COMING LEGISLATION.

Press, Volume II, Issue 51, 3 May 1862, Page 1

COMING LEGISLATION.

If the present Ministry do no other good whatever, they will have entitled themselves to the gratitude of the colony for having eet the example, which their successors ought to be compelled to follow, of circulating the bills throughout the country which they are about to propose during the ensuing session. We have before us sixteen drafts of bills or " heads of bills " which have been transmitted to us from the Attorney-General's office. Space will not admit of the publication of these voluminous documents, but we shall endeavor to meet the wishes of the Government, by giving a digest of each measure, sufficient to inform the public of the nature and tendency of the laws which are about to be submitted to the General Assembly next session. These bills may be divided into four classes :— 1. Those which relate to the administration of juetice and to police. 2. Those which relate to the waste lands 8. Those which relate to native policy. 4. Those which are not included in the above heads. The bills which relate to the administration of justice and to police are eight in number, and are named as follows :— 1. An act for amending " the Supreme Court Act, 1858." The first four clauses refer to the rules and forms of the Supreme Court. "We are unable to perceive the necessity for them, unless they are intended to meet practical difficulties suggested by the judge* or the bar. The first clause empowers the judges to appoint surrogates for the granting of probates and letters of administration. This ie simply a piece of machinery which is or is not wanted. Has it been called for by the judges or the bar ? The next four clauses refer to the administration of the estates of deceased persons of the native race, and ought rather to be dealt with as a part of the native policy of the Government. They empower the Supreme Court to administer such eetates, and to distribute the effects "as nearly as may be in accordance with the native custom.' "We cannot help regarding this as likely to become a dead letter. But the last clauses are very singular: they empower the Supreme Court to establish fees; and direct that euch fees be paid to

the Colonial Treasurer. If there is the slightest use whatever in such a provision, then all the fees now and heretofore collected under the rules of the Supreme Court have been collected illegally! But this, with due submission to Mr. Attorney-General, we do not believe. Upon the whole, we do not believe this bill will become law. 2. " An act to establish Sessional Circuit Courts, Besident Magistrate's Courts, and petty sessions of the peace, of civil and criminal jurisdiction in the colony of New Zealand." This is a bill of portentous magnitude, containing about 82 clauses, with a note at the end shewing that still more clauses are in store. It proposes to create three kinds of courts below the Supreme Court: " Sessional Circuit Courts, ,, " Courts of Petty Sessions," and " Resident Magistrate's Courts;" and the Governor in Council is to define the districts within ■which each Court is to act. The " Sessional Circuit Court" is to be held before a "Sessional Court Judge," appointed by the Governor. A Judge of the Supreme Court resident in a Sessional Court district may, if he is willing to act, be appointed as the Judge in the Sessional Court; and there are to be besides, deputy-judges, to act in the absence, illness, or death of the principals. The Petty Sessions Courts are to be held before the Justices of the Peace, who are to elect a " chairman of petty sessions " periodically; and all the Magistrates of the district are to attend in turn, according to a rota eettled by themselves, under penalty of dismissal from the bench. The Chairman of Petty Sessions is to be entitled to a fee of two guineas for each attendance, and each Magistrate to a mileage of eighteen-pence a mile from his place of residence to the Court. The decisions of the Petty Sessions Court are to be governed by the majority, the Chairman having an original and also a casting vote ; and one Magistrate having power to act if none other be present. There are to be Native Assessors of such courts, who, together with the clerks, bailiffs, and officers of the Court, are to be appointed by the Governor. The processes of any such Council are to run over the whole colony. The Resident Magistrate's Courts will remain much the same under this act as they are at present. All these courts are to have civil jurisdiction: the Sessional Circuit Court to the extent of £100, and the others to the extent of £20; but the Governor in Council may extend the jurisdiction of the one to £250, and the other to £50. These courts are however prohibited from dealing with titles to real property, wills, actions for malicious prosecution, criminal conversation, libels, or slander, unless by consent of the parties, or unless the value of the estate or bequest shall be proved to be within the sum to which the jurisdiction of the court is limited. The Sessional Circuit Court may be made by the Governor into a Native Court in districts where the " Native Districts Regulations Act, 1858," is in force. "When there is no Resident Judge of the Supreme Court in the district, the Sessional Courts Judge may issue an injunction to prevent injury to property, the same as a Judge of the Supreme Court, and may exercise the powers of such a Judge in granting writs of arrest against persons leaving the colony. The Sessional Court is to have jurisdiction in criminal cases, where the crime is punishable with not more than seven years transportation or four years penal servitude ; but where it become a native court, it may sentence to penal servitude for life. All proceedings in criminal cases must be brought into court by indictment by the Attorney-General or some officer appointed by the Governor for the purpose. The trials for indictable offences must be by jury. The Judge of the Sessional Court may reserve points of law, arising out of criminal cases for the opinion of the Supreme Court, or may order any case which it deems of sufficient importance to be tried by the Supreme Court. Any Judge of the Supreme Court mat) in kis absence depute his powers to the Judge of the Sessional Court. The above is a digest of the proposed measure. Its object is to consolidate iuto one statute the whole of the acts now existing referring to inferior courts of law. The object is a raost desirable one; but our 1

