MR. BURGE'S OPINION UPON COLONIAL TAXATION.

New Zealander, Volume 1, Issue 29, 20 December 1845, Page 3

MR. BURGE'S OPINION UPON COLONIAL TAXATION.

The following Queries* have been submitted to Mr. Bulge, Q U.— 1. Whether or not New Zealand is subject to the provisions of the Statute 3 and 4 Victoria, c. 62?— and 2. Whether or not, by virtue of such Statute, or any of the acls relating to New South Wales, or otherwise, the Legislative Council of NewZealand have power to impose taxes, and establish customs ?—? — He gave his opinion as follow* : The Crown possessed no authority by virtue of its prerogative to grant the form of government now existing in New Zealand, with the powers exercised by it of imposing taxes on the inhabitants. It can scarcely be necessary to refer to any authorities in support of the undoubted principle of constitutional law which, would preclude the Crown fiom imposing on a colony, acquired as New Zealand has been, any form of government which was inconsistent with, the rights which tho subjects of England enjojed, under the common law of England. The history of the settlement of the colonies in North America, and the West Indies, affords proof of the uniform adoption of this principle. The Crown therefore, did not attempt to grant such, form of government. The Impel ial Parliament alone could confer on the Crown the authority to establish in New Zealand its present government, and to give it the power of imposing taxes. It is said, that the Imperial Pai liament, by the act 3 and 4 Victoria, c. 62, has granted tv the Ciown authority to establish that Government, and invest it with those powers. The question is, whether such authority has been granted by the act. The question involves two subjects for consideration. The first is, whether the Act 3 and 4 Victoria, c. 62, extends to New Zealand? The act gives authority to Her Majesty " to erect into a teparate colony or colonies any islands which now are, or which hereafter may be, comprised within, and be dependencies of, the said colony of New South Wales;" and it then enables her Majesty to appoint a Legislative Council for such colony.' It certainly appears, that until June, 1839, the, Crown had not only not asserted, but had disclaimed any title to the sovereignty of New Zealand, by the right of discovery, and had actually treated it as a foreign country. The Acts of Parliament which aie referred to in Mr. Stephens's memorandum, deal with New Zealand as a foreign country, and not as part of the dominions of the Crown of Great Britain. Whatever might have been the effect of that disclaiming and of those acts, if any foreign State had subsequently acquired a footing in New Zealand, there was nothing in those acts which professed to preclude, or did pieclude, the Ciown from afterwards asserting its title to the sovereignty, and ti eating New Zealand as part of its dominions, which it might include in the commisiou granted lo the Governor of New South Wales. It was competent therefore, for the Crown to assert, and the letters patent of June, 1839, did assert, the sovereignty of the Crown to New Zealand, by extending the Governor's former commission, so as to include it; and 1 consider that even by those letters patent of June, 1839, New Zealand was comprised within, and a dependency of New South Wales. But even if the Crown did not then rest on, and assert its title to the sovereignly, but intended to acquire a title the first time, or to confirm or perfect the former title by a treaty with the chiefs, so that it si-ould not become paitof the dominions of Great Britain, and uot therefore capable of being a dependency of New South Wales until that treaty was concluded j yet it was competent for the crown in the commission of the Governor of New South Wales, to assign limits to which bin commiskion should extend, sufficiently comprehensive to include New Zealand, when by that Ueat) it had become pan of the dominions of Great Britain, arid capable therefoie, of being a dependency of New South Wales. There is no objection to the commission of a governor br-ing sufficiently large to include in his government places expected to be, but not already acquired by the crown. From tne weight which justly belongs to the observations urged in this case, I have been induced to detail the ground on which I have formed my opinion that <\ew Zealand, at the time, the act 3 and i Victoria, c. 62, was passed, was a dependency of New Souib Wales, was capable of, being erected into a separate colony, and of receiving such a form of, government, and invested with such powers, as tual act gave authority to the Crown to grant. The great and difficult question to decide, is— what was the extent of the authority which tho

