New Zealand Times (PUBLISHED DAILY.) WEDNESDAY, DECEMBER 13.

New Zealand Times, Volume XXXI, Issue 4907, 13 December 1876, Page 2

New Zealand Times (PUBLISHED DAILY.) WEDNESDAY, DECEMBER 13.

The Canterbury papers have of late been very assertive. We alluded a day or two since; toj a telegram referring to a leader which had appeared in the lyttelton Times, calling in question the legality of the prorogation, in October last, of the Assembly, by.; Royal Commission. ■ Wo had not] then the article before iis, and wore of course unable to examine its if it had any. We, however, conjectured that this might be another of the numerous mares’-nests discovered by the Opposition during the session, and in which such a lot of eminent but ephemeral constitutional lawyers were hatched. Having now the article in question before us, we can say with some confidence that

another mare’s-nest, and another constitutional lawyer {hitherto unknown to fame), have come to light. .Here is the way in which this latest constitutional authority states this great case, and tfie momentous consequences which are to Be, apprehended;— ■, l . we shall presently give, that it is open to grave legal doubt whether this prorogation is valid and effectual. This is not a question,.of .mere technical interest. ■ Ifthe prorogation'is not legal, the session of this year is not at; an end; but’if. the session is not at an end; the Provincial Abolition Act of 1875 is not yefin force, and provinces and Superintendents still legally exist. Further, the Counties Act of this year comes ‘ into operation bn the day upon which the Abolition of Provinces Act, 1875, comes into operation therefore, if the latter Act is mot yet in operation, the Counties Act is pot in operation; and all the steps taken under’ it since October 31 last are void and of no effect. If our view’is correct, and prorogation is still requisite,, there are many pieces of broken law to be picked up.” The writer then goes on to give the reasons for this view of his, and they are briefly as , follow:—That although the Governor’s commission of office authorises him “to exercise all powers lawfully belonging to Us in respect of summoning, proroguing, or dissolving” the legislative body, yet because the 44th section of the Constitution Act enacts that “ the Governor may, at his pleasure, prorogue or dissolve ■ the General As-_ oombly,” this section , takes away , her. Majesty’s prerogative of proroguing Parliament, and vests it in the Governor personally, and therefore this could not be a “ power lawfully' belonging” to her Majesty, as expressed by the clause of delegation in the commission ; that when a statute vests power id one named person it excludes every other person from the exercise of that power. He then proceeds to argue that, as, the. Royal Commission also delegates to the Governor the powers of granting marriage licenses, letters of administration and probate, &c., and as the exercise of these powers is provided for otherwise, “ and no one, we imagine, would argue that the Governor can, under that ■ delegation, exercise them, yet, as it appears to us, such argument would, if it is worth anything, apply as much to the -one delegation as to the other.”

The learned writer seems to be ignorant of, or to have forgotten in his zeal, two points. First, that as the law is presumed to he made by the Crown with the assent of the Parliament, for the subjects and not for the Crown, the Crown is not bound by any statute if it be not expressly named to be so bound; and second, the ancient prerogative of proroguing or dissolving Parliament is a very different thing from the granting of marriage licenses, probates, &o. The writer might have known this if he had read or attended to such a book as “ Dwarris on the Statutes,” or even such an elementary hookas “Broom’s Maxims.” Perhaps these books are beneath his attention, butstilleven the latter contains a very clear statement of the.law on this head ; “ Acts of Parliament which would divest the King of any of his prerogatives do not in general extend to or bind the King unless there be express words' to that' effect. * * By mere indifferent statutes, directing that certain matters shall be performed as therein pointed out, the King is not, in many instances, prevented from adopting a different course in pursuance of his prerogative. In fine, the modern doctrine is said to be that by general words in an Act of Parliament the King may be precluded of such inferior claims as might belong indifferently to him or to . a subject, but not stripped of any part of his ancient prerogative.”— (“Broom’s Legal Maxims,” p. 74.) We think there cannot be any doubt that notwithstanding the 44th clause of the Constitution Act the Royal prerogative remains just in the same position in which it was before that Act. If,, therefore, this latest-bom constitutional authority .of the Opposition wishes to attack the Abolition Act and the other laws depending thereon, and create confusion in the State, 'he must, we imagine, find out a more vulnerable point* of assault‘than the one he has chosen. It is quite astonishing' what a terrible nightmare this precious Constitution Act has been, and still seems to be, on the breasts of- the members pf the Opposition, alike in and out of Parliament. They really have the Constitution Act on the brjiin and the souk These simple people seem to imagine that the rights and. privileges of the subject, and the prerogative of the Crown, so far as relates to this colony, were for ever irrevocably fixed by this Act. They forget that all Acts, -this one among them, can be re : pealed by the power which enacted them, even though the particular Parliament which passed any Act should introduce a clause making it binding -on its successors. They also forget that many things which exist iii our political condition in New Zealand neither are nor could properly be dealt with by this Act, as, e.g., it does not say a word about such an important matter as our system of Responsible Government. In fact, we'believe that for some twelve or eighteen months, after the Constitution' Act was passed, there was no such thing ■as Responsible Government. These good people, in fact,. forget or never knew that there is such a thing as the Common Law. ' ■ 1 It is a pity such -a fine “ house that Jack built” as that of the Lyttelton Times should contain such a loose corner-stone as the one we have tried to give a shove to ; but ,it is also a pity that-among the Opposition there should bo so much* hairsplitting, paltry meanness, and so little, so very little, public spirit.. * >