Provincial Council.

Lyttelton Times, Volume IV, Issue 165, 4 March 1854, Page 8

Provincial Council.

TUESDAY, Feb. 21st. The first business in the order of the clay was the first reading of the Cattle Trespass Bill. Mr» Tancred, in moving the first reading of the Bill, said that this measure being in all es* sential respects identical with that introduced in the last Session, it would not he necessary to notice at this stage its provisions in detail. He (Mr. Tancred) believed that upon the whole the Bill had met with the approbation, not only of the Council, but of parties out of doors who had paid attention to the subject. Of course where so many differences of opinion existed, it was hardly, to be expected that any measure would meet with the entire concurrence of all. The great difficulty in framing a measure of this sort was to lay down distinctly and fairly to all parties the rule to be observed in cases where special damages were claimed. On the one side it was contended that the interests of the agriculturists were alone to be consulted. On the other, the cattle-owners complained that even the present law weighed; unfairly upon them. He (Mr. Tancred) would not entirely agree with either of those parties. He had not yet heari any one on the part of the agriculturists go so far as to assert that it was a proper state of things to-have cultivated land wholly unfenced, indeed it did not seem reasonable that any property of more than ordinary value should be left exposed to any chance casualty, nor that the owner should be entitled to full compensation for losses which had occurred through his own negligence. He believed that, in practice, an English jury would hardly ever be persuaded to award other than nominal damages where the aggrieved party had not taken ordinary and reasonable precautions. However that might be it seemed to him (Mr. Tancred) that the expense of- fencing was one of those outlays which are incidental to farming, and that if an occupier of land had not capital sufficient to feiiGe in his crops he must put up with those inconveniences and losses which are the natural result of all speculations entered upon with inadequate means. But, on the other hand, although he contended that the one party was bound to fence, yet the other ought not to be allowed to endanger his neighbour's property with impunity. These two principles must be kept constantly in view, and it was in this spirit that the distinction had been kept between ordinary and special damages. Under this law no man who suffered damage from trespassing of cattle would be altogether without remedy, and he who had taken reasonable precautions would be insured against loss altogether. In addition to the other deficiencies of the present law, the uncertainty of its operation had been most severely felt. The measure now before the Council was framed with a view to define clearly and distinctly the rights of all parties,, so that in a case of real hardship the remedy should be certain and easy. The conflicting decisions which had been given upon this subject had become so bewildering that many had refrained from entering upon an action, for fear of not only not recovering damages, but of being in addition mulcted in the costs. This must always be the case where the uncertainty of the law left everything to be decided by the peculiar views of the individual magistrates who might happen to be on the Bench. The effect of this state of things had been a practi-

cal denial of justice to many who had severely and undeservedly suffered, not so much from any imperfection of the law as from the uncertainty of its operation. At this stage of the Bill, he (Mr. Tancred) did not ask the Council to pledge itself to all its details, hut merely to approve of its general principles. Matters of detail and especially the schedules, would be of course fully discussed in Committee. Mr. Hall seconded the motion. Bill read a first time. Mr. Tancred obtained leave to introduce the District Commissioners' Bill. This was a Bill to provide for the division of the Province into districts, and the appointment of Commissioners in each district with power to levy rates for the purpose of making and repairing roads and pthev public works. J IMMIGRATION BILL. Mr. Tancred obtained leave to introduce this Bill. Leave was given to introduce the " English Agent's" Bill, for appointing an Agent to transact the business of the Province in England. Also to introduce an Education Bill. CSUBCH PROPERTY TRUSTEES' BILL. Mr. Hall moved the first reading of this Bill. . Bill read a first time. EDWARD GIBBON WAKEFIELD's ROAD BILL. Mr. Packer moved that this Bill be read a iirst time. This is a Bill to authorise Mr. E. G. Wakefield to divert an accommodation road. Bill read a first time. THURSDAY, Feb. 23rd. The Council met pursuant to adjournment. In the absence of the Speaker, Mr. Bhodes was elected chairman