THE CONSTITUTION QUESTION.

New Zealand Times, Volume XXXI, Issue 4911, 18 December 1876, Page 2

THE CONSTITUTION QUESTION.

TO THE EDITOR OF THE NEW ZEALAND TIMES. Sib, —I cannot but think that you greatly underrate the strength of the objection made by the Lyttelton Times to the manner in which the prorogation of the last session of the General Assembly purports to have been effected ; and as the matter is one of greatijnjjjlrtance, I venture to offer a few observations upon it, which you will oblige me by inserting in yiur paper. * The proposition of the Lyttelton Times- is, in effect, that as the prorogation in question was made by commissioners, purporting to havebeen appointed by her Majesty, in the exercise of a supposed prerogative power residing in her, instead of having been made by the Governor of the colony under the provisions of the 44th section of the Constitution Act, it is null and void in law; and, therefore, that the session not having been duly, determined, Acts of the Assembly which depend for their operation upon that determination, are not yet in force ; and the Lyttdton Times properly points out that the consequences must be veryserious if its, views be well founded.

I propose to discuss the question as above put; and I think it will be found that the difficulty suggested by the Lyttdton Times is not without very sound foundation. In the first place, I would point out that the power of the King to convene, prorogue, and dissolve the Parliament of England, is vested in him by the Constitution; that is, by the common law, although in the present day it is only exercised with the concurrence of his constitutional advisers. .

But I have no hesitation in saying "that no such power, exists in the King with respect to the General Assembly of New Zealand,-seeing that the power of convening, proroguing, and dissolving that body is expressly and unreservedly given to the Governor of the colony by section H of the Constitution Act,’ which is couched in the following very precise language : —“ The General Assembly of New Zealand® shall be holden at any place and time within New Zealand which the Governor shall from time to time, by proclamation for that purpose, appoint; awj the Governor may at his pleasure prorogue or dissolve the General Assembly.”

Now, in regard to the prerogatives of the Crown, with respect to the. government of British colonies, there are no principles better established than these—that the King cannot infringe or depart from the provisions of a charter once granted ; that in every question which arises between the King and one of the colonies respecting the prerogative, thq first consideration is the charter granted to its inhabitants ; that if the charter be silent on the subject, then the King's prerogatives in the colony are precisely those prerogatives which, by the common law, so far as they are not abridged by Acts of Parliament and grants of liberties from the Crown to the subject,, the King could rightfully exercise, in England ; but that if the charter affords a criterion or rule, then the prerogatives of the King are absolutely subordinated to that criterion or rule, by which alone the matter is to be determined.

These principles may be gathered from any standard work treating of the prerogatives of the Crown, and you will find them abundantly discussed in Mr. Chalmers’ collection of “ Opinions of Eminent Lawyers oh ■ various points of Jurisprudence concerning the Colonies.”

Judged by the test of these principles, the late prorogation must, unless it can be sup. ported as a personal act of the Governor, as Governor, be considered as a mere : nullity, having been based upon the supposed existence of an authority, which, however, had no existence whatever.

But can it be supported on the ground that it was a personal act of the Governor-.ns Governor ? w

In the first place I would ask has the Governor any power to appoint commissioners to prorogue the General Assembly ? I cannot find that any such power has beengiven to him by the Constitution Act, from which alone he derives his authority in the matter. Doubtless he can prorogue the Assembly by proclamation, but it is clear that a prorogation must be his own individual act as Governor of the colony, whether effected in person or by proclamation. The fact that he has what are popularly termed constitutional advisers in no degree affects the mode in which he is to carryout the duties imposed upon him by law, and I venture to affirm, with respect to such powers as are conferred upon him by the Constitution Act, that he is bound' to pursue them strictly, although in doing so he may be guided by the advice of his Executive Council.

But the question still remains, can the commission of the 81st October be treated as an individual act of the Governor, effecting a prorogation of the Assembly from that date until' the 16th of January next ? It is sometimes said that there is no magic in words, but this would be quite incorrect if the language of the document in’question is to be treated as a proclamation by the Governor of his will, in regard to the prorogation of the late session.

Whatever the result may be, however, it is apparent that the point raised by the Lyttdton Times is one of no little importance, seeing that the validity of all that is now being done under the Counties Act depends upon the solution of the question whether the prorogation has been legally effected or not. —X am, &0., Wm. Thos. Locke Teavees.

Wellington, Dec. 15. P.S.—I may add that I have read “Broom’s” and “ Dwarris on Statutes,” but that I entirely dissent from the propositions you have drawn from them as affecting this case.

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