CORRESPONDENCE RELATING TO THE RESIGNATION OF THE ATTORNEY-GENERAL.

Lyttelton Times, Volume III, Issue 128, 18 June 1853, Page 4

CORRESPONDENCE RELATING TO THE RESIGNATION OF THE ATTOR-NEY-GENERAL.

From Mr. D. Wakefield to his Excellency the Governor. Wellington, April 9th, 1853. Dear Sir George Gret, —Being desirous of writing to you without the least delay, I beg that you will let me do so unofficially, though my letter may hereafter be treated as official for any purpose requiring that it should be so recorded. By the same opportunity you will receive accounts, down to the present time, of the proceedings of the Executive Council and the Commissioner of Crown Lands, in the matter of the Land Proclamation, and the legal opposition to it by the suit of Dorset v. Bell. In the course of these proceedings, differences of opinion have arisen between my colleagues and me, which have at length become so serious and embarrassing, both to the government and myself, that, as I stand alone with regard to the ftore important points of difference, I feel bound in duty towards your Excellency, and in honour towards my colleagues, to abstain from further controversy with them ; to cease attendance at meetings of the Executive Council, until your pleasure in the matter can be known ; and to place my office at your disposal in case you should think I have taken a wrong view of the questions in dispute. I will now state as briefly as possible the parculars of our disagreements. When it was proposed by the plaintiff that his case should not be heard ex-par te in the first instance, but that the defendant should oppose the motion for an injunction, so as to bring the whole case on both sides before the Court, I was very clearly of opinion that the application ought to be acceded to, as the course most desirable for the Government. My colleagues thought that a compliance .with the application would be an undue concession by the Government. But as I did not insist on my own view, beyond clearly and repeatedly expressing it, this difference between us occasioned no controvery, and was not recorded. I Lave no right therefore to attach much importance to it. The terms in which the Court subsequently delivered its judgment, left me without a doubt that it would be. perfectly idle to attempt to change the mind of the Judge on the point of general illegality, unless we could produce new facts to alter the substantial complexion of the case ; and none of us believed that such facts could be produced. This conviction has entirely guided me from the moment when.it was formed to the present time. Accordingly when, on the suggestion of Mr. King, it was proposed to apply for a dissolution of the Injunction on merely technical grounds, I objected to such a course ; first, on the ground that it would be useless if the motion were successful, because the plaintiff would immediately renew his application in an amended form, with precisely the same substantial result; and secondly, that small objections of mere form, whether successful or not for the moment, would be discreditable to the Government. On this point Mr. Bell cordially agreed with me; and the members of Council concurred in that view. We had then to determine what else should be done. Always impressed with the belief that nothing would induce the Judge to dissolve the Injunction, because he had granted it on general grounds which we had no means of altering, and had expressed himself in the most der. cided terms, I offered nevertheless to make the attempt if required to do so by my colleagues; but at the same time I strongly urged that the attempt ought not to be made, and I recommended a different course. Referring to the Judge's suggestion, made when delivering his judgment, that he should be enabled to lay the case before the Chief Justice at Auckland in order that it might obtain their joint consideration, I proposed that the. Government should go into Court for that purpose only ; and that, in order to obtain his Honour's assent to it; the Government should be ready to engage that all proceedings under the Proclamation, in the other Provinces as well as Wellington, should be stayed pending the reference to the Chief Justice. In the latter suggestion, I had besides for objects, to avert the incongruity of one mode of dealing with

Crown Lands prevailing in one Province, and a different one in others, together with the far greater evil of carrying into practical operation a measure which would affect title and property to a large amount, but which the Supreme Court had so far pronounced to be unfounded in law. On the first point, that is the expediency of not attempting to alter Mr. Justice Stephen's mind on the present facts of the case, and of attempting to bring the. whole case before the Chief Justice, my colleagues assented to my view, stating however that they did so only because my opinion as Attorney-General was so decided ; but they totally and unanimously, Mr. Bell included, differed from me on the second point, that is the expediency of staying all proceedings for the present. Before the final expression of their opinion, and when I hoped they would adopt my view, I felt that the present nullification of the Land Proclamation would produce a state of public affairs imposing on us, in your Excellency's absence, and when we could not communicate with yon without much delay, a heavy personal responsibility. This responsibility, which was new to us all, weighed so much upon me that I thought it prudent and right to confer with the Judge, as the highest public functionary in the Governor's absence, on the course that we ought to pursue. As I informed my colleagues, his Honour, recognizing the fact that, like the Lord Chancellor at home, Judges in many colonies are important political officers, kindly favoured me with his opinion, and said that, if asked by the Executive, he should be prepared to offer it in a more formal manner. His opinion, which appeared to me perfectly sound, was that we should do well in respectfully suggesting to the Governor the expediency and necessity of giving immediate and complete effect to the Imperial Act establishment a representative constitution.

