LEGISLATIVE COUNCIL.

New Zealand Spectator and Cook's Strait Guardian, Volume VII, Issue 616, 28 June 1851, Page 2

LEGISLATIVE COUNCIL.

Tuesday, June 24, 1851. provincial councils bill. The Council met at the usual hour. After prayers, on the motion of the Attorney General of New Zealand the Council went into Committee on Provincial Council’s Bill. The Title, Preamble and first clause were read and agreed to. Mr. Bell moved an amendment to the second clause to the effect ibnt ™eml so nominated by the Crown slmuM bers holding office under Government. He objected to the principle of nomineeism which was not to be defended on the representative principle, though circumstances might exist ? “ C °T Unky Which mi B ht cause for “ time the postponement of the introduction of h! r ®P resentatlv « principle, but he held in ent w th Ct h P rinci P les 10 be inconsistent with each other. Although, under the I? <* Colony, it was IXo m he Crown as P rotector of the native ism to h °r i eXerCiSe the P finci Ple of nomineeism to certain extent, he was of opinion that ail persons so nominated should be officers responsible to Government, as their position otherwise would be anomalous and would pre-

vent them from being useful I composed wholly of of the Crown may entertain a spon sl blhty to the community be the case where the repre’enle exists. The official member,"’J’ 1 "* (he Crown may be looked upon mg the Government in the Lp»• J Cpresei H< while the Government could able trust in members who held easo "’ situation the people he thought with jealousy and suspicion on a mixture of nomineeism and~rP«7? UnO3tio,l » There was a great difference official member and a nominee « • ” small community it might prove hi• ln 1 venientif the Government had not then '° J ' nominating its officers to seats in 27"' cil, and on this ground, as well as & reasons which existed with respect ' Nauve race the practice might be !u 'J The Colonial Treasurer seconded theam ’ ment and considered it absolutely ne<-» to the practical working of the Council'S the officers of Government sh o -'..s >. in Council. Their position" wal “such? they could not be called upon to be el e J any colony which would prove a daneerJ experiment, the effect of which was exU fied not long ago in Canada, when the poS lar administration proposed a bill of iJZ nity and compensation to rebels. That bij had created a feeling of surprise throng the Empire, while riots, distress and low ensued in that Colony and showed to whatei tent such evils might be produced. The Attorney General of New Zealand «. pressed his surprise, not only that such u amendment had been proposed, but that it could be thought by any one to be calculated to add to the liberality of the bill. Mini objections would no doubt suggest themselvei to the minds of hon. members why th amendment should not be adopted. He would content himself by stating but one, which however, was in his mind fatal to its adop. tion. He believed that in New Zealand, u elsewhere, there were many persons who, in private life, by their character, abilities, ani fortune, would be able to exercise a powerful and beneficial influence in the Legislature, but who, from natural temperament or ofei causes, would be unwilling to put themsdni prominently forward and resort to the meas necessary to secure a seat in the Council It popular election, but who, if they could otherwise obtain a seat, would not be unwilling to serve the country by taking a part ia its Councils. It was provided by the hill that in the choice of the elective membersol the Council the utmost freedom of choice should be secured to the electors. Why, lie would ask, should the Crown be limited ia the choice of non-elective members; which would be done if this amendment were adopted ? Why should the Crown be limited is the range of its choice to some twenty petsons in the pay and service of the Crown, when there were probably in the colony fin times that number of persons in private hfe, independent and unconnected with the Government; who, in point of character, talent, and property, had at least equal claims with officers of the Government. For the reasons he had mentioned, believing also that the amendment proposed by his hon. friend—that the non-elective members of the Council should be the paid servants of the Crownmost injuriously impaired the liberality o' the measure as introduced by the Government, he (the Attorney General) must gi fe it the most decided opposition. . The Colonial Secretary of New Zealand, thought there were no good grounds for restricting the Government in its choice of member 5 - The decision on all questions was left to I conscience and judgment of members, and 1 5 Government on the other might refuse 10 send again to the Council members whom might disapproveof. Manypersonswell<P al fiedto have seats in the Councilmightshrink becoming candidates, and he might refer two classes, clergymen and officers of Army, some of whom might even be p re ‘ c ‘ able as members to officers of GovernmeO' The duration of the Council being so the electors equally with the Government m’S if they pleased change their members. The Amendment was supported by A-rhion, tne Colonial secretary o* ster and and Captain Smith. Sir George Grey wished to make sow planation as he thought the whole subjec. misunderstood by hon. members when asserted that the principle of nomine® I®® 1 ®® repudiated every where, even in Englan • opinion was gaining ground among & thinkers that that principle ought to mitted, and he thought it would have * with some members in that Cojinc* i (bis the opinion of Carlyle who auvuv«»view, his idea being that a large class sons of reflection, of much knowledgl®’ a( j O ns virtue might assist to guide in the de i of the Councils of the nation if ti® efi possessed the right of exercising 1 1 gjj e re<l If thoughtful and philosophic mindsco

