General Assembly of New Zealand.

New Zealander, Volume XVIII, Issue 1721, 6 September 1862, Page 5

General Assembly of New Zealand.

[llV Ol'R OWN REPORTER.]

LEGISLATIVE COUNCIL.

TUESDAY, AUGUST 12th, 1802

We brought up our record of the proceedings of the Council to this (kite inclusive, in our hist report. We now give the debate. The Hon. the CHIEF JUSTICE moved. That all correspondence subsequent to the 22nd May, 1861, between the lute Government, the Superintendent of Wellington, and Mr. B. A. Ferard, late Acting Resident Magistrate at Wellington, touching the remission of a fine imposed by Mr. Ferard on one Frederick Atchison, together with all Official Memoranda made by the late Attorney-General, Mr. Sewcll, on the same subject; and also a letter or copy of a letter, addressed by Mr. Ferard to His Excellency the Governor, on the 25th Oct., 1861, be laid on the table ; and explained the reasons that had induced him to make this motion. He. had deferred doing so until the latest moment, from a desire to avoid any topic which might by possibility awaken any unpleasant feeling in the mind of the lion. gentleman (Mr. Sewell), with whom lie was acting from day to day in Select Committees, discussing measures of public interest in that conversational way whi'-h was most beneficial. It would he in the recollection of some members of the Council that in tho last session certain resolutions were moved by Mr. Whitaker, reflecting on the Superintendent of Wellington for the remission ot a fine imposed by Mr. Ferard, the Resident Magistrate, on one Frederick Atchison ; at that time, he believed a Serjeant-Major of Police, in the case ot Newey v. Atchison. In tiie course of the discussion, he had been asked by some members to express an opinion on tho question. In refcrringto the resolutions passed by the Legislative Council last session respecting this case, His Honor took occasion to observe with respect to them that, though stringent, they were the truth, and therefore he voted An- them, but, in doinu so, he was actuated by no personal or party feeling, and ho shewed this by being the first to sug.est to the late Attorney-General (Mr. Whitaker). that, if he (Mr. \V.) thought the public interests would be sufficiently served by the expression which had been evoked of the opinion of tin; Legislative Council, and thereupon should prefer to withdraw his resolutions or to moilify them, he should acquiesce in such a course. With reference to the Nelson case, (Mr. Saunders), he observed that when Mr. Justice Johnston found the course taken in that case amounted as he conceived to setting aside the judgment of the Supreme Court, lie immediately sent him (the Chief Justice) for presentation to the late Governor the resignation of his office, which, however, he felt justified in withholding, and in presenting to the Governor simply one of remonstrance. But when he brought the matter under the review of the Council, the late Government did not venture to justify the setting aside the ruling of the Supreme Court, but Mr. Whitaker adopted such atone and explanation of tho facts as disarmed any severe criticism. The transaction from which the present question arose is recited in the depositions taken in a case " Newey v. Atchison," printed in the journals. It appeared that in the early put of 1801, Mrs. Newey occupied a house as tenant to one McElv lin ; her husband was absent ; lie had remitted her money, but .apparently not sufficient, and, on his return, there was discord between them. Newey paid the rent of the hor.se thus occupied by his wife, and McElwain in his depositions admitted in express terms, that he had received the rent from Newey, although in the same statement, he assumed to have the right, in the teeth of such acceptance of rent, to disclaim Newey as 1 his tenant. On the 19th April, Newey was bound over to keep the peace towards his wife. On the evening, it seemed, of that day, he was at the house claiming to remove furniture, and to enter the house for that purpose by the window. McElwain, Atchison, two Other policemen, and the wife came up ; the wife "produced the key, and all entered the house. Newey sat down in an arm chair, from which, at the desire of McElwain, he was dragged by the police, who seized him by the shoulders, forced him out of the room, and, after taking him some distance, at length released him, only on the promise that he would not return to the house. Before his removal, Newey repeatedly protested that ho had paid rent for the house, which McElwain did not deny. He was well known as the husband, he even produced his marriage hues to the parties, although his relation to Mrs. Newey was necessarily known to them already ; and it is no where alleged that the wife requested them to remove her husband from that house. Upon this, Newey, on the 14th of May, summoned Atchison before the Resident Magistrate, and the Court considering the assault proved, on the 15th, fined Atchison 40:;. and costs, 10s. (id., in default to be committed for 14 days. This fine was remitted by the Superintendent of Wellington, professedly under power conferred on him by Sir' George GreT, butKVOWedly overruling the decision of the Court. Had this net remained the act merely of the Superintendent as such, having been disavowed by the then Government, it is probable the subject would not have been' brought before the Legislative Council. But uafortphaWly, on a change of Ministry, the Superintendent nsvs'ueh wrote to himself as Colonial Secretary a letter, which is printed in the journals, and therein, as a Minister of the Crown, asserted that he had acted iu the cxetcise of a to reverse the decision of a Court of Uustiee. The letter is dated the 19th July, 1861, and* after alleging in plain terms that the police were justified in their conduct, His Honor wrote :—" The Magistrates, I considered, were in error in treating the case as one of ordinary assault, and as there was no tribunal to which the defendant could appeal, I deemed it a fit ease for my interposition." Thereupon the resolutions were passed by the Legislative Council, in stringent terms reprobating that doctrine. Those resolutions the ln'e Attorney-General set at naught, and recommended tho present Governor to confirm the remission of the fine on grounds which the Chief Justice invited the Council to consider. In a memorandum dated the 27th September, 1861, ho (Chief Justice) was informed the honourable gentleman wrote among other things OS follows : —" I confess myself unable to take the same view of the mutter which tin; late Government and the Legislative Council have done. Iu the first jdace, so far as the case is disclosed, I do not agree with the late Attorney-General, Mr. Whitaker, in thinking the conviction warranted by the facts. It was grounded on the assumption that Newey was tenant of the house, and that the act of the police in removing him was illegal and criminally punishable as an assault. J do not think it made out that Newey wag tenant of the house, or had any right of occupation in it." The Chief Justice would not wound the feelings of the lion, gentleman by himself answering such arguments in detail. Indeed Mr. Ferard had, in a letter of the 25th October, 1861, replied to them with characteristic naivete himself. That gentleman, answering the above passages of the Attorney-General's memorandum, appears to write thus:—"The conviction was not j. rounded on the assumption that Newey was in law 1 tiic tenant of the lnuso (though that fact appeared to tho Bench to be hut upon proof of an ussuhH

