THE SOUTHERN CROSS. Friday, January 16, 1857.

Daily Southern Cross, Volume XIV, Issue 997, 16 January 1857, Page 2

THE SOUTHERN CROSS. Friday, January 16, 1857.

LUCEO NON URO. "If I have been extinguished, yet there rise A thousand beacons from the spark I bore . . - 1

. — . ■ ' On a late occasion, iv the Provincial Council, the member for the Bay of Islands moved, as a resolution, — "That in the opinion of this Council the necessary steps ought to be taken for the appointment of some" public officer as nominal defendant, so as to enable any person having a claim upon the Provincial Government to sue for the araiount." This proposition for establishing equitable relations between individuals and the Government was treated with unbounded ridicule by the Provincial Law Officer, who, apparently, had never heard of such provision being made elsewhere. He treated it as an alteration of what had been the law of England for ages, though it happens to be no alteration of any thing whatever, there being no analogy between a New Zealand provincial legislature, with its elected Superintendent, and the institutions of the mother country ; as setting up our wisdom against the wisdom of those at honiejacontravening an act of Parliament, which Act, we are unable to discover, and finally, as brought forward out of hostility to the present government. As if it were possible to feel animosif j against such a Government as this ! It does not rise high enough, by many degrees, to excite such a feeling. The executive are fond of paying themselves compliments, but this assumption is almost unreasonable. The plain fact is, that the educated have fallen for the present into the hands of the uneducated, and that there is nothing for it, as yet, but to address ourselves soberly and quietly to the task of preventing mischief, as far as possible, for a certain period of time, until the Province becomes thoroughly awakened to an important fact, — that to govern, requires a little knowledge. But to suppose the uprising of animosity against other men for not kuowing more than they have learned, or on account of errors which they cannot help betrays a want of acquaintance with the natural workings of the human mind. It is a subject, not for animosity, but for regret. Even in the matter now before us— the establishment of equitable relations between individu als and the Provincial Government, a little knowledge would have been useful to the Executive They seemed to be unaware, while treating the i proposition of the member for the Bay of Islands as absurd, that when, in 1844, a select Committee . of the Legislative Council in New South Wales investigated and reported on "grievances unconnected with land," they desired, as a remedy - against one of these grievances, "that person* having claims of any description against the local government should, by act, be enabled to have a 1 pub.ic officer as nominal defendant." They also seemed to be unaware of what we, though not belonging to the legal profession, are

able to tell them, that in South Australia, at all events, (we are for the moment without the means of reference to the statute books of tbe neighbouring colonies,) an enactment embodying such remedy has not only been made, but acted on. We have obtained the report of the case, which nowlies before us. ¥ The action was brought by J,ohn Baker, Thomas Waterhouse, and John Hance, assignees of the firm of Borrow and Goodier, against R.R. Torrens, nominal defendant under the Act No6, 1853, for the relief of persons having claims against the Government. Mr. Torrens, we believe, was the Colonial Treasurer. It is remarkable that this claim, after having lain dormant for fourteen or fifteen years, was at last, by means of the Act in question*, brought under the consideration of a jury. The facts, compressed into the fewest possible words, are these. Messrs. Borrow and Goodier, builders and contractors, tendered, in 1840, for the performance of Government works, of which the Gaol *was the main feature. They took the contract ; the cost of the Gaol was to be £17,000. After they had procured the materials, the Government reduced the contract one half. They still took the work, and completed it within the time specified. That work wtfs paid for; but a large number of extras, for extensive alterations, and what were called the Port works, remained unsettled for. The amount claimed for works done, was £15,735 11s. 9d. By twelve and a half years' interest, at 10 per cent , the amount was raised to £35,425 Is. 9d. Arbitration had been agreed to, but was finally abandoned by the Government : the Government desired to have the claims brought before a jury, but evaded their own proposition, forcing upon the claimants (much in the same way, we presume, as that in which Governor Grey " settled" so many preemption claims under the " iron grasp of duress") an offer of £19,000, to include the sums already received. It will be observed that during the process of the arbitration, agreed to by Governor Gawler, that gentleman was relieved by Governor Grey. By him was the arbitration repudiated. The jury gave what amounted to a verdict for the plain iff. The Advocate General, however, moved for a new trial on the ground that the verdict was contrary to the direction of the judge, and obtained a rule. By the South Australian Act of 1853, (a most creditable Act to that colony), under which,*not long ago, the foregoing case was tried, a petition may be presented to the Governor, who has it in his power to remit the case to the Supreme Court for the decision of the Judges. And let this be marked, — it would have long before have formed the subject of investigation by a jury, had there been any parties who could have been compelled by Borrow and Goodier to try it. The Act was passed to supply a void in Colonial law — the process by way of petition of right, under which redress can be obtained for injuries received at the hands of a sovereign. If, then, redress by English law can be obtained against the Crown, and by colonial law | against a Governor, a fortiori does it follow, notwithstanding the ridicule which was c*st by the Provincial Law Officer upon the proposal of the member for the Bay of Islands— that some mode of proceeding, which we will not dignify by the title of analogous, should be devised under which a Superintendent, if disposed to commit injustice, might be restrained. It is curious that the Provincial Law officer should have misled the only point which he might perhaps ha7e argued Successfully, — the power of the Provincial Council to make any law affecting tbe proceedings of the Supreme Court. Our own opinion is, that the end proposed might be indirectly attained ; but we have been aware throughout that a very good argument might be based on the contrary assumption. ■ n

Is the Auckland Bribery and Treating Act, Sess. ii, No. 10, it is enacted that — " Upon the conviction of any pei-son under this Act, or in case of an appeal therefrom on the affirmance thereof, it shall be the duty of the Clerk of the Bench before whom such conviction shall have taken place to publish in the I Auckland Provincial Government Gazette, and twice in every newspaper published in Auckland al the time, the name, place of residence, and 0 cupation of the person so convicted, and a description of the offence of which he has been oonvicted, and the cost of such publication shall be paid out of the fees of Court rece : ved by such clerk." We believe that the convictions in the cases of personation late'y tried have been forwarded to the Gazette, although not quite so soon as might have been. But we think that when once received at the Gazette office, they should have been immediately published, certainly not later than the following day. For we conceive that a Gazette notice would be sufficient evidence of such convictions before a Provincial Election Committee. Whether it would be strictly legal evidence, we are not in a position to say ; we have no Gazette Ordinance, although the Gazette is published by authority. But an election Committee or tribunal (we speak in general terms of any Committee) acting under Governor Grey's Regulations, is not bound by any rules of evidence. Not being necessarily professional men, or should they happen to be so, not sitting in a professional 'capacity, they are not supposed even to know what are the legal rules of cvi- ■ dence. As we have before observed, the only question for their consideration is, whether the evidence be satisfactory. Evidence, of whatever nature, provided it be good enough to convince men of plain common sense, is good enough for the Committee. They have certainly as much, 1 liberty to admit what may best suit them as a Resident Magistrate, who is "at liberty to receive or require any such evidence as to him shall appear fit, whether the same shall be strictly legal evidence or not." 1 Nothing, we apprehend, setting aside technic alities, could be much more satisfactory than a 1 formal Gazette notice. • 0