LEGISLATIVE COUNCIL.

Auckland Times, Volume 2, Issue 53, 16 January 1844, Page 2

LEGISLATIVE COUNCIL .

Tuesday, January 9th, 1844. The Council assembled at 12 o’clock, and the Chamber was very numerously attended by the citizens. Mr. Busby had not arrived in town, and of course could not be installed : there is a rumour in Auckland that he has declined the honour offered to him,—but we have not been able to trace it to any ceitain authority, Present—His Excellency the Governor, Honorable the Colonial Secretary, Honorable the Attorney-General, Honorable the Colonial Treasurer, W. F. Porter, and J. R. Clendon, Esqrs. James Coates, Esq., Clerk of Councils, administered the customary oaths of office to Mr. Clendon.

His Excellency the Governor then addressed to the Council the Speech which will be found in our first page. The Colonial Secretary moved, and Mr. Porter seconded “ That the standing rules of the Council be suspended during this day’s sitting.” His Excellency introduced the Supreme Court Bill. The Attorney-General said that the former bill having been disallowed, it was necessary that the present substitute for it should pass immediately. Honorable members would see that the principal alterations introduced by this measure were the division of the colony into districts, and the clause to appoint additional Judges as occasion may require ; a resident Judge for the district of Cook’s Straits had already been nominated. The honorable member did not consider it necessary to make further remarks now,—when the bill was in committee he would be happy to discuss the measure and give to the Council any infonnation that might be required. Bill read a first and second time, and committed for Thursday at 12 o’clock. His Excellency then laid upon the table the Jury Bill, observing, that this also was a measure which would brook no delay, although it was desirable that honourable mem' bers should give to such important measures as this, and the Supreme Court Bill, the most earnest consideration, which he did not doubt they would studiously do. The registration of freeholders not having as yet been a matter of possible preparation, this bib, as a temporary provision for the constitution of Juries, was indispensible. It provided also for a more extensive range of the privilege of silting upon Juries; and the Council would perceive that it was in contemplation to make arrangements for the admission of Maories as jurymen, in cases where they had acquired a competent degree of attainment. The present pro eeding was a preparatory one only ; it was highly desirable that the gradual introduction of the natives to the duties and privileges of British subjects should take place as speedily as propvi. ety would admit;-some few, His Excellency knew, were already capable, and many more were rapidly acquiring the requisite qualifications. In pursuance of these views his Excellency declared his intention to invest some few of the most intelligent and influential of the native chiefs with a modified form of magisterial authority, to be exercised among their own people; he should attach a small salary, and some external mark of distinction,with the office,—which he thought, under such circumstances, might be made conducive to the speedy establishment of harmony and reciprocal good feeling between the Maories and her Majesty’s British-born subjects. The Attorney-General moved the reading of the bill, which he said would tell its own story,—its purpose was the extension of the jury list; he did not think further comment necessary. The bill was then read a first and second time. Mr. Porter presented a petition from several merchants and residents of Auckland, praying for the introduction ol clauses,—first, for the provision of special juries, in cases of more than usual importance; and secondly, for an alteration in the law which requires the unanimity of jurors. The petitioners suggested that a majority of not less than three-fourths of the jury, in the decision of civil cases, was more convenient than the present practice, and more conducive to unbiassed decisions. The petition, which was received and read, contained some well expressed ar°mments in favor of these views. His Excellency directed the Attorney General s serious consideration to the subject, and promised that the petition should receive just attention on Thursday.

