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New Zealand Times, Volume XXXII, Issue 4929, 9 January 1877, Page 2

One. of the two greatest living constitu-tional-writers in England has found it necessary constantly to protest against ; " the way in which bur constitutional history has been perverted at the hands of lawyers." The same writer, Dr.-Free-Man, states that " up to the end of the 17th century no distinction could be drawn between ithe Constitution and the Law." He goes on to show at some length that since, that time -there, has grown up a whole system of political morality, a whole code of precepts for the ] guidance of public men, which will not i be found in any page of either the Statute or the Common Law, but which are in practice hardly lesß sacred than any principle embodied in the ■ Great Charter or in the Petition of Kight. In short, by the side of' our written law there has grown up an unwritten, or " Conventional Constitution." The doc- 1 trine of the relations of the two Houses of Parliament to each other, the whole theory of the position of the body known as the Cabinet, and of its chief the Prime Minister, every detail in short of .the practical working of government among us, is a matter belonging wholly to the unwritten constitution, and not at all to the written law. ■-.-!/ ; i If the interference of these lawyers with constitutional questions has been mischievous at Home, where moat barristers at least are highly educated men, what are we to expect -when a'Jfew Zealand pettifogger imports into the discussion of such matters the maxims and -the method, the practice and the tricks of; the Police Court 1 •■ We have " for some time suspected that in noticing the vaporings of the Lyttelton 7smes we were really dealing with: such, a ..pettifogger. By its deliverance of the 29th December last 'we' are made certain on that point, and we shall now treat :th»t eharaotoriotio specimen, accordingly. . What.:the/writer lacks in;, knowledge he, like \ all other pettifoggers; makes up in impudence, i First of all he tells us that it is " beyond his comprehension " how the foriri of the political Constitution can have any relation to the development of national life., At that' w&. are hot surprised, it is quite J in the nature of things that it should,be, so. As this is simply tantamount ; to saying in other words that he is utterly, ignorant of the essential meaning of the word "constitution" itself and of all its connotation, and as the confession is made with the most refreshing and self - satisfied bravado, the ignorance and the impudence are equally characteristic. Then he returns to his argument about the issue of marriage licenses and the, constitution of bishop's sees in , the colonies, and he challenges us '," to state inj exact language why those prerogatives cannot be lawfully exercised here notwithstanding the absence of express statutory words taking them away." We accept the challenge, and shall show clearly how very characteristic of the pettifogger has been his whole treatment of these two sham analogies with which from the first hehastriedto keep himself in, countenance and his dupes in goodhu,-, mor. Let us take the marriage. license question first. Here a look into the index of the Statute Law of the colony shows that a series of statutes, to which the directly or indirectly assented, has from 1842 up to this time dealt with this matter. But the details of the existing law of marriage licenses and certificates are chiefly contained in the Acts

of 1854 and the amending Act of 1858. These details are so full and explicit as to be quite inconsistent with the exercise of the. prerogative in 'question, and to prove indubitably, that, in the ' language of Broom, which the writer despisea,' ''the; prerogative, is included by necessary' implicatipn. , , , Really, setting aside the morality of such a method of argument, as no better was to be looked for in the case, we still believe the. writer might, profit by the study, of this elementary book. Again, he challenges, us to prove any difference in principle or in degree between the cases of the marriage licenses and the bishops' sees and; the essential rights of government in dispute. We once more refer him to our despised *'-Broom," where, in the very last line of 'the article, he will read that general words- cannot take away,"those rights which are incommunicable ' and appropriate to him as .essential to his. regal capacity." After his 'complacent confession of ignorance at the start, it would be hopeless to lay upon his, weak digestion any stronger constitutional fare; his stomach could notbearit., ;. ;,... ; ;, His treatment of the Colenso case as r to the bishops' sees is equally characteristic of-the pettifogger.;"' The honesty, or shall we say the intelligence, of both, are on a par, and the tricks abound in both. He asks us to use exact language, but as often happens with his betters, his precept is better than, his example, for his own language is by no means accurate. Now, mark his words on the 19th December last:—"Then, again, before 1865 the Queen issued letters patent appointing sees for bishops in colonies, and investing those bishops with certain functions and powers. But in that year the Privy Council decided' in the' famous Colenso case that the Queen could not exercise that prerogative within colonies possessing Representative Institutions. In that case there;was'no statute with words expressly taking away the prerogative of the Crown in that' respect, but the Privy Council ."still \ held that"' the exercise of the- prerogative under the circumstances stated -was unlawful." What prerogative 1 It is convenient for him to be vague here, as will be seen. There were several cases arising out of this Colenso business." In " Long v. the Bishop of , Capetown" the point decided was that the letters patent, having been issued after 'a Constitutional Government had been'established at the Cape of Good Hope, were ineffectual "to create any jurisdiction, ecclesiastical or civil, within the colony." That caSe, r as was said by the Judicial Committee' of the Privy Council, in "Ex parte Jenkins," "only decided that the Crown cannot confer , coercive authority on abishop in a colony ; possessing a constitutional .form of government, without j the consent of the iLegislature." Again, in "re Bishop of Natal," the same * Judicial Committee ;said that "'the Crown,has no power to | confer any jurisdiction, or exercise legal i authority upon the Metropolitan of Capetown over" the suffragan bishops, or over

