THE CONSTITUTIONAL QUESTION.

New Zealander, Volume 13, Issue 1133, 25 February 1857, Page 3

THE CONSTITUTIONAL QUESTION.

To the Editor of the New Zf.al inoki

n!) —Xhe information conveyed '•<> the public in your leading article oi" Ssiturduy lust, ought to I"' ti useful warning to Mr. Carle ton in particular, ami to all others who take a purl cither in conducting public affairs, or public discussions. When a man though a long career attempts to steer his course by anything else than sonic polar truth or principle, hois sure to be lost, ii is beyond the compass of his capacity to keep till the parts of an argument together, and make them unite in one issue, by any other means than having this guide always in view. Neither memory nor invention will supply the want of it; the former fails him, and the latter betrays him. How many times has the ex-I'roviucial Secretary told his readers that there was no precedent to which we could refer touching this double-election ease? It now turns nut that the conduct of both Dr. Pollen and the Superintendent—the ortnerin resigning and the latter in having issued the writ —is perfectly justified according to a "precedent"established by Mr. Carletotihimself wheu serving in the capacity of Provincial Secretary. This piece of timely information will no doubt have its proper weight on the minds of all who measure motives and value truth. How silent the Editor of the Oowisthis morning 0:1 this point! He likely enough would much rather the information so damaging to his cause hail been forgotten or kept onl of sight. Ignorance is of a peculiar nature: once uispellcd, it is impossible to re-establish it. It is not originally a thing of itself, but is only the absence of knowledge: ami though man may be kepi ignorant, he cannol be re-made ignorant. The mind in discovering truth, acts in the same manner as it acts though the eye in discovering objects; when once any object litis been seen, it is impossible to put the mind back to the same condition it was in before ii saw it. Man, try how be will. cannot realty ««know his knowledge, or «nthink his thoughts. It is no use any out saying thai there is no precedent after this. This is a most unfortunate, u must unlucky, and slaying stroke against Mr. ('arlcton'i argument and consistency. The Editor of the CVo.v.v, tu one of his recenl leaders en this question, boasted of having 011 his si le the leader of the Auckland Bur. Mr. Swu'mson, he said, was not now Attorney-General and therefore 110 longer the leader! Mr. Hartley, us he implies, having been previously only secondary to Mr. Swainson, by thischangi has been made A 1 -as an authority. The cream of I the joke is, the fact of Mr. Hartley himself being in this case one of the parties deeply implicated, and therefore on hw trial. "Ms opinion and authoiity consequently shmdtl be indisputable." This is arguing the point according to the -cere! wishes, as to the very best manner of settling this vexed question, cherished b\ the Speaker and Editor 01 the " Cross" but i forms no reason whatever why the public should be compelled to accept it either as 11 proper or as u final <!•■< isi<ni re especially when tin previous conduct of those parties is considered and brought into comparison. So lar as judicial decisions ol even th" highest authorities are to he looked upon either as correct, as he would seem to imply, or nol reversible, the history of law cases in our native land may be cited against him. Main cases can be given in which th" decision uf the higher Judges have had to be reversed even bv themselves. Ist, The hi-tore of the case agains'l '"tikes Far libel. 2nd. There was a prominenl case deciflcc] l,v a ,Judge on the Slavery tpiestioti, which "timvillu Sharpe had afterwards reversed ; the same has been since fortified bv the British' Government fnvmg £20,000,000 to abolish shivery. 3rd. There was another instance in the case of Home Tooi.e in ', naV,,.,,,,. r „ Tl .j.,| | )y _, | |M _ , |n: , lh( . r | yrtlle{ | „.„„,,. ~,• Treason, vvfiiciij enforced the reversion of ™»ny decisions given b\ various judges. The decision ? !l "' Judges in Ireland in the last ease against I 111 1" O'Connell, was afterward.- set aside bv the House of L 0,,1, i„ : . ~,-js way. Many more eases could be mentioned to shew how "U'lges themselves li veal times given very unconstituttoua] decisions. For the editored' the " Cross" lo attempt to prove that our Speaker's opinion i- not to ie chullengcd, is equal to attempting to prove thai he Wliotjso liable to be in the wrong, as the Judges of kngtund and Ireland have been ; attempting, also, to establish the infallibility of the opinions and law of our »P aker. A 1 nse man of antiquity once said, "When I was a ( ' 1 "" 1 . • thought as a child, but when I became a man, 1 Pal away childish things." All power exercised ov « ti nation must have .some beginning. It must cithei he delegated or assumed ; There are no other "»ki». All delegated power is Trust, and all assumed power is Usurpation. The nation is essentially Jhesbnree or foundation of all political sovereignty. lne Hoase of (lommons, like our' louneil, originated ** a matter ( »f right from the people. Laws must, be *s'cwn to have an existence, before put in execution, "maps the Editor of the "Cross" will tell us f" in explanation") that both branches of the rills! > I'arliaiiinii were erected bv patents and are " mv l "' l| l uh such. This idea might yel be very congenial to high conservative adherents', but is now too '•'''•and u so ridiculous us to be altogether exploded "■',"'• -'n-a, body of the people. •iiAtitutiuuj) are to Libcrtv and Governmeul what » grammar is to language ; they define their parts of B P«jch and practically eou.-truci fhetri into svntux. . ' n principle, the Government has no right to alter "''il '■ if the practice is once admitted, it wii! grow «"o an observance, a general acknowledged custom, U will license for uuv future alterations the governmeul might wish to establish. The right of enug the Governmeul i- a national one, and not a -''■toi Government exclusively. If it was admitted .'"" the Guvcrnmenl had the pinyer of altering itself, ;j;"nld be Government dethroning Government. .sv'i .-'''' "' in 'li' 1 House of Peers, once \ } ~ u That the form of a Governmeul was a matter ;" !| v' at the will of a Naiion, at all time.- ; if it, chose "Monarchical form, ii had a. right to have it ,0 ; and " idterwards chose to be .1 Republic, to say to a Un Ki'we have in. longer am. occasion fur vou."' 'I he £-°l jl * of Greal Britain are con ten I to have a Queen, 1111,1 they have :l righl to their choice. The people of America chose to have no Queen, but to have a Presi"Wni instead. Who can dispute their right ?

