THE PRIVILEGE QUESTION.

Nelson Evening Mail, Volume XII, Issue 270, 14 November 1877, Page 2

THE PRIVILEGE QUESTION.

The following is the correspondence that has passed between the' Governor and-Minis-ters upon the much talked-of privilege question:— His Excellency the Governor to the Hon. Sir George Grey, K.C.B. The Governor requests that Ministers will forward to him their advice as to the answer which he should return to the enclosed address from the House of Representatives. The Governor is sure that he need not point.out to the Government that it is desirable that the reply should be given with as little delay as possible. Government House, Wellington, sth November, 1877. Address from the House of Representatives to his Excellency the Most Honorable the Marquis of Normanby, &c ., &c. May it please your Excellency, — The House of Representatives of New Zealand', in Parliament assembled, desire respectfully to acquaint your Excellency that, having taken into Consideration a memorandum of your . Excellency, . dated the 27th day of October ultimo, in reference to the appointment of Mr J. N. Wilson to the Legislative Council, and which memorandum was communicated to the House on the 31st day of October ultimo, by your Excellency's command, they have agreed to the following resolution, which they desire may be communicated to your Excellency: " That the action of his Excellency the Governor; in noticing a matter in agitation or debate in the House as the reason for refusing to accede to advice tendered by his Ministers, was an infringement of the privileges of the House." William Fitzherbert, sth November, 1877. Speaker. The Hon. Sir George Grey, K.C.8., to his Excellency the Governor. Ministers respectfully advise his Excellency the Governor to return the following answer to the address from the House of Representatives: — " The Governor, from a resolution transmitted to him in an address from the House of Representatives, learns that he has infringed

tha privileges of that branch of the Legislature. The Governor trusts that by his unintentional act, and his proceedings in relation thereto, the benefit may result that a precedent will have been established which may be useful; in future." G, Gbbt. sth November, 1877. His Excellency the Governor to the Hon. Sir George Grey, K.C.B. The Governor has received tht* memorandum in which Sir George Grey, on the part of the Government, tenders to him their advice as to th answer which he should give to the address from the House of Representatives; aod the Governor must request that the Government will reconsider that advice for the following reasons; viz: — 1. That constitutionally it is the Government and not the Governor, who. are solely responsible to Parliament for the acts of the Governor. 2, That if the memorandum of the . Governor to his Ministers on the subject of the appointment of Mr Wilson to the Legislative Council did contain , any breach of privilege, it was in the first instance a strictly private and confidential communication between the Governor and his constitutional advisers and, if they saw that the Governor had unintentionally in any way infringed upon the privilege of the House, it was their duty, under the oath which they took as Executive Councillors, to have pointed ont the fact to the Governor, when he would most readily have reconsidered the answer which he had given. . 3. Tbat the presentation of the paper was done solely on the advice in writing bf Sir George Grey, aod that therefure Ministers ara solely responsible. Nobmanby. Government House, Wellington, Nov. 5, 1877. Memorandum from the Hon. Sir George Gbby, K.C.8., to his Excellency the Governor. Ministers respectfully acknowledge the receipt of his Excellency's Memorandum of last night. Tbe points raised in it are of such importance as to require the most careful consideration on their part, and they are, therefore, unable immediately to tender advice to his Excellency upon the subject. Ministers will, however, take care that no unnecessary delay occurs in bestowing tbat attention upon the Governor's memorandum which its importance demands. G. Grey Wellington, Nov. 6, 1877. '

Memorandum from the Hon. Sir George Gbet, K.C.8., to hia Excellency the Governor.

His Excellency having asked Ministers for a reply to his memorandum relative to the advice they offered to him, as to his answer to the resolution of the House of Representatives, Ministers beg respectfully to state, — 1. That they admit the responsibility for his Excellency's acts when done on their advice.

