THE AUCKLAND DEAD LOCK. (From the Nelson Examiner, March 4.)

Daily Southern Cross, Volume XIV, Issue 1018, 31 March 1857, Page 3

THE AUCKLAND DEAD LOCK. (From the Nelson Examiner, March 4.)

A few days ago we remarked upon the propriety of an eye upon the other ships of our fleets of Provincial Governments. But even while we wrote, that gallant first-rate, the State vessel of Auckland, was already upon the rocks, fast jammed, high and dry, iinmoveable. A supporter of the Provincial Government, Dr. Pollen, had been returned as elected a member of the Provincial Council. His return was petitioned against The petition was, as requued ,by law, addressed to the Superintendent : by him ieferred, as .also required, to the Council, and by the Council to a special Committee. Personation (of qualified electors by other individuals) it appears had been proved in four or five cases, and the fictitious voters even fined by the resident Magistrate. Whereupon Dr. Pollen sends in his res'gnation ; the Superintendent issues a now writ The Council, before the Report of the special Committee was printed, resolve, by the Speaker's casting vote, that Mr. Graham (next on tlje poll to Dr. Pollen) has been duly elected : that gentleman takes his seat. Meanwhile another election takes place, Captain Daldy is returned and takes his seat in Council too. There are thus 25 members. Attempts are made to get the resolution affirming Mr. j Graham's election rescinded. The Speaker refuses to put such a motion, the resolution having been a judicial decision. At every division the tellers object, each to the member he considers supernumerary ; they cannot agree; the Speaker c.iunot receive these Huts till they haye agreed ; tlie doors cannot be opened till the lists have been received and the numbers on each side declared ; the mcmbeis cannot leave till the doois aie opened (stick wont hat dog, dug wont bite pig, &c), so there they sit— aie sitting now wo suppose, and will sit for an indefinite peiiod ; fa« toned, glued to their seats like the Lady in " Comus," or the charmed Kings in the " Arabian Nights" with nun hie lower extremities. In disputed elections who should dodde ? If the question be simply, which candidate has the greater number of fair votes, the first, best, most ••-iohjectionable tribunal to decide the question would -ludoubtedly be the constituency, the expression of whose will is thus doubtful, We have a<-ked whom you elect ; your answer is doubtful ; we ask you again ; express your wishes clearly. Take anew writ, let there be a new election. But this involves possibly a great injustice to one candidate. One or other has the greater number of valid votes. One or other theref 01 c has boon elected. Ought he to be subject to the risk and expense ot another election ? Not if it can be avoided. So some other tubunal than the constituency shall decide how that constituency lias already expressed its wishes, declared its choice. The Court of Chancery was the oldest tribunal having ■jurisdiction in this matter. Then, about Mary or Elizabeth's time, the House of Commons assumed the right of decision. And this was considered one of the constitutional advances, one of the groat forward steps in the march of liberty. For in old days, when Judges and Law Courts were much more under the influence of the Monarch and the Court than in later times, it is easy to conceive how subject to Government dictation and undue bias the decisions of such a tribunal must have been. And to get an impartial and independent tribunal was and is the. great desideratum, the one thing needful. No doubt the House ot Commons was in those days a much better tribunal than Chancery for the settlement of disputed elections. But when responsible government — government by a majority of the House of Commons had been established — when the scramble or fight for power had been fairly intioduced into the House as its great moving principle, and had naturally divided it into tv\o or more permanent antagonistic parties; then the excellence of the house as a judicial tribunal in electoral disputes may be supposed to have vanished. Party spirit warped and biassed every judgment, coloured or moulded every decision. While the fight was between Government and people, then it was a tiiumph to have the battle decided by the people's reprepresentatives ; but when the fight was between the majority and minority of those representatives, there could be little doubt to which side the whole body of representatives would award the victory. There can be little doubt that now-a-days any Court of Justice would be a better tribunal for the decision of these matters than the House of Commons. The case of Wilkes has been alluded to in the course of the discussion on this subject in Auckland. But this was a question not as to the particularizati&n of the individual returned, but as to his