Extracts.

Lyttelton Times, Volume VIII, Issue 487, 4 July 1857, Page 3

Extracts.

THE RESIDENT MAGISTRACY. (from the Southern Cross, May 26.) The Superintendent of Canterbury, as we learn from his late address to the Provincial Council, is very wroth with the General Government, on account of their declining to incur any responsibility in connection with his own appointments to the Resident Magistracy. The whole imbroglio—rand it has cost us some little trouble to disentangle the question—has been brought about by ill-advised legislation, general as well as provincial, and hasty action, as it appears to us, on the part of the Superintendent himself. We have throughout protested against allowing the provincial legislatures to interfere with the administration of justice, either by way of enactment, of appointment, or of payment. Whatever strange incongruities and conflicts of law may find their way in among the provinces of the colony, at least let the administration of justice be uniform, from one end of the colony to the other, raised alike above all risk of intimidation, and the annoyance of local vagaries. We would desire to see every officer connected either with the Supreme or lesser Courts —judges, resident magistrates, sheriffs, and even jailors, alike provided for on the general estimates, and alike emancipated from provincial control. Justice is the acknowledged duty, as mercy is the" privilege of the Crown. The handing over of powers connected with the administration of justice to any Provincial Government was in itself a fatal error ; but, in aggravation of the evil, they have not even been handed over intelligibly. In the case |of Canterbury, with which alone we are at present concerned, the line of demarcation between the duties of the General and of the Provincial Government was imperfectly defined, and the natural consequence is, that a misunderstanding has arisen, which threatens to result in open warfare. The outline of the case appears to be as follows: — By the Canterbury Empowering Ordinance (Session ii, No. 2) upon which we shall presently have some further observations to make, the powers theretofore vested in the Governor by the Resident Magistrate's Ordinance were transferred to tlie Superintendent. In July 1855, Mr. Fitz Gerald appointed Mr. Tancred. Apparently for the purpose of avoiding difficulties, Mr. Tancred was appointed de novo by the Governor, and gazetted. Presently, Mr. Tancred is nominated a member of the Legislative Council. He signifies his acceptance to the General Government; but at the same time requests that some provision may be made for supplying his place as Resident Magistrate, when absent from the province on Council duties. The Governor appoints Mr. Hamilton, gazetted in February 1856. In March 1856, it being uncertain how long Mr. Hamilton could perform the duties of that office, the Superintendent of Canterbury requests the Governor to add to the commission of the peace the name of W. S. Moorhouse, Esq.; also to appoint that gentleman Resident Magistrate during Mr. Tancred's absence. The appointment is accordingly made. In October 1856, the Superintendent himself appoints Mr. Brittan to be a Resident Magistrate, and requests that " His Excellency will be pleased to issue a commission to that gentleman, as had been ' the case in similar appointments." We may be in error, but are unable to perceive that such was the case. The Attorney-General being of opinion that no confirmation by the Governor was necessary, the Superintendent having acted under the Empowering Ordinance, the General Government, very properly, in our opinion 5 objected to issuing any commissions in cases where appointments should have been made by the Superintendent without previous intimation to themselves. For it is always possible tbat objectionable appointments might be made, to which the Governor would otherwise stand committed. The question, as to which some confusion appears to have hitherto existed, is thus fairly brought to issue at last. The claim on the part of the' province is that the appointments should be made by the Superintendent, but supplemented by the Governor. The General Government declines to endorse, as a matter of course, all appointments "made by the Superintendent, fitting or unfitting, as the case might be. The Superintendent of Canterbury, in atone which appears to us unnecessarily acrimonious, contends that the Government ought not to refuse a commission, because doubts, which he did not entertain himself, " had been expressed in certain quarters as to whether fV>~ j.i»: O /««*:«». *e tu e Provincial Legislature jfering with

