PUBLIC RECORD OFFICE
C.O.
Reference :-
885
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PUBLIC RECORD OFFICE, LONDON
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the preceding Governor, Colonel Gore Browne, as having constituted him Governor, &c. "in and over our Islands of New Zealand," and then (without any other description or mention of the Colony) it proceeds to constitute and appoint Sir George Grey Governor, &c. "in and over our said Colony of New Zealand and its dependencies," commanding him "to do and execute all things in due manner, that shall belong to your said command, and the trust we have reposed in you, according to and in pursuance of an Act, &c." (referring to the New Zealand Government Act)," and "according to such reasonable laws as are now in force in our said Colony, or here- "after shall be made by the General Assembly of our said Colony,” It appears to us that according to the true construction and import of these words (with which the whole bequel of the Commission agrees), the "Colony of New Zealand and its dependencies," of which Sir George Grey is constituted Governor, is that defined in the 80th section of the New Zealand Government Act, which does not include the Auckland Islands, and we are further disposed to think that the 1st section of the New Zealand Govern- ment Act had itself the effect of repealing the former definition of the Colony, contained in the Letters Patent of the 4th April 1842 so far as that definition was at variance with the 80th section of that Act.
3. Nothing more is necessary to put an end to all claim of title on the part of the Messrs. Enderby or their assigns, under the lease of the 1st March 1847 than that Her Majesty should exercise her power of re-entry for non-payment of rent; and this may be done by directing Sir George Grey, on behalf of Her Majesty, to cause posesssion of the Islands to be retaken: and to notify such re-entry thereon, and the determina- tion of Messrs. Enderby's lease, in the New Zealand Government Gazette, after the intended Act to re-incorporate the Auckland Islands with New Zealand shall have been passed.
4. The Bill, which your Grace proposes to re-introduce into Parliament, is, in our judgment, well adapted for the purpose in view; and if passed according to the draft as prepared (of which we entirely approve) it will have the effect of placing these Islands unequivocally under the authority of the Government and Legislature of New Zealand without any necessity for a further commission or instructions from Her Majesty to Governor Sir George Grey.
We have, &c.
(Signed)
His Grace the Duke of Newcastle, K.G.,
&c.
&c.
&c.
WM. ATHERTON. ROUNDELL PALMER,
8430.
No. 179.
(NEW ZEALAND.)
LAW OFFICERS to COLONIAL OFFICE.
MY LORD DUKE,
Temple, April 9, 1863. We are honoured with your Grace's commands, signified in Sir Frederic Rogers' letter of the 28th March ultimo, stating that, in compliance with an application for- warded by the Governor of New Zealand from the Legislative Council of that Colony, your Grace directed him to request that we would favour you with our opinion on a question of privilege which had recently been raised in New Zealand, and which is atated in the following terms in the report of the Committee of the Legislative Council :-
Whether the House of Representatives having in a Bill imposed on a Crown grant, or an instrument in the nature of a Crown grant, a certain tax or duty, it is competent to the Legislative Council to introduce an enactment to the effect that no transaction shall take place under another class of instruments affecting native lands until such instruments have been practically transmuted into or changed for Crown grants, so in effect rendering the latter class of instruments liable to such tax or duty."
Sir Frederic Rogers was also pleased to annex the case which was received from the Colony, and the papers which accompanied it. The standing orders quoted in the case were passed under authority of the 52nd clause of the New Zealand Government Act 15 & 16 Vict. o. 72.
Sir Frederic Rogers was further pleased to state that we would not fail to observe that the case was drawn on the part of the Legislative Council, and that the House of Representatives was not a party to the reference. But we would find among the papers a ministerial memorandum in an opposite sense from which it might be inferred that the question was fairly stated.
In obedience to your Grace's commands we have taken this matter into consideration,
and have the honour to
Report
That we are of opinion that, if in a Bill introduced in the House of Representatives and passed through that house a certain tax or duty has been imposed upon a Crown grant, or an instrument in the nature of a Crown agent, it is competent to the Legis- lative Council, without any breach of the privileges of the House of Representatives, to make the efficacy, for any given purpose, of another class of instruments intended to affect native lands under the provisions of the same Bill, dependent upon their assuming the form of Crown grants, or of those instruments in the nature of Crown- grants, on which the tax or duty has been so imposed by the House of Representatives. It is, we think, a fallacy to represent this as a case in which the Legislative Council takes upon itself to impose any tax or duty. It merely provides that a particular kind of instrument shall be necessary to produce a particular effect. It has a right to decide for itself upon the form and character of the instrument which shall be sufficient for that purpose, and it cannot be deprived of that right merely because the form of instrument which it prefers is one on which a duty may have been already imposed by law or will be imposed if the Bill should pass, the imposition of the duty on that form of instrument being the act not of the Legislative Council but of the House of Representatives.
We do not agree with the argument that the 28. 6d. per acre was not, in its nature, a tax or duty. But the other argument, urged on the part of the Legislative Council, that the House of Representatives cannot, by imposing a tax or duty on a particular kind of legal instrument, exclude the Legislative Council from the power of originating or amending Bills relating to such instruments seems to us to be well founded, and we see no answer to the suggestion that the privilege contended for by the House of Representatives would in effect be the same as if a stamp duty being imposed upon "deeds in England the House of Peers were thereby precluded from considering "whether certain transactions should or should not be effected by deed." It has never been supposed in England that the privilege of the House of Commons as to originating taxation is attended with any such consequences as this.
His Grace the Duke of Newcastle, K.G.
&c.
&c.
&c.
We have, &c. (Signed) WM. ATHERTON.
ROUNDELL PALMER.
DUBLIC RECORD OFFICE | Bafarance an
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