committed, and the fact that the defendant did not succeed in proving a justification." Again the hon. gentleman is said to have written his opinion that — " The. contract of tenancy was between Newey's wife and the landlord, the wife acting on her separate account, and being alone recognised in the transaction. It is no where suggested that she was capable of entering into such a contract as a feme sole, and therefore I treat the supposed leaso to her as a nullity, which could not confer a title or right of occupation on her husband (Woodfall's Landlord and Tenant—Book 1, c. 2, s. 3—-Evans v, Thomas Crojac, 172.) If the husband had been sued for the rent under the wife's supposed contract, would he have been liable ? I think not. The fact that on one occasion rent was paid by the husband to the landlord would not of itself saddle him with the liability, or e converse/, clothe him with title to the lease. Acceptance of rent by a landlord will not make valid a void lease. If Newey occupied the house, he would have been liable for use and occupation, and payment may be treated as made on that account, but that would not validate bis title as lessee." The quotation from Woodfall was unfortunate, nor did the honourable gentleman mend his argument by quoting in a second memorandum the words of his reference thus :—" A married woman cannot be a lessee, ionise and occupation of premises, her husband will be liable." For still, and although be alleges that " the tenancy was a yearly one, and the term was not expired when the transaction took place, which gave rise to the present question," still it did not occur to the honourable gentleman that a tenancy implies some one as tenant, and that whoever that tenant was, a reasonable notice to quit was required, and the law of ejectment must be applied before the landlord could enter the premises with three policemen, and pull even a husband out of his own wife's house. The married members of that Council might well take alarm at such a doctrine. Put Mr. Ferard answered the above argument in his quiet way, thus:—"The Attorney-General remarks that the contract was between Newey'.s wife and the landlord, and that she could not contract as a feme sole, and therefore he treats the supposed lease as a nullity." Upon turning to the place he refers to in Woodfall, I was astonished to find the passage run thus: —" A married woman may be a lessee, her husband's express assent to the lease not being necessary, as the estate vests until he signifies his dissent. I know not how Newey could more clearly have signified his assent to the lease to his wife than by payment of rent under it. I presume Newey was entitled to the same interest in the house as in his wife's other chattels real, and I think that had he been sued for the rent he would have been held liable. Most probably she would have been held to have taken the house as his agent, and he to have ratified the contract by subsequent payment of rent. It is perfectly true in many cases (though not universally) that acceptance of rent by the landlord does not make valid a void lease ; and equally true, that such acceptance of rent will constitute the person paying it a tenant from year to year, or week to week, or otherwise, according to the term, with reference to which the tent is paid." But the honourable gentleman laboured under some idea, that an assault would be no assault if committed by a policeman, provided he acted under an alleged authority of law, and that in such a case, although the assailant were liable to a civil action, he was not criminally answerable. Thus the Attorney-General argued : —" But whether the husband could or could not have claimed a title .as tenant by virtue, of his wife's contract, there does not appear to me to lie anything in the ease to warrant a conviction for an assault. The Police Officer was acting under the alleged authority of law in exercise of his duty and in accordance with the Police Regulations by removing an apparent intruder from the house of, and by the direction of, the undoubted landlord. If he was wrong in law, the party aggrieved bad his remedy by civil action, but the officer so acting ought not to be held criminally answerable as a common offender for an assault." .Mr. Ferard answered this astounding proposition thus :—" I think it more material to determine whether the officer was acting under the authority of the law than under the alleged authority of the law, though I know not when lie alleged his authority ; he was not acting in the exercise of his duty as a police officer." By no less an authority than the late Mr. Justice Patteson, the law was thus laid down, in the volume of Carrington and Payne, which the Chief Justice held in bis band :—" The occupier of a house is justified in telling an intruder to leave the liotiso, and if he will not do so, he is justified in putting him out by force, and may call in his servants to assist him in so doing. He might also authorize a policeman to do it, but it would be no parr: of a policeman's duty as such, unless the. party bad committed some offence." The attempted distinction between liabilities, Mr. Ferard answers thus:—"Though in certain cases of accidental personal violence a man may be civilly without being criminally responsible, I am not aware of any case ot assault entailing civil without criminal liability." Assuredly, :hc hon. gentleman, before overruling thi' opinion, together with the resolutions of the Council and the decision of a Court of competent Jurisdiction, might have considered that an assault was a misdemeanour, and a misdemeanour was a criminal offence, though not classified as a "crime ;" and further, that an assault could not cease to be a misdemeanour, till it ceased to be an assault. Shortly before leaving England, he bad himself defended a man of some property on a charge of assault. The man was convicted, and while still lying in gaol suffering his sentence of hard labour, a civil action, brought against him by the prosecutor for the same assault, came on for trial. He (the Chief Justice) again defended him, but the jury under the direction of the learned judge gave a verdict against him, while yet in gaol, for the full damages claimed. He would not weary the Council with more passages from a correspondence which, if the Council ordered it to be laid on the table, would be found well worth reading. He would only remark that Mr. Justice Patteson limits the right of turning out the intruder to the "occupier" ot' the house, not the landlord. In this case, McElwain was not the occupier. He even refused to accept the key; but there, in presence of all parties, claimed to treat the wife as his tenant still, and still to turn out the husband from the house of which he had that da\ received the rent from that same husband. But. the illegality of the action of the police, and the legality of the decision of the magistrates bad been affirmed in a solemn written judgment of the Supreme Court. Encouraged by the local authority, and confident in the support of the late Government, as he (the Chief Justice) supposed, Atchison—himself the offender, but assured by the letter of the Superintendent that the charge of which he had been convicted, but from the penalty of which he had been exempted, was not in the slightest degree supported—Atchison brought an action against Mr. Ferard for " false imprisonment." The cause was tried at, Wellington, on the 11th December, 1861. The plaintiff did not venture into the witness box, and as the plaintiff was nonsuited Mr. Ferard could not tender himself as a witness. Leave was expressly reserved to the plaintiff to move for a new trial. On the 16th December, Mr. Justice Johnston sat to hear the application. The report would be found in the Wellington Independent, of the 27th December. (His Honor read the whole report, of which the most material passage is the following):—"Aceo.ding to the only view of the case, which the facts as established by the police themselves seems to me to justify, the police acted illegally throughout, and proved themselves guilty along with Atehcson, of punishable assaults. I had also prepared the following memorandum to be read in Court, whether Mr. King should move, or not." This memorandum contains a severe warning to the police. To the admonition which Mr. Justice Johnston then administered to the police and to society, the Chief Justice would add his warning voice. It was a matter of serious moment. Let not the police of this colon}' be misled by mistaken doctrines as to their duties and privileges, from whatever source such doctrines come. Hail Newey, when dragged from the chair in ihat house, resisted effectively, had a. struggle thus ensued, and had the police, without more violence on the pare of Newey than was required to keep possession, been slain on that floor, it would huve been at most manslaughter, and might (according as the circumstances bore) have been justifiable homicide. The law was stated in Russell on Crimes, vol. l,p. 662, (ed. 1813). Title, "Excusable Homicide." (His Honor read the passage.) He trusted that even now the Council were satisfied that its resolutions, so far as they depended on the view of the magistrate's decision which be bad then expressed, were founded in truth, and that be had not misled the Council by an erroneous statement of the law. But he moved for these papers also on grounds of public policy. The Council would have already perceived that in recommending to His Excellency to remit this fine on the ground stated in the memoranda of the late Attorney-General, the advisers of the Governor asserted a power which belonged not even to the Sovereign. They, in effect, constituted themselves a Court of Appeal, and advised the Governor to set aside a lawful judgment of a lawful tribunal acting within its jurisdiction. The Superintendent of Wellington, indeed, assumed that no means of appeal were open to Atcheson. But the grounds alleged by the honorable gentleman for setting aside the decision of the magistrates were strictly grounds of appeal, and he had not heard on what was based the argument that no appeal lay in this case, although the magistrates ruled against law. It belonged not even to the Sovereign thus to dispense with decisions of the Courts of Justice. Her Majesty could not on such grounds step between the law and its execution, between the conviction and the convict. Of course, he was aware the Sovereign could by indiscriminate pardon, under tho name of mercy, exempt offenders