j|B this principle applicable in such a country 01 England, it would be found still more nece !ary in New Zealand. The establishment o larger franchise introduced the democn principle to the fullest extent, and that ii country where there is so large a native po] lation, which was a further reason that Govei ment should be enabled to call persons to i Council who might assist in directing it, well at least as for a few years to guard agai the risk arising from an opposite course. 3|| was within the knowledge of the Atton | General that it had been under discussi ; :jgg whether this was not a more liberal form th Sthat of the Australian Colonies bill to restr r.||| the Government from selecting more than c half the number of members nominated ■|| the Crown from Government Officers. 1 asked was to be allowed to select perse can ass * s t directing and guiding I ?I|[Councils at least for the next few yea objection to the amendment was tl woa, ' i ** avs the effect of restricting the E Jlin its operation. If it was intended to in Provinces where the populati was limited, it would be essential not to c lar ° e °f officials into existen Swhich would be the effect of t W anien(Jment> I’ l a new country where abili .‘^S was of great value, it would be necessary f Wtbe Government to offer large salaries to s Wcure the services of persons ofability. Anoth offered by the measure as it stoi was > that it cannot be said to establish t! of nomineeism in its fullest exter WFor in the General Legislature to be call Um ex i s t enc e there would be no nominee the most careful consideration the clau ■3 aS P resent stood appeared to him tl sjbest arrangement he could propose. jj The Attorney-General for New Munst that the amendment seemed <bring forward the question, whether tl should be purely representative i Now it was impossible to make ar J assembly purely representative, at least nor such had ever yet existed as it had h: therto been found impossible to prevent a of influences from counteracting tl | choice of electors. Proof of th in the many calls for the ballot as to voters. Nomineeism had bee in unmeasured terms, but itmigl justified by the same arguments that ha ■ used in defence of the existence i boroughs, which had afforded means < < ntrance t 0 ouse of Commons to som l^e brightest intellects that ever adorne ?.:^th e British Parliament. Though schedule j P" the Reform Act abolished sixtv rotte rotten boroughs still existed ; an -?' L is a question amongst many well informe whether it would be wise to abolis be mover of the amendment ha that Nominees might possibly at but he (the Attorney-General Owould go further, and say, that the delegate the mob, or the puppets of a faction jgpiedgedon certain points, and making certaii Jpiofessions, without making which pledge professions they would not be elected be much more dependent, abject, am than Nominees of the Crown, am •that such Nominees might act from the mos motives. The mover of th had lost sight of the fact that thi Ccuncil being only one chamber would com both the constituent parts of the Britisl 4Constitution, the Lords as well as the Com jamons, and, viewed in this light, Nominee: ||would be a useful check on the representatives of the people. I After a further discussion in which Mr W. 1 uhu oir oeorge ijre\ (joined, || -Th e Colonial Secretary of New Munstei g*aid ha considered any analogy incorrect bethe nominees in a Colony, and the old |gBystem of nominees in the House of Commons, and that it removed some of the objections nominees that the latter were so few in There was a difficulty in straining •s an ana logy between England and so small a Briony ; for example the celebrated Burke a metn ber for a nominee borough and yet || e Was almost always opposed to the Governjtnent. These nominees represented such a variety of interests as to take away in a great J easure the odium of the practice, while nothi g. ot *b e kind existed in this country where , e llav e nothing in the shape of old prejudices 'Jlpn 11! , ter , ests t 0 Ml back upon. His ExcelI re f e . rre d to Carlyle, but while he was S wri J 'i° j dmit ths B rsat authority of that L‘ ® r d ° Ubted if he would Propose noaii - anew Country. If he could perWell » > e raass fbe people to introduce it Battemn» g° od ’ be thought he would not B Sire ° eBta bl* 8 b it by irresponsible power, liaised °? aerved the question as f the restriL " Noia,nee l sn b but one of Bthe selerf lon ° 1 ie P ower of Government in fnothin?, ‘ ? ° f . . mem bers. He had heard ifclause t , “is opinion in favour of the leered that th 8 t>° d ’. i? 1 shoul<l a l so be remem|aent, and m r U,Bh Government does at pre- | • ■»<! must f ot „ long |ime , ass . st , d

ing a considerable portion of the expenses of this colony, and Ought therefore to have an influence in its Councils. He thought if the Bill were not passed in that form, it would not ultimately be approved of, and that it would be better, at least for the next two or three years, to allow the clause to stand as it is.