His Excellency next introduced the ■ Land Claims’ Bill. The Attorney-General said that the introduction of this bill was made solely for facilitating and simplifying the adjustment of the titles of the Land Claimants ; and he had no doubt that its provisions would be highly acceptable to alt parties concerned. On the motion of the A ttorney-Ge-neral, seconded by Mr. Clendon, the bill was read a first and second time. Mr. Porter was desirous to enquire of his Excellency whether any, and what, provision was contemplated by the Government for the satisfaction of the secondary Land Claimants. Many persons had made honest and bona fide. purchases from the original buyers of tl,e land from the natives; and the limitation clause in Lord Stanley’s act, which cut down the extent of grants to 2,560 acres, in many cases, was very cruel to them,—it had brought absolute ruin upon many very deserving persons. He had also to observe that in the case of companies purchasing from the natives large tracts of land, the ostensible motive for cutting down their claim had been overlooked byLord Stanley. If individuals had fairly bought large tracts of land, there was no reason why they should not receive the same measure of justice as the New Zealand or the Manakau Company His Excellency said that he certainly did think that the secondary claimants had been placed in a less favourable position than they should have been ; it was his desire that ad parties shou d be fairly dealt with,—and where cases of hardship could be made out, it should not be his fault if they were not redressed. With regard to the New Zealand and Manukau Companies, the Government at home had entrusted a Commissioner, Mr. Pennington, to decide upon all claims of a very extensive nature ; the claims of these companies had been awarded in proportion to the amount of proof which they had brought before that gentleman, in respect to their outlay of capital, whether inmonev, emigration, or other channels | of legitimate expenditure: if individuals j had used the same authorized means of enquiry and proof of their claims, they would have been equally dealt by. His Excellency concluded by saying that he was empowered to over-rule the limitation clause (with the sanction of the Council) according to the justice of the cases laid before him, and altho’ he might not recommend very extravagant grants, he w-ould endeavour to do justice ; he was not bound down to the limit of 2,560 acres. Mr. Porter expressed himself much pleased with the prospect held out by these candid declarations. The Council then adjourned to 12 o’clock on Thursday. Thursday, 11th January, 1844. Present: His Excellency the Governor, Honorable the Colonial Secretary, Honorable the Attorney General, Honorable the Colonial Treasurer, W. F. Porter, and J. R, Clendon, Esqrs, His Excellency the Governor ordered the minutes pf the last Council to be read. Upon motion the standing rules were suspended : Order of the day read. Supreme Court Bill discussed in Committee. Some verbal inaccuracies were amended of little consequence, till the Honorable the Attorney General proposed the alteration of the word “Keepers” of Lunatics,&c., into “Committees,” carried. On the consideration of Clause 3, Constitution of the Court, His Excellency the Governor laid before the Council the dispatch of the Home Secretary, 31st January, 1843, upon the subject of the constitution and regulation of the Supreme Court. This document was recommendatory of the restoration of Grand Juries as early as possible, and dictated the adjustment of the patronage of officers in the Courts of the Colony, giving the nomination and removal of officers to the Judge of his owu Court in each district,

subject to the approval of the Governor. The Home Secretary's instructions were adopted. Clause 16, provides for the admission to practice of Barristers, Solicitors, &c., in the Courts of the Colony, and on the amendment of His Excellency the Governor, it mas carried , that Practitioners duly admitted in the other British colonies, free from reproach or loss of character, are to be admissable by 16th Clause, as freely as other gentlemen from the Courts of Westminster, Dublin, or Edinburgh, &c , <fec. Clause 24 of the Act was altered on the motion of the Attorney General so as to order the adjudication of lunacy cases to be confined to Home decision, and not to be adjusted upon circuit by the Judges of the res pective distiicts. The Attorney General also introduced a Clause giving to the Judges the power in ceftain cases of changing the venue, tor the better furtherance of justice and the assurance of fair trial. Bill ordered to be engrossed and read a third time on Saturday. The Jury Amendment Bill. The title of the proposed “Jury Bill” was altered as above. The Ist clause was adjusted to the following reading : “ Every man. being a subject of Her Majesty, and not an Aboriginal native, (except as before excepted) shall be qualified,” &c. And the wordj“ Aborigi nai,” before the word “ Native,” in the second paragraph, was introduced, to make sense of it. On consideration of the 6th clause, the AttomeyGeneral said, in reference to the petition of Mr. Win. Brown, and 13 other gentlemen, that, he had given both subjects which it contained due consideration, and was prepared to advise the Council accordingly. In respect to the first prayer of the petition, viz., that a majority of consent,, amounting at least to three quarters of a Jury, should in future be accepted as a verdict, — he should only observe, without reference to the propriety of such a measure, that the Council very clearly were incompetent to enter tain it. The powers of the Council Were confined to the introduction of such Ordinances only, as weie necessary fur the preservation of good order in the Colony, but especially it was forbidden , to them taintroduce any measures rej piiguant to the established law of England, and he thought nothing could be more so than this proposal. He was happy to say that the second request was of a very different character. The introduction of special Juries would be obviously useful to the necessities and good order of the Colony, and would most earnestly have been offered by the framers of this bill, if they had thought the Colony capable of carrying it into practice. There would he great difficulty iu Auckland or Wellington to find a sufficient number of Esquires, Merchants, or Bankers to make a panel of special Jurors, and at the circuit courts it would, at present, be quite impossible, be would, however, propose to introduce a clause in conformity with the wish of the petitioners, to be brought into operation as early as the Judges could find it expedient, the striking of special Juries to be regulated as in the Supreme Court Bill, already canvassed. New clause carried. Bill ordered to be engrossed and read a third time on Saturday. Land Claims’ Amendment Bill. Mr. Porter rose tor the purpose of proposing “ That the provisions of the first recited ordinance restricting the Commissioners from recommending a grant of ntore than 2,560 acres be repealed.” The honorable member said, that there were many arguments which might be used against this measure, but nothing, more impressive than the ruin that it had heaped upon a great many unoffending individuals, many of whom had bought lands at prices of a fair average, and extending in several individual cases to five ten, or twelve thousand pounds, these lands were bought it is true, with a view to sell again, but the re-sales were made to persons in the neighbouring colonies, and to others, ready and willing to embark their capital in the colonization of the country, when the cruel land law alteration took place and ruined all parties together—for the original purchaser could not complete his contract on either hand. His Excellency had said that he had power to go bpyoßd the 2,560 re-