from justice, but this would be, not an exercise of the prerogative, hut an abuse of it, It would be an usurpation of power. Far be it from him lightly to question the propriety in this or that case of pardons granted, or of penalties remitted, by His Excellency. The Governor, after taking the opinion of the Judge in compliance with Ills Instructions, was freo to follow, within reasonable limits, his own discretion, and no man ought hastily to question that discretion in the exercise of the Royal prerogative, as such. But if, I under the guise of that prerogative, the Governor was advised to overrule the lawful judgments of lawfully constituted tribunals, it was mere truism to say, he ! would be advised to act in direct violation of the law. I It was true that Mr. Fcnton, in one passage, puts the remission of the fine on grounds which, though they do not excuse, would at least palliate that course on the part of the Government, had the Government professed to act on that ground. And he (the Chief Justice) wished the Government had rested its action on that ground. It was, that until the delegated authority was expressly withdrawn, the Government felt bound to confirm acts done thereunder. But, Mr. Fenton, under directions from the Attorney-General, then reasserts the same unconstitutional right claimed by the Attorney-General; and after affirming the propriety of the act of the Superintendent, again condemns the course taken by the magistrates. It was clear this fine was not one of the class contemplated by the delegated authority, nor was any reason for remitting it originally pretended other than the resolve to reverse the decision of the Court. But, further, the honorable gentleman was not content with overruling the magistrate, and the resolutions of that Council, as being founded on erroneous views of law. He charged the magistrate with what amounted to a malversation of bis office, for he imputed to him that he followed up an illegal judgment, by a vindictive execution. The honorable gentleman disclaimed any such intention. At all events he charged Mr. Ferard with " presuming the whole case against them" (the police), " and that in the face of circumstances which tended strongly to support their position." He also charged Mr. Ferard with arresting Atcheson in the presence of his men, (assuming that course to be improper) and added, "the ar est at the instant of time the fine became payable shows in my opinion a personal animus which ought not to be." If those papers were produced, the Council would find all these charges to be unfounded. Thus, the fine became payable on the 15th May, but it was not till the 25th May that Atcheson was arrested. As to arresting the delinquent in the presence of the police force, Mr. Ferard emphatically and repeatedly denies this, especially in his letter dated 23rd Doccmbcr 1861, which shews how and where Atcheson was arrested. It was said indeed the Court ought to have advised the parties to try the matter by a civil action. But this was precisely the course taken, and the parties declined it. The Court had then no power to refuse adjudication thereon. The imputation of animus no man can answer save by appealing to facts. The case was adjourned for a day to allow Atcheson to get legal assistance. And in truth the Magistrates acted throughout those unparalclled proceedings with lenity, patience, and forbearance, while they received in return one continued scries of insult and defiance. It should be remembered that when, on the 19th April, Mr. Ferard bound Newey to keep the peace towards his wife, the two claimed the furniture, and, although Mr. Ferard rnled in open Court that he had no power to interfere. Atcheson insulted the Court by warning Newey that he would himself stop Newey from removing it. Mr. Ferard warned him to be very cautious how he interfered in the matter. Well might Mr. Ferard in his letter of the 22nd August 1861, write that he felt such conduct most insulting, and conclude, " Atcheson cannot fairly he supposed to have believed that he, was acting in the execution of his duty in the subsequent proceedings of Newey v. Atcheson." Yet, when this person, thus warned, and thus offending, appeared before the same Magistrate whom he had thus insulted, charged with an assault in the very matter the subject of his previous admonition, that Magistrate inflicted for so grave an offence the trifling fine of 40s. And what followed? Day after day passed on—message after message was sent by Mr Ferard in hope that the man would see the propriety of obeying the law. But prolonged patience produced obdurate defiance. At last the Magistrate was informed by Millward that Atcheson desired him (Mr. Ferard) to send " no more impudent messages." For the Superintendent had now intimated by letter to the offender that he was no offender, that the Magistrates only were wrong. Still Mr. Ferard held the hand of the Court for another day, and lastly the clerk of the Court offered Atcheson to pay the fine for him. In vain—the warrant issued. The police combined to refuse to execute it; and Mr. Ferard was insulted by the sight of the offender in and about the purlieus of his own Court, with Millward who had the warrant in his pocket, but considered it not to be his duty to execute it till he bad first obtained from Atcheson his own consent to be arrested. Surely if the arrest had been made in presence of the whole force, it would have been a salutary example. Under these circumstances could the Council wonder that Mr. Ferard complained? And, if it was true that the Government were at one time receiving imputations against him without disclosing them to him, he was wronged indeed. He did complain " that the Attorney-General had made charges of gross mis-conduct against one of Her Majesty's Justices of the Peace, cither upon evidence, all knowledge of which has been concealed from the party charged, or upon the evidence of documents, which do not tend in the least to support, but in great part absolutely disprove those charges." " That the Attorney-General has recommended His Excellency the Governor to appoint to the, important office of District Judge one, whom he believed to have been guilty of gross misconduct as a Justice of the Peace, or (if not so) had at any rate pressed upon that person the acceptance of that office, after having become cognizant of such asserted misconduct." The same gentleman who was rebuked in exercising a jurisdiction over 40s. was desired to assume the larger jurisdiction to the extent of £100; and lie, who was deemed to have acted with bias and animus in punishing an assault with that small fine, was invited to a judicial office, in which he might have been by the Governor entrusted with power to inflict penal servitude. He (the Chief Justice) did not altogether wonder at this inconsistency. The mode in which the office Justice of the Peace was distributed had been, and before he came to the Colony, was considered to be a scandal. He was informed they bed been appointed in groups of ten, twenty, and some gentleman had spoken of as many as forty being appointed in quick succession, until it was considered, (whether rightly or nor) that this judicial office was made either the reward of or the inducement to political support. Complaints were made that qualified men could not be obtained. Yet when a qualified man was found, his judgment was over-ruled, and he was driven to retire from the office of Resident Magistrate in disgust. Mr. Ferard was, he belived. a graduate of one of the first Universities in the world, he was a member of the English Bar, and the Council might judge of his legal capacity, if these papers were produced. Yet this gentleman, when he remonstrated in a letter to the Governor, was told in a letter of the 4th Novermber 1861, that he was merely a subordinate officer of Government, Whether bis letter to the Governor was wanting in repect the Council might judge. (His Honor read it.) Could they expect that gentleman of education, of position, of independent minds and legal acquirements would accept the judicial office, anticipating that the decision of their Court might at any tune be over-ruled by an Attorney-General of the hour, and themselves told, if they ventured to remonstrate, that Magistrates were only subordinates and must keep civil tongues in their heads. His Honor then recapitulated the leading points and concluded by assuring the Council that although he had felt it bis duty to move for these papers, he was not led by unkindly feelings, and that if he were capable of acting from such a feeling he should he unworthy of the confidence of the Council.

Mr. SEWELL said ihat be should with great satisfaction second the motion for the production of these papers, being satisfied that they would contrast favorably with the speech of his Honor the Chief Justice just delivered, and with the resolutions referred to of the Legislative Council of last session. The respect in which he (Mr. Sewell) he'd the high otfice which his Honor the Chief Justice filled would prevent him from replying; in the spirit and tone which his Honor's speech would naturally produce. He condemned in strong terms the resolutions of IS6I as having been adopted under the influence of strong personal and party feeling. The Superintendent of Wellington had been condemned in language of extreme heat, without being heard and without all the circumstances of the ease being enquired into. Of course rucb a proceeding led to ulterior consequences. The Superintendent of Wellington naturally rebelled against such injustice. On his (.Mr. Sewell) assuming office, lie found an application pending from the Superintendent Of Wellington to the Government praying the Government to confirm his (the Superintendent's) act in remitting the fine in Atchison's case. He (Mr. SotvoII) was then obliged, in the exercise of datii-s cast on him as FJinisler of Justice, to review the circumstances. Incidentally, Mr. Sewell expressed his opinion against the union of the two functions of Attorney-General and Minister of Justice. 1 hey ought in his opinion to be separated. However, being so compelled to d> j al with the case he proceeded to enquire into it in a spirit of perfect impartiality and with an earnest desire to do justice without personal or party bias. The conclusion to which be had come be bad embodied in a memorandum which had been transmitted both to the Superintendent and to Mr. Ferravd i |e \\n<l tjje satisfaction of stating that lie had