2. That out of respect for bis Excellency they refrained from offering him any further advice, when he had twice rejected that wbich they bad given him ; but they do not think that in refraining from doing so, they comm itled any breach of the oath which they took on entering office as Executive Councillors ; and they feel sure that on are-perusal of that oath, his Excellency j will modify his opinion on that point. 3. They admit and accept the responsibility of laying the papers before Parliament, but beg respectfully to | point out that tha resolution of the House does not say that that proceeding was a breach of its privileges. \ Ministers are however unwilling to press bis Excellency to accept advice apon a matter of tbis kind with which ha. does not fuUy concur; and therefore they respectifully beg to advise that the enclosed message be substituted for tbat previously sent to him. G" Q ______ y Wellington, Nov. 7, 1877. ENCLOSURE. The Governor has received the resolution of the House of Representatives, by which he is informed that be has inadvertently committed a breach of the privileges of that House. The House is constitutionally the guardian of ita own privileges. The Governor having now called Mr | Wilson to tbe Legislative Council, in accordance with his promise to his advisers, be does not think it will answer any useful purpose to discuss the question any further, but he will transmit the papers to the Secretary of State for the Colonies. Memorandum from His Excellency the Governor to the Hon. Sir George Grey, K.C.B. The Governor acknowledges the receipt of Sir Gsorge Grey's further memorandum of this day's date, and he ia glad to learn tbat the Government agree witb him, aod admit their constitutional responsibility to Parliament _or the acts of the Governor when done •on their advice. The Governor, however, con not admit that their responsibility should be so limited, because, if the act of £he Governor is such that "the Governcseut cannot acceptor defend 4t,it is tbeir duty to resign, in order that the Governor may .fee.able, if he can, to form a Government that ?yould support bis views, in which case he w?.i.ld have •©f jjoursejo j ustify hfrj.cpaduot ,cq ij?e

Seoretary of State, to whom he is alone responsible. In thia present instance the Government, and the Governor thinks rightly, did not consider that his refusal to appoint Mr Wilson to the Legislative Council was a matter of sufficient importance to induce them to resign, and thereby they accepted his decision, and became responsible for his act, and the whole question should have ended, or they should have further pressed their advice upon him. Neither can the Governor modify, the view which he has expressed — that the Government ware by the oath which they took as Executive Council-' lors, bound, when they saw tbat he had unintentionally given reasons which might be construed into a breach of privilege, to have pointed out the facts' to him.

The appointment or non-appointment of Mr Wilson was one thing, and! totally different to the question as to whether the Governor had unintentionally infringed the privileges of thei Hoase.

The Governor baa for too many years* held a seat in one branch or other o£j the British Parliament to wish for one' moment to infringe apon the privileges of tbe House of Representatives; and, could he admit that he ia the person! responsible to. Parliament, ha would; not hesitate for one moment to express, his regret that moat unintentionally he had infringed their privileges. The Governor, however, considers that ihe constitutional privilege for which he contends— viz., "That Ministers, so long aa they retain office, arej alone responsible to Parliament for the; acts of tbe Governor " — is of sued vital: importance to the future good government of the colony, and for the position held by her Majesty's representative,, that he feels that he would be recreant to hia duty, and utterly unworthy of the position which he holds, if he permitted the question to drop, and did not

try to the utmost of his power to have '■ the matter finally and definitely settled.. The question of privilege is now no longer a matter "in agitation or debate *•* in the House. The Governor has beeu informed officially by the Hon. the Speaker of the decision of the

Houae, and the official reports of the House are officially before him. He can therefore now refer to the matter in his communications with bis Minis-, ters, without any fear of committing a breach of privilege. The absolute responsibility of Ministers to Parliament for the acts of a Governor is a question which has bo. often been decided, and is so well understood in England, that tha Governor did not expect to find it disputed. The necessity and justice of! this rule is obvious. In working out, mathematical problems it is not unusual to demonstrate the point by showing the absurdity of any other conclusion, and the Governor would venture in this

caso to prove this point in that way. As an illustration he will take the case which has just occurred. The Governor refused the advice of Ministers

to appoint Mr Wilson to the Legislative Council. By his instructions, and according to the numerous precedents, he had a perfect right to take that course. The Government, as he thinks rightly, did not cousider it a case of sufficient importance to necessitate their resignation, and there the matter would have ended. The Governor was not obliged to give any reasons to his Ministers for the course he had taken, but he thought it was more honest and more respectful to them to do so, Unfotuoateiy, in so doing, he used expressions wbich were afterwards