impression is that the act will have to be greatly altered before it can become law. 'io attempt a criticism of the whole is at present impossible ; we shall probably recur to the subject on a future occasion. At present we may say, the clauses by which the functions of the Judge of the Supreme Court and those of the Sessional Judge are entrusted to the same person will meet with the opposition, we should imagine, of the Bench, the Bar, and, we should hope, of the whole colony. The establishment of petty sessions with enforced attendance of magistrates, is a most valuable proposal; but where there are Petti/ Sessions we can see no use in retaining the Resident Magistrate's court. The latter was originally intended for a native court, and for a court to judge between natives or Europeans, although it has found its way into the European settlements. The true policy would be to quash the Resident Magistrate's Court in the settlements altogether ; retaining the paid magistrate as the " Chairman of the Petty Sessions ; or as what is called in Ireland the " Stipendiary Magistrate." In this part the act may be greatly simplified. Of the whole policy of establishing any court whatever between the Supreme Court and the "petty courts," we have, it ia true, great doubts. There has been a great call for such courts, and much ineffective legislation on the subject. But was not the difficulty of getting at the Supreme Court, and the cost of litigation in it, the principal cause of the outcry ? Would it not be wiser to aim at increasing the number of the judges—increasing the number of towns in which sessions of the Supreme Court are held—and, above all, greatly diminishing the cost of its proceedings ? Would it not be possible to establish a sliding scale, by which the costs in eases involving small amounts would be less than when the interests involved were larger? "We speak diffidently on these matters. The Bill in question must stand the attacks of the legal profession and the criticism of the judges, and to them we leave it for the present. We can hardly expect that the Government will be strong enough to carry it through the Houses in its present shape. We cannot help noticing especially one clause —the 34th, with the strongest alarm. " The Provincial Treasurer ,, is there directed to make certain payments. This is a most startling innovation—the General Assembly is, it appears, to assume the power not only of appropriating the funds in the General chest, but those also in the Provincial chests! We consoled by the reflection that the arrangement isat thesame time an impossible one ; because the Provincial Treasurer can only pay money on the warrant of the Superintendent; and the Assembly is powerless to make the Superintendent grant his warrant. Still we should like to know, does Mr. Fox agree to this manipulation of the Provincial revenues by the General Assembly ? We dou't ask for a very prudish consistency between a man out of office and thesame man in office—but this is really a little too wide a latitude. We should like to hear the two other F's. The Fe and the Fi at Wellington bewail the backsliding of their brother Fo, at Auckland. 3. The next bill before us is an "Act for regulating appeals from Inferior Courts to the Supreme Courts." A bill of such great importance, and involving such vastchangesin the legal procedure of the colony that we shall reserve any remarks until we can lay the proposed measure in full before our readers. 4. The next is a bill of sixty clauses for "Regulating Juries." We pi esume that the object of this act is to condense all the law respecting juries into one measure. It is very desirable to do this, and it is only necessary that we should notice such parts of the proposed law as will effect important changes in the present system. The Governor is to appoint " Jury Districts," and a jury retumiug officer for each, who is to cause the jury list for said district to be prepared and then to call a meeting of the magistrates to revise it. The act dues not make any mention of Iww grand jui ies ore to be formed • and yet the unsatisfactory j state of the grand jury roll is one of the principal evils to be got rid of. The sheriff is to make up the special