such appointments." These doubts, he stated, would probably deter Mr. Brittan and Mr. HalP(whom he had also appointed) from incurring the risk of acting as Resident Magistrates; and he therefore cast the responsibility of stopping the administration of justice, and of perpetua- ■ ting confusion, upon the General Government —forgetting, apparently, in the fervour of composition, that there were three if not four other Resident Magistrates in the province, and from twenty to thirty justices of the peace. This, indeed, looks very like a determination to find a grievance. The General Government still decline, on a general principal, to incur the responsibility of implicating themselves with appointments about rwhich they are not consulted, and which might be objectionable. Nor could they be in any wise bound to do so. For the Superintendent either has or has not the power to make such appointment. If the powers of the Governor be really transferred by the transfer of the Resident Magistrate's Ordinance, no sanction or confirmation is needed; if they be not transferred, it was the duty of the Superintendent (recommending certain persons, if he pleased) to request the Governor to appoint. Moreover, if the question of the Superintendent's power be doubtful, it was still as clearly his duty to have avoided the difficulty by requesting the governor, about whose power there can be no doubt, to make the appointments, instead of making them himself and then calling upon the Governor to confirm what might have been illegal ab initio. Forgetting, moreover,that such confirmation could,; at all events, have no retrospective effcet, and would therefore fail in giving validity to acts performed by the Magistrate between the dates of his appointment by the Superintendent and his confirmation by the Governor. The Superintendent of Canterbury next requires the gentlemen he had appointed to resign their offices, and also refuses to act in concert with the ministry, on the ground of their having refused to recognise the appointment in question (they had merely declined as a general rule, taking upon themselves the responsibility of appointments 'about which they had never been consulted), —~ on the ground of their considering that Messrs. Brittan and Hall were exercising their functions illegally (which at all events they had never said),— and because it seemed their policy to watch the Provincial Government making what they believed to be a grave mistake, and to treat the result with indifference. This is a strong measure; American rather than English, being something very like a declaration of Independence. But it is the not unnatural result of the fatal error committed by Governor Grey in postponing the summoning of the. Assembly until after the meeting of the Provincial Councils, turning the Constitution "bottom upwards." It will be observed that the Superintendent had hitherto based his right of appointment only upon the Empowering Ordinance. But in his address to the Council, he travels a step farther onwards. He emancipates himself from the enactment of doubtful validity, and informs the Council that, without any Empowering Ordinance at all, the power of appointing Resident Magistrates, and performing all other functions cf Government, is fully and entirely vested in the Superintendent by the Interpretation Ordi- ' nance of the late Legislative Council, Sess. xi, No. 3. Upon reading this, we were somewhat startled; for that Ordinance would affect the whole colony, and, if so interpreted, would give to our own Superintendent a power which he might not be slow to avail himself of—that of superseding the gentleman who now. so ably discharges the dutie3 of Resident Magistrate at Auckland. Referring to the Ordinance with some dismay, we were unable at first to find any words to such effect. Upon reperusal, however, we found out (and take some credit for ingenuity to ourselves) the pro-, vision which his Honor must have alluded to. To the present moment, we can scarcely. j persuade ourselves that he was in earnest.. The Interpretation Ordinance, passed by Governor Grey for the Provinces of New Ulster and New Munster, and in reference j to the Constitution of 1846, provides-— That in all Ordinances that may have been ! hitherto passed, as well as in all Ordinances that ;| may hereafter be passed * * the words " Governor and Executive Council," shall include the officer administering the government, [as for I instance, Colonel Wynyard, after the departure of Governor Grey,] and the Executive Council of any Province. It is unnecessary to point out the play upon words which identifies a Superintendent with the Officer administering the Government, or the six Provinces, of the present Constitution vilih the two at tha ' former one. ; j