striction clause, and make, where it should seem really deserving, a further and full grant in cnmpensalion ; but this was a responsibility which ought not to be thrown upon the Governor, it ought to be dependen pona decision bylaw. One most obvious inconsistency in the rules for the establishment of the commissioners wa* apparent, and this clause made it very much so. They were empowered to en- ; quire into the terms of purchase, and give j a verdict according to Justice, for so much as was cleaily proved to have bsen paid, (at the rate of so many acres for the pound,) but then came the startling declaration, demolishing the justice aforesaid, —that however much had been paid, only 2,560 acres should be granted ! so that if 10,000 pounds had been paid, only compensation for £640 would be iu auy case given. Mr. Porter declared that he was sorry to introduce any subject which could possibly be disagreeable at the present time to His Excellency, but the cruelty practised in many cases upon the most useful of the early colonists, made him feel it a duty by every possible means in his power to urge tile annihilation of the restriction clause, Mr. Clendon seconded the motion of his honourable friend. The original bill had been introduced by Sir Geo. Gipps, when the Colony was under the control of that Governor, upon the principle that he was desirous to put down land-jobbirtg, and tiie scale that it provided was surely sufficiently arbitrary for that purpose without this limitation clause, which having provided a limitation price, proceeds next to a limitation of award in defiance of the proof invited. It Was intended as a cheek upon Mr. Wentworth’s and other extravagant eases, but it had been cairied out in opposition to every one, and was most unjust. The secondary claimants were to a man deprived of all advantage from their honest purchase, but the intention of Sir Geo. Gipps’ bilj was that all parties, whether first or se. cond claimants, should have to the extent | of their honest proof. This clause after invitation of proof, and heavy charges for fees, paid in making that proof, left the claimants in a worse position than betore. The Attorney General being called upon by the Governor, said, that every thing that had now been delivered was perfectly foreign to the subject of the bill before the Council; he was taken by surprise # and Was not prepared to make any remarks upon principles so foreign to the question, His Excellency *aid thnt he Would be glad to propose the repeal of any or every past or present Land Claim!,' Bill, if be could he cottv inced that it would further the ends of justice or promote the happiness of the Colonists to do so ; but when he reflected upon the long consideration which had b en given to the land claims, upon the complicated nature of the contesting 3itere»ts. and,above all, upon, w hat both the honorah'e members had so ably urged, the absolute ruin and distress which attended so much protracted and harratsing disputes.—he could not help feeling that if tile arguments of the honorable gentlemen bad been tenfold stronger than they had, it would not be advisable lor the interests of any party to throw this interminable subject into worse confusion than ever, by attempting to frame, and force upon the British Government, a new Ordinance. The ! Hist Ordinance for the adjustment of the claims was made with nil the united ability of Sir George Gipps and his legal advisers, —this was no slight recommendation; „it was re-considered here, and set aside ; then Governor Hobson and his Council deliberately renewed it, —and, after that, it received the confirmation of the Queen, — but it did not do so till it bad undergone a more studious consideration than any colonial Ordinance had ever clone before ; —this was peihaps in a great measure owing to the critical and extraordinary position of the Colony, but besides, because of a second Ordinance having been passed here.—All the circumstances were extraordinary, and after an unprecedented consideration, no reason coaid now he fait ly found to alter it, The first and original Ordinance, as now established, provides very liberally, if properly administered, for a friendly adjustment of all difficulties ; —to destroy that law, and commence a new one, wid add to the extreme confusion and suspense which lias prevailed, by rendering ail recent measures useless, the foundation will be cut from under the feet of the Government—all my instructions will be destroyed and no longer useful to me. Allow me to say (added his Excellency) that Her Majesty’s ministers do not contemplate that measures so earnestly considered, assisted as their councils are by the concentrated wisdom of the Senate and Privy Council of Great Britain, should be overthrown by the disunited opinions of a small community like this, if I weie to accede (believing as I do that the present law is just) to an innovation of this kind. 1 should be guilty of presumption, and I should sanction a course ot contusion and change—ever beginning and never ending ; what would be law to-day, and every man’s duty to know, would be forgotten to-morrow, —except that it would be registered elsewhere, detrimentally to the character an I prosperity of the Colony, Under the present '