The rights of men in society, arc neither devisable, nor transferable, nor annihilable, l>nt arc descendable only ; and it is not in the power of any small body of men to intercept them finally, and cut of the descent. If the present generation ot electors of this Province arc disposed to be slaves, and allow their rights and liberties to be trampled on by their own representatives ii will not lessen the right of their successors to be tree ; wrongs cannot have a legal descent.

Such an act as that of our Provincial Council, exhibits men under the government of temper, instead of n ttxed and steady principle, who having once committed themselves, however rashly, feci themselves urged along to justify by continuancethcirlirst false step. - v .u acl which at another time they would be perhaps first to censure, they in this particular instance approve, and feign persuasion uponthemselvcs to overweigh their judgment. They are attempting to establish a superior or right of the Council to tli.it of the Electoral Body, the source from which they have derived their power. It is remarkable, how the Opposition shift about from one position to the other. A great deal has been written about the English practice. 1 proved in my last from the best authorities what that practice is. The House of Commons appoint a Committe to investigate, adjudicate and decide. Such Committee is invested with judicial powers -it decides, and its decision is final and binding,

Our Provincial Council appointed :i Committee to report only—shorn of the necessary powers of giving a judicial decision. In consequence of' this nn-Knglish us well as legal defect in its construction. Dr. Pollen and the Superintendent, even if they had no constitutional clauses for their guidance were at full liberty to treat it as if no Committee was in existence. Mr. Carieton, in justice to Mr. I >. Craham, ought to have fought hard for the proper powers of the Committee, instead of objecting to its powers to act in a judicial capacity. The un-eonslitulional resolution of the Council, the dictatoritil, and despotic conduct of the Speaker, have been brought into requisition to redeem the ground lost in the first glaring and illegal blunder committed hj , a powerless construction of Committee. Morally Mr. I). Craham should be member. Legally Mr. Daldy is. Yours, ge., W11.1.1A.M (tUIII'IN. February 24th, 1857.