It appeared to me that by this means the Colony would be relieved from most serious embarrassment, which must otherwise arise from its remaining between two different sorts of Government, which cross each other, and neither of which can work properly; that indispensable legislation on many subjects of the utmost weight would be no longer delayed; and that responsibility with regard to such subjects would be cast upon the people of the Colony on whom the Constitution intends and purports to take it, and who, at all events, must bear it sooner or later. All this I fully represented to my colleagues. On another point, I spoke for myself alone, unsupported by the sanction of the Judge. I represented that the main cause of delay in establishing the Constitution is the difficulty of inducing proper persons to accept seats in the Upper House of the General Legislature ; that I thought this difficulty would be at once removed if the Governor should take to his Councils persons enjoying the confidence of the people in the different settlements, who, if they enjoyed his Excellency's confidence also, would have no difficulty in inducing the most respectable men in the country to accept seats in the Legislative Council; and that, in my opinion, the last suggestion would be unreal unless the present members of the Executive placed their offices at the Governor's disposal for the purpose, so that the course recommended might be made easy for him to pursue. On finding that ray colleagues had fixed objections to my proposal, that proceedings under the Land Proclamation should be everywhere suspended until the opinion of the Chief Justice could be taken, and to all my proposals with regard to bringing the Constitution into effect, or rather that they would not listen to them for a moment, I felt myself bound in duty towards your Excellency, and in fairness towards them, to inform them of my intention to appeal to the head of the Government, tendering to him the resignation of my office, and in the meantime, until his pleasure could be known, to abstain from attendance at meetings of the Executive Council, except when required to attend on matters especially relating to my office as Attorney-General. At the same time I engaged to perform all the duties of my office, until we could hear from the head of the Government, and expressed a hope that I should be able to do so as faithfully, in compliance with whatever might be the wishes of the Council, as if I agreed with my colleagues on questions of policy. The above statement will bring to your notice all the material facts of the case, to which it [ seems best that I should not add any argument

or further representation. Trusting they may satisfy you that-I have acted with right intentions, and that I have not failed in duty to yourself as the head of the Government, or in honour towards my colleagues, whom I shall privately furnish with a copy of thjs letter, I re- , main, ~ Dear Sir George Grey, Very faithfully and truly yours, (Signed) D. Wakefield.

From Mr. D. Wakefield to Mr. JOomett. Wellington, May 12, 1853. Sir,—-In reply to your letter of the 9th inst., requesting me to forward my opinion on certain questions raised by Mr. Henry Sewell in a letter dated 9th March, which opinion you had requested me to give in a letter dated the 10th March, I have the honour to inform you, that the following circumstances have prevented me from doing so. The subject on which my opinion was asked, naniely, the Proclamation of the 4th March, had been discussed more than once in the Executive Council, chiefly as regarded the expediency of lowering the price of waste lands. In these discussions, the power of the Governor to issue the Proclamation appeared to he taken for granted. At all events, the point, if mooted at all, was not brought forward in any prominent manner, and was not deemed suffix ciently important to require special considera^ tion. After these discussions the Governor took some time, I think some weeks, to reflect on the expediency of issuing the Proclamation. Another meeting of the Executive Council was then held, at which some desultory conversation took place respecting the policy of the Proclamation, but nothing was said as to its legality; and his Excellency announced his intention of signing it. It was forthwith put into the printer's hands, and the printing was almost finished when Mr. Henry Sewell addressed the Governor on the subject, in his letter of the 9th March, The questions raised in that letter were, I presume, deemed to be unimportant; as the Proclamation appeared in the Gazette the day after the receipt of the letter, and had been published before my opinion respecting it was requested in your letter of the 30th March. Almost immediately, the proceedings in the case of Dorset v. Bell commenced ; and I, remembering that my opinion had not been asked with any view of taking counsel from it, and believing that it could be of no use whatever pendente lite, supposed that the application to me for it had been a mere form, intended to square with the terms of your answer to Mr. Sewell's letter of the 9th of March. This impression has been confirmed by the fact that, from that day to the receipt of your present application—a period of eight weeks—the former application seemed to -be as entirely forgotten by my colleagues as it was by myself. I have now the honor to transmit the opinion herewith. I have the honor to be, Sir, Your obedient humble servant, (Signed) D. Wakefield, Attorney-General