Act 3 and 4 Victoria, c. 62, gave to the Crown, p or in other words, what powers eoukl the government, which the act anth,oiised the Ciown to establish, possess, or be entitled to exerpise. The government has assumed the power of imposing taxes Has the Act, given to the government, which at authorises the Crown to establish, any such power f The act enables her Majesty to authorise any number of persons, not less than seven, including the Governor or Lieutenant Goveruoi, of any such new colony or colonies, to constitute a legislative council or legis, live councils, for the sdine: ami that every such legislative council, shall be composed of such persons, as shall from time to time, be named or designated by her Majesty for that put pose, and shall hold their places therein at Her Majesty's pleasure; and that it shall be lawful for such legislative council to make and ordain all such laws and ordinances a* may he required fur the peace, order, ami good government of any such colony. Now do<*s the power to make laws and oidinances, required "for the peace, order, and good government of any such Colony" necessarily include a power' to pass laws imposing taxes ? It \\<uy be said that, in the commissions granted to the Governors of the American and West Indian colonies, similar expressions, namely , "Jaw s, statutes, and ordinances," for the public welfare and good government of our said province, are there used in describing the laws or acts with which the legislative bodies theiein constituted are authoi lsed to enact, and that the wotds « ould lii practice have included and given authority to them to pass acts imposing taxes. It i.s, however, to be observed, that a construction which gives that authority to those legislative bodies violates no principle of the common law, hut is perfectly consistent with it. These legislative bodies are the Governor, Council, and an Assembly Heeled by the freeholders of the respective distiicts, counties, or towns, for which they ate returned. In this case the taxation is imposed in conformity with the principle of common law which makes the imposition of the tax the act of the party by whom it is tJ be paid, or of his representative. Independently of this consideration there are instructions which by reference become part of the commission as to the manner of raising and appropriating taxes, which make the sense in which th* 3 above expressions were used quite evident, and fully justify the construction which they have ever received. But the 3rd and 4th "Victoria, c. 62, empowers the Queen to constitute quite another species of legislative body, jiainely, persons nominated by Her Majesty, and who retain their places during pleasure. To give the same construction to these words when they refer to a power to be exercised by such a legislative body, would be to adopt the construe* lion, not consistent with, but in violation of a know n principle of the common law, since it would aut' orise the imposition of taxation by a body not the representatives of those by whom •uch taxation was to be borne. Again, the Crown has no power to impose taxes, and of course could not grant any such power to its noininres, the legislative council. It is a more reasonable construction of these words to presume, that if it were the intention of the Impeiial Parliament to give, by this act, to the Ciown that power with which the constitution had not entrusted the Crown* it would have used expressions clearly indicating that intention, and that in the absence of such expressions, the piesumption is that no such intention existed. There is another principle, familiar to our law, which ought to be invoked m considering rlie imports of the words in question, namely, that acts of Parliament imposing burdens, or taking away or varying the rights of parties, are to be construed strictly, and not by implication. In the few instances in which the Imperial Parliament has given to any body of. persons, nominated by the Crown alone, the power of taxation, it has not contented itself wirh giving that body a power to make laws, &c, for the peace, welfare, and good government, Sec., but it has added other expressions which clearly shewed that the power to pass acts, imposing taxes was 'included. Thus in the act to make temporary provision for the government of Lower Canada, 1 and 2 Victoria, c. 9, the power is to enact such laws, &c , for the peace &c , as the legislative ofLower Canada, as now constituted, is empowered to make, and that all laws or ordinances so made shall have the same force and efluci aj, lav\s (..i^sed by tde Legislative Council and Assembly, and assented to by Her Majesty, or by the Govei nor. So in the act for the enact ment of certain laws in Jamaica, 2 and 3 Victoria, c. 26, the power given to the Governor ami council to ivvive ot re-enact any of the laws, of the island which should have expired since the 21st of November, IS3S, and not been before then re-enacted, &c , by <in) act of the Governor, Council, and Assembly, necessarily included aii expned act win h had imposed taxes The act for amending the constitution of the Government of Newfoundland, did not transfer the legislative power to a body nominated by the Crown, but empowered Hei Majesty to alter tl.e qualification of the members of Assembly. Ido not believe any instance will be found m which, by such general words as are used in the 3rd and 4th Victoria, c, 62. Parliament has authorised the Crown to give to iis nominees the power of imposing taxes on the inhabitants of a colony. Ido not consider, therefore, that tho Legislative Council possessed authority, under the act 3 and 4 Victoria, c, 62, lo pass acta imposing taxes. I have formed this opinion with no inconsiderable »uu« lety, because i am vi ell avwuu that an opinion which imputes to aa act of Parliament insuffiency and imperfections in its btiucture is likely to be controverted and to be regarded with prejudice. WILLIAM BURGE. 1, Paper-buildings, IVmple, July, 10, 1815.

Flax. — It is stated in a New York paper, that ro ting hemp in water limited to one hundred and sixty degrees of Fahrenheit, forms an entirely new siaple of th,u valuable fibre ; ■ it becomes silky— more deli. -ate and hcdtitiful than the finest (lav ; and thdt w lien the proce&e is pruperl) cdnied into etecntion, this new article will supersede cotton.