been found fauit with by all parties. That was the best test of his impartiality. The Chief Justice bad quoted garbled extracts from the memorandum omitting all which was material for hia(Mr. Sewell's) view of the case. In point of fact he (Mr. Sewell) had formed an opinion (bat all parties were in a degree wrong, from the Inspector of Police to the Legislative Council, which last not least had committed a grave error in adopting the resolutions of last session. He regretted that Mr. Ferrard should have taken unreasonale umbrage at his (Mr. Sewell's) remarks. He accepted cordially the Chief Justice's testimony to Mr. Ferrard's merits, and regretted that the public should be deprived of the services of a valuable officer from feelings of exaggerated sensitiveness. But in his (Mr. Sewell's) position he felt himself called on to make those remarks which had given Mr. Ferrard offence, and he was satisfied the council would concur in the propriety of the course adopted when they understood the facts as thev presented themselves to his (Mr. Sewell's) mind. Mr. Sewell then stated the circumstances as they appeared to him from a careful examination of the papers. The facts were these. Two persons—a man and woman —husband and wife —he supposed, had been leading an uncomfortable life, the wife living apart from her husband. Tbe wife had entered into a contract for tbe leasing of a house. Disputes arose with the landlord, and the landlord, as it would seem, with tbe assent of tbe wife, desired to resume possession of the house. On a certain day the landlord called on the Inspector of Police to asaist him in obtaining 1 possession of the house. On going to the house it was found locked. The man wasthenin the act of removing furniture through the windows. The house was opened and all parties entered, and then, with apparently the wife's assent, the landlord requested the Inspector of Police to remove the man from tbe house. The landlord declaied be did not, and would not recognise the man as his tenant. The Inspector of Police then removed the man from the house, without undue violence. For this be had been summoned before the Resident Magistrate, fined, and was on the point of being committed to prison, when the Superintendent of Wellington—whose officer the Inspector of Police was—interferred and paH the fine. Now, the opinion which he (ilHr. Sewell) had formed in this case, an opinion which the Chief Justice had ireated with scornful contempt, hut which he (Mr. Sewell) nevertheless still held, was that tbe Resident Magistrate was in error in dealing with such a case, as a criminal offence. lie should, in his (Mr. Sewell's) opinion, have left it to tbe parties to decide their rights by a civil action. In dealing with it criminally, the Resident Magistrate assumed the existence of those rights of tbe husband which in his (Mr. Sewell's) opinion, were only fit matter for decision in a civil action, and* the Resident Magistrate could not determine. No doubt th* Inspector of Police, and the landlord would be liable in an action of trespass if the man were unlawfully removed. Reference had been made to authorities en this point. He (Mr. Sewell) had referred loan edition of Mr. Woodfall's" Landlord and Tenant," in A-hich it was laid down distinttly that a wife could not accept a lease without her husband. It seems that some subsequent case had modified that decision. He (Mr. Sewell) believed that on examination the two authorities would be found to agree. That the general rule of law would he found to be that a married women could not accept a lease to bind her husband, though it might be that in particular cases circumstances might show such a privity between tbe landlord and the husband, as would entitle tbe husband to claim the benefit of the wife's lease, and in consequence to charge him with its liabilities. But in this case, though it was true the husband had paid money on one occasion to the landlord, it did not appear that the landlord had ever acknowledged him as tenant. On the contrary the landlord repudiated any such relation between them. But, however that might be, proper way of settling that point was by a civil action. So far from the quoted by his Honor being at variance with his (Mr. S.V) opinion, that case was in fact consistent with Ids opinion. For that wa« tbe case of a civil action. The Resident Magistrate, however, took a different view, dealt with tbe matter criminally, and imposed on the Inspector of Police a fine, with imprisonment in default of payment. At this point the Superintendent intervened —rightly or wrongly does not ma'ter for ibis purpose. He declared his intention of paving the fine. Notwithstanding tbe knowledge of such intention, tbe Resident Magistrate, after fixing a day for payment of tbe fine, on that day proceeded himself to direct the arrest of the Inspector of Police, in the presence of his force, with a view of committing him t.i prison. It appeared to bins (Mr. Sewell) clear from the documents that this proceeding was the remit of feeling and temper on the part of tbe Resilient Magistrate. In his judgment it was a great indiscretion. Viewing it in that light he felt himself bound to express that opinion to the Resident Magistrate —not thereby intending to impute —as the Chief Justice, in exaggerated language, suggested —malversation of ofiicp, but a grave indiscretion. In his (Mr. Sewell's) opinion, it was a grave indiscretion in a Magistrate personally to direct and superintend tbe arrest of the head of the Police in the presence of his own force, with the view of sending him to gaol for non-payment nf a fine which be had been informed vva3 about to be paid—uo matter by whom. Now, as to the course taken by the Government in confirming the Superintendent's remission of the fine. The real point of the case hid been carefully kept out ot sight throughout tbe whole of the Chief Justice's remarks, until the latter part of bis speech, when at length allusion was made to the grounds on which the Superintendent considered himself entitle !to net in the matter. The facts were these.-—ln 1853 Sir George Grey, during his then administration of the Government, thought fit to delegate to the Superintendents of Provinces, a power of remitting small fines, subject in each case to the Governor's confirmation. Such a power was in his, Sir George Grey's, opinion proper to be vested in some local authority, it being impossible otherwise to provide for exigencies requiring immediate action at a remote distance from the seat of Government. Concurring, as he (Mr. Sewell) did, in that general principle, be nevertheless ventured to think, that such a power should not be vested in elective Superintendents. lie tbar, however, as it may, such was the course taken upon mature consideration by Sir George Grey. Acting Governor Wynyard had exprasslv confirmed this, authority to Superintendents, and Col. Browne, under the advice of his former Ministers, bad practically re* cognised and acted upon it in several instances, particularly in the case of Mr. Stafford himself, the head of the late Ministry—formerly Superintendent of Nelson —the power of tbe Superintendent to remit fines had been recognised and confirmed. Now, in bis (Mr. Sewell's opinion, the government of which his bon. fiiend (Mr. Tancredj was a member, was greatly to blame in this matter. Holding the opinions which they did, and in which he (Mr. Sewell) concurred, that such an authority was not properly to be delegated to the Superintendents—it was incumbent on them expressly to withdraw it. Having allowed it to continue, they could not hold Superintendents responsible for tbe exercise of such power. The Superintendent of Wellington would reasonably suppose that this authority was vested in him, and might be exercised by him without exposing him .to such severe and unwarranted censure as was conveyed by the Resolutions of last session. Under these circumstances, in his (Mr. Sewell's) opinion, tbe Governnieat was bound to give effect to the Superintendent's remission of fine in tbis particular case. As regards tbe opinion expressed by the Chief Justice that the Governor and the Government, in remitting, this fine had violated the law, he referred to the Governor's commission which expressly authorizes him to remit fines. If the Chief Justice seriously entertained such an opinion, it was indispensably necessary that reference should be made to the Home authorities to set that question at rest. It was in his (Mr. S.'s) opinion too clear to admit of doubt. On the other hand he admitted that the power was one to be exercised with great discretion ; in particular in all cases tbe Judge or Magistrate, of whatever degree, ought to be referred to. It would have been, be (Mr. Sewell) . thought, fair and candid if the Chief Justica had read passages from his (Mr. Sewell's) Memorandum expressing that opinion. The hon. Mr. TANCRED: Whatever might be the right or wrong in tbis case there had been a real administration of justice in that portion of the colony with which he was more particularly connected. The hon. Mr. SEWELL : 1 defy the hon. gentleman to establish a single case. The hon Mr. TANCRED regretted that there was not time to allow him to go so fully into this question as had been done by tbe previous speaker, but he wished to correct some allegations that had been made, particularly that the resolutions of the former session had been dictated by party feeling. He was of opinion that the Council had justified in expressing the opinion they had done in that case as the new Government bad disclosed a tendency to underrate the decisions of tbe tribunals of the Colony. It was his impression that a reckless system of pardoning had been pursued by the late Government. Tbe action pursued by tbe former Government bad been reversed, by which they had informed the Superintendent that be bad wrongly exercised his powers. Tli6 Assembly bad decided that it was incompetent for the Government to interfere. The question however could be more fully discussed when they bad all the papers before them. The hon. Mr. SEWELL : Except in one particular case, I never advised a pardon without having obtained the opinion of a Judge. If the hon. gentleman (Mr. Tancred) makes sucb a charge I repudiate it. Col. RUSSELL thought there had been strong party feeling in connection with this case but he had endeiivouret! to view it apart from party feeling.

Mr. CRAWFORD, as the magistrate wbo bad s»t upon the bench with Mr. Ferrard on hearing this case regretted that it had been reopened. He believed Mr. Ferrard to bo a painstaking magistrate, and in forming his judgment on the case, lie was of opinion thai the 'inspector of Police, Atchison, had erred through excess •of zeal, and that if was necessary to protect the public from excess of zeal on the part of tlie police, and be •bud therefore concurred in the judgment. Col. KENNY thought that tbe action which had been taken last session was a mistake and was attributable to partv feeling. Unless care was taken the Council would get into a difficulty. If they accepted tbe present resolution they must go into the question as they could not allow the papers to remain on the table without taking further action. He believed the most prudent course would be not to go into the matter, and he should therefore move the previous question.

The Hon. tho CHIEF JUSTICE in reply, strongly disclaimed being actuated by any party or personal feeling, or with having made partial or garbled statements. He had quoted from copies of the correspondence. The hon. gentleman had in no one instance asked him to "read on," or to take up the quotation from an earlier paragraph, nor disputed the truth of any single passage, lie had been willing to read the whole of those voluminous documents which he held up and exhibited to the Council, but had refrained from doing so from a desire not to weary the Council. It was said he tieateo the opinions of the hon. gentleman with contempt; but the Council would bear testimony that he had not used one discourteous expression towards him. If indeed any one should have complained of " contempt" he might rather have complained that the hon. gentleman, who.n he had been in the habit of meeting month alter month and times) dav after day in friendly conversation, should not have paid him the courtesy of asking him the reasons of his opinion, expressed at the call of the Council, before he overruled that opinion, He was quite sure that the hon. gentleman would not then have written the opinions contained in those unfortunate memoranda. He would not follow those remarks by which the Superintendent of Wellington was made the prominent feature, lor h< complained not so much of any Superintendent as of the Government. The hon. gentleman justified that complaint by reiterating those unsound views of law, which the Chief Justice bad already disposed of, condemning the decision of the magistrates as not according to law. He then read the delegated authority from Sir G. Grey. The Council would perceive that so far as that delegation could palliate, it did not apply to the present case. That authority' referred to the cases ot seamen, whom under special circustances it might be desirable to liberate and enable to join their ships on the eve of departure (ruin the colony, and to thos* rare exceptional cases in which, the remission of the tine being itself proper, ibe only question was one of time, and from tlie poverty of the party fined, it was desirable to resist at once. Nothing of the kind was pretended bore. The 56*. as * - ell have been paid, as in fact it was at last paid, and the Governor might then have been asked remit. Neither did that authority apply where as in tbe present case there was both the right and the facility to appeil to a Supreme Court Judge residing on the spot. The real ground assumed by the hon. gentleman the Council had heard asserted in that debate. The hon. gentleman aaid, all tbe Superintendent did, was, he said, " I won't have this man punished." The Chief Justice would for "Superintendent'' read " Government." If such a doctrine weie maintained, the criminal law of the country lay at the mercy of an arbirary power. If » man were brought before the Supreme Court, charged with an offence, the Judge was bound to hear the charge, and if the charge were proved, it became his dutv to trive judgement according to law. Upon that judgment the law affixed, within prescribed limits, the punishment; and if, under the kUISH of prerogative, the Government entered the Queen's Courts saving. •' we will not have this or that offender punished," they simply claimed to set aside the law. He earnestly hoped the lawful decisions of the Courts of Justice would in luture be maintained, and in that hope ho moved for the production of these papers that the Council might b- informed upon the subject. On the question being put, the original motion for the production of the papers was carried THURSDAY, AUGUST 14xn. Present:—The honbls. Chief Justice, Mr. Menzies, Capt.Baillie, Mr. Scwell, Air. Stokes, Mr.Tanered, Mr. Cutfield, Major Richmond, C. 13., Colonel Russell, Colonel Kenny, and Mr. Crawford.

