THE CONSTITUTIONAL QUESTION.

New Zealand Times, Volume XXXI, Issue 4915, 22 December 1876, Page 2

THE CONSTITUTIONAL QUESTION.

TO THE EDITOR OF THE NEW ZEAEAND TIMES. Sir, —Mr. Travers has asked me a definite question, to which I wish to return as definite an answer. He asks “how the Governor should effect a dissolution?” and he desires it to be inferred that as, in my view, a prorogation of Parliament, when in session, by proclamation is illegal, a dissolution by the same process when Parliament is not in session must be equally so. With great deference to Mr. Travers’ opinion, I submit that he ignores the circumstances of the case. The same law does not apply when Parliament is in session, and when it is not. The ancient forms of proceeding in the two cases have always been different, and for the following very obvious reasons :—When Parliament is in session, it can act ; otherwise it cannot. A man in gaol under the Speaker’s warrant is free on the prorogation. In this colony a member is not liable to arrest when Parliament is in session; at other times he is. Many other contingencies might probably occur in which it is of the utmost importance that the period of the end of the session should be sharply defined ; indeed, which require that the prorogation of Parliament should be a personal act, done in the presence of Parliament itself as a part of its proceedings. If a proclamation is sufficient, what limits the time and place of its issue ? A proclamation issued by the Governor at the Bay , of Islands would be as valid as any other ; and: Parliament, in session at Wellington, might sit and act in unconscious illegality, a fortnight after it had ceased, at law, to be in session. Hence we see at once the reason why in the Act 30 and 31 Vic. the use of the proclamation is confined to cases when Parliament is not in session.

Parliament has always in modern times'been dissolved by Order in Council, published by proclamation in the Gazette, with one exception in the reign of Charles 11., and one in the Regency in George lll.’s reign, when it was dissolved in person. So much for the illegality of a prorogation by proclamation at the close of a session. Now as to the prorogation by Royal Commission. Mr. Travers’ argument is, that the Act having given power to the Governor to prorogue .“ at his pleasure,” the Royal prerogative is ousted, and a cpmmission in the name of the Queen is bad. But how is it implied in the words of the Act that the prerogative is limited ? Seeing that no prerogative is held to be limited except by express provision, the common sense interpretation of the Act is, that the Governor may prorogue “of bis own pleasure,” that is to say, without receiving the commands of her Majesty in each case. If an Act can be construed rationally so as not to curtail the prerogative of the Crown, the maxim of law is, that such is the right construction. Besides, the Royal Instructions issued under the Act delegate to the Governor the power of prorogation ; and though this may be said to be giving a power which the Governor otherwise possessed, it plainly speaks the mind of the legal advisers of the Crown in England, that her Majesty was still in possession of her ancient prerogative in this matter.

But I would further submit, that the doctrine now put forward by Mr. Travers is one inconsistent with the whole idea of the Constitution of the Empire. Who is the Governor ? He is not defined in the Act. The Constitution Act does not say there shall be a Governor at all. It simply alludes to him as an existing and recognised institution. His legal status has always been the delegate and representative of the Crown in a dependency: exercising all the powers of the Crown within defined limits known to law, but no farther. Under this new doctrine, however, the colony is not an integral part of the Empire, under the sovereignity of the Queen of England, but a sort of partially independent State under a sub-regulus, similar to the subordinate Saxon kings, or to the Khedive in his relations to the Porte. Such a doctrine seems to me foreign to the whole spirit of the Constitution of the British Empire, inconsistent with the fact that a multitude of the forms of civil government are still conducted in the name of her Majesty throughout all the dependencies of the Empire. It is a novel and strange doctrine to me, that there can be any illegality in the performance of one of the highest prerogative functions of the Crown, in the name of her Majesty, merely because the Act empowers the Governor to perform that function “ at his pleasure,” without defining the manner in which his pleasure shall be made known. What illegality can there be in the Governor

signifying his pleasure in the name of the Queen, whose commission, for the performance of this, amongst other acts, he holds ? Let me also call attention to the 10thsection of the Constitution Act,- in which the Governor is empowered to summon the House of Representatives by proclamation “in her Majesty’s name.” Shall we say that when it is legal to summon a Parliament, it is illegal to prorogue it, in her Majesty’s name 1 I should apologise, sir, for occupying so much of your space ; but I have done so in the hope that the views of one who, though not a lawyer, has devoted some time to the study of constitutional questions, might be of some use at a time when confusion in the public mind is attempted to be created, on a purely technical point. Of the policy of the proceeding in question, or its political bearing on the country, it is not for me to speak. But on the question as one simply of constitutional law, I have endeavored to submit views deserving of some consideration by the public. Having done so, I shall not trouble you further.—l am, &c., James Edwabd Fitz Gerald. December 21. PS.—Since writing the above, I have looked at the report of the committee of 1855, of which Mr. Travers was a member, to which was referred the question of the legality of Governor Wynyard’s proclamation in 1854. The committee “ have confined their attention and limited this report to a statement of the practice of the Imperial Parliament relative to prorogation, and their approval of its adoption in this colony.” The report goes on to state that when Parliament is not sitting it may be prorogued by Royal proclamation. When it is sitting, prorogation is effected “by the Sovereign in person,” “or by Commission under the Great Seal, both Houses being in attendance.” The committee consisted wholly of lawyers, Mr. Sewell being chairman. It did not occur to them that the course they recommended was illegal. I forgoLto ask Mr. Travers, when he advises a client to commence proceedings against a County Councillor for ouster of office, as from the last paragraph of his letter I presume he would do—first, whether he thinks he would be successful in persuading the Court to give judgment under an Act which, according to his contention, is not in force ; secondly, how he can call on a Court to oust a man from an office, to which, he has to contend, the man has never been elected ?