THE CONSTITUTIONAL QUESTION.

New Zealand Times, Volume XXXI, Issue 4921, 30 December 1876, Page 2

THE CONSTITUTIONAL QUESTION.

TO THE EDITOR,OP THE NEW ZEALAND TIMES. Sib,—l am induced to offer a few more remarks on this subject, with reference especially to :certain letters which have lately appeared in your columns. Our several positions in the argument appear to be as follows ; —You, and those who support your views, assert that her Majesty has, notwithstanding the language of the Constitution Act, by" virtue of her Royal prerogative the power of summoning, convening, proroguing, and dissolving the General Assembly, and that the late so-f ’led prorogation/ was a proper exercise by the ‘•vernor of his delegated authority in that reK I assert,, bn the other li~ ’hat her Majesty tea no such prerogativ t, “ a t even if she has, the late supposed it was not legal Now, let me call attention to a v markable case, decided ..in 1771 by Mansfield, as to the prerogative power of ». Crown in reference to a chartered colony. The case is Campbell v. Hall, 1 Cowper 204. The facts were as follows The Island of Grenada had been taken by the British arms in open war from the French, Being a conquered territory, the King of England had die power, by virtue of his prerogative, and without the concurrence of Parliament, to alter its laws and to introduce new laws; but .this power .... was, nevertheless, held to be subordinate to his own authority in Parliament. In October, 1763, he,had, by virtue of his prerogative, given a charter t* the colony* under which the Governor was commissioned (so soon as the circumstances of .the colony would admit) to ■ call an Assembly to enact laws for the peace, - and good government of th» colonyThis colony was one of the group of islands then known as the British Leeward Islands, within all of which a tax of 4J per cent was levied on sugars. In order to place Grenada upon the same footing as the other island?

’ this respect, the : King, in March 17 T4„five J • months/after the date of the charter, but before it had been acted upon, imposed the . gaiho tax upon sugars produced in the island, and the case in question arose out of ? an action brought by a planter against a collector _to recover back tho tax levied upon ■‘bin!, nsclor the proclamation imnosing it. It was decided that his Majesty’s prerogative was absolutely • and irretrievably gone by the grant ot the charter, and the plaintiff recovered. Ihe concluding words of Lord Mansfield s lodgment are—" We therefore think that by the two proclamations and by the commission to Governor Melville, the King had immediately and irrecoverably granted to all who were or should' become inhabitants* &c., that tne subordinate legislation over the island should • be exercised by the Assembly, &o. Therefore, as the .last Act is contradictory to add a violation of the first, it is void. How proper soever it may be, in respect to the objectof the letters patent, to use the words of Sir Philip Yorke and Sir Clement Wragge, it can only now ,be done by the Assembly of the island, or by an Act of the Parliament of Great Britain.”’ This case is the chief authority for the proposition that when once the lung has either expressly or impliedly parted with » prerogative power, it is from thenceforth i °°My b coJention isi that the Pariiament of Great Britain, of which, the Queen is the first estate, having embodied in the terms of_ an Act the„whole law regulating the summoning, convening, proroguing, and dissolving the Assembly, any prerogative which the Queen might have previously had in these respects {although I deny that even before that Act she had any> was irrecoverably disposed of. And I contend, further, that even if the prerogative existed, the mode of exercise was incorrect, inasmuch as the Governor has not power to issue commissions, said was bound to have performed the duty in person. On this point I would refer to the opinion given by Sir E. Bethel and. Sir B. S. Kerting as to the legal meaning or the words “Governor in Council,” in 1857. * See Forsyth’s cases, 78. If my contention be correct, therefore, the prorogation, unless' it can be supported as an Act of the Governor himself under i the 44th section of-the Constitution'Act, is invalid. Mr. Fitz Gerald calls attention to the irregularity in the summoning of the Assembly, and argues that if am right as to the consequences of the irregular prorogation, the irregularity in the "summoning is still more serious. Mr. Fitz Gerald is wrong in this. A very similar question arose in 1837 in regard tothe House of Assembly of Newfoundland, and _ the opinions of the then Attorney and Solicitor General, Sir- John Campbell-and' Sir E. M. Eolfe, were taken on' the subject, and they were of opinion that no informality in the issuing of the writs could affect the legislative competency; or the validity of the Ants done by a legislative body;. The present case is different, and creates a most remarkable difficulty, looking to the language of the Abolition ot •Provinces Act, 1875, and the Counties-Act, 1876.’ These Acts were'to come into, operation “on the-day next after the end of the first session of the fifth-Parliament.” Now when did that session end:? What evidence of that end have we ? The operation of these Acts is made to depend [upon an extraneous fact, which cannot be proved by hearsay,, but of . which, nevertheless,— proof must necessarily be given .in any proceedings under them. Where is this proof to be got ? The alleged letters patent and the proof that they were acted upon would have to be used, and their validity might then be questioned. If the fact that the Legislature separated on a given day (coupled with the cause pf such separation, however illegal that cause might be)’ would he insufficient to support proceedings under the above Acts, then cadet questio ; but I .ask whether it "is bright independently of other considerations: that matters of such moment should have been-subjected to such a contingency ? I doubt, moreover, whether the mere sszl -tic .Aawmmy upon RH illegal SUggestion could -possibly be treated as such an end of the session as would spffice to bring the laws referred to-.into operation. - One part of the question will be settled by the proclamation which, pmst shortly be issued - further proroguing the Assembly; but. the doubts which hang over the validity of rail that has been done under the two Acts must perforce remain until the .Assembly has met add passed a" proper validation Act. —Yours, &c., W. -TrL. Travers. Wellington, December 29. ;