qualification to be elected at all. Wilkes had been expelled by a vote of the House, on account of his No. 45 of the ' North Briton,' and other" publications denounced as seditious, blasphemous, and obscene. He was elected again, beating Luttrell by 5 votes to 1. The House resoUed that Luttrell ought to have been returned, and he took his seat and kept it. Nothing seems at fust blush more rational than that if a constituency abuses or improperly exercises its privilege, that constituency should be brought before the bar of the whole nation — that is, before the whole body of the nation's representatives — and that the latter should have the power of condemning its conduct and enforcing an amendment of its proceedings, a reconsideration of its choice. Yet the assumed right was properly enough condemned and scouted by all the great constitutional leaders, by Bu^ke and Lord Chatham and Beckford and others, with all the vehemence of their oratory. Lord Chatham called their resolution in favour of Luttrell a gross invasion of law and of the rights of election — a dangerous violation of the constitution, a treacherous surrender of invaluable privilege, and a corrupt sacrifice of honour. All the artillery of Whiggish eloquence thundered against that unfortunate vote. Both abstract reasoning and constitutional theory then, we believe, would be decisive against the interference of representath c assemblies in eases of disputed elections. But constitutional practice on the other hand has (at least in modern times and in the House of Commons) been iv favour of that interference; and this because the House of Commons, as might have been expected, has been more actuated by a desire to assume and retain for itself all the power it can, than by any regard for either abstract reasoning or consistent theory. Yet it is clear that while government by party prevails, either the old system should be restored, of referring biich disputes to Chancery" (in New Zealand to the Supreme Court), or the constituency concerned should decide for themselves ; that is, a new writ should be issued, and a new election take place. But now, though reasoning and analogy may decisively enough declare what ought to be the mode of proceeding in these cases, they have after all little to do with the quesIjou which has arisen in Auckland ; because our own law

and ronstiliition has already nude sufficiently distirct provisions to meet the case. Whatever the law ought to he, thrie can he little dsubt what it is. Nothing can he less a nib pilous than the words of the proclamation issued inidei the i 'ithority of the New Zealand Constitution Act Tho %voi Is are .—"All complaints of the undue lctuin of men<bois to serve in the Provincial Council shall be addu-ssed in the f.vi:i of petition to the Supeiintemlunl of !''<-■ Puivince," &c. The petition is to be r'tfer'-ed to the Council, " and the validity of the return so complained of bfiall be decided by such Council, or by such o her tribunal, and in such manner as the said Council shall diiect and apP'iint.' f What can be more clear and distinct than that? Oh, but then, &ays the Auckland Government party, the sitting member lesigned, and the Constitution Act gives the Superintendent power to issue a new writ immediately. Let us look into this. The 9th clause makes it 1 iwful fi>« any lne.iib.r of any Provincial Council to resign his seat. The 10th clause describes various cases in which a seat shall become vacant : absence of a member for two successive sessions, his being bankiupt, or a public defaulter, or being attainted of treason, or co.ivicted of felony, &c. Then the 11th says: — " Ai y question which shall rise respecting any vacancy on occasion of any of the mattets aforesaid, shall be heard and determined by such Council, on- such question being referred to them for that puipce by the Superintendent, and not otherwise." Lastly, the 12th says:— " Whenever it shall be established to the satisfaction of the Superintendent that the seal^ of any member of the Provincial Council has become vacant, the Superintendent shall forthwith issue a writ for a new member to serve in the place so vacated during the remainder of the term of the continuance of such Council, and no longer.'' Now, it seems clear to us thai all these causes of vacancies are contemplated as arising quite subsequently to the decisions as to the original return of members. For the sth clause of the Act had long before provided that it should be lawful for the Governor to made provision by proclamation among other things " for determining the validity of all disputed returns.'' And the piovisions made accordingly, as we said before, give the decision to 'the Council. Are we to believe that it was intended to give power to a returned member to resign while the validity of his election was under discussion ? This, in the first place, is inconsistent