Original Correspondence.

New Zealander, Volume 3, Issue 122, 31 July 1847, Page 2

Original Correspondence.

To the Editor of the New Zealander. Sir,— An impression appears very generally to pretail that the acts of the Council at present sitting, will prove to be without binding force, on the ground that one of the independent members, being a Government Officer, is ineligible to a seat in that assembly. There appeari, however, to be some indistinctness about his actual relation to the Government, which perhaps you might be able to clear away. He certainly receives a yearly salary from Government ; he certainly conducts, by virtue of his office, legal cases in which the Natives are concerned, and is allowed his expenses by Government as solicitor in those cases ; that the hon. gentleman in question holds an official position, de facto, there can be no manner of doubt ; but to prove that he holds it, in terms which should be open to no play upon words, would perhaps be not an easy thing to do. It is possible to call salary, a yearly retainer; it is possible to say, that no man holds place under Government until gazetted to that place— that an acting order goes for nothing ; yet itich a iis6 of words is a plain evasion, after all. , "Why are Government officers not permitted, under the Charter, to sit as independent members in Council 1 Is it not because they receive money from the Crown, and are, therefore, so far dependent on the Crown. The real touchstone of office is not gazetting, but receipt of salary. Why are seats given to independent members at all 1 Not, perhaps, to give them votes ; for their votes are practically ineffective: but to allow them an opportunity of recording their opinions, which are assumed to be those of the public, and so to put the Authorities at home in possession of knowledge which it might not otherwise have been able to obtain. But, if such members be under Government infltwoce in any way, their representations of public opinion will carry no weight; however honest and true it may be, it will be still liable to suspicion, and the real objects of the creation of the members will remain unfulfilled. Is it, moreover, setting good example to the colonists to shew them how to evade the spirit of a law ; in common parlance, to drive a coach and four through it? We fear the aptness of their scholarship. To borrow Dam* Quickly's complaint against Sir Hugh Evans, proving William in his Latin accidence, " You do ill to teach the child such words ; he teaches him to

hie, and to hae ;, which they'll do fast enough of themselves ; and to call horum j fie upon you." At all events, if the prohibition be good for nothing, it should have been long since done away with ; if it be good for any thing, it should be observed in spirit, as well as in letter ; for fear— to use an expression of your own— of misconstruction. Your's, &o. X. [Our correspondent his put the case fairly enough ; but can hardly suppose the difficulty to have been overlooked by the Government. It is provided that the independent members of Council shall be "the three justices of the peace whose names shall be standing first in any general commission of the peace issued by the Governor or officer administering the government of New Zealand, such justices of the peace being at all times persons not holding any office or place of emolument at our pleasure, or at the pleasure of such Governor or administrator of the Government." The subject, however, is delicate. Another objection might be raised, less liable, perhaps, to verbal subtlety, than that which has been made mention of above. None but a justice of peace can sit in council ; but the honorable gentleman in question, having been admitted a solicitor, aud practising as a solicitor, is thereby incapacitated from Magisterial functions. _ " Certain persons are disqualified by their office and profession from acting as justice in ooun tries" no~rcor=~ porate, and in liberties- Thus the Sheriff cannot act as justice during the continuance of his shrievalty Nor, according to the better opinions, can the coroner, although there is no statute to forbid him , on the principle that no one ought to be a judge in a court of which he is an officer. Nor can any attorney, solicitor, or proctor be a justice of the peace for any country, while he practices ; but this restriction does not apply to cities and towns being counties of themselves, nor to justices by charter in places not being boroughs named in the new municipal' corporation &Qt."-*-sic/iinsan's Session* Guide, '8, 15. It may be observed, that a similar point has before been raised with regard to the office of Sheriff in this place. A precedent, it appears, was found for such combination of functions at Hongkong; but how the matter was mended by that discovery, we ourselves are at a lost to perceive. — Ed. N. Z.]