a mischievous motive in being so strenuously subservient to the law on this occasion, and so little observant of his oath; for he is an ambitious creature under the guise of profound humility; and has never forgiven the loss of authority which the new order of things took from him. In fact, I regard him as only judicially honest when his own interests and feelings are involved in a question before him
Of course I have protested and dissented; a copy of which I now enclose, in case you should hear a different version of the story. How the strange discrepancy
(as Section 39) to the Constitution Act, could have escaped the scrutiny of the Officer administering the Government and the Attorney General, is extraordinary; and, moreover, to be regretted in so much as that the publication of such errors of legislation brings our Council into contempt; and opportunity offering, as we in this instance see, not likely to be mitigated under such a man as F. The antecedant consultation in the private room would have saved all; and had he told us that "tethering" was the phrase to be considered, we could have construed that to be equivalent to a fence. For what is the object of a fence --- that, according to the requirements of the law a tether does not meet? It is a very efficient means of hindering trespass; and what more is wanted? But before I left the Court he had snivelled out his decision; and all I know of it is that the man was fined.
I beg your pardon for troubling you with such a long dissertation on law and justice, but I could not avoid the infliction; and I am sure you will be all the wiser for it. Amen.
We long to hear how all your legislative bodies go on; and as to your coterie at the Secretary's I should be right glad to hold a seoterunt (?) and spin
a yarn with the best of ye.
my dear Mac,
ever very sincerely yours
P.S. I have now got a cow grazing, which of course will become yours when I have a five-years assurance that your raids are at an end; and I have just turned a noble 461/2 cheese, which is to be cut at Christmas; so see to be here.
P.S. (in margin) referring to incident in letter.
The affair at the first excited great dissatisfaction and clamour; but the blame is now settling on the right shoulders, and very deservedly. I am no admirer of our Provincial Counsellors, nor yet of the Superintendent; nevertheless I am fully disposed to give them fair play.
(from newspaper cutting in "Taranaki Herald" of June 1854.
Press of matter obliges us to postpone our report of the proceedings in the Resident Magistrate's
Court during the week. There is, however, our decision which we feel it to be our duty to publish without delay, for the guidance of the inhabitants of the Town district.
A question has arisen regarding the construction of the 39th. clause of the Trespass and Impounding Ordinance, which has relation to the turning out or depasturing cattle upon unfenced town lands, whether the land be, or be not, in the lawful occupation of the owner of such cattle; and enacts a penalty of 1/- per head for every day on which the same shall be turned out or depastured
The question has been raised, not with the view to the prevention of any mischief committed, but purposely, and we understand at the expense of the authorities, to ascertain the construction which the Bench might place upon the section of the Ordinance in question. The defendant Betts was complained against by the Police for depasturing four goats tethered on his own unfenced land within the limits of the town of New Plymouth, contrary to the Ordinance, etc.
The case occasioned some discussion; one of the Justices (Wilson) considered that the section of the Ordinance under which the information was laid, was such an infringement of private rights as to be repugnant
to the law of England, and made the Ordinance itself a nullity under the provisions of the New Zealand Constitution Act; and read from that statute the section controlling Colonial legislation in this respect; and also a passage from Blackstone's Commentaries showing how tenderly private rights were cared for by the laws of England. The Resident Magistrate did not consider it competent for that Court to discuss the validity of an Ordinance. The duty of the Court was to construe the provisions of the Ordinance and administer the law accordingly. The only question, was, therefore, whether the law had been infringed
The Magistrates retired to consider the case, and ultimately fined the defendant 4/- considering that the offence charged was within the 39th. section of the Ordinance
The Resident Magistrate's decision in relation to the validity of the Ordinance is clearly correct. The Court has no authority to question the force of an act of the Council duly confirmed.
We cannot, however, altogether agree with the verdict. There is certainly inconguity between the wording of the 39th. section and the objects to which the title and preamble clearly confine the Ordinance; and the ordinary rule for construing such
instruments might have been referred to with advantage on this occasion. When the enacting part is dark and uncertain, the preamble and plain objects of the Act may be consulted as a key to its intention. Now the Ordinance purports to enact provisions regulating the impounding straying cattle, and the summary recovery of compensation for damage done by cattle trespassing; and in the case before us, it is quite clear that until the tethered animals should get loose and run at large, they could not come within either of these provisions. We think that the words "or depasturing" might have been treated as surplusage, and a decision more in accordance with public convenience arrived at; but it cannot be denied that the question of the section is faulty; and it is certain that unless the Bench on further consideration shall see fit to revise the construction on which this conviction is founded, the Council will have to amend the Ordinance.