opinion. I have carefully perused and considered a letter from Mr. Henry Sewell, relative to the reduction made in the upset price of the Demesne Lands of the Crown in this colony (dated the 9th March, 1853); a despatch from Sir J. Pakington to His Excellency the Governor (No. 32, and dated 16th July, 1852); another despatch from Sir J. Pakington to His Excellency the Governor (No. 34, and dated 21st July, 1852); and the Proclamation alluded to in Mr. Sewell's letter, copies of which were transmitted to me by the Civil Secretary on the 10th March for my opinion thereon; and I think that, as to the first question raised by Mr. Sewell, namely, that the Proclamation is in contravention of the 14th and 15th Vict. c. 86, for regulating the affairs of the Company's Settlements, the Proclamation must be in contravention of that Act, unless that Act be repealed by the 15th and 16th Vict. c. 72, which I hold is not the case, because the maxim " Leges posteriores priores contrarias abroyant" is not applicable. The books on this subject say—" the law does not favour a repeal by implication unless the repugnance be quite plain ; and such repeal carrying with it a reflection on the wisdom of former Parliaments, it has even been confined to repealing as little as possible of the preceding statute. Although, then, two Acts of Parliament are seemingly repugnant, yet, if there be no clause of non obstante \xl the latter" (there is no such clause in

the 15th and 16th Vict. cap. 72), " they shall if possible have such construction that the latter may not be a repeal of the former by implication. The same view has been taken where powers under several Acts are such as may well subsist together." (Dwarris on Statutes.) For from -.-. there being that patent and complete repugnance *: between the two statutes which is indispensable to make the latter work a repeal of the former by implication, it appears to me that, on the contrary, they being in pari materie may well act together, the prior one enabling the Governor " to make regulations for the disposal of Crown Lands within the Cook's Straits Settlements and for the closing and determination of the said Settlements," the subsequent one enabling the Governor to regulate the sale, letting, disposal, and occupation of the waste lands of the Crown in New Zealand" generally. This appears to be Sir J. Pakington's view of the matter. As to the second question, respecting the validity of the Proclamation in point of form, it is clear that although it recites that the power, required by the 15th and 16th Vie. c. 72, to be delegated, has been so delegated, there is no such delegation in the despatches Nos. 32 and 34,"copies of which have been transmitted to me for my information, and which therefore I conclude are the only despatches on the subject which have been received. If so, No. 33 is missing, and might, perhaps, supply what is wanting, but without it or some other despatch there is no delegation of the power as required by the Act. There is, however, another point, which, though only alluded to by Mr. Sewell, is of the gravest importance; which is the meaning of the 15th and 16th Vie. c. 72, as regards the management of the Demesne Lands of the Crown in the interval between the Proclamation of that act and the meeting of the General Assembly. After long and anxious reflection on this point, and bearing in mind, that "every statute ought to be expounded not according to the letter, but according to the meaning gui hceret in liter a, hceret in cortice ;" that " an enlarged interpretation of a law will penetrate the soul and spirit of a law, and reach the intent and meaning of the legislators," (Dwarris, p. 552) ; that, " it is not the words of the law, but the internal sense of it that makes the law; the letter of the law is the body; the sense and reason of the law is the soul," (Eyston, v. Studd, Plowden) ; that, " that must be the truest exposition of a law which best harmonizes with its design, its objects, and general structure" Vatel,Book 2, cL 17, § 285); lam irresistibly driven to the conclusion, that Parliament did not intend in passing the 15th and 16th Vict. c. 72 (called the Constitution Act) to confer on any person or persons, save the General Assembly, the power assumed by the Governor in issuing, the Proclamation of the 4th of March. The reasons for this conclusion are suggested by the name of the Act, " The Constitution Act." It was enacted for the purpose of giving the people, through their representatives, the management of their own affairs. Of all those affairs none are more important than the regulation and disposal of the waste lands, and thereforejit is inconceivable, whatever words may **oe used, (for " a thing which is,in the letter of a statute is not within the statute, unless it be within the meaning of the enactment," (Bacon Ab. title Statute 1,) that it should have been meant to give the Governor more than a temporary and ministerial power over the waste lands. Any construction which would give him the power assumed in the present instance must give him the power of selling the waste land at a farthing per acre, if not of giving it all away, before the General Assembly should meet; than which nothing could be more contrary " to the design, objects, and general structure " of the Act in question. D. Wakefield, Attorney-General. "Wellington, 12th May. 1853.