The Committee then divided, when there weie for the amendment 6, against it 8; — JUaiOrilV ° •*» nr>rl m a • O UUJVUUUiUUI, On the sth clause, defining the qualification of electors, having been read Mr. Bell, in moving an amendment, admitted that the clause established a liberal franchise, but that it was insufficient to carry out the principle proposed by his Excellency. The fact was, that in so young a communitv and with so small a population, the franchise would practically exclude a large proportion of the most intelligent voters. A great number of houseseven in Wellington it would be impossible to rate at the yearly value of £lO, while at Nelson a great number of persons would be excluded, many of whom were voters in England : and the operation of this clause was still more glaring in the country districts. The hon, member referred to a memorial from Nelson in support of his statements, and said that any attempt to deprive such a class from a participation in electoral piivileges would put an end to all fairness of representation. The men who were living in mud hovels were the thews and sinews of the colony, and to their exertions was owing the greatest part of the cultivation in the country. He would therefore propose that the franchise be reduced to £5 in town and country, and that the word tenement be substituted for house.

Mr. Dillon supported the amendment and thought the substitution of the word tenement would meet the difficulty. Mr. Cautley opposed the amendment and showed that its effect would be to place the town and country voter on the same footing. He considered the country population to be increasing so rapidly in wealth that by the time the bill came into operation there would be very few persons disqualified by the clause. The Attorney General of New Zealand said the amendment raised two distinct points, it proposed to lower the franchise and to substitute the word tenement for house. From his experience of the Northern Province he would assert there was not one intelligent, respectable, industrious man who had been two years in the colony, living near Auckland, in such a position as was described by the hon. member. The effect of reducing the franchise would be to subject the Bill to disallowance though the efforts of a party at home who interested themselves in Colonial affairs, a sort of Fourth Estate, working without any responsibility. After some further discussion Mr. Bell’s amendment was withdrawn and an amendment by Mr. Cautley substitutingthe word tenement for bouse carried.

The Colonial Treasurer moved an amendment on the 7th clause, to the effect that the non-elective members of the Council appointed by the Governor should be civil officers of the Government, or naval and military officers on full pay. The amendment was not seconded. The Committee adjourned after the consideration of the 12th clause. (?01. M'Cleverty moved the third reading of the Land Fund Appropriation Ordinance, which was accordingly read a third time and passed. Sir George Grey laid on the table the Municipal Elective Franchise Bill. Several notices of motion were given, after which the Council adjourned. Wednesday, June 25. The Council went into committee on Provincial Councils Bill. Mr. Bell moved an amendment on 13th clause, that the writs for the election of members should be issued by the Speaker of the Council, as he considered it essential to give the Speaker as much authority with respect to the election of members as might be found consistent.

Sir George Grey thought there was a misunderstanding as to the practical working of the bill; the argument of the hon. member rested on a settled state of things similar io that in England, but there was no machinery in this country, no one to issue writs to; power was left to the Governor to constitute machinery, but . if the hon. member’s amendment were adopted it would be necessary to appoint a permanent Speaker, who would not lose his seat when the Council was dissolved. Amendment withdrawn. On the 20th clause (as to the payment of members) the distance of the member’s house from the place of meeting entitling him to receive payment was altered from 25 miles to “ more than 10 miles.’’ On the 22nd clause being read Sir George Grey observed that, as the purpose and scope of the bill had been much misrepresented, he wished to point out that this

clause, taken in conjunction with the 15th clause, virtually red ,i ' , “'’ n_ .. . . J . - IU Municipal Councils with large powers over t le revenue ; and that their laws, as they are only to be approved of by the Governor, would become bye laws. The measure was much misunderstood, as the effect of it would be virtually to introduce Municipal Institutions into the country, A good deal of discussion arose on 23rd clause O r i? ell ,aws an<J ordinances, the said council shall conform to and observe all such instructions as her Majesty shall from time to time make for their guidance therein. several members objected to the words of the clause as limiting ami confining the powers of the Council. Sir George Grey said this regulation was received throughout the whole extent of the British Empire in which it had one specific meaning, which was that the Queen may make such rules as she pleases as tn the form and construction of the laws in the British colonies. At first sight this might appear trivia], but this was done to enable the Courts of Law to refer with certainty and the utmost expedition to those laws, so that it was essential that uniformity in the laws should prevail throughout the Empire. He was sorry to see a very small part of the Empire attempt to introduce another system which, perhaps on that account, might cause the disallowance of the Ordinance’. Mr. Dillon and Mr. Bell objected to the clause.

