AFTERNOON SITTING. EXECUTIVE BILL.

New Zealand Spectator and Cook's Strait Guardian, Volume IX, Issue 862, 5 November 1853, Page 3

AFTERNOON SITTING. EXECUTIVE BILL.

On reassembling, the Council resolved it*e^ in committee on the Executive Bill. On the first clause being read, Mr. Wakbvhld would not repea^ wjsat he had said about the first clause vrfcen^th.e .second; reading of the Bill was .before t,hV llouse, Jbjife would add one nenaark to \\. |jt ] was nio&t de-v sirahle, th«t the Execu^vt* should be. ricsppn^i« I blc for aU ita act;^ whether grejtf or s'touU,^

and unless, when there should be matter of complaint, the Superintendent individually was attacked, there would be nobody to complain of as being responsible. At home, Ministers were responsible for every act of the Crown, and the Crown was spared. So it was in Canada, where a great dispute on the subject of Responsible Government, when Lord Metcalfe was Governor, turned on the point «f whether an appointment to an insignificant clerkship had been made by the Governor with or without the advice of his Executive ■Council. If the clause were altered as he proposed, the Superintendent would always be spared, and the members of the Executive Council would always be held responsible for •every thing, because nothing could be done otherwise than by and with their advice. It was an essential part of the whole system of Responsible Government, that not the head of the Executive, but his advisers alone, should be blamed for mal-admistration ; and this could not be secured except by the means which he' proposed. He trusted that no opposition would be given to his proposal. On the following clause being read, 5. There shall be a Solicitor for the Piovince who shall a^so conduct all Criminal prosecutions, on behalf of Her Majesty the Queen within the Province. Mr. Wakefield said that, ii his opinion, though he was diffident of uttering opinions on legal questions, this clause would violate the Constitution Act. It authorised the Superintendent to appoint a Crown Prosecutor — an Attorney-General with another name ; but the Constitution Act expressly forbad the Provincial Councils to meddle in any way with the Supreme Court. He could not doubt that the Province needed a Crown Prosecutor : it must have such an officer before the Provincial Executive could work properly. So fully was he convinced of this necessity that he was unwilling to vote against the clause, and was almost disposed to concur in the addition of one more illegality to the many in which the suspension of the General Assembly compelled them to participate ; but, on the whole, as a balance of evils, he would prefer going without so essential a Provincial Officer as a Crown Prosecutor, to committing so flagrant a violation of the Constitution Act as the clause involved. He therefore ventured to suggest to the hon, and learned gentleman who had charge of the bill, that he should confine himself to authorising the Superintendent to appoint a Provincial legal adviser without any reference to the Supreme Court. Mr. Brown said the Province bore all burdens of prosecutions ; he thought they should avoid any question as to who should perform the duties of conducting the prosecutions, and leave the decision to the Executive. Mr. Wakefield would strike out the latter part of the clause ; he thought it desirable to insert instead, the words " who shall be the legal adviser of the Superintendent." Amendment agreed to. On clause 6 being read, Mr. Ludlam asked whether it was the intention of the Superintendent to appoint a Treasurer. Mr. Fitzherbert said it was the intention of the Superintendent to place the duties of the office for the present in the hands of the Provincial Secretary. Mr r Wakefield proposed to substitute the words the Treasurer instead of the word him. The Treasurer was not mentioned in tht clause. Agreed to. Mr. Wakefield moved the following clause to stand as the 11th clause: — "There shall be an Executive Council of the Province." On consideration of 16th clause Mr. Fitzherbert, before considering this clause, would call the attention of members to a matter of considerable importance before the sittings of the day were closed — whether members who accepted office should be referred back to their constituents ? While shewing extreme anxiety on this point, he conceived that the principle of the Bill having been adopted by the Council, they could not now introduce this alteration in the Bill. Mr. Wakefield, in order to expedite the second reading, had reserved a right to move an amendment as to the resignation of their seats by members accepting office, which he would now move proformd to afford the hon. member an opportunity of making his explanation. Mr. Wakefield then moved the following amendment : — That every person, being a member of the Provincial Council, who shall accept any office of trust or emolument under the Superintendent, and who ■shall not, before the end of the current session, if the Council should be sitting, or, if the Council should not be sitting, before the next meeting thereof, resign his seat as a member of the Council, shall, after the periods respectively limited, be disqualified from holding such office during the time that he shall continue a member of the Council. Mr. Fitzherbert would waive the objection whether the amendment would interfere with the principle of the Bill, which had already been adopted by the Council. If the amendment were passed, it would have the effect of entirely altering the Bill, which had been framed without providing that the Executive should even be members of the Council. The introduction of Responsible Government was an experiment, and many had serious doubts whether this attempt should be made. To meet the case, perhaps the hoii. member would consent to withdraw his amendment, on the avowal that those who were appointed to office would be ready to resign their seats and go to their constituents, but they could not consent to stultify themselves by being disqualified from holding office, as provided by the amendment. He pledged himself to resign, to prevent the possibility of his being misunderstood, but he wished the amendment withdrawn that they might pass the Bill without interfering with its spirit. The hon. member (Mr. Wakefield) had observed on a previous occasion that the General Government was in a state of suspension, and that the Superintendent bad no power at present even to appoint a- single constable. Tt was possible this experiment might fail, and then in what a dilemma would they be placed. It would be impossible to have any Executive at all ; and that, joined to the suspension of the General Government, would have the effect of putting to an eternal sleep not only the General but the Provincial Government. He wished ta meet the exigencies of the case, which all were agreed was attended with considerable difficulties. It. was possible