The Council, it appears, were unable to I swallow such an interpretation of the Interpretation Ordinance. Nevertheless, they go half way with him. They request the Superintendent to issue commissions, but express a doubt as to their validity. His Honor, very properly, though evidently nettled by the incredulity of his Council, declines compliance "with this original proposal. But he now succeeds in getting another step in advance. He suddenly discovers; and communicates the discovery by message to the Council, that the Empowering Ordinance is supported by two Acts of the Assembly—The Provincial Council Powers Act, and the Provincial Laws Act; the former of which " empowers the Superintendent (sic)- to alter ' the civil jurisdiction of any court of Summary procedure having jurisdiction to the amount of £20 ;' " while "the latter Act validates all Ordinances theretofore passed, which would have been valid had the former Act been in existence when they were passed." He takes blame to himself for having overlooked those Acts, but consoles himself (by message) with the consideration that " His Excellency's ministers appear to [ have ben equally unmindful of the Legislation of last Session," (though by what process of reasoning he arrives at this conclusion, appeareth not), and states his intention of issuing Commissions to the Resident Magistrates, so •oon as he shall learn that the Provincial Council intend to vote the necessary expenses of the department. Really, His Honor should be competent by this time to solve the Gipsey question in Izaak Walton, " whether it be easier to rip or unrip a cloak." So the matter appears to rest, for the present,—in the Superintendent doing at last what he might equally well have done at first, no interference by the General Government being required, if his point be good. And of that he has no doubt. But with' all deference to Mr. Fitzgerald's J acknowledged ability and acuteness, we cannot help thinking that he has found a mare's neat. The question is whether the Canterbury Empowering Ordinance, if originally invalid, became validated by the Provincial i Laws Act of the last Assembly. The Provincial Council Powers Act is not yet in force, having been reserved for the Queen's assent. Now both of these acts have reference only to the jurisdiction, not to the constitution of Civil Courts. Were it otherwise, they would be themselves invalid, the Constitution Act expressly inhibiting the Provincial Councils from altering the constitution of such courts. And we maintain that transferring the appointment of the judge of such courts from the Governor to the Superintendent, i. e. from the crown .to the people, is a real alteration of the constitution. The Resident Magistrate is no longer the same officer, except in name A new office is in fact created. Were a Provincial Couucil to enact that the Resident Magistracy should be an elective office, would that not alter the constitution of the court ? Apply the case, mutatis mutandis, to the Supreme Court, and the alteration, to us, becomes self-evident. Moreover, the Provincial Laws Act does not even pretend to give validity, beyond that point to which the limited power of the Assembly would have extended, in the enactment of such laws by itself. But even should this view be erroneous, the case is scarcely mended for the Superintendent. Even putting his own construction upon the acts in question, they do not alter the case, as it now rests between the General Government and himself. They merely tend to strengthening the Empowering Act, the validity of which the General Government had not denied. But ought they not to have denied it, —or at the least, as Mr, Fitzgerald seems to desire, have committed themselves to an opinion, ex cathedra, either in favour or against? That question still remains. Such might perhaps have been the more highhanded course ; but more than one province is even now uproarious about the General Government taking so much as they do upon themselves. Flog high, or flog low, there is no pleasing the provinces. Moreover, on the assumption that they do believe.the Empowering Ordinance to be illegal,'still to set a law at defiance on such grounds is a matter of no slight responsibility. '-When Mr. Browne assumed the Superintendence" of the province of Auckland, a number of illegal provincial laws were in operation. But the Government had to be carried on j he therefore admitted and administered them all, without exception: evei^ the well remembered City Council Act, as we have again and again j made clear. Iv is too much to expect that a Government should be held responsible ibr all the wiM, legislation of their predecessors, — the fons et origo

malorum was in the Governor's assent being given to the Empowering Ordinance, the disallowance of which the Attorney-General, Mr. Swainson, was " prepared to recommend." Cuilibet in sua arte credendum est; but, after reading1 the thirteen restrictive clauses of the Constitution Act, the Ordinance in question, to our unlearned eyes, appears to' be as astounding an assumption of power as we could well imagine. Among the powers transferred by it to the Provincial Legislature are those conferred by the Ordinance to make temporary provision for the Constitution of '. Juries ; the Courts of Requests Ordinance ; ! the Militia Ordinance ; the Anns Importa- ! tion Ordinance, by which a power of interfering with the customs duties would appear to be involved, and the Native Land Purchase Ordinance. In the last instance, we do not set any undue assumption of power; but we mention it, because the . repeal of that Ordinance by the Auckland Legislature was subsequently treated as illegal. We should have supposed that the most craving hunger of ultra-provincialism would have been satiated with such an enactment as this, trenching'so closely upon, and, as we believe, invading the restrictive Section of the Constitution Act. But Provincialism now appears to have undergone a fresh development; it not only claims emancipation^from General Government control, but also insists upon subjecting the General Government to 4 it«elf. The Superintendent of Canterbury, not content with being let alone (for in this matter he seems to have had the whole of the proceedings to himself, doing and undoing, ripping and unripping, according to the mood of the moment,) desires like Tamerlane, to yoke captive kings to his chariot, that he may complain of —those pampered jades of Asia, That cannot draw but twenty miles a-day. For is it not an absolute enslaving of the Governor, first to appoint Resident Magistrates at pleasure, fit or unfit men, as the case may be, and then to require His Excellency to issue the Queen's commission ? We are far from breathing the slightest suspicion that Mr. Fitz Gerald would ever make an unfit appointment; in person, he has earned the respect and regard of all who know him; but the office which he holds might lapse into hands very different from his. We take our stand upon a principle; recent events, in more than one province, have taught the colony a lesson ; and it behoves us* to guard most jealously against the remotest chance of the stream of justice becoming other than pure and uodefiled. We believe that the Superintendent of Canterbury has acted under feelings of irritation, and cannot help expressing confidence that, when they shall have subsided, he will view the whole question in the light in which it must appear to all such as are uninfluenced by local bias.