THE DELEGATED POWERS.

Dunstan Times, Issue 267, 7 June 1867, Page 3

THE DELEGATED POWERS.

We do not identify ourselves with the opinions ■ exj les-ed by our correspondents.)

(TO THK EDITOR or THE DfXSTAX TIMES.) Sin,—lt appears that our Dunedin senators have had some misgivings, as to the propriety of their past conduct; and, in their affliction, have had recourse to the fatherly counsel of one in authority. They arc not entirely of celestial origin, as some simple maiden c'r philosophic recluse might imagine : hut, only a part of, and inheriting the failings of the great herd of humanity ; who,"without moral principle sufficient to avoid a dishonorable action, have virtue sufficient to lie ashamed of it; and are not v Lolly abandoned in the ways of iniquity, prompted by remorse of conscience after their many transgressions ; they seek the counsel of Mr George Cook: and he, evidently sympathising with their distress, gives them his advice and “ opinion.” I propose to review this ‘ opinionand, not wishing to do Mr Cook any injustice by partial extracts, I refer the reader to the ‘ Otago Daily Times’ of the 17th of May ; which contains the document ‘ in extenao’. Mr Cook says that “so far as the Goldfields’ Act has the effect of depriving the Provincial Government of the right to govern over any portion of the Province of Otago, or is otherwise antagonistic to Provincial Government, it is oontrary to the provisions and spirit of those portions of the Constitution Act, which have reference to Provincial institution, and is therefore illegal * * 11 This is mere hypothesis, and settles no question of law or fact ; “so far as the Goldfields’ Act deprives the Provincial Government of the right to govern, &c.” The conclusion “ and is therefore illegal,” appears to have been an inference from a corollary, he has drawn from the first proposition : which says “were it otherwise (i.e. than illegal) Provincial Governments would be annihilated ; for the 'whole of New Zealand might bo declared a Goldfield, Ac.” Now this could only be the case, wero the whole Colony proved to he auriferous; which it is not. The fact of the existence of gold must he tho basis of any proclamation : otherwise it would be founded onji falsehood; and, ‘ipsofacto’.illegal. . ~ ... j Section 53 and 51 of the Goldfields’ Act have reference to the appropriation of the revenues, to payment of official expenses, and to the construction of works of public utility, &e. Mr Cook is of opinion that “ The costs, charges, and expenses mentioned in Section 53, incident to tho management and receipt of tho rent