From His Excellency the Governor to Mr. D. Wakefield. Auckland, May 2, 1853. My Dear Sir, —I have received your letter to my private Secretary of the Ist of April last, giving an outline of the case of Dorset v. Bell, and your letter of the 9th of the same month, upon the same subject, and placing your office at my disposal. In as far as I understand the subject, I am entirely satisfied with the soundness of your legal opinions throughout these proceedings. I

am satisfied you were right in the first instance in advising the issue of the Proclamation as legal, in maintaining its legality in your letter of the first of April, after the Judge had issued the Injunction, and in thinking that mere technical objections ought not to be made use of for the purpose of endeavouring to induce the Judge to dissolve the Injunction. . But in your letter of the first of April, you advanced, not technical, but substantial reasons why the Injunction should be set aside, and showed that the Judge had no legal power to prevent the provisions of the Proclamation being carried out; and I cannot understand why you should subsequently have been a party to a proposal which had for its object to prevent the whole country from receiving the benefit of that Proclamation. I quite agree with you that, after what has taken place, the Government had better for the present have other legal assistance at Wellington ; and I will at once give the necessary directions on this point; but as your appointment as Attorney-General of New Munster expired some time since with the existence of that Province, it is unnecessary for me formally to accept your resignation of an office which has ceased te exist. I feel very sorry that all this has taken place; I am quite satisfied that you acted with the best possible intentions, although the Government might have been much embarrassed; and I cannot help thinking that you might have been better advised; but I feel very much obliged to you for the valuable and friendly assistance which I have so often and so long received from you, and which has ceased in a manner wholly uuexpected to myself, and which I cannot but very sincerely regret. Believe me, Very faithfully your's, (Signed) G. Grey.

From Mr. D. Wakefield to His Excellency the Governor. Wellington, May 14, 1853. Dear Sir George Grey, I have just had the honor to receive from Auckland your Excellency's letter of the 2nd instant. With deep regret I feel myself unable to thank you for its friendly expressions ; because, under cover of those kind words, your letter does me great injustice, and is calculated to do me serious harm. I read the letter once without understanding it; and its meaning only became plain to me when I recollected that letter of mine of the Ist April, addressed to Mr. Wodehouse, which you couple with my letter to your Excellency of the 9th of the same month. The letter to Mr. Wodehouse was written under the following circumstances. On the morning of the Ist of April, I met Mr. Wodehouse in the street. He asked me several questions about the suit. Their manifest object was to ascertain my view of the means which the Government possessed of getting the injunction dissolved. I answered them off-hand. As the points mentioned were of a legal character, Mr. Wodehouse naturally felt some difficulty in comprehending me; and he seemed to fear that he should not be able to retain them in his memory with the view of conveying them to your Excellency. He pressed me to write them down for his information, and to do so instantly, because a Government messenger was on the poiut of starting for Auckland. Yielding to his urgency, I accompanied him into his office, which was close at hand, and there, in a most hasty manner, rather scrawled than wrote upon, I think, two or three sheets of note paper, in the form of a private letter to himself, the substance of what his questions had drawn from me in the street. The letter, I doubt not, began "My dear Wodehouse." I made no copy, nor ever thought of doing so. It was hurriedly written to oblige him, and with the carelessness of casual conversation in the street with a friend. Your Excellency was probably not aware of these circumstances ; but such a hasty scrawl as that letter is, addressed to a friend, bore evidence, on the face of it, that it did not set forth the official legal opinion of the Attorney-General. Having forgotten its particular contents, I cannot refer to them so as to shew, by the words, that the letter does not maintain the legality of the Proclamation ; but I feel quite sure of the fact. The general question of the legality of the Proclamation was not raised by Mr. Wodehouse's inquiries. What I wrote does not concern that question: it relates