for the day. The following Bills were read a second time: The Cattle Trespass Bill; The Church Property Trust Bill; E.G. Wakefield's Road Bill; and The Districts Commissioners' Bill; The English Agent's Bill; The Empowering Ordinance; were read a first time. The undermentioned papers were laid on the ,table by order of His Honor :— ' No. 10, a letter from the Colonial Secretary, stating that His Excellency did not wish to .fetter the officer administering the Government in reference to calling the General Assembly. No. 11, a letter from the Colonial Secretary, stating that the amount of salary to be paid to Registrars of Deeds is under the control of the Provincial Government of the Province in which they may be. No. 12, on the Supreme Court. No. 13, Commissioner of Crown Lands, (referring to resolution of the Council received.) No. 14, Disallowance of Empowering Ordinance. No. 15, on the Supreme Court. The Council adjourned until Friday. FRIDAY, Feb. 24th. There being no business on the order of the day, the Council stood adjourned until Tuesday. . TUESDAY, Feb. 28. Members . present—Messrs. Hall, Rhodes, Bowen, Cookson, Hamilton, Packer, Bealey, Dampier. Prayers were read by the Rev. O. Mathias at half-past four o'clock. Mr. Hamilton informed the House that the Speaker found it impossible to attend; beingthe last day of the month he was engaged with his Treasury accounts, and moved that Mr. Cookson do take the chair. Seconded by Mr. Hall. Mr. Hall laid on the table correspondence relating to extension of postal accommodation. A petition was read from the Rev. O. Mathias, as Commissary of the Bishop of New Zealand, relative to the Ecclesiastical and Educational Trust Bill before the House: the prayer of the petition was to the effect that powers proposed to be given to the Bishop, should, in the Bishop's absence, be exercised by his commissary. Moved by Mr. Hall, seconded by Mr. Bealey, that the petition do lie on the table. Agreed to. The Immigration Bill was read a second time on the motion of Mr. Hall, seconded by Mr. Hamilton. Mr. Hall stated that although there was power given to the Superintendent to raise — 10,000, it did uot follow it would be necessary to issue debentures to that extent at 8 per cent, interest. The English Agent's Bill was read a second time on the motion-of Mr. Hall, seconded by •Mr. Hamilton.

Mr. Hall said that some responsible person was necessary in London to]represent the interests of the Province ;£t was^a general practice in other colonies to have such representatives, and&though some objections to the measure niight be started on the grounds of expense, he had reason to believe that at this moment it was possible to procure the best of all agents without expense. [It is supposed allusion was made to John Bobert Godley, Esq.] The Empowering Ordinance, on the motion of Mr. Hall, seconded by Mr. Bealey, passed the second reading. The District Commissioners' Bill was read a second time. Mr. Hall spoke in favour of the Bill, pointing out the importance of the public works being under the control of local authority. Possibly improvements might be made in the bill when it was in committee, but he hoped hon. members would give due notice to the government, that such improvements may have j due consideration. | The Bill passed, the second reading being seconded by Mr. Bhodes. ■! Mr. Hall moved and Mr. Hamilton secon- ' ded, that the House go into committee on the Church Property Trust Bill, and that Mr. Bowen take the chair. Agreed to. The Preamble of the Bill was agreed to. The first clause being read, Mr. Hall proposed that the words, " in accordance with the Canons of the Church," be struck out. One of the Canons requires that the Holy Communion be partaken of at Easter, and many eligible persons might be disqualified from acting as /trustees, if they had been prevented from communicating at that season. The clause was then agreed to, as amended. The 2nd clause, conferring on the trustees power over the property, and to grant charges thereon, was read, and the blanks for the lay trustees were filled up with the following names:—Dr. Barker, W. G. Brittan, Dr. Donald, W. J. W. Hamilton, J. Hall, B, Prichard, C. Simeon, Sir T. Tancred, H. I. Tancred, B. Woolcombe ; these being the lay members of the Church Committee cannot be objected to as the first Trustees. The next clause extending the powers of the Church property to the province of Canterbury, instead of confining it to the district embraced by the Canterbury Association, was read. Mr. Dampiek stated that he feared the promoters of this Bill were about to exceed the powers that rested with the Provincial Council, that of constituting a corporate body, which powers he conceived rested with the Crown alone; he confessed that without any Standing Orders to guide him, and so little opportunity of considering the provisions of the Bill, he must ask an adjournment