royalties, and fees * * may be paid out of the revenue : but that the costs, charges, and expenses, mentioned in section 51; referring generally to the management and administration of the Goldficlds, and to public works, ixc, cannot be paid without a special appropriation Act." The clause, he says, is unconstitutional ; because "it leaves the Governor and Council to spend whatever amount they like in public works, &c, * * * This Section (5-1) cannot be considered an Appropriation Act * * * ." Mr Cook says first, that the 54th Section cannot be considered as constituting an Act of Appropriation : and then, takes it for granted that it is an Act of Appropriation ; and concludes that as unconstitutional: " because the public have a right to control the public expenditure ; and to see what is required before tb. money is voted." The conclusion that the section enables the Government to spend money without the control of Parliament, is not warranted by tka wording of the Act. It admits of the following interpretation, that—while the Govcrncr is nominally the receiver and dispenser of the revenue—its appropriation .in expenditure will be . made, by vote of Parliament, in the usual way. Therefore Section 54 of the GoldfielikV Act is not unconstitutional. Mr Cook next attempts to show that the GoJdtidds' Act is illegal, because the 3rd Section of the "New Zealand Loan-guarantee (imperial) Act" provides, that "no Act of New Zealand discharging or varying the security, for the money borrowed under the New Zealand Loan Act, (1850), shall be valid, unless confirmed by Her Majesty in Council." (Section 5 cf this Act provides that all monies raised on its authority, shall be a first charge on the revenues of the Colony.) Mr Cook next says that the 54th Section of the Goldfields' Act violates the compact entered into in 1850, by which the Waste Lands of the Crown and revenues were vested in the Provinces; on'condition of paying the New Zealand Company's debts ; ou faith of which the halfmi'lion loan was guaranteed by the Imperial Government. Till' is an assumption'that the security for the loan is invalidated by the. Goldfields' Act. But this is not a legitimate conclusion ; because the portion of revenue applied to defray the expenses of collection and management, including public works, Ac, a:e means accessory for creating revenue ; and the balance or surplus will be still available for the discharge of liabiiities. But there is security specially guaranteed in the provisions of the Act. Section 48 provides that '.' any district proclaimed a Goldfield, shall not be subject to any provisions of any Waste-Land Act, regulating the sale, disposal or occupation of Crown Lands, within the Province * * * or to land which j may be heretofore or hereafter reserved for any j public use or purpes-i : "or, except so far as such provisions may specially authorise the sale of land within the Goldikld." The security for money bxrowed is tlu-rsfoiy ! neither varied nor discharged by the GoldfioMs' ! Act. " ! la the last Section of his opinion, Mr Cook ! say 1 ; :- -" With respect to the power of the; "Legislative Assembly to legislate for the! " Goldlields, I feel no doubt, gold-mines form a i "branch of the royal revenue; and the Crownhas j "the liberty of entering private lands to dig fur j "gold * * * The Governorhaa | "committed to him by the Crown, the car:- and l "protection of its revenues in New Zealand: and I "1 think can consent to its revenues being dealt : •'with by the New Zealand Parliament." With the argument in this sth Section, I per- i fectly agree : and indeed it contains the gist of j the whole subject, and settles all questions of law and constitution : but it is quite unneccssa- j ry to refer to Statutes of William and Mary, or George the third, to prove the prerogatives Cf j the Crown. The prerogatives of the Crown form an integral. pa.lt of the British Constitution ; separate from and superior to all laws or constitutional priviledge. One of these is the right to gold and silver, in whatever part of the dominions it may be found, and this right is perpetual and inalienable. Other mines and minerals may belong to the subject, as to proprietors of the fee simple of the soil, or Lords of manors &c. : but gold and silver mines can never become the property of the subject; they are the hereditary and indefeasible possessions of the Crown :in plain English, the Queens' private property, claimed and recognised by the Laws, through all periods of Constitutional history. The conclusions hence derived , from consideration of Mr Cook's "opinion" are these, viz,— The argument in Section I is hypothetical, and proves nothing. The second Section is con tradietory. The third and fourth not warranted by facts, and A fair interpretation of the Gold- fields' Act, and the fifth is unnecessary, as it only shows that the Crown, though it has a right to gold and silver mines, kaa no right to the labour of the subject, this nobody doubts or disputes : and has nothing to do with the question at issue. True to the interests of his profession, Mr Cook has left all in "glorious uncertainty" With respect to the literary style and charac tor of thia document 1 should have had nothing to say (my business is with facts and principles) did it not betray prejudices, which vitiate the arguments of the writer ; and invalidate any conclusions at which he might arrive. What has the insinuation that "the General Government might by corrupt and irresponsible agents gove-rn the Country in tho most oppressive manner" t" do in an "opinion'of law and fp.ct ? or what the prophecy that the conduct of tho General Government will drive the ministry from ~flice and accelerate separation. It is evident that the Provincial Executive, acquainted with Mr Cook's political proclivities, saw in him a proper instrument for obtaining a verdict in their favor and their throwing an air of legality over their unscrupulous proceedings. It has been shown that all gold and (diver I mines are the property of the Crown ■: and the ri»kt of the Crowu to enter private lands for the purpose of mining, is an established legal right: but the Crown has no right to the labour or property of tho subject; but must contract with the laboures for his labour, and compensate the owner of property injured by mining operations.

In conveyances of the fee simple, or Crown grants of laud, it is not necessary to make special reservations of gold and silver mines, because they arc iualicnable rights of the Crown, co-ordinate with all other Constitutional rights, and antecedent to anil superior to all written law. This right remains inviolable amidst all changes of Jaw, or grants of constitutional privileges : and nothing contained in the "New Zealand Constitution Act" can interfere with its full free exercise, in all parts of the Colony, where gold is discovered. "We now como to the question of "appropriation" The rcvonue belongs to the Crown —is the property of the Qneeu —but the Queen does not receive it for her own personal services : because she receives instead a commutation for all her territorial revenue, by the annual vote of the civil list of the Imperial and Colonial parliaments : and in consequence the revenues derived from the property of the Crown, are applied to public uses. In the working of Gold mines, charges and expenses are necessarily incurred for administration of the Laws and general management; and these, being means of raising and collecting revenue must be paid out of the profits of the Gold-workings. Roads, Bridges, Water-races, and Reservoirs &e. arc works necessary for the full development of the mineral resources : and the expense of construction of these works is a legitimate charge on the Gold-fields' revenue.. The balance or surplus over these necessary expenses, is the not revenue available for discharging any territorial liabilities and for the general purposes of the Colony. The Gold fields' Act is therefore legal and constitutional, and carried out in its integrity, will confer on the gold-fields' population all the advantages of local government. Cms. Kawarau Gorge, Hay S'.tth 1867.