Ordinance, I believe, jos'ice may be done to all, as near as IS possible to the imperfection of Inman means under so much difficulty. In such arrangements as are to be made in ihe settlement of a great country, some individuals must suffer, —genei ral rules arc m-ver, and never can be, without exceptions. First and second claimants may both have a large measure of justice,—.for if a tarse tract of land has been faitly purchased, and sue i purchase proved, I would grant to that claimant, insiead of 2, 560 acres, an extension of the whole claim—so much more as shall give a fair measure of justice to both. Considering that New Zealand Colonization was most unwillingly fo'Crd upon file Biitish Government by the encroachment of Her Majesty’s subjects, and f..r the sake ol the protection ot the aborigines from the dreadful consequence#, disgraceful to Christianity end humanity, whicli in North and South America, and New Holland, had taken place, the colonists must hre content to share in the justice dealt out to all.. The British Government only gradually and relußtantly acceded to recognize the possession of tile country, when they found trains laid for its irregular subjection ; —after such attempts as had been made at appropriation it can hardly be expected: that individual interest*. branched otrt, scattered, and uncertain a* they have become, shall be made paramount to the? geneial rights of the aboriginal inhabitants and the British subjects, for whose re* ception these Islands are in course of preparation. Mr. 'Wentviorth, and the New Zealand Company, and all other classes of speculators setting up pretension* to fair purchases, measured, not by miles, but by square geographical degrees, would naturally he dissatisfied with iany arrangement of tbeir claims. Viewing the gradual acquisition of tfcra territory in a manner to benefit the natives, and Serve our own legitimate views, as a proper course, I am sorry to say 1 feel compelled to oppose the motion. I will always endeavour to support any measure which may promote future benefit, or repair past wrong, but I feel it is my duty now to oppose the admission of the honorable member’s proposal. Mr. Porter replied that the arguments of Hit Excellency had failed to remove from his mind tlie great injustice done to the original settlers—he considered it his duty to bring forward, and tnge consideration towards his views. The honor* able member said he would maintain that no amount of concession now made would be too great a compensation for the cruelty of the delay iu de* ciding upon their position, every thing that was useful aud valuable towards the acquisition and cultivation of the Islands had been intercepted by Government interference—legislation was entirely prospective—and it was indeed a cruel thing to see the total ruin that was brought upon the old and preseut settler*. The Governor interfered to remind the honorable member that ne should confine his argument* to the present motion. Mr. Porter rejoined that he considered no injury could arise to the aborigine* by doing justice to tlie old settlers, and he felt it a duty to pursue the matter because of tbeir distresses. His Excellency said, every argument only served to convince bim of the extreme impropriety of opening afresh those distressing Wound* which had paralized the efforts of the Colonists. Make new ordinances, they must of necessity be referred to the Home Government, and they would as certainly be again rejected,—the delay? and suspense in the meantime would he most disastrous. The settlers nuder the circumstance* should make the best of what is left, and be would do the best to assist them that lie could, bet they should endeavour to forget past disaster.—The colonists had heen in a boiling cauldron of trouble,' instead Of adding fuel to the ftiiaes, they should get out of the hot water as fast as possible. His Excellency wasdel- - to explain that when 20,000 acres, or other large grants were allowed, it was only upon condition and proof that tlie purchase money was spent upon the actual advancement of the Colony. The Home Government never reaped any benefit, and dii not contemplate any from the land revenue of the Colony. Mr. Porter said, tnat flu Excellency's argument* were no answer to the claims of the settlers, for the large land claimant* would by their operation* have been no less conducive to the advancement of the Colony than any Company who have been connected with it. He had hoped by his motion to have elicited something that would be useful to the interests of the colonists, as well as the aborigines, but iu co nsequeuce of what had fallen from his Exeeliency he would now withdraw the motion. Mr. Clendon wished to enquire whether any thing would not he done for those parties who had made purchases within a few days after the proclamation of the Government. Such purchases had been made by parties at a distance from Captain Hobson’s operations, and who could not possibly be cognizant of the veto of the Government, but whose transactions were, nevertheless, effected upon th* most deserving principle. The Governor said a line must be drawn some where in public legislation of matters o r this grand importance } it is impossible but there must-be some individuals hardly dealt by. Sir It. Peel’s income tax will afford an example those who escape the limits, consider themselves lucky, those who are within it naturally grumble, there is no role, even for good, without exception. If hereafter cases of great hardship come before me, I will try to remedy them, but if the door be once opened, upon the plea of ignorance, it will be impossible to say bow far person* may have been willfnlly deaf or blind upon the subject, —cases may possibly occur command* ing attention—the principle cannot be and least of all, just now. Saturday, 13th January, The three Bills before committed were read a third time, and passed. The Council was then adjourned to Tuesday, 9th day of April next.