The Attorney general of New Zealand said that, with reference to the 23rd clause which provided that in the making of Laws and Ordinances the Council should conform to, and observe all such instructions as her Majesty should make for their guidance therein, a few words explanatory of its meaning might not be out of place, more particularly as considerable misapprehension as to its meaning appeared to be not uncommonly entertained. The intent, meaning, and object of the clause in question was no more than to retain to her Majesty, for the sake of uniformity and convenience, the power of prescribing that, throughout the dependencies of the Crown’ the laws and ordinances to be made by their several Legislatures should be made in some particular form, be called by some particular name, “ ordinance,” for instance—that they be respectively divided into sections—that such sections be numbered consecutively that they be made to come into operation at some particular time to be named therein, &c. On a careful reading of the clause in question it would be seen that it related to the form and not to the substance ; and that its meaning was not, as appeared to be understood, that the Council were required to make laws on such particular subject, with such particular object, and to be enforced by such particular penalties, as her Majesty might be pleased to dictate for their guidance—that the clause did not, as it would have done if such were the intention, provide that the said Council should make and enact all such laws as her Majesty should from time to time prescribe, but that it simply enacted that “in the making” of such laws and ordinances (that is laws and ordinances which the Council were authorised to make for the peace, order, and good government of the colony) the Council should conform to and observe all such instructions as her Majesty should make for their guidance therein.

Sir George Grey said there was a great misunderstanding on the subject; this rule had been in operation for centuries throughout the Empire, His Excellency in support of ms argument of the evils of a departure from established rules, gave an instance where three words had been struck out, by lawyers, of a charter, without their seeing the effect of so doing but which had produced serious consequences, .these words had a meaning which is understood throughout the Empire, and these kinds of rules guide the Courts of Appeal. Any alteration of them would have the effect of shutting the colony out from any appeal to the higher Courts. After some further discussion the clause was agreed to. On the 24th clause being read, which enacts that “ no such law or ordinance shall be repugnant to the law of England,” &c. ; in answer to the objection raised by some members,

The Attorney General of New Zealand said he thought, in moving the second reading of the Bill, he had sufficiently explained the meaning and the reason of the clause. It in reality meant no more than this, that the Provincial Council should not have the power, by any ordinance which they might make, to prevent the operation within the colony, of any law which might be passed by the British Parliament; the object being, what to him did not appear unreasonable, to retain to the Imperial Government the power of legislating for its dependencies. The clause itself was drawn in the present form, which had been in use for years, and whether hon. members could understand the language of it or not, it

had, whh legislators and lawyers, a long set. neu ana understood meaning—and whether they liked it not, and whether they understood it or not, he might inform them that they were bound by it and subject to it. He could pledge himself to the Council that the law by which they themselves were authorised to legislate at all, prohibited them, in the very words to which objection was made, from making laws which should be * f repugnant to the law of England.” And it would be neither more nor less than an absurdity, in creating a legislative tribunal of inferior jurisdiction, to free it from a limitation and restriction to which the superior and creating legislature was itself subjected. In fact they could not, and haa not the power to give that which they themselves did not possess ; and even if the clause were struck out of the Bill, the Provincial Councils could not make ordinances which should have any legal validity, which might be rspngnfint tn ths law - of • any such ordinances would be so muclTwaste paper, null and void to all intents and purposes. Mr. Bell regretted he should prove so dull of understanding, but must confess he was more puzzled by the explanation just given by the hon. the Attorney General than he was before. He (Mr. Bell) bad known several instances of laws relating to real property and other subjects passed in colonies of a different nature to those which had been passed in England. The Attorney General of New Zealand was