The hon. Mr. SEWELL brought up the report of the select Committee on the " Minor Civil Cases Trial Bill," the "Juries Bill," and the "Supreme Court Act 1860j Amendment Bill." The report recommended the abandonment of those Bills, and the substitution of two new Bills which the Committee had considered and agreed to. lie would intimate to the Council that the provisions of the " Minor Cases Trial Bill," had been incorporated in the proposed new Bills. The " Naturalization," the "Bills of Exchange," the "Arms Act Continuation," the "Bills of Sale Registration Act Amendment," the " Customs Duties Amendment," and the " Joint Stock Companies Act Amendment" Bills were read a first time. The hon. the CHIEF JUSTICE asked leave of the Council that the time for bringing up the report of the select Cammittee on the " Imprisonment for Debt Bill," to whom had also been referred the general consideration of the law affecting Debtors and Creditors, be extended to Monday. Leave granted.

The " Resident Magistrates Extension of Jurisdiction Bill," was read a first time.

The following orders of the day were postponed; The " Constabulary Bill," second reading; the "Lunatics Bill," second reading; the " Gaols and Prisons Bill," second reading; the "Elections Petitions Act Amendment Kill," third reading; the "Crown Grants Bill," second reading; and the " Trustees Belief Bill," second reading The " Steam Navigation Bill" was read a second time, and passed through Committee. The hon. Mr. Tancred, on the part of the Government, undertaking to make some alterations suggested by the lion, the Chief Justice and Mr. Stokes. FRIDAY, AUGUST lorn. Present:—The honbls. Mr. Menzies, Mr. Cut field, Mr. Sewell, Mr. Stokes, Colonel Kenny, Mr. Henry Russell, and Mr. Tancred. The hon. Mr. SEWELL moved for leave to introduce a Kill for amending tin Law relating to Juries. He was aware that his Honor Mr. Justice Johnston had expressed in his evidence before select Committees of the Council his objections to mixed Juries; but he did not himself apprehend the difficulties suggested by his Honor would arise. It was also necessary that in the outlying districts Native cases might be tried with a smaller Jury than the law permitted at present. In this Kill, also, introduced a new principle, that of authorizing the Court to permit a person, in a criminal case, to be tried by a special Jury. Bill read a first time.

The hon. Mr. SEWELL moved for leave to introduce a Kill to define and extend the power of the Judges of the Supreme Court, to provide for the more speedy Administration of Justice in certain cases, and to amend the Law relating to the Administration of the Estates of deceased persons, and explained to the Council that this Bill provided for the cases of persons who were supposed to be deceased, although there might not be fully legal evidence of the fact, and gave power to protect their property. He entered into further explanations of the provisions of the Bill; which was then read a first time.

The " Election Petitions Act Amendment Bill," was read a third time and passed. On the motion that the "Arms Act Continuance Act," be read a second time,

The lion. Mr. SEWELL would not oppose the second reading, but must take the opportunity of stating his great objection to the Act itself: he" had opposed it in another Chamber, and he could not understand how such an Act could have passed both Houses: its provisions altogether changed the character of the criminal law, making a felony of actions which the legislature had never contemplated should be considered as such. The word " arms" had a very broad meaning ; it included all sorts of offensive or defensive weapons, a knife even, or a rifle. He had no objection that persons who knowingly and wilfully sold arms to those who, there was no doubt, intended to use them against us (Europeans), should bo subject to penalties: is was a crime of the deepest dye, but he could not allow that those who might innocently dispose of articles which might by this Act corne under the category of "arms," should be made liable to an indictment for felony, lie felt bound to record his objections to the Bill. Read a second time, and passed through Committee. The "Joint Stock Company's Act Amendment Bill," and " Customs Duties Act Amendment Bill," were read a second time, and passed throiHi Committee. * MONDAY, AUGUST IBTII. Present:—The honbls. Chief Justice, Major RichmouJ, OJB-, Dr. Menzies, Mr. Cntßeld, Mr. Scwell Colonel Kenny, Mr. Stokes, Capt. Baillie, Col. Russell' Mr. Toncred, Mr. Crawford, Mr. Johnston, Mr. II! Russell. The lion. Mr. SEWELL moved for a return of all pardons granted, and of all applications for pardon refused to be granted by His Excellency the Governor, from the 2nd day of August last to the present time' specifying the name and particulars of the casts: and whether or not such pardons were granted or refused to be granted, after or without reference to the Judges:

and whether in accordance with the recommendation of the Judge or otherwise. Also, for a return of all cases of persons removed from the office of Justice of the Peace dating the same period, and of all appointments to the office of Justice of the Peace during the same period. Agreed to

The hon. Mr. MBNZIES moved for leave to bring in a Bill to amend the boundaries of the Province of Southland; and on the second reading he would go into the merits of the Bill in detail.

The hon. Mr. SEWELL would not oppose the introduction of the Bill, but he had certain objections to it; it was highly necessary to sec how the interests of the parties other than the Province of Southland were affected by it. The Bill was then read a first time.

The Juries Bill and the Supreme Court Amendment Bill, 1862, were read a first time; the Arms Act Continuance Bill, the Joint Stock Companies Act Amendment Bill, and the Customs Duties Act Amendment Bill were read a third time and passed. TUESDAY, AUGUST 19th. Present:—The honbls. Chief Justice, Mr. Menzies, Mr. Cutfield, Cnpt. Baillie, Mr. Seweil, Mr. Stokes, Mr. Johnston, Colonel Kcnnv, Major Richmond, C.8., Col. Russell, Mr. Tuncred, Mr. H. Russell. The hon. Mr. TANCIiED moved that Wednesday be appointed as a sitting day of this Council for the remainder of the present session unless otherwise ordered, which was agreed to. The hon. Mr. TANCRED also moved for leave to bring in a Rill to amend the Land Registry Act, 1860. Bill read a first time. The Otagoand Southland Boundary Bill was read a first time. The Trustees Relief Bill was read a third time and passed. The Minors Franchise and the Representation Amendment Bills were read a first time. The Resident Magistrates Extension of Jurisdiction Bill was reatl a third time and passed. The adoption of the amendments of the House of Representatives to the Law Practitioners Bill was proposed by Mr. SEWELL, who, however, would not express any opinion on them. The hon. the CHIEF JUSTICE objected to tho amendments. He hud no personal feeling on the subject, but it was for the benefit of the community generally that the qualifications of professional men should be strictly guarded. By the existing law gentlemen who had been admitted to practice in New Zealand were admitted in the Australian colonies and vice vena ; and now they would he admitted to practice in England provided the standard of examination was as high as in England; hut it would not do to extend the admission to all the English colonies, because thero were no means of knowing the standard of examination or the period of service required. These amendments opened the door to a very lax system of admission to practice—the adoption of them appeared to him impracticable; they were in contradiction to the provisions of the original Act. His Honor then moved that the honbls. Mr. Seweil, Dr. Menzies, and himself (the mover) he appointed a Committee to confer with a Committee of the House of Representatives on the amendments made by it. Committee agreed to.

The Council then proceeded to consider in committee the amendments of the House of Representatives to the Court of Appeal Bill. The Chief Justice also objected to those amendments, and proposed the Committee before appointed should confer on this subject also. The Summary Procedure on Bills Bill, the Bills of Sale Registration Act Amendment Hill, and the Crown Grants Bill, No. 2, were read a second time and passed through committee; the remaining orders of the day were postponed, and the Council adjourned.

WEDNESDAY, AUGUST 20th.

Present—The honbls. the Chief Justice, Dr. Menzies, Mr. Outfield, Mr. Sewell, Mr. Johnston, Colonel Kenny, Colonel Russell, Mr. Tancrcd, Major Richmond, C.U., Mr. Henry Russell, Captain liailiic, Mr. Crawford, and Mr. Speaker. The hon. Mr., SEWELL brought up the report of the select committee on the Imprisonment for Debt Bill, in which was included the report of the same committee who had had referred to them the consideration of the existing law of' 1 Debtors and Creditors." The hon. Colonel KUSSELL moved, "That a select committee he appointed to draw up an humble address to Her Majesty, praying that a limit maybe named to the number of members to be appointed to this Council; the committee to consist of'he hon. the Chief Justice, the hon. Mr. Menzies, the hon. Mr. Sewell, and the hon. Licut.-Colonel Kenny." and said it was unnecessary to go very deeply into the subject. It was well known to the C'uincil that the number of members was originally fixed at fifteen; it had afterwards been increased by an addition of ten; latterly it had been proposed that there should be no fixed limit, but he believed it was the general wish of the Council that some limit should be defined. Agreed to. The "Land Registry Amendment Act, 1862." was read a first time.