or oppose the Bill, and divide the House. He therefore begged to move an adjournment of this Committee (to consider the particular clause) till this day week. The resolution was not seconded. Mr. Hamilton stated that he had gone carefully through the Act conferring powers on the Provincial Council; he was of opinion there was no difficulty, nor anything contrary to English law jn the proposed clause. Powers were given to this Council, to alter and repeal laws, and if we have power to abolish what rests on her Majesty's own authority, we surely have powers to pass laws; Sir John Pakington, contemplating the necessity of forming bodies when the population increased, gives power in the 70th section to create municipal bodies and bodies corporate, and he was then doubtless writino- under the advice of the law officers of the Crown ; but if there be doubts, let us leave those doubts for the Governor to suggest an alteration or disallow. Other Provinces only passed a few Ordinances, while we passed all that came under consideration, and only in one Ordinance, and only one clause in that, did his Excellency feel it necessary to withhold his assent from. . Mr. Hall said he could add little to the clear statement of the last speaker, but while he admitted that everything on matters of law which fell from the lion, member for Lyttelton was deserving of weight, yet in regard to the legal powers of the Council he appeared now under less advantage than formerly, seeing that notwithstanding the doubts upon the subject so frequently expressed by him during the last Session, every Ordinance except one received the sanction'of the General Government; he complained of want of opportunity to become acquainted with the provisions of the bill.

There were four copies on the table of the House. (Mr. Dampier. Four to serve twelve members.) Mr. Hall: as many as there were members present. — Mr-Hall then reminded the house that.the amendment of Mr. Dampier had not been seconded, and that any further remarks would be irregular. The clause was ultimately adopted, seven voting for, and but one against it. The 3rd and 4th clauses were agreed to. The sth clause, giving the Bishop 6 calendar months to disallow any act of the Trustees, is the clause to which the petition of the Bey. O. Mathias referred to. Mr. Hall said that the petition deserved weight, but he having charge of the Bill could not assent to the prayer of the petition. It supposed the Bishop and the Trustees would be at a variance, and assumed that the Trustees might take advantage of his Lordship's absence, but with all respect to the Episcopal office, there is just the possibility that the Bishop might for once in his life be wrong, and therefore we should not give him unlimited power. The Commissary is not for governing the Diocese in the Bishop's absence ; though we have had a Commissary, yet the Bishop of New Zealand visited us when he could and carried on the affairs of his Diocese, and the Commissaries chiefly discharge what may be called the legal functions of the Bishop, such as granting licenses, &c. And however we may respect the Bishop's Commissary, I would not agree to give him the power I would entrust to the Bishop. Mr. Hall concluded by moving that the clause stand as part of the Bill. He was seconded by Mr. Bealey, who agreed with all that fell from Mr. Hall. He said the Commissary was a very inferior office to that of a Bishop, and the same controlling power given to the Bishop should not be confided to the Commissary. A Bishop is generally selected from amongst a large number of the English clergy: he meant no disrespect to the Bey. gentleman holding the office of Commissary. Mr. Dampieb^-always thought the Commissary had every power the Bishop enjoyed except the imposition of hands : it was notorious to the house that from the situation of this country, he meant as to longitude and latitude, the Bishop may be away for six months: if the petition was not taken into consideration, he would submit that the Commissary be substituted for the Bishop six months after the same has been notified to the Bishop. Mr. Hamilton supported the clause as it stood, and stated that he can rely on a reply from Auckland in five months; if the Bishop is moving, he must be coming nearer to us. Auckland is the most remote settlement, and wherever he may be his Commissary will find him out. Mr. Hall reminded the house they were not only considering the Bishop of New Zealand but"the Bishop of Canterbury or of Christchuvch, and even if Stewart's Island was within his diocese, the Bishop would not be more than six months absent from the Metropolis of his diocese. Mr. Dampier's amendment not being seconded, the clause stands as part of the Bill. The 6th, 7th, Bth, and 9th clauses passed the Committee without opposition. The 10th clause Mr. Hall conceived required a very important amendment; it was an amendment