THE UPPER HOUSE.

New Zealand Mail, Issue 38, 14 October 1871, Page 11

THE UPPER HOUSE.

The Legislative Council, during the present session, has proved itself at least a very useful, and beneficial, if not altogether an indispensable branch of the legislature. With a little careful weeding it would be really and truly, though not nominally, quite as much a representative chamber as the one which now specially usurps that title. If two houses were not absolutely necessary to insure careful legislation, and it were not also equally necessary in order to secure honest and popular administration, that the people should take an active part in the Government of the country, we should be disposed to think that the true interests and liberties of the people would be as carefully guarded were there no Lower, as they would be were there no Upper Chamber. The question has been asked why should there be two chambers ? What philosophical principle is enshrined in this number ? To which it may be replied, that it has been found that more than one House is necessary, and that more than two is too many. The subject is one of the first importance, but it is foreign to our present purpose. The system of two Houses accompanies the Anglican race like the common law. It has been invariably adopted in all English speaking countries. It has also been invariably successful. So as regards the principle of election. The public may not be the best qualified parties to choose the best men, but they are directly interested in making a proper choice. It is never their interest to make a wrong one; and they invariably suffer if they do so. This is not always the case with those who have the nomination of the Upper House. Even if it were, and the nominated branch of tlie Legislature were superior

in every respect to the elective branch, there would be no security for the permanence of such pre-eminence ; for, unless the public at large participate, at least indirectly, in the government of the country, they soon become incapacitated for the enjoyment of civil liberty, and the Government itself rapidly degenerates into a powerful, grinding, and intolerable oligarchy, fatal alike to material prosperity, intellectual progress, and social happiness. Still, from what we have seen of the proceedings of the two Houses, during the present session, those of the Upper Chamber have, on the whole, been decidedly the most farseeing, liberal, and patriotic. It may be urged that this has been owing to the fact that the principal measures discussed have not been of a character which more immediately affected themselves as a body or class ; for when one’s own toes are not trodden upon, one can generally bear, with a wonderful equanimity, any little pain and inconvenience the process may have inflicted upon others. We confess that we are rather disposed to account for the circumstance here referred to on some such reasons as the foregoing; when we call to mind that the proceedings of the Upper House, during previous sessions, were not always marked by so much spirit, disinterestedness, and enlightenment. Be this however as it may, while the Legislative Council can boast of having such able members as Messrs Sewell, Waterhouse, Holmes, Grace, Buchanan, and several others, it will at all events remain equal to the other House in honesty, intelligence, and public zeal, and we are not disinclined to think that in more than one of these respects it now has pre-eminence.

We have been led to make the above observations from a careful perusal of the debates in the Legislative Council, as reported in Hansard, with more special reference, however, to the course adopted by the Council in unanimously rejecting a clause in the Evidence Bill, which had the happy effect • of shelving that bill altogether ; though, had it not been for the timely interposition of the Hon. Mr Waterhouse, it would have undoubtedly become law. This bill was read a second time in the House of Representatives, without exciting the least discussion ; and when in committee an amendment was introduced making a sweeping change in the administration of the criminal law. It declared that any person charged with an offence should be competent and compellable to give evidence at his trial, thus sweeping away one of the fundamental principles of the English penal trial—that no person should be bound to criminate himself. One strong argument urged by Mr Waterhouse against the measure was that it was not desirable to introduce so sweeping a change into our criminal jurisdiction until the attention of the country and the attention of Parliament had been specially directed to the matter. It was not desirable, by a mere side-wind, to adopt a clause that would introduce such a complete revolution in the penal trials. It was long since, Captain Fraser remarked, physical torture had been banished from our Courts of Justice; but by the proposed amendment mental torture would be introduced to a much greater degree. The criminal was, in fact, asked to sanction one of the worst principles of the French criminal code, under which a prisoner was examined day after day until his mind broke down. “ That,” said Captain Fraser, “ was the description of law now proposed to be introduced, and he would rather the Council be dissolved than the bill should be allowed to pass.” Bravo ! Captain Fraser. You have raised the character of the Council in the estimation of all right-thinking and right-feeling men, and have proved yourself to be conversant with a most important subject which, unfortunately, is but ill-understood by most legislators. “ It is,” says Montesquieu, “upon the excellence of the criminal laws that the liberty of the subject principally depends,” or, as the great German criminalist, Mittermaier, remarks, “ It must be more and more acknowledged how true it is that the penal legislation is the keystone of a nation’s public law.” Yet by a side-wind, as Mr Waterhouse expressed it, this keystone w&s about to be removed at the instance of some legislative larrikin, who, we must charitably suppose, did not know the extent of the mischief he was attempting to

perpetrate. The bill, with this most objectionable clause, be it remembered, was passed by the House of Representatives without a single voice having been raised against it, and would have become law had not the Legislative Council, at the eleventh hour, led by Mr Waterhouse, rushed to the rescue. Knowing the importance of the question at issue, we feel that more than ordinary gratitude is due to the members of the Upper House for having so boldly and unanimously resisted this secret and underhand attempt to introduce the iniquitous inquisitorial process into the conduct of criminal prosecutions, for it would at one blow, had it been successful, have destroyed one of the most cherished and essential securities provided for the protection of the liberty of the subject, and one of the most popular, just, and enlightened principles of -English criminal law—that no one shall be held to incriminate himself, that it is not for the accused to prove that he is not guilty, but for the prosecutor to show that he is, and that he be held to be innocent until proved to be otherwise by the judgment of his peers. We do not object to alterations in the criminal law, and in the penal trial,.for both are susceptible of improvement, but we object to them taking the direction indicated by the clause which was so surreptitiously introduced into the Evidence Bill. Lord Brougham once emphatically, and we think somewhat theatrically, thanked God that there was a House of Lords. After witnessing the noble stand made by the Legislative Council in the present instance, we can with more reverence, arid with equal sincerity, thank God that we have an Upper House.