The " Summary Procedure on Bills Bill" was rccommitted and reported. The '• Hills of Sale Registration Act Amendment Bill " and the " Crown Grants Kill, No. 2 " were rend a third time and passed. The lum. Dr. MENZIES, in moving the second reading of the " Otago and Southland Boundary Bill," wished to make a few remarks explanatory of the circumstances which rendered it necessary and advisable to bring forward a bill to effect the object contemplated by that now under the consideration of the Council. This Council was awtire the Province of Southland was constituted in consequence of a petition which was forwarded from them to Governor Gore Browne in the beginning of the year ISdi. The petitioners asked for a boundary line nearly corresponding to the line of watershed between the Molyneux and Mataura, representing this to be the geographical and commercial, and therefore the best political boundary between the Province of Otago and the district which they sought to be declared into a new province. The Governor, however, for reasons which it was believed were connected with the question of the area of the limit allowed, disregarded this expressed desire, and decided that the river Mataura should be the eastern boundary of the Province of Southland. The petitioners, however, were highly dissatisfied. The residents on the eastern bank resolved to petition the Governor and the Assembly to alter the eastern boundary to the line they originally asked for. The petitioino" the Governor was transmitted in September to his Excellency through the usual channel—the Superintendent of Otago. Another of the same tenor is now upon the table of this Council. The area of the Province of Southland as constituted by the proclamation of the Governor was two millions and a <|iiarter of acres, and the addition of area which this bill, if passed into a law, would give, would amount, in round numbers to about 90,000 arable, ! ,l)00,()(i() pastoral, and 750,000 barren. It, might tend to a clearer understanding of this question by this Council if its attention was directed to the physical characteristics of the district, and, with the permission of the Council, he would read an extract from an article in the Southern News of May 4, 18(51:

" Aii irregular chain of mountains having a ha.se on the coast of nearly thirty miles extends in a pyramidal torm northward lor about forty or fifty miles "from the coast anil forms the watershed between the Mataura and Molvneux rivers. The forest skirting the coast extends inland on those hills for about twenty miles, and for ten or fifteen miles further inland there are only two passes along which horsemen can easily traverse those mountains: the mail route from the Mataura to the Molvneux is about, thirty to thirty-live miles from the coast, and passes through a formidable gorge, which has within a il-w months past been made passable for drays. Those hills first mentioned may be said to form the eastern limjt of the great terraced plain which extends from them westward, for about forty miles to Jacob's river, and from the line of coast northward, for about thirty to forty miles, to the Hokanui and other hills.

" If the boundary of the new province ran along those hills above referred to forming the watershed between the rivers, then the political would nearly correspond with the commercial boundary, which the natural features of the country, and the facilities of communication, will very soon determine. " The whole district of Lower Mataura is on the west side of those hills, and consequently, communication with Dunedin—above 100 miles distant in a Straight line—is both tedious and inconvenient. On the other hand, u perfect facility of communication with Invercurgill, and other ports on the coast of the new province, gives it a community of interest with the other parts of the new province. It is essentially an integral part of Murihiku, and it is difficult to understand upon what rational plea ttiis portion of the SOUthern district has now been sepiiruted from M.urihiku. It is undeniable that if the people of the Mataura go to transact their commercial business at Invercurgill, there they should be also privileged to do their legal or political business."

—The. map which was laid upon the table would enable hon. members to follow the description. These, then, being the physical characteristics, the Council would perceive that the distriet east of Mataura had a share in the geographical unity of the Province of Southland; it followed that it should have also an identity of commercial interests with it, awl the fact was really w-i

for all the supplies of the settlers were obtained from thence and their produce sent thither. In the extract read it was stated that the range of hills east of Mataura were covered with timber for about twenty miles inland, and along that distance from the coast there was no track, and only one track leading to the Molyneux crossed those hills, at a point nearer to the coast than the mail track, which was about thirty miles from the coast. The distance from Mataura to Dunedin was about 120 to 130 miles, whereas the distance from Invercargill to Mataura was about '25 miles. No produce was sent nor supplies obtained from Dunedin in any but exceptional cases. The only objects which led settlers of Mataura to Dunedin, were matters of business in Law Courts, the Land Office, or political business. The commercial interests of the district with Dunedin then, were so slight that they cannot fairly be said to be represented there, and bo thought the could show that thojpolitical interests could scarcely be considered to be much better represented. Except upon one occasion, he believed that the election of members for the Provincial Council of Otago for tho Clutha district, which included the country between the rivers Molyneux and Mataura, took place without reference to the electors of Mataura; indeed, he was not aware of more than a single instance, namely the election of the present Superintendent of Otago, of the election of a member of the Council for that district, in which any of the electors of Mataura had taken a part, and so it could not be fairly said that the member tor the Clutha district did represent the opinions or feelings of tha people of Mataura. It is apparent that at present the district has connections more or less intimate with two centres of activity, the one at Invercargill which is the geographical centre for the east side of the Mataura, in so far as it is a part of the district, and the same place is also the centre for commercial and colonising purposes. The other at Dunedin is the centre politically, and in no other sense. When the relative advantage to the district of those are compared, it is clear that the connection with that point, at which the immigrants arrive and from which they radiate—from whence all the necessaries for domestic use are obtained—to which the produce of the country converges, and which is the usual place of resort to conduct the ordinary business of a settlers' life, must bo infinitely greater than any connection that may subsist with the political centre which confer few advantages upon the district, other than such as may be derived from a considerable variety of provincial laws. Another petition had also been laid upon the table of the Council, which prays that another district of the Province of Otago, and north of the I'roviiice of Southland, may be joined to the latter province. It is a pastoral district lying between the To Auau and Wakatipu lakes, occupied by stockowners; it-consists of some plain country near the former lake—several mountains and valleys leading to this plain from the north, and a large extent of lofty and barren mountains. The residents there have no easy means of communicating with Dunedin otherwise than by crossing the Province of Southland—and they hive been subjected to great inconveniences from this cause under the working of the Diseased Cattle Act and Sheep Ordinances—they have very little connection with Dunedin, further than the necessary business transacted with the territorial department—they have had no other alternative than to transact their business affairs with the merchants of Southland, and their interests are bound up with those of the people of Southland. The circumstances afford a good illustration of the rule that a geographical unity involves an identity of material interests, and it can excite no surprise that those residents, conscious that the district is for the present governed by a distant community, while it has few interests in common with those of the district, showed that the political boundary should be altered, so as to correspond more nearly to that which nature has determined. The country extending westwards, from the Mataura, was undulating table land, for a distance of about forty miles; the Bluff was situated about the middle of its coast line. There are great facilities for constructing railways from this point to the interior, on either hand—the engineering difficulties being trifling, and materials for the construe!ion abundant and near. He believed that railways would be commenced in that country at no distant day, and the extension of a line to the eastward would draw a large trade from the whole country west of the Molyneux—indeed, already the produce from a large tract of country, extending e;ist of the boundary proposed by this bill, came to Invercargill. In August', 1861, some of the settlers in the district referred to near the Poniahaka and west of the Molyneux, sent a memorial to the Provincial Council of Southland, requesting that a road should be formed as far as a crossing high up on the Mataura (the boundary of the province), and stating their intention to send their wool to Invercargill in event of receiving such encouragement. The Provincial Council agreed to the request, a passable road was formed, and before the end ot'snnimera considerable quantity of produce was sent into the town from that district. In June, 1862, some'of the same parties applied to the Provincial Government of Southland. asking for some further accommodation am) convenience at the Mataura, in order to make that place a stop on their journeys with produce or supplies, to ami from Invercargill. The district referred to has many interests in common with Southland, but the residents in it object to any attempt to join it to Southland. If the plans of the late ministry with reference to electric telegraph shall be carried out, it will probably be extended through tho line of country, and then its natural outlet, the Bluff, would rise to importance as the first port of call and the last of departure. Such a course as that which he now proposed, was not without precedent in the legislation of this Assembly. In its last session, an Act whs passed to alter the boundary of the Provinces of Canterbury and Otago, after it had been a cause of discord and discussion for several years. The provinces were dissatisfied with the boundaries as proclaimed. One of them repudiated the obvious meaning of the proclamation, not because there could be any reasonable doubt of the line of boundary, if the literal meaning of the line of proclamation was carried out —any surveyor could have determined the lino - but because of the inconvenience and akwardness of the boundary so proclaimed. At length an agreement was come to, and the line was decided, he supposed upon consideration of geographical and commercial interests. It certainly was in accordance with an opinion expressed in the beginning of 1858, by the chief surveyor of Otago, Mr. Thomson, who pointed out that the natural outlet of the country south of Ohau was Oatnaru, a port of Otago; whilst Timaru in Canterbury was the natural post of the country north of Ohau. The natural conformation of the country in this case decided the direction of the local trade, and the line of boundary declared in the " Canterbury and Otago Boundary Act, I860," corresponds with those indications. A reapportionment of Territorial Debt will necessary follow in event of this bill becoming law, as it did in the case above referred to. He would refer to another matter which he had omitted to mention In the session of August, 1361, the Provincial Council of Southland, whose attention had been specially called to the subject, by a remark in the address when the Council was opened, passed a resolution that for various reasons stated, the member of Assembly for Southland should be requested to bring a bill to the Assembly to the effect of that now under consideration. Indeed the bill is now brought forward in consequence of the public expression of opinion in that and other instances. In a circular issued by the late Government to Provincial authorities requesting information for the purpose of subdividing the country under the provisions of the " Definition of Districts Act," some directions were given with respect to the manner of division and the comparative value of boundaries which express the samo views which he held. Such a case as he had attempted to describe, appeared to him to be one of those which demanded the interposition of the Legis lature in exercise of one of its most important functions, to take into consideration thewelfare of minor districts, to alter and amend an improper boundary, when it could be shown that such an alteration was required, alike by consideration of the physical features of the country, and the material interests and wishes of the people. The lion. Mr. SEWELL thought it precipitate to deal with the question of the alteration of the boundaries of provinces in this summary manner. If be were asked why, he would say, that although he generally coincided with tho reasons given for the alteration proposed by this Hill, yet the Council must consider the interests of the province of Otago. Would the Council, without some intimation from that province, procred to alter its boundary line? A Bill had certainly been paseed in a former session having reference to tho boundaries of the Provinces of Canterbury and Otago : but that was to settle disputes between the provinces, the merits of which had been ascertained; this was a measure to separate a portion of one province from it, and odd it to another province, He did think it was necessary to make an alteration of tho boundary of the province of Southland, but he considered the present Bill would have to be modified. It was something like a customer going into a butcher's shop and picking out the prime joints of the animal, taking the best pieces and leaving the shanks and rough cuts. He thought his hon. friend wanted to get hold of the sirloin, and leave the coarse portions to the adjoining province. If be obtained the sirloin he must be content to accept a shin as well —(laughter). The boundary line of the Province of Southland should bo carried to tho West Coast; that would be n fair line. Although he did not wish to throw any obstacle in the way of the Bill, he thought, the Council should pause and refer it to a select committee, ho could not at present go the length of the Bill. The hon. Colonel KENNY, would also wish that due out should, be Mikea before this Bill was