oontrued into a breach of privilege.* The Government either did or did not! see this. The Governor is perfectly ; ready to assume tbat they didnot, as he should be very sorry indeed to impute to them any intention of entrapping him; at the same time the Government must have had some reasons for wishing for the production of the papers, and eo little did . the Governor see any public necessity for it, that he was on the point of refusing bis consent, and only refrained from doing so because he did not like the second time to refuse their advice. The papers were laid on the table of the I Houae and immediately the question of privilege was raised. The Governor, by the privilege of the House, w»8 not supposed to know what was going on. He had no voice in the House. He was not in any way allowed to explain his conduct, or to produce evideuce or precedent in his. favor. He could not employ counsel ; and the Government, by whose advice the papers were published, and who are his constitutional defenders in the House, either took part against him, or I remained in silence and refused him ! their assistance. The Govereor was condemned un- j heard, and au address was presented to i him by the House expressing its dis- j approval of what he had done, I A criminal, on the other hand, no I matter what crimes he may have committed, is, in the first place, by the^ English law presumed to be innocent. He is brought face to face with his accusers. He is present at his trial. He mny produce evidence of his innocence, and employ counsel j aud even before sentence is passed he is permitted to urge any reason that he may think fit in mitigation of his sentence. Tho Governor would ask whether these two cases do not prove incontestably tbe absolute necessity for the : constitutional rule which the Governor contends does exist, viz., *• That it is the Government, and not the Governor, who must so long as they remain has

| advisers, be solely responsible to Parlia- | merit for; his acts." Ia it not absurd to contend that her Majesty's representative .' ( should be condemned unheard, ahd that he should be put, as to his defence, in a more unfavorable position than that; in which the worst criminal in the colony could possibly be placed? This question as to the extent to whioh Government are responsible to Parliafor the acts of the Governor is one which cannot possibly be decided in the colony. Tbe Governor has, therefore, decided to forward the whole case for I the consideration aud decision of the Secretary of State foe the Coloniea, by whose decision he ia bound to abide; and he will have much pleasure in forwarding, at the same time, any representations that tha Government may wish to make. If the Governor has urg-jd his case soniewhat strongly,, he begs that Sir George Grey will clearly understand that he looks upon it simply as a political aqd> qps- a personal question, which he is boand to press to the beat of his ability, though, he trusts, without the slightest exaggeration. As regards the answer to the Houseof Representatives, the Governor proposes to send a message damefibiag to the effect of the one he encloses. In conclusion, the Governor would wisb to state tha*, in reply to a telegram from himself, he has heard from Sir Hercules Robinson that a precedent, . wbich appears vsry nearly similar, did "occur to Lord Belinore, and that his action was approved of by the Secretary of State.

The Governor wishes to place no stress upoin this information, as he has not been able. to find the case, and does not know how far it may be parallel; but it is his intention, ,if the case has been published; to request Sir Hercules Robinson to furnish him with a copy aa soon as possibles

Normanby. P. S. — Unless the Governor hears that.Sir George Grey wishest to make any further remarks, the Governor proposes to send his. message to the House of Representatives this evening. N. Government House, Wellington, November 8, 1877.

Memorandum for his Excellency.

Ministers respectfully represent lo the Governor that the questions which they have had to consider were— Can the Governor, finding that a, notice of a vote of want of confidence in the Government haa been given, decline to take the advice of his responsible advisers on the ground that such a vote is pending; and was he justified in holding that he could not accept their advice until the decision of the Assembly on that vote has been given? If such is the constitutional law, nothing is necessary but to raise successive votes of want of confidence in the Government, to enable the Governor to act for long periods of time without responsible advisers.

Ministers respectfully state that they cannot admit that the Governor is responsible to the Secretary of State in this matter; nor can they admit that the question, as to the extent to which Government are responsible to the Assembly for the acts of the Governor, is one which cannot be decided in New Zealand. On the contrary, they feel it to be their duty respectfully to protest against the points at issue being decided anywhere else. Unless the consent of the General Assembly is obtained to the reference of those points to some external authority, the Secretary of State for the Colonies ia also, in; their opinion,, for such a purpose, an authority unknown to the Constitution of New Zealand.

Ministers would respeotfully solicit the attention of the Governor to the 32nd section of the Constitution Act, from which it will be found that the words ft General Assembly" comprise his Excellency the Governor himself, who is by law a constitutional part of that body. Ministers respectfully add that they have : already advised his E&cellency regarding the message they think he should return to the House of Eepresentatives, and they have nothing to add to that advice. G» Geet. Wellington; Nov. Bth, 1877. The correspondence closes with another memorandum from the Governor stating that he still adheres to his previously announced determination.