that Responsible Government might fail, no one would hate the hardihood to say it would succeed under these conditions. If they passed the Bill he would give a pledge, on the part of his colleague and himself, that they would resign their seats. He would add one other observation, the effect would be that the Council would be prorogued for two or three weeks, as the Proclamation required a notice of 14 days previous to election. In the event of members vacating their seats that period need not be prolonged, and the day for the reassembling of the Council might be fixed, so as to allow of the least possible delay. Mr. Wakefikld thought it desirable to notice a common misapprehension, which supposed that, in order to carry out Responsible Government, it was essential that the members of the Executive Council should be members of this House. That was by no means the case. Just as the Crown could do at home, the Superintendent might appoint whom be pleased to his Executive Council of advisers. If he appointed persons in whom that House had confidence, all would go well. If he appointed persons not possessing the confidence of that House, the House would apply a remedy by stopping the march of Government. That was Reponsible Government; and doubtless, every Superintendent, in the exercise of his judgment and discretion, would always take care that some of his advisers were members of this House ; but it would be at variance with all constitutional usage to impose on him any obligation to take that course. His most important function was that of appointing his Executive Councillors, but the performance of it must be left wholly to his own free discretion. He (Mr. Wakefield) would now turn to the subject of the clause proposed by him. According to his promise on a former occasion, he had endeavoured to hit upon some expedient, whereby the principle of a member's responsibility to his constituents should be reconciled with avoiding the great inconvenience of a recess of the Council for some weeks at the present time. The first object of the clause which he proposed, was to supply , what he could not help deeming a most serious omission from the Bill, by providing that members of that House accepting office of trubt or emolument should resign their seats in that House. He trusted that those honorable members who would soon belong to the Executive Government, would not object to that part of his proposal ; and he cordially wished that it had originated with them. The second part of his proposal provided, in fact, that such resignation of members as he proposed, should not take place immediately on their acceptance of office, but only at the close of the Session. By this means, the principle of resignation would be solemnly acknowledged by the enactment of a law to that effect ; but members taking office would hold their seats til! the end of the Session, and a very mischievous interruption of public business would be prevented. Deeply attached as he was to the principles of responsible government, and though he came forward to originate and urge a provision whereby members of that House accepting office would be sent back to their constituents for re-election or rejection, \et he could not support a course which, without an absolute necessity, would entail oa the Province the evils of a long adjournment of the Council at this crisis of public affairs. If the Council separated without doing anything, he should not be responsible for the evil. Honorable members who objected to his proposal, said that we were trying Responsible government as an experiment, and, therefore, we must not be very particular. Now he, on the contrary , ventured to say, that if we wished the experiment to succeed, we must try it fully and fairly, not in a loose careless way so as to lender its failure more probable than its success. So far as the resignation of members of Council accepting office was a part of responsible government, the experiment would not be tried at all, if the objections of the honorable member for Wellington (Mr. Fitzherbert), and others, to his suggestion that seats within House should be forfeited by acceptance of office, should prevail with the Council. He was for really trying the experiment, as alone it could be tried, by adopting all the usual means of success ; and if the Council should adopt the second part of his proposal — namely, that resignation of seats should not be compulsory till the close of the Session — he trusted that the object of that expedient would be thoroughly understood by the public, as a means of averting all need of an adjournment, and of a mischievous interruption of legislation immediately after the first meeting of the new legislature. Mr. Ludlam observed that the Superintendent in his speech had expressed the strongest opinion against an irresponsible Executive, and had declared his intention of carrying on the Government by means of a responsible Government. He thought it of great importance they should decide what form of Government they should live under for the future. He objected to the inconvenience of proroguing the Council, an objection which was obviated by the amendment, and he was sorry the amend • ment had not been met in a better spirit by the members representing the Government. If the amendment were not carried they would have no responsible Government, they would only have his Honor's speech. If they were to leave this part out, they would be only half doing their work. The pledge of the hon. member to resign would only bind- himself, and unless the resignation of their seats by members accepting office were secured by positive enactment, they could have no guarantee that the principle would be carried out. Mr. Brandon had hoped the motion would would have been brought forward in a different way, and not tacked to a bill with which it had no connection. He did not see the necessity for those who accepted office resigning their seats. At home the case was very different ; the Crown being a perfectly distinct and irresponsible power, it was necessary that members of the House ot Commons, on accepting office, should resign their seats, to protect the liberty of the subject. Here the Superintendent was elected for a short time, and the case was not at all analogous in principle. Should he be honoured by office he would at once resign and go back to his constituents. The proposed amendment was unconnected with the bill, the clause refers to members of the Provincial Council ; it would be far better to be taken