allowed to goon. Of course the mover, the Superintendent of his Province, should take upon himself tbe responsibility of the Bill, and his arguments were entitled to every consideration $ but there was not any representative of the Province of Otago present in the Council. He did not desire in any way to oppose this measure, but the proper preliminary steps should be adopted to give the Council full information. The hon. Colonel RUSSELL rose for tho purpose of supporting this Bill, it appeared to him that the people of the Province had themselves expressed their desire for tho proposed alteration [ they were the persons who wore the best judges of what was desirable; and lookintr at the strong case presented in the petitions, he ho would support the Bill. The hon. Mr. JOHNSTON could not support the second reading. He should like to hear both sides; if the Bill had been introduced in the other House, there were members there who would probably have discussed its provisions* The hon. gentleman (Dr. Memsies) had spoken very fairly, and made out a very strong case, yet he would prefer further discussion on the subject. The hon. Dr. MENZIES replied, it had been his intention at the commencement of the session that the Bill should have originated in the other House, but from the change of the Ministry, and the weight of official duties which had fallen on one of tho members for Otago, he had been obliged to change his plans. It clearly was not right to'ask a Minister to introduce a Bill of this description, which was in fact of a local character, and on which perhaps he and his colleagues might entertain different opinions. The hon. gentleman (Mr. Seweil) was not satisfied, because there had not been any petitions presented from Otago; but he would remind the hon. gentleman that ample notice had been given to the public of the proposed alterations. There was the petition which had been presented to the Governor by the Superintendent; the Provincial Council of Southland had passed resolutions on the subject; and he himself (Dr. Menzie's) in his address to the Provincial Council of Southland, in Sept. 1861, and January last, had referred to it, these had been published in the Provincial Gazettes, and noticed in the public newspapers; and tun her, it must be remembered that before this Bill could become law, it must be considered by the other House, and that he thought must do away with his hon, friend's (Mr. Johnston) objection. On the motion for the second reading being put, the Council divided. Ayes—The honbls. the Chief Justice. Major Richmond, C. R., Dr. Menzies, Mr. Cutfield, Capt. Baillie, Col. Russell, Mr. Tuncred, Mr. Crawford. Noes—The Honorables Mr. Henry Russell, Mr. Seweil, Mr. Johnston, Col. Kenny. The Bill was accordingly read a second time and passed through committee. 1

The Council reatl a second time, and went into committee on the "Juries Bill." In committee, His Honor the Chief Justice remarked that he did not think the system of mixed juries would be found to work well.

The hon. Mr. SEWELL would acknowledge that the introduction of mixed juries in this colony was an experiment—a great experiment—but one which in his opinion, the time had come when it should be tried. It was purely one of native policy, ami referred only to the trials of cases in which natives alone, or Europeans on one side and natives on the other, were concerned. His Honor the Chief Justice had no objection that the experiment should be tried ; he only hoped the result would be more satisfactory that he anticipated. The hon. Mr. JOHNSTON did not think a system of mixed juries would work.

The hon. Colonel KENNY adverted to the system of mixed juries in India, but thought the position was not similar, and its introduction was proposed when a great amount of irritation existed between the two races.

The hon. Major RICHMOND, C.8., thought that as a proposal had already been made to admit natives as members of the Council, they need not be very particular about placing them on juries (laughter).

The hon. Colonel RUSSELL considered that some system of mixed Juries had become an absolute necessity; the time had certainly arrived when the proper administration of justice required it; he might be thought peculiar in his opinions, but he would go so far as to say that he should be very glad to see two or three natives whom he knew admitted Members of the Council. The Bill then passed through Committee, and the Council resumed.

The Supreme Court Amendment Rill was read a second time, and passed through Committee ; when the Council adjourned.

THURSDAY, AUGUST 21st.

Present: —The honbis. the Chief Justice, Major Richmond, C.8., Dr.Menzies, Mr Cutfield. Mr. H. Russell, Mr. Sewell, Mr. Johnston, Col. Kenny, Col. Russell, Mr. Tancrcd. Mr. Crawiord and Mr. Speaker. The hon. the CHIEF JUSTICE moved, That the report, or a copy of the report, of Mr. Justice Johnston, dated 17th December, 1861, touching the propriety of remitting the punishments of Patrick Cullen, William Darly, Benjamin Stringer, James Kully, and John Straker, be laid on the table. Agreed to.

The hon. Mr. Scwell brought up the report of the Select Committee appointed to enquire into and consider the Management of the Gold-fields Bill.

The Summary Procedure on Bills Bill was read a third time and passed. The hon. Dr. MENZIES proposed the third reading of the Otago and Southland Boundary Hill. The hon. Mr. SEWELL had been requested by a gentleman peculiarly interested in the measure to make some remarks before the Bill was read a third time. This Bill, which affected the Province of Otago materially, was about to become law as far as the Council was concerned, without sufficient evidence having been laid before the Council of the propriety of the proposed alteration. He would urge upon the hon. mover to allow the Bill to be referred to a Select Committee; he would move as an amendment that the third reading be deferred to the next day. anil would give notice of motion that the Superintendent of bo heard at the bar of the Council in opposition to the Bill. The hon. Col. KENNY said the minority (who had previously voted against it) did not oppose this Bill from any hostile spirit; they only desired fuller information than tho Council had at present before them.

The hon. the CHIEF JUSTICE: Why did not the hon. member make a substantive motion for a Select Committee on the second reading. In this particular case, from the remarks made, and the petitions presented to the Council a prima facie case had been made, out, and he had voted accordingly. There had, he thought, been sufficient notice given for the Superintendent of Otago to have started an opposition to the Bill. If that hon. gentleman wished to be heard before the Council, he (the Chief Justice) would certainly affirm a proposal that he should be so heard, but he thought it better that his evidence should he given before a Committee of the House of Representatives. The hon. Col RUSSELL must protest against the idea that this Council had been legislating in haste in this matter; he knew of no case in which the Council had received fuller information, or more carefully watched a Bill than this.

Tne hon. Mr. CRAWFORD said: Sir, as I shall vote in favour of the third reading, I wish to offer a few words in explanation of my vote, and also to call the attention of the Council to a very serious principle which is involved in the passing of this Bill. I am, sir, in favour of this Bill, primarily because the proposed boundary has been petitioned* for by the inhabitants of the districts of fie Province of Otago intended to be annexed to the Province of Southland; and because it is obvious on a glance at the map, that their convenience will be suited by the change: and secondarily, because rivers in general moke bad boundaries, and in this case, at all events, the Watershed appears to be the correct line. But, sir, I perceive that the last proposition involves a very important principle and one which may affect the boundaries of many of tho Provinces of New Zealand. For instance, the boundaries between the Provinces of Otago and Canterbury, and between Canterbury and Nelson. Sir, once admit the claim of watersheds against that of rivers, and wo may find the ambitious and aspiring Province of Canterbury, not content with the Waitaki for their boundary line, proceed to claim the watershed of that river for their boundary; emboldened by success they will next reject the Hue of the Ilurunui on the north, and claim the watershed from the Kaikoras southward. Sir, I merely wish to point out the principle involved, without objecting to it. Should it be for the benefit of the inhabitants, let boundaries bo altered; and, sir, for example, should tho energetic Province drive a railroad from Christchurch across the Waitaki, it might then find all produce and traffic within the watershed sloping towards it, and might be entitled to claim an enlarged area, to embrace all the converging slope. I might, perhaps, find other illustrations, but tho above will suffice. I should have deemed it very desirable to have heard the Superintendent of Otago's evidence at an earlier stage of the Bill, but considering what has been advanced, and as Otago is well represented in another place, and for Other reasons, 1 shall vote for the third reading of tins BUI.

