THE LATE ORDINANCES.

Nelson Examiner and New Zealand Chronicle, Volume VI, Issue 309, 5 February 1848, Page 193

THE LATE ORDINANCES.

[From tbe Neva Zealand Spectator, January 22.] We have directed public attention, as occasion served, to some of the ordinances enacted during the past year, and having received them in their complete from by the recent arrivals from Auckland, it may not be out of place to review the labours of the last session, and consider the claims which the Legislative Council under the old constitution has established to the grateful remembrance of the colonists in passing laws likely to be permanently useful, and to promote the prosperity of the colony. It would be tedious, and does not fall within our present scope, to examine minutely each separate ordinance, still less do we desire to approach them in a captious spirit of criticism ; out there are several objectionable features which, in a general review of them, it is desirable to point out as serious faults to be avoided in future legislation under the New Constitution. These faults may be classed under three heads, a tendency to despotism by placing all the power in the hands of the Governor, giving to proclamations equal force with the law — in many cases making the law depend upon the proclamation ; extreme carelessness in their construction, so as to produce obscurity and uncertainty as to their meaning ; — and an interference with the duties of the future provincial assemblies in passing acts for local purposes, which would have been better adapted by the latter to the purposes for which they are intended. In considering the first objection, we find four of the ordinances depend for their efficacy on the proclamation of the Governor. This course is open to two serious objections ; that it depends on the Governor's will and good pleasure what shall be law, and when it shall come into force; and that the law does not declare its own meaning — that is, in seeking for the meaning and force of the law, recourse must be had to something else, and the Gazettes become of equal validity with the Statute book, since to find when the law comes into operation, a perpetual reference must be made to them for tbe proclamations giving the laws effect. Besides, this course thrusts upon the Governor an unusual amount of responsibility repugnant to the spirit of the British Constitution. We may refer to tbe Sale of Spirits Ordinance as an example. This ordinance, stringent in its operation and summary in its application, becomes law only when and where the Governor pleases. It " shall come into operation in such districts and at such times as the Governor for the time being, shall by proclamation from time to time appoint." But as if this were not ample room and verge enough, further provision is made "for the Governor from time to time to modify or alter, or to suspend the operation of any of the provisions of this ordinance," "and to substitute for any provision which may be so suspended any other provision or provisions better adapted to give effect to tbe purposes of this ordinance :" that is, the Governor may not only declare where and when it shall come into force, but he may if he pleases abolish the law and substitute a law of his own ! Brevity is a distinguishing feature of the New Zealand ordinances, and appears to be the great end aimed at, but it is dearly purchased if the sense and meaning of the law is left to be supplied by the Executive. We submit the following sketch as more concise, and as much to ihe purpose as "the ordinance under consideration :— ■ " Whereas it is expedient, as far as may be practicable, to limit the use of intoxicating liquors amongst the native inhabitants of New Zealand, but so nevertheless as to secure the concurrence of the said native people to the provisions in that behalf to be framed."

"Beit therefore enacted by the LieutenantGovernor of New Zealand, with the advice and consent of the Legislative Council thereof, that it shall be lawful for the Governor to mal e such regulations as shall seem to him best adapted to have this effect, the said regulations to come into operation in such districts and at such times as the Governor for the time being shall by proclamation from time to time appoint." But this ordinance is open to other objections. It is an experiment to prevent, if possible, the vice of drunkenness from spreading among the. natives, and it would have been worth while trying whether this end could not be obtained by other and simpler means — whether by a slight alteration in the Licensing Ordinance, such stipulations could not have been introduced in the Publicans' Licenses as would afford a sufficient remedy for the evil. If a native is addicted to drinking, he will not be cured by legislative enactment. If the licensed dealer who is under the control of the police is not allowed to supply him in moderation, the illicit dealer will ; he will be taught to pay in goods as well as money, sly grog-shops will be multiplied, and the natives will be taught to steal as well as to get drunk. Under the second head, of carelessness in legislation, so as to render the law ambiguous, obscure, or contradictory in its meaning, the examples are so numerous that the limits of a single article would fail to enumerate them. A few instances taken at random from the different ordinances must suffice. Take the Gunpowder Ordinance for example, which seems to have been framed inter alia for the purpose of guarding against serious accidents in towns in case of 6re. It is enacted, under penalty of twenty pounds and the forfeiture of all the gunpowder beyond the prescribed quantity, " that no person being a dealer in gunpowder shall have or keep at any one time more than fifty pounds, and not being such dealer more than fifteen pounds weight of gunpowder in any house, storehouse, warehouse, shop, cellar, yard, wharf, building or place, other than some public powder magazine, &c." Immediately afterwards, it is enacted that warrants maybe issued by any justice of the peace to search not only the places above enumerated, but any ship or vessel in which gunpowder is suspected to be kept contrary to the provisions of the ordinance. By this ordinance it is not penal to have gunpowder on board a ship, but it may be seized and declared forfeited by any two justices of the peace if found there. If this law does not be- ! come a source of annoyance in its operation to the shipping visiting the ports of New Zealand, it will be chiefly owing to the discretion of the persons administering it. In the Slaughter House Ordinance, all cattle (and the word cattle is interpreted to mean horned cattle, sheep, goats, and swine) slaughtered in any town in which the act comes in force, or within three miles of its outer boundary, for safe, barter, &c, must be slaughtered at a public slaughter-house under a penalty of five pounds, but an exception is made in favour of persons slaughtering cattle at their own residences or farms for their own use. Now it frequently happens that persons in the country killing a sheep or pig and finding it more than they require for their awn use, particularly in the summer, sell or barter a portion of it to their neighbours ;— are they liable to a penalty ? Provision is carefully made for keeping the skins of horned or neat cattle for inspection so as to prevent or insure the detection of cattle stealing, but not the skins of sheep, and yet sheep stealing is as common an offence as cattle stealing, and more easily committed. In the Indemnity Ordinance, the officers of her Majesty's forces and others who shall have duly acted under the authority of the Proclamations cf Martial Law, are indemnified againßt all actions to which they have been or may become liable ; the indemnity is not complete, as a question may be raised as to whether they have or not duly acted under the proclamations, and a prospective liability under proclamations that have been recalled is absurd, since the liability arises from acts already committed. Lord Bacon says that the office of the judge is jus dicere and not jus dare: to interpret law, and not to make law or give law. From the preceding observations it will be perceived that with the New Zealand Ordinances those who administer the law are obliged to find a meaning according to what they conceive td be the spirit of the law, since the letter so often fails them, to supply a meaning where it is not obvious, in fine to make law and not interpret it. We have only space under the third head to. notice the Foothpath Ordinance; it is very short, but very absurd. It is an interference with the duties of the municipal corporations, and the regulation of footpaths might have been more efficiently left to their control and superintendence, as is the case in the mother-country. The ordinance provides that before any footpath can be constituted a public footpath, its situation and extent shall be named in a notice to be published in the Government Gazettes now, if every footpath in every town in New Zealand must first be described in the Gazette before it can be deemed within the provisions of the ordinance, the Gazette will be. greatly increased in volume though not in utility, and in enforcing its provision* perpetual reference must be made not to the Ordinance but to the Gazette, to see what footpaths have been proclaimed, fco one may ride or lead horses, but mules are not excepted, ho ned cattle may not be driven on footpaths, but sheep may. Other examples may present themselves to a more diligent enquirer, but enough has been said to show that the blunders obvious on a cursory examination of the labours of the last sesiion of the Council, will not tend to raise the character of the Ordinances of New Zealand from the low estimation in which they have been previously held.