any .other" persons. . . .. After a colony has received legislative institutions the Crown (subject to the special i provisions of any Act of Parliament) stands iu the same relation to that colony as it does to the United Kingdom." Jlfawj.mark, the* point her© decided was, that the Crown could not, once a Legislature was createdj- bring into existence by letters patent any new coercive jurisdiction or court. That is the peculiar privilege of Parliament with reference to new courts. The Crown cannot of itself, and without .the ; sanction of a statute, create any new court, or change the jurisdiction or procedure \ of any existing court." In another ease ("Bishop of Natal y. Gladstone").' arising out of the same matter, it was held that the Grown could still make Dr. Colenso a bishop, and that he was within the diocese of Natal as fully a bishop as if he were bishop of an English diocese, " except that he cannot enforce execution of any orders without having recourse to. the civil tribunals." t These are the "certain functions and powers" which the Privy Council decided the Queen could not exercise in the mode attempted, and they are totally and utterly out of any, even the remotest, analogy to the present case. These powers, or this "jurisdicdiction,'' claimed by the Metropolitan of Capetown, touched men's rights in a very practical shape indeed. But, once more, how does the prerogative of prorogation do so'? Mark also that once a Legislature is granted to a colony, the Crown stands in the same relation to that .colony as to the United Kingdom. This we stated only the other day. Such is the constitutional theory of the Empire. So much for the " exactness " of the pettifogger of the Xnjttelton Times. Again, in the same spirit, he charges us with saying that he "had Constitution on the brain." We said no such thing ; hia brain, as he has told us and as was obvious without" that, is guiltless of the least conception of the "Constitution," as we above noted. What we did say was that he "had Constitution Act on the brain," and that we repeat. This Act proves a sad incubus to these poor people, innocent as they confess themselves to be of, the , very ' conception of the' Constitution. A considerable partiof the article is devoted to Mr. Fitz Gerald, but, as we haye before done, we prefer to •allow that gentleman, as he is well able to do, to defend himself," should he think it .worth his. while.'; ' ; - r! ; In the conclusion the writer'assumes a .tone of lofty moral elevation and patriotic He leaves the question £o the dispassionate consideration of those who, "flike himself," do not regard it from a party ; point,of view, &c.j & c . The public mind, he saya, is unsettled, and he. wants to have the'question decided by the Court of Appeal. Now, see the . pluuli-beck morality and the'Brummagem .patriotism ofi this: he does his" level: little best "to unsettle thepuriic mind," and thinking he has succeeded in doing so,, he complacently asks thai in order to gratify his ridiculous vanity somebody shall put his hand into his pocket and get the thing settled for,him inthe Court, Truly New Zealand is the country of small things and of amaller-ninded people. iNow let us n conclusion recall him to the consideration of a few points we before put to Km, but which he has not found it convenient to notice. Where is he invasion of rights in derogation of the grant in the Constitution? Wheß is there anything in the i least like th> taxing power assumed in the or the creation of a jurisdiction as in the Colenso case? Again, whe is the Governor who is to prorogue aid dissolve; is he a statuory Governor dstinct from the Governors in her Majoty's commission ? And is I there anv lecessary collision between the j 44th c' the letters patent ?