solely to various means of resistance to the plaintiff, which the principles and rules of law might enable the Government to employ. On the grounds, therefore, both of form and substance, your Excellency has totally misconceived my letter of the Ist of April. I have not by that letter, either as a law officer of the Crown, or as a friend of Mr. Wodehouse's, " maintained the legality of the Proclamation." Neither, allow me to say, in the positive terms which the necessities of self-defence dictate, have I ever, in any other way, maintained the legality of the Proclamation. With all the respect that is due to your Excellency, I declare that I did not " advise the issue of the Proclamation as legal." Your Excellency knows that my deliberate opinion on that subject was never required. I felt that if it had been offered unasked, and had been adverse to the policy of the Government, I should only have incurred the mortification of seeing it disregarded, and the discomfort of being considered officious. I only refer to a fact more than notorious, to what is, in this colony, a truism or understood matter of course, in saying that no responsibility ever weighed on the officers of your Government. This case was no exception to the general rule. Finding that, as usual, there was no responsibility for me, and observing that the question of general legality was never seriously mooted by your Excellency, but rather passed over as unimportant, I did not look into the question seriously till after the Proclamation had been issued. Upon examining that question with care, I could not but entertain doubts of the legality of the proceeding. Those doubts, together with the clear and positive Judgment of the Court, suggested the advice, which I offered to my colleagues, that we should endeavour to bring the question before the Chief Justice; and they have gradually ripened into the opinion on the subject, which I communicated to the Civil Secretary in answer to his letter to me of the 9th instant. I beg leave to refer your Excellency to my letter to him of the 12th instant, inclosing the opinion. Upon the whole I feel sure that you will see that you have been entirely mistaken in supposing that either in my private letter to Mr. Wodehouse, or in any other way, I have maintained the legality of the Proclamation. The above explanation will accomplish its object, if it should defend me from the imputation of gross misconduct, which is cast upon me by your letter of the 2nd instant, and which by that letter appears to be the only ground on which the tender of my resignation of office is accepted. In addition, however, to the above explanation, I feel concerned in observing, that your Excellency takes scarcely any notice of the real matter of difference between my colleagues and me, which alone caused the offer of my resignation. I did not place my office at your Excellency's disposal because my colleagues differed with me about the legality of the Proclamation, but because they refused to concur with me in advising your Excellency to stay proceedings under the Proclamation in the other Provinces as well as in Wellington, and to relieve the colony from its embarrassment by calling together the General Assembly without delay. You accept my resignation for reasons, connected with the past performance of my duties as Attorney-General, which had no foundation in fact: and, excepting your allusion to my wish that proceedings under the. Proclamation should be generally stayed, you pass over in total silence the important questions of policy for the future on which alone my office was placed at your disposal. In conclusion, it is right for me to state, that the friendly expressions of your letter afford me no encouragement to hope that you will take any steps for setting me right either in the opinion of Her Majesty's Government or of my fellow colonists. Consequently, in your absence far from this place and my ignorance of the time when you may contemplate returning, it is my intention to transmit to the Secretary of State copies of this correspondence, and to publish the same in the colony. And I respectfully beg that your Excellency will have the goodness to forward copies (whicli will be supplied by me as soon as possible) to the Secretary of State, in order that the rule may be complied with which forbids enquiry by her Majesty's Government into any complaint against a Governor, unless such complaint shall be made through the Governor himself. I remain, dear Sir George Grey, Very faithfully and respectfully yonr's, (Signed) D. Wakefield.