The hon. Dr. MBNZIE3: The lion, gentleman (Mr. rtewell) had taken mi extraordinary course in this Bill; he had opposed it on its first reading, and opposed it on its second reading; and although the second reading and passing through Committee, was usually considered conclusive, yet he now again op • posed it on the third reading, lie (Mr. Sewell) ought to have alleged some good ground tor re-opening the question before he asked the Council to postpone the third reading of this Bill. The Council were but a (••Kordiiiiue branch Qf the L<>gi,«tature, m<\ any im-

portent facts could be laid before a committee of the other House. He thought he had on the previous day shown the necessity which existed for the proposed alterations. The Council then divided on the amendment: Ayes, s—The honbis. Mr. Scwell.Col. Eusscll, Mr. Johnston, Col. Kenny, Mr. Tancred. Noes, 7—The honbis. Mr. Cutfield, Capt. Bailhe.Mr. Crawiord, Mr. H. Russell, the Chief Justice, Major Richmond, C.B , Dr. Menzies. . The amendment was accordingly lost, the original motion was put and carried, and the Bill read a third time and passed. The Juries and the Supreme Court Act Amendment Bills were read a third time and passed. The Miners' Franchise Bill was read a second time and considered in Committee. , The second reading of the Representation Act Amendment Bill was postponed to the next day. The Land Registry Amendment Bill was read a second time and committed; when the Council adjourned. FRIDAY, AUGUST 22n». Present:—The honbis. the Chief Justice, Major Richmond, C.8.. Mr. Menzies. Mr. Cutfield, Mr, Henry Russell, Captain Bailie, Mr. Sevvell, Mr. Stokes, Mr. Johnston, Colonel Kenny, Mr. Crawford, Mr. Tancrcd, and the Speaker. The hon. Mr. TANCRED, before proceeding to the business of the day, would wish to inform the Council of changes whieli had yesterday heen made in the Ministry, (see the report of the House of Representatives,*) and explaining the recent Ministerial arrangements that had been made, stated he should continue to conduct the bnsiness of the Government to the end of the session.

The hon. Mr. SEWELL also explained that he had accepted the office of Attorney-General without, for the present, becoming a member of the Executive Council, but that at the end of the session he should join the Government, according to the usual rule. The hon. Colonel RUSSELL moved that the Report of the Select Committee on the numerical constitution of the Legislative Council be adopted; and that a respectful address be presented to His Excellency, requesting him to forward it to Her Majesty's Government.

" Most Gracious Sovereign, " We, Your Majesty's dutiful subjects, the Legislative Council of New Zealand, respectfully beg to bring the following circumstances under the consideration of Your Majesty. " By the New Zealand Constitution Act, dated 30th June, 1852, it was provided that the Legislative Council should consist of not less than ten members, and by Your Majesty's Royal instructions to His Excellency the Governor the number was limited to fifteen, and subsequently to twenty members. " By a Despatch from Her Majesty's Secretary of State for the Colonies, dated the 31st day of March, ISG2, all restrictions on the number of which the Legislative Council shall in future consist, have heen withdrawn. ' ~ "Your Majesty's' Council believing that its usefulness depends ori'tts freedom from party spirit, and viewing with apprehension the power vested by the above Despatch in the Ministry of the day, who could, bv suddenly introducing any number of members, seriously impair the independency of the Council, respectlully pray that Your Majesty would be pleased to place a limit on its number. " We respectfully suggest shat the number of members of the Legislative Council should not exceed three fourths of that of the House of Representatives; and that no greater number of new members be appointed, in addition to those required to fill up the vacancies by death, resignation, or other causes, in any one year, than would amount to one eighth of the entire number composing the Legislative Council. " We humbly submit this arrangement for the consideration of Your Most Gracious Majesty as adapted to the present circumstances of the Colony." Report adopted.

The hon. Mr. SEWELL moved that the further papers in the case of Newey v. Atchison, laid on the table yesterday, he printed. Agreed to. The Land Registry Amendment Bill was lead a third time anil passed.

The Miners' Franchise Bill was re-committed. The Bird Protection Amendment Bill was read a first time.

The Representation Act Amendment Bill was read a second time.

The Imprisonment for x Debt Bill was considered in Committee; when the Council adjourned.

MONDAY, AUGUST 25m

Present: —The honbls. the<?hief Justice, Dr. Menztes, Mr. Cuttield, Mr. Henry Russell, Captain Baillie, the Attorney-General, Mr. Johnston, Colonel Kenny, Colonel Russell. Mr. Tancred, Mr. Stokes, Mr. Crawford,iMajor Richmond, C.B.

Tlie Clerk informed the Council that the hon. Mr. Speaker could not attend from indisposition, and the lion. Major Richmond was voted into the chairThe hon. Mr. JOHNSTON* presented a petition from the Chairman of the Chamhe- of Commerce of the City of Wellington, relative to the Customs tariff.

The hon. Colonel RUSSELL, hefore moving the motion standing in his name, would wish to give notice of his intention to ask another question on a future day, viz , to ask the hon. the AttorneyGeneral " what is the constitutional course for Ministers to pursue in forwarding, for the Royal assent, a hill duly passed by the General Assembly, after its careful consideration by select committees appointed by both Houses for that purpose." He would now put the question standing in his name on the order paper of the day, viz., " To ask the hon. the Attorney-General, with a view to his opinion being recorded on the Minutes of the Council, What is the constitutional course for Ministers to pursue in advising His Excellency the Governor on a subject upon which either the Legislative Council or House of Representatives has already expressed an opinion by resolutions duly passed? " and said: I wisli to state that I do not ask this question with any view to cause embarrassment, but merely to establish the position of the respective Chambers where it might appear doubtful. It appears to me that Responsible Government is still so new to us, and so likely from time to time to give rise to such an imalies, that we should do well to consider them as they arise, and, where it is possible, to record the conclusions at which we arrive for future guidance. In the case Newey v. Atchison this Council passed certain resolutions to the effect that in its opinion the particular Act of a Superintendent was unauthorised, unconstitutional, and an unwarrantable interference with the due course of the law. The resolutions introduced by the lute Attorney-General, Mr. Whitaker, were carefully discussed in a full meeting of the Council, and affirmed by the highest authority in the Colony. By the papers laid upon the table of the Council, it appears that the Ministry of the day thought it their duty to advise His Excellency the Governor to confirm the act alluded to, in the face of the resolutions which had pronounced it to be unauthorised, unconstitutional, and an unwarrantable intefcrence with the due course of law. Now, it appears to me that the most prominent position of Responsible Ministers is that they are the.cxponents of the views of the Assembly, and as a consequent position, the sworn advisers of the Governor, i cannot, therefore, consider it to be their duty to aiivise the Governor to a course of action diametrically opposed to the solemnly expressed opinion of one branch of the legislature, in a matter where the other branch has not spoken. It may he asked, how then are Ministers to advise, when their own opinion is at variance with such resolutions? 1 should reply, let them, if possible, in such case, ascertain the opinion of the other Chamber; but should the Assembly not be in session when they are required to advise His Excellency, to then state that they difler from the view expressed in the resolutions, but cannot advise a course of action which would be. opposed to the recorded views of either branch of the legislature: and with a view to establish a landmark in this direction, I have sought to record the opinion of the hon. the Attorney-General. I beg to repeat that my only object in putting this question, and that of which 1 have given notice to-day is, by recording the opinion of our highest law-officer, to guard against the recurrence of circumstances which may seem to place this Council and his Excellency the Governor in antagonism. Ido not, therefore, press for an immediate answer, but shall he content to receive it at any period, provided it be before the close of the session.

The him. Mr. SEWELL:—In answering this question I must lie understood as merely affirming an individual opinion. The Legislative and the Executive departments of Government are, in my opinion, distinct, and exercise distinct functions. If the Legislative Council, or House of Representatives, should by resolutions express its opinion on the conduct of the Executive, or the action proper to be taken in any particular case, that opinion will be entitled to great respect, anil will, no doubt, at all times receive from the Exeeutive its due weight But it will be impossible to regard any siich resolutions as a rule of action binding on the Executive; which must in all cases act upon its own responsibility, and advise His Excellency accordingly. The Miners' Franchise Bill, and the Representation Act Amendment Bill were read a third time and passed.

The Imprisonment for Debt Bill was further considered in Committee.

The Crown Grant Bill was road a second tio.cj and tne. Council adjourned, '