with the power given to the Council to decide. Moreover, it puts it in the power of a candidate wrongfully returned to deprive the candidate rightfully returned of his seat, or to put him to the expense and risk of another election. Aic we then to adopt a construction of the Act and Proclamation which involves an inconsistency and an injustice ; to reconcile ourselves to the inconsistency and injustice, to avoid — what? — the natural and obvious reading of these documents, which involves neither of these ill consequences. For if you take it that the Act first provides a mode of settling disputed elections, then of filling vacancies arising after the d:sputed seats have been given up, all is straightforward, consistent just, and clear. Naturally the thst thing is to settle who has a seat ; then comes the time to make provision in case of its being given up. Read the clauses and provisions of the Act and the proclamation in the order in which they occur, and it is impossible to avoid seeing their intent, and meaning. We repeat that it is opposed to all proper and allowable rules of construction to adopt a strained reading that creates difficulties, while there is a more natural and obvious one that avoids them all. Without any prejudice than either way, we cannot but conclude, in this case, that the Auckland Government is in the wrong. Tho Superintendent should not have been "satisfied that a vacancy had taken place," because a disputed seat had been resigned, before the legal mode for deciding who really was the possessor ot that seat had been allowed to operate. With respect to the general effect of all these proceedings on the reputation of the political parties concerned and of our Constitution itself, we shall say little. We only remark, that it appears but a miserable spectacle, that of a Constitutional Government and Legislature brought to a standstill and deadlock, to a kind of political paralysis, ludicrous were it not lamentable, nnd that not for the sake of any great principle of theory or practice, but solely to secure the triumph of a party. For we must say, at the risk of offending both p-irties, that it does appear to us, that with both, the securing some advantage over their opponents has been much more the actuating motive than any desire to secure justice and a seat in the Council for the member who has been rightfully returned by the constituency. It is mere party warfare of the kind to which all public interests are a trifle compared to the gratification of factious animosities. Can we suppose that had Government possessed a considerable majority in Council the Goveinn.cnt, candidate would hate lesigned, or at all events, that had he lc-igned, tie Superintendent would have accepted the resignation and issued a new writ, so as to take, it possible, the matter out of tho Council's hands and give the Government anothei chance of getting a member of their own party returned ? On the other hand, we much doubt if the determined opposition to a leconsideration of their vote would have been made by tho Council, had not so decided an embarrassment to Government been naturally consequent upon it. This, hoiTC\er, is a striking instance of the operation of tho punciple ot Government by party, whether necessitated by the principle of so-called Responsible Go\ eminent or not. Where two parties are continually strugg'mg for power and place, such proceedings will natuuilly, almost necessarily, ocft-ur. If the public think the advantages oi this mode of government ovei balance the disad\ancages, they must put up with the latter. They must put up with the cunning manoeuvres, the clever tricks, the artful dodges of the political gamesters. It is a game at which the players will make the most ot every <id vantage its mles give them, whatever higher feelings or duties of disinteiestedness or patriotism are sacrificed thereby. At the same time, and while believing it quite possible that the style of play avowed and pursued by the Auckland opposition may have iorced an imitation of it upon the Government, it is but iair to observe, that the first manoeuvre in the present instance appears to have been resorted to by the Government ; the resignation of whose member, or at least the proceedings consequent upon that resignation, seem to have been deliberately designed to embarrass the opposition ; while again the law, construed by any unbiassed judgment, seems equally decisive against the mode in which the manccuvi c has been played off. We make these remarks respecting proceedings upon which we have no particular right to comment, trusting that our Auckland fellow-eolomsts will take them in good part, and may not be unwilling to learn what impression these things make upon really unprejudiced people at a distance, and that our own Nelson folk may find them not devoid of matter for wholesome reflection lor themselves.