suggested by parties interested, and to which the promoters of the bill assented. One clergyman and one layman as trustees from each parish, whether large or small, would be an unequal representation. I would propose that the Trustees shall have power by bye-laws, to increase their number, providing always that the incumbent of the parish shall have the power to nominate an equal number of trustees to thobe added by election. The clause, as amended, was agreed to. The 11th clause, giving power to the Canterbury Association to convey or assign property to 'the Trustees or other persons in trust for the Ecclesiastical and Educational purposes before-mentioned, and to empower such trustees, &c, to give releases and indemnities, was opposed \v Mr. Dampier, who, assuming that by some* misfortune fpart of the Church iunds* were lost, that out of seine £10,000 only £5,000 might be forthcoming perhaps the' House was not aware that they would, by this bill, be giving a power iliey would not wish to give—the house may, in iai:t, be giving their sanction to a fraud. I cannot imagine such an occurrence, yet the power would be thus given, and it would shut out from the benefit'of a court of equity any chiiins that any persons might have to recover the lull

sum of £10,000 from the Canterbury Association. This clause would legalize an illegal contract; it would dispense with the performance of that contract, to fulfil which the Canterbury Association is bound. If the House agrees with me, I would ask delay, that it nifty be re-considered, or else I would divide the house. Mr. Hall, on the other side of "the house, rose to support the clause. It had been fully considered. The Canterbury Association was possessed of certain property and funds for Ecclesiastical purposes for the benefit of the Church at Canterbury. The Canterbury Association wished to retire from public life, and to divest itself of this Church property. Could any one expect it would hand over that property without a release? And the proper parties to decide upon whether such release was due, and what its character and extent should be, were the Trustees —the very persons elected as representatives for this property. It was very desirable we should obtain possession of this property, for with all due respect to the Canterbury Association, he thought it could be better managed here than from the Adelphi Terrace. Mr. Dampier feared tue honorable gentleman either did not understand him, or did not understand the .subject. The clause, he conceived, was unnecessary, as it was not competent for the Council to give the release in question. Mr. Hall certainly could not understand the honorable member for Lyttelton. Mr. Dampier explained the nature of Cestui gui Trusts, an old Norman expression, which applicable to the case. Mr. Hamilton could see that he and the other Trustees would incur all the responsibility now resting on the Association ; we would be transferring to ourselves ail their responsibility, and therefore would wish to have the clause referred for further consideration. Mr. Hall moved that the Agent of the Canterbury Association be called before the Committee and be heard. Seconded by Mr. Dampier, and agreed to. Henry Sewell, Esq., shortly after appeared at the bar of the House. The Chairman stated to Mr. Sewell that the Committee wished for explanation on this clause. Mr. Sewell said, in parting with the property, it becomes necessary to take precaution to secure themselves ; it is not to be presumed that the Trustees are to give any release but to the extent of that part of the property which they receive ; it may be that the Association would part with the entire of its property, and then an entire release would be given. This is to.be a matter of agreement, but without this clause this bill would be almost nugatory: no doubt the object is that those Trustees would be a representative body, that they have no sinister object; it is impossible to imagine such a thing. If this new body of Trustees would have transferred to them that which the Canterbury Association holds for the establishment of Ecclesiastical and Educational Institutions, it would be impossible to complete such an avrangemen without such a release, if they hold the properly for the Canter- ' bury Settlement. The Council have resolved, it appears, to extend it to other parts of the Canterbury Province. Suppose a transfer, a deed must be drawn up, it would be in the same words as that conferring power to the Association, except that it would provide for its extension to the whole Province ; it would be useless to ask the Canterbury Association to part with their property without a discharge. Mr. Dampibb said, if I understand the <>-entlernan at the bar, he says it is a discharge for that winch the Association gives ; but i? the Association says, take such as we can give and give us a release for all that we are bound to give, then I would vote against the clause Mr. Sewell. The clause dues -i ve a p()wei . to urant such release as may be agreed upon atier the negociation. Mr. Daupieu moved an amendment, that the clause be referred back to the promoters of the Bill for their consideration. Mr. II.Aimilton supported Mr. Dampier, as he wmiut i,ke on so important a point to have further information. The house divided For ti.e amendment to reconsider the clause, Messrs Packer, Hamilton, Dampier and Rhodes; for the or,o-,nal clause, Messrs. Hall, Henley, and Om.KSMii. U, e amendment, was carried." The oil.er diiuses wernl,,,! agree.! to, one of wind, extends all the Church pn.pe.tv to the whole of the Prc.vinup o: Canterbury "