separately as a substantive motion, and in answer to that part of the Superintendent's speech. Mr. Wakefield could not help observing that if the Bill passed without the clause, and a mere resolution of the House were substituted for it, declaring that members should resign, and if the members who are about tc accept office should, accordingly, resign in a day or two, the experiment to which the hon. member had adverted, would be tried in a most unsatisfactory way. The Province would incur all the evils of a long adjournment of the Council, in order to enable those members to recover their seats ; and the resignation of members on taking office would hereafter depend on no law but merely on a resolution of the House, which might be rescinded or perhaps evaded. An enactment was necessary, and an adjournment was to be deprecated. He thought that if the experiment were tried in the way proposed, the Council would provide for failure rather than success. He would take that opportunity of noticing what had been said by the Hon. member for Wellington (Mr. Fitzherbert) about "factious opposition." He, (Mr. Wakefield,) and he was sure he could answer for those who did him the honor to agree with him, were most anxious to see the public business carried on ; they had no desire to impede business in the Council, but, on the contrary, they were most desirous to assist the Government. There really was no oppostion in the House; still less a "factious opposition, j It was not opposition to suggest what they deemed improvements in the measures brougit before Council. After a few remarks from Mr. Brandon, Mr. Wakefield said, that of course the honorable member for Wellington (Mr. Fitzherbert) wished that his view should be adopted by those who objected to it ; but by complying with that wish they should entirely defeat their own objects and entirely accomplish his : they should fail to establish the principle of resignation of members by a binding law, and also fail to prevent an adjournment of the Council, whilst the honorable member would have his own way on both those points. It was too much to expect that they should forego all that they deemeJ right, and adopt all that they objected to. Mr. Fitzherbert had so often and so strongly expressed his opinions, usque ad nauseam, in favor of responsible Gorernment, and his desire that every member who accepted office should go back to his constituents, that he utterly repelled any insinuations that had been made to the contrary. It was acknowledged that this was an experiment, and if the Council would pass the bill in its integrity he would promise to resign. At present they had no Government at all. and it was expedient to avoid that dilemma ; there was no one in the Council who represented the Head of the Executive, and the only course was to discard every inconvenience, since it was i impossible to have the principle contended for I and the convenience. If it was decided that every member accepting office should go back to his constituents, he agreed wish the principle, bat thought they ought not to call on members to place themselves in a false position. Mr. Brown would be false to his constiif he did not acknowledge the principle that those who accepted office should go back to their constituents; he insisted on the lecog.iition of the principle. Mr. Clifford said that while all desired to carry out responsible government, they might by adopting the amendment prevent their obtaining a full measure of it, If members on accepting office were to go back to their constituents it might occur that the constituency might choose another member, another appointment must then be made, another adjournment take place, until at length the Council would be adjourned indefinitely; the Superintendent would therefore be placed in a position to take men who were not in the Council. He hoped the province would soon be so populous that individuals would be found who could give their time to public affairs ; but it would be desirable for them to consider whether it would not be better to affirm the principle by a resolution of the Council, leaving it to the future to be carried out ; or whether by insisting on the principle now, they would not throw obstructions in the way of Responsible Government. Mr. Ludlam said if the bill were to be passed in its present state, the Province would not have responsible Government, and he hoped the Council would pause before taking such a course. Mr. Hart said it appeared to him from the course pursued by members supporting the Government, that the Council must either give up Responsible Government, or allow those members to have their own way entirely. After some further discussion the Committee divided. For the amendment: — Messrs. Wakefield, Ludlam, Moore, G. Hart, Brown, Renall. Against it : — Messrs. Brandon, Fitzherbert, Clifford, Lyon, Dorset, Waitt, Watt, Wallace. Amendment negatived. Mr. Wallace then proposed the following amendment : — That this Bill shall be amended before.the termination of the present session, so as to introduce a clause that all members of this Council who have or shall accept any office of trust or emolument under the Government, do resign their seats. The Committee divided. For the Amendment: — Messrs. Wakefield, Ludlam, Moore, G. Hart, Brown, Renall, Wallace. Against it : — Messrs. Brandon, Fitzherbert, Clifford, Lyon, Dorset, Waitt, Watt. The numbers being equal, the Chairman gave his casting vote against the amendment. The other clauses of the Bill after discussion were agreed to, with some amendments and with the addition of the last clause ; — and the Chairman brought up the report of the Committee. The Council having resumed, Mr. Fitzherbert gave notice that he would move after the consideration of the Standing Orders. That members, on accepting appointment of emolument, should resign their seats, and pass through the ordeal of a fresh election. The Report of the Committee was then adopted and the Bill read a third time and passed. The Council then adjourned to 3 o' Clock tomorrow, (Thursday.)