sorry to interrupt his hon. friend (Mr. Bell.) He (Mr. B.) seemed to question the correctness of his (the Attorney General’s) explanation, and said that he had over and over again known laws to be passed in England on the subject of real property, &c., and quite different laws to be afterwards passed in the colonies on the same subject, and consequent! o that his (the Attorney General’s) interpretation of the clause could not be correct. True it was that laws had been enacted by the British Parliament on various subjects, on which laws of a totally different character had been subsequently passed in the colonies; but in all such cases the operation of the English’ Act had been expressly limited to the United Kingdom, and was never intended to have effect in the colonies, in which case the colonies still continued to be at liberty to pass a law of a totally different character, and in doing so would not, within the meaning of the clause under discussion, be making a law repugnant to the law of England. °But if any particular law passed by the British ment expressly enacted that it should apply to, and be in force, throughout the whole of her Majesty’ dominions, then no contrary law ever had been or could be enacted by a colonial legislature afterwards, because, under such circumstances, such colonial ordinance would be repugnant to the law of England. Mr. Dillon still, expressed himself unable to understand die meaning of the clause. Sir George Grey said that perhaps the Attorney General of New Zealand would give some further explanation of its meaning. The Attorney General of New Zealand thought it an inconvenient course for the legal members of the Council to be suddenly called upon to give a hasty, off-hand opinion in any matter of a legal character. Opinions given under such circumstances were very properly considered to be entitled to very little weight. He would however try again to render the matter intelligible to the hon. member. By way of illustration—lf the British Parliament were to enact that in each of her Majesty’s colonial dependencies a public school should be established, the legislature of New Zealand would not have the power to make an ordinance which should exempt New Zealand from the operation of such a law, and which should enact that no such school should be established in New Zealand, for that would be repugnant to the law of England. Did the hon. member understand that ? Mr. Dillon—No.

Sir George Grey said if hon. members were to enact that the Council may make laws repugnant to the laws of England, they would enact what would certainly be disallowed by the Home Government. The clause was then agreed to. Clauses 25 to 28 agreed to. in clause 29 Mr. Bell suggested, as questions relating to Crown land or Native lands, and those of native disabilities were so widely different, it would be more convenient to divide the 11th section into two parts. Agreed to. In 13th section referring “ to laws relating to real or personal property and wills.” Sir George Grey observed he had departed from the instructions of the Secretary of State, as he had been unable to devise means to effect them, and he had brought the subject under the consideration of the Council that they may be aware he had departed from these instructions. On the 31st clause being read Mr. Bell objected to the election of the Speaker being confirmed by the Governor, as

not analogous to the law of England, at the same time he thought a Governor would hardly refuse his assent to his election, as the Council, if they were determined on the point, would re-elect him. Sir George Grey said there was no law in England which enacts that the election of the Speaker of the Council in New Zealand should be confirmed by the Governor, but he was not quite certain any good would result by the isolation of the Governor as proposed by the bon. member. He thought it desirable that the Governor should not be separated from the colonists, these confirmations would lead to dinners and be the occasion of festive meetings, which would have a tendency to do away with any ill feeling arising from political differences. He considered them important in a social point of view, as the world was held together by these acts of kindness.

Mr. Dillon suggested some provision should be made for the absence of the Speaker from illness, or other unavoidable cause, asotherwise the House would be prevented from sitting. Sir George Grey and the Attorney General concurred in the suggestion. The remaining clauses with one or two exceptions were agreed to, and committee adjourned. On the motion of the Attorney General of New Zealand the Municipal Election Franchise Bill was read a first time. Mr. Cautley moved for the correspondence between the Superintendent of Nelson and the Executive Government relative to the extension of the Colonial Bank of Issue to Nelson, DEPASTURING REGULATIONS. The Colonial Treasurer moved the consideration of, the Depasturing Regulations and on their being adopted would afterwards move that the Council address her Majesty that they be not altered except by consent of the Legislature, or by her Majesty’s authority. At the suggestion of Mr. Hickson the decision of Council on these Regulations was postponed to Tuesday. Sir George Grey thought it would be better to lose no time as, after these Regulations were considered and agreed to, they would require to be embodied in a Proclamation, the preliminary steps for issuing 14 years leases would also occupy some time, and persons were waiting- in the neighbouring colonies for these Regulations previous to introducing stock into the colony. ° XT? n^’ e mot:,on of Attorney General of x,ew Munster, the Council went into committee on Language Ordinance Bill, when some additional clauses proposed by the Colonial Secretary of New Munster were adopted; the committee adjourned and their report was brought up and adopted. Several notices of motion were given and the Council then adjourned.