jury list, from the jury list; putting on who shall be described therein as esquires of high degree, gentlemen, benchers, accountants, civil engineers, architects" ' ° The important part of this bill is that which with native jurors. The governor is to issue re in for ascertaining the fitness of natives to ser? • and such native jurors are to be borne up On list in force in the district. "In any ea«o • ■ i „ • c ln which the person or property of any aboriginal native be affected," the native may demand a mixedjur V\ native and half European. The act only Be J s ** contemplate cases between natives and F,,™ but supposing both parties are natives? A PP „, trying to introduce trial by jury into native districts in which all the jurors ought to be native? Y et i/ bill does not deal with that part of the When the 80th clause empowers the Governor suspend certain provisions of the act, and niake oth provisions in the case of native jurore, w e are c pelled to ask,—what on earth is the use of legislate at all, if the Governor is to sweep it a |l away at his pleasure 1 This is recurring to the worst feature of th old system—it is making a farce of the whole thing. If it is uecessary the Governor should have such p ower give him the power to make the whole law and unmake it as he pleases. The 58th clause also ig singularly offensive to our notions of constitutional law. It empowers the Governor to make rules and regulations for a variety of matters connected with juries which ought to be regulated by statute, not by the arbitrary will of the Governor. The 55th clause abolishes the writ ofattiint; and the ob'th enacts that any person guilty of "embracing," and any juror corruptly consenting thereto, sliu.ll be punished as they might have been "before the passing of this act." Well, one would suppose so. There is a good deal of such obvious surplusage in these bills, which a professional and sensible select committee would cut down without much mercy. Lastly, the 34th clause enacts that " sucli other challenges shall be allowed, and in such manner as are or may be allowed by the law of England, in force for the time being!' It is difficult to conceive more indefinite legislation than this. 5. The " Act for establishing and regulating gaol* and prisons" makes but little alteration in the existing state of things. Except in one particular, the only really important proposed alteration is, that the gaols are to be removed from provincial to central jurisdiC' tion. The gaolers are to be appointed by the Governor. The gaols are to be built and repaired by order of the Governor. And herein comes the outrageous innovation proposed by the Act. The 7th clause gives the Governor absolute and uncontrolled power of expending whatever sums he pleases upon the gaols ; requires that the costs of repairs and buildings shall "be defrayed and paid by the Colonial Treasurer j" and shall be then charged on the provincial revenues. No vote is to be required from General Assembly or Provincial Council!! This is going back to the old state of things with a vengeance. In truth, provincialism is at a discount. Foxs finger is thicker than Stafford's loins. In England the gaols are county and borough establishments; here the Provincial Governments are no longer to be trusted with them. It is true that a power of delegation to the Superintendent is taken ; but the principle of the bill is clear: it is oue inroad more np°" provincial authority. 6. The next bill, so far as it is intelligible, appears to us a sliil further invasion of the powt rs of the local government. We say, so far as it is intelligible: for we fear no man can clearly make out what the re stale of the law will be under it. It is an act "to* regulating the constabulary force." I'irfrt, it repe all former acts general and local. Next, it gives the Governor power to embody a police force, to appu" 1 its officers, to make regulations, to settle the costs an to charge them on the Provincial revenues. Having done this, it says, clause II," The Superintendent o every province shall have within and for such province the power herein before given to or vested in Government." Does this mean that there are

