CO885-(10-11) — Page 148

PUBLIC RECORD OFFICE

Reference :-

C.O. 885

10 PUBLIC RECORD OFFICE, LONDON

ALLY WITHOUT PERMISSION OF THE BE REPRODUCED PHOTOGRAPHIC- COPYRIGHT PHOTOGRAPH-NOT TO

2

With reference to the suggestion of the adoption in other cases of Colonial bishop- rics of the short form already adopted in the appointment of Indian bishops, I am of opinion that the suggestion is deserving of favourable consideration, and that such short form may be conveniently adopted in many cases where no peculiar circum- stances require any deviation from the contents of the Letters Patent erecting the see, and appointing the first bishop thereof, and where the bishop designate is content with a patent so framed.

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The Colonial sees are, however, placed under widely different circumstances, quoad" the practical operation and effect of the powers and jurisdiction purported to be conferred (howsoever) on the bishops by Letters Patent, when such jurisdiction and powers are viewed in relation to the various legal, political, and ecclesiastical constitutions, laws, and administrative systems of the different Colonies; that the existing circumstances of each particular case must be taken into consideration before the shorter form of Letters Patent which simply refers to, and thereby in effect repeats, the original Letters Patent, is adopted. Your Grace's attention has been recently called to this subject in the case of Canada, and there are probably other Colonial sees which are, to a certain extent, in the same position.

I therefore request that in future cases, where it is thought the shorter form may suffice, I may receive an intimation to this effect from the Colonial Office.

His Grace the Duke of Newcastle, K.G.

&o.

&o.

&c.

I have, &c.

(Signed) J. D. HARDING.

4381.

No. 113.

(NEW ZEALAND.)

LAW OFFICERS to COLONIAL OFFICE.

MY LORD DUKE,

Temple, April 30, 1862. We are honoured with your Grace's commands, signified in Sir Frederic Rogers' letter of the 4th March ultimo, stating that with reference to previous communications

L.O. 11 Mar

April

as noted in the margin respecting the New Provinces Act of New Zealand of 1858, C.-MAX. 18L and the measures necessary to establish its legality, he was directed by your Grace to transmit to us the copy of a Despatch from the Governor of that Colony in answer to the Despatch from your Grace forwarding a copy of the Act of the Imperial Parlia- ment establishing the validity of the local enactment.

Sir Frederic Rogers added that we should perceive that before introducing certain Bills upon the subject into the General Assembly, the local Attorney General was desirous of obtaining the opinion of Her Majesty's law advisers on certain questions raised in the accompanying memorandum, and stated that your Grace would be glad if we would furnish you with our opinion on the several points there adverted to.

Mr. Sewell, the Attorney General of New Zealand, in his memorandum on the New Provinces Validity Act (Imperial), dated the 22nd November 1861, stated that the Act of the Imperial Parliament declaring the validity of the New Provinces Act had removed the doubt as to the power of the General Assembly to constitute new provinces, but it had not removed all the questions arising upon the Colonial Act.

That we have now to read the Constitution Act as if it had originally contained the first and second sections of the new Imperial Act.

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CL

That the first section declared "that it shall be lawful for the General Assembly, by any Act or Acts to be by them from time to time passed, or for the officer administer-

ing the government of New Zealand, acting under the authority of any such Act or

"Acts, to constitute new provinces, to appoint the number of members of which the

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provincial council of such provinces shall consist, and to alter the boundaries of any provinces for the time being existing in the Colony."

That the second section authorised the General Assembly to alter, suspend, or repeal so much of the third section of the Constitution Act as provided that the provincial council should consist of not less than nine members.

That that was the extent to which the Constitution Act was expressly altered by the new Aot.

That by the third section the New Provinces Act and all things done under it were declared to be as valid as if the new Act had been in force at the time of the passing of the New Provinces Act.

And that, further, by the fourth section of the new Act all the provisions of the Constitution Act and the Constitution Amendment Act, as altered by the new Act, were declared to be applicable to all provinces for the time being existing in the Colony, in the same manner as if they had been established by the Constitution Act.

L. O., 16 April

No. 2, Nov. 1801

That it was clear that the power was then restored to the General Assembly of constituting new provinces, &c.

That it was also clear that they might authorise the officer administering the government to constitute such provinces, &c.

That it was also clear that the number of members of a provincial council need not be limited to nine.

But, reading that (in connexion with the Constitution Amendment Act) as the law, when the New Provinces Act was passed, it was not equally clear that such last- mentioned Act would have been or was then to be considered a due execution of the legislative power so vested in the General Assembly; if not, it might then be necessary to supplement the Imperial legislation by some Act of the General Assembly under its new powers in order to validate the constitution of the new provinces.

That upon this point he suggested that the further opinion of the Law Officers UF the Crown in England should be taken as a guide to Ministers, and with a view to their proposing to the General Assembly the requisite measures to meet the case, and that it would be obviously wrong to leave the question in uncertainty.

That the intention of Parliament (by the new Act) would seem to be to vest in the Legislature of the Colony the power from time to time to constitute such new

† No. 68.

• No. 58.

16578-619. 95.-9/66.