Mi\Cookson then resumed the Speaker's chair. Mr. Hall gave notice that hejwill bring on the clause again to-morrow, after reconsideration. V; Notice of motion for Wednesday. Belation to the Cattle trespass bill. The house adjourned at half-past seven o'clock. WEDNESDAY, March Ist. Members present—Rev. W. Aylmer, Messrs. Hall, Dampier, Cookson, Hamilton, Rhodes, Bo wen, Packer, Bealey. Mr. Cookson in the chair. Mr. Aylmer said he was requested to present a petition from the residents at Akaroa, and he would pray the indulgence of the House while he briefly alluded, to the subject of the petition, which was in favour of a bridle-path to Lyttelton. He believed that most of the members of the Council had been at Akaroa at one time or other, and whether they looked at the beauty of the place, its capabilities or its advantages, all would admit that it was deserving of a better line of communication with Lyttelton than it at present possessed. He was happy to find a sum had been named for the purpose, and although the sum was small as compared to the object, yet he hoped at a future period a larger sum would be devoted to it. Mr. Rhodes- spoke in favour of the petition. The Memorial was then read by the clerk. Mr. Hall in moving that the Petition should lie on the table, said that, although the sum of £400 had been voted, as the nearest estimate which could be formed of the probable cost of opening out this communication, to use a common expression, we were very much at sea on the subject of the cost of the bridle-path, but he could say with confidence that if that sum was not enough, the Provincial Government will propose more when they had funds for such purposes. Mr. Bowen seconded the motion, and the petition was laid on the table. Mr. Aylmer also presented a petition from the residents at Akaroa in favour of a Government system of education, and praying that a schoolmaster be appointed. The petition was read by the clerk, and ordered to lie on the table. The order o? the day was then proceeded with, and it was resolved that the House should go into committee on the Church Property Trust Bill, Mr. Bowen in the chair. Mr. Hall after the 11th clause had been read, said that this clause had been referred back for re-consifleration. It had, since yesterday, been fully re-considered, and having charge of the bill he must say that unless the clause was passed as originally proposed it must be left out altogether. It provides that the trustees named, who are of all others the best parties, should have a right (after they had used the power conferred to negotiate with the Canterbury Association),.to judge what release and indemnity should be given, and if they did not consider the Association fairly entitled to a release,it would never be given ; any less extensive powers would be unavailing, it would create hindrances, if not altogether prevent the handing over the property to the Trustees. I must therefore move that the clause stand part of the bill. Mr. Rhodes seconded the motion. Mr. Dampier must once more intrude on the House. This is the last clause and it should have been the first; it authorizes the trustees to enter into a compact, and such a compact as the Canterbury Association may impose.on them. He would have no qualification of the clause ; he would rather see it rejected ; it would, in point' of fact, justify the new trustees to act for parties who might go to the Court of Chancery, and which powers the trustees have not-now. He intended to have proposed as an addition," that the right, interest, and privilege of any person interested in the Trust should'in no way be effected," but now lie would not do so, but rather issue and divide tlis House, relying on the support of the members. Mr. Hall, in reply, again urged that the trustees were elected by those interested in the Ti u-t. property. He denied thai any improper indeumity is intended to be givon. As one of the trustees lvnnerl, he would rather let the matter go to the Court of Chancery, than give the Associ.it.inn an unjust release. It is the interest of the public which makes me urge the clause inserted in 'the bill. Mr. BjiALEY seconded the adoption of the clause.