c /,oe- one raised by the Government, and one by (wo forces, - q up erintendent ? or are the Governor aud the erintendents to have joint control over the former? nose the Governor issues one set of regulations J the Superintendents another —which is to be the i We defy any man, even the Attorney General, te ll us what the operation of this clause will be. And the matter is still more complicated by the 13th | a use which empowers the Provincial legislatures to alter or amend the clauses. 10 and 11; that is the clauses whicb charge the costs of the force on the Provincial chests under "the Surplus Revenues Act," a give the Superintendent co-ordinate powers ff jth Governor over the force. The whole thing seems to us an attempt to do what is impossible' If a general police for the colony i> ffanted, let there be one. But is it wanted ? There j s n0 Mich thing in England ; nor does any difficulty ccur for the waut of it. There are local constables, and town police, and borough police, and parish police, and county police ; and whatever inconvenience may arise from the separation of jurisdictions and the division and localization of authority, is, in our opinion, far more than compensated for by the local management, l-y municipal independence, by forcing all classes to take an interest in, and to manage, and to bear the responsibility of public affairs. These used io be Mr. Fox's views; and Mr. Sewell's ; and, so far as he Imd any views, we believe, Mr. Ward's— ffho&e views are they now ? If these bills pass, of what use will it be to maintain the Provincial Governments longer. If these Governments are not fit to manage their gaols or their police they are 6t for nothing at all; and in the name of Allah let us give them the sack. We must postpone our further notice of the pro posed bills till our next. ELECTIONEERING HUMBUG. Thf election for the Avon district is iust concluded. It took place on Tuesday, the 29th April. Amongst those most active as a partizan of the Government was Mr. "VVm. Thompson, the Provincial Auditor; we are informed he spared no trouble in. endeavoring to procure the return of Mr. Duncan, the Solicitor, and of Mr. Teinpler, an adherent of the Government. He proposed the latter, and seconded the nomination of the former. The candidate to be turned out was Mr. Harman, who had come forward at the last moment, and is opposed to the Government On Thursday, the 31st, the following notice appeared in the ' Canterbury Standard.' Provincial Secretary's Office, April 29, 1862. The Provincial Government desires to draw the attention of their officers to a notice appearing in the General Government Gazette, No. 35, dated the 20th July, 1861, viz;— " Colonial Secretary's Office, ~T Auckland, 20thJuly, 1861. ■ "accordance with the precedent adopted in other Colonies, all officers employed in the service of the General Government are expected to refrain from taking any part in sections for members of the General A ssembly"beyond recordH their votes if they desire to do so. "1. E. FEATHERSTON." J^ dt 4 °i. Btatethatit ,s expected that their rule will hold im ln the case of Provincial Elections. THOS. WM. MAUDE, Provincial Secretary. * That is two days after the election, and after Mr. Maude and Mr Duncan d both secured their seats. I H not this as fair an •nstance of political humbug as can be conceived ? Of offlcerß iv the service of the Government, the one * o especially ought not to occupy the position of a Parian—least ol all a partizan of the government 6 conduot it is is duty to watch and control 7-w the Public Auditor. If the Government honestly * ended to make the government officers abstain ««n interfering i n the elections, why did they not *f so before the elections began ? They cannot • ey did not anticipate such interference; for the same thing occurred at the last election. forM° ( * overniu cut officials began to canvass *u-'' Crejke ' who was absent in Auckland, and fro m m3tantly sto H )L ' d by the Provincial Secretary j *ac lllterferin S whilst another officer, who ! canvassing f or a government candidate, had | to use his influence. I

Now, we are not asserting that there is any gery great harm in Mr. Thomson wishing to see his friends in the Council and working for them. It would, on the whole, be better that the government officers should abstain from electioneering. The election would be freer, and the rights of the people would be more respected, if their hired servants stood aside and left their choice unfettered. But we see no great outrage in their taking their part, and there is the example of other countries as a precedent to justify their doing so. But the dodge of the Government (it is really worthy no other name) of getting their own candidates in first by the influence of their officers, and of then endeavoring to gain credit for the wish to protect the purity of the election by issuing the notice in question, is one which ought to make Mr. Maude blush when he sees his name at the foot of the notice. We always thought Mr. Maude had been above such dirty tricks as this. We are sorry Mr. Harnian has not found a seat. He allowed time to elapse under the impression that he would be returned for Wainui, Mr. Armstrong having told his friends he would not again come forward. At the last moment Mr. Armstrong came forward, and Mr. Harman of course gave way to the resident candidate. Mr. Harman's practical good sense and wide acquaintance with the interests lof the province will be greatly missed should he not secure a seat, which we still hope he may do. He ought to have stood for the Heathcote, where he would probably have been returned.