Mr. Hamilton rose and stated, that.he was going to let this clause pass without voting against it, because the agent of the Canterbury Association will not act upon it until it has passed the law officers of the Crown, and has also received the assent of the Governor. Mr. Dampier : "The question is not on the face of the bill; the law-officers of the Crown, will suppose that all the circumstances of the' case have been before the Council. Now we' have not that before us ; it is an open clause, one which is so open, that I cannot but think there is more in it than meets the eye; I am, I. confess, afraid of it." The clause then passed with only one dissenting voice. Mr. Hall proposed that clause 2 should be re-considered, which was so amended as to remove the responsibility of trustees beyond their, own individual acts, and enabling trustees to resign on serving notice to that effect. Mr. Dampier said that by some oversight or mistake a word had been struck out of the bill, and he wished the bill restored as he had it; it was a change quite contrary to the intention of the founders of the bill, to extend the Church property to the whole of the province of Canterbury. Mr. Hall quite concurred in the remarks;, but the Trust should have a wider scope, and: should have power to deal with any other pro--perty that might be placed in their hands for' purposes beyond the Canterbury settlement. Mr. Dampier looked upon this as a private billy and as such should not transfer the interests of the public without the thorough consent of those interested. The private fund should not be turned into a public fund for the Province at large. The Agent of the Canterbury Association., has such full authority, that he seems to have power to do all but cut off the heads of Her Majesty's subjects. Mr. Hall. The Canterbury Association has no power to extend the application of the, Church property beyond the Canterbury block. Nor can it be so extended except by the members of the Church themselves, but it. is very" desirable that the latter should be able to do this. Mr. Hamilton rose to ask what was the question before the House. Mr. Dampier proposed to restrict the operations of the Bill to the Canterbury settlement, but no member seconded him. The amended clause was then passed, Mr. Hall moved, and Mr. Bealey secon ded, that clause 5 be re-considered, the object of which was that the power of disallowing hereinbefore granted to the Bishop should not extend to any sale of property or lease actually made, completed, and executed. It would1 leave, howevei, the power with the Bishop of disallowing the more important acts of the trustees, such as making of bye-laws, setting, out parishes, &c. To meet the difficulties of Mr. Dampier, the words " for Ecclesiastical or Educational purposes within the said Canterbury Settlement," were added in clause 11-. The Chairman then reported progress, and Mr. Cookson resumed the Speaker's chair. Mr. Packer moved that the House resolve itself into a Committee to consider My. E. G. Wakefield's Bill to divert a road, and that Mr. Bbwen take the Chair. A discussion ensued in which it was proposed that before the old" line of road was abandoned, two Magistrates should certify that Mr. Wakefield had made a sufficient road in the proposed direction; but this was not thought fair as no road really existed. Mr. Himilton, however, remarked that though it did not appear of much importance now, it might be a considerable loss at some future period, as a long line of river frontage would thus be transferred to Mr. Wakefield; he remembered that in one of Capt. Thomas's reports he stated that the Avon might be made navigable up to Mr. Deans, at Iticcarton, and Mr. Wakefield's proposed road and the river frontage was close to Christchurch, and in aflat country like this the banks of a river might be the only place for public walks, and he did not consider it was Mr. Wakefield's object to benefit the public in this proposed change, but that it was for his own advantage. The Bill was postponed until a report from the chief surveyor of the province would be able to report on the proposed change of road. [The conclusion of this day's debate, and the proceedings for Thursday and Friday, we are compelled to postpone.]