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PUBLIC RECORD OFFICE

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C.O.

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10 PUBLIC RECORD OFFICE, LONDON

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"the election of members of the provincial councils, the powers of such councils, and "the distribution of the surplus revenue between the said several provinces of New "Zealand," the Act of last session merely enables the Assembly to constitute new provinces, to appoint the number of members of the (new) provincial councila, and to alter boundaries. `-

Wh

*

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With these preliminary remarks, we now proceed to deal seristim with the questions which have been raised by the Attorney General of the Colony, and in which your Grade desires our opinion.

To questions 1, 2, and 3 we reply that, in our opinion, the New Provinces Act must now be taken to have been and to be a due execution of the legislative power, so far merely as relates to constituting new provinces, although, as Mr. Sewell points out, the General Assembly by a single Act provides a permanent machinery for the constituting of new provinces which dispenses with any necessity of a recourse "from time to time to the Legislature, and renders the Governor's share in the new arrangements ininisterial only. For the language of the 24 & 25 Viot. c. 30. s. 1. is not, as Mr. Sewell seems to read it, by "Acts to be from time to time passed," &o., but in the alternative, “by any Act or Acts," &c., so that it was competent to the General Assembly to do that which was done, namely, by a single Act to empower the Governor under given circum- stances to establish new provinces. The "discretion" of the General Assembly was exercised in passing the New Provinces Act, and the Governor in what he did was

'acting under the authority of such Act.”

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To the 4th question we answer that it appears to us that the provision contained in the 11th section of the New Provinces Act to the effect that the superintendent of any province (new) may be a member of the provincial council is a matter ultra vires of the Colonial Legislature, and is not cured by the Imperial Act of last session.

The 3rd section of the Constitution Act (in this respect unalterable) requires that for each province there shall be a superintendent and a provincial council, and by section 18 (in this respect also umalterable) the superintendent, with the advice and consent of the provincial council, is to make laws for the good government of the province. Other sections of the Constitution Act (which, though repealable, have not been directly repealed) show the intention of that enactment to have been that the superintendent and the provincial council should be separate and distinot, e.g., ss. 9, 11, and 12. This inconsistency does not appear to us to be cured by the Imperial Act of last session, as that Act, if in force at the date of the passing of the New Provinces Act, would not have warranted, with regard to the new provinces, such a departure from the policy and provisions of the Constitution Act. Indeed, the 4th section of the late Act in terms applies to new provinces the provisions of the Constitution Act, except as altered by the 20 & 21 Vict. c. 53., and by that Act itself, neither of these, however, touching the relative positions of the superintendent and provincial council.

With reference to the 5th question, we think it would be convenient in all cases, and would certainly tend to remove doubts, if when the powers of repeal and alteration given to the provincial Legislature by the 20 & 21 Vict. c. 53. are meant to be exercised, that intention were carried into effect, not inferentially, but by direct specific enact- ment. But it would be unsafe, except with reference to some particular case which had occurred, to undertake to say whether such repeal or alteration might or might not be effected without such direct and express reference; as, for instance, by plainly inconsistent subsequent legislation. We understand the former opinion of the Law Officers to have been expressed with particular reference to the case before them, but we prefer to express ourselves generally and at large.

For the 6th and 7th questions our reply is that we consider the effect of the 4th clause of the new Imperial Act is to render applicable to all provinces at any time existing in New Zealand the provisions of the Constitution and Constitution Amend- ment Acts, as altered by the Act of 1861, and we do not think that the new Act renders valid the various departures from the Constitution Act and the Constitution Amend- ment Act which are to be found in the New Provinces Act of the General Assembly, beyond the limits previously pointed out of the power to constitute new provinces and to create provincial councils without restriction as to number of members. We are of opinion, therefore, that section 4 of the Constitution Act (which, though repealable, has not been repealed) providing for the election of the superintendents of all provinces by the body of electors, and section 10 of the New Provinces Act, providing that, as regards the new provinces, the superintendent shall be elected by the provincial council, the latter enactment is without legal force. On the like grounds, we think that the 12th and 13th clauses of the New Provinces Apt, as to the assent to Bills, &o., are ultra vires and invalid, being quite irreconcileable with the provisions of the 27th,

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28th, and 29th sections (the two latter unalterable) of the Constitution Act, and here again the Act of last session fails to provide for the validity of these important changes.

It appears from the letter of the Colonial Secretary of 29th November 1860, which case forwarded the House of Representatives for the Law accompanied the " Officers' opinion, that "the question of the New Provinces Act and of the creation of "new provinces generally had previously been under the consideration of the Imperial "Government," but we are unable to collect what were the views on those subjects which were expressed in the "Despatches" referred to. Altogether, the New Provinces Act when fully considered would seem to have been passed by the General Assembly in utter ignorance or disregard of the restricted legislative powers which they possessed after the Constitution Amendment Act, 20 & 21 Viot. c. 53., had passed, and being, as we have pointed out, in many respects ultra vires, this Colonial Act can only obtain full validity, at all events as regarde acts done under provisions thus in excess and not reached by the Act of 1861, through means of further Imperial legislation. We do not concur in the view of the Colonial Attorney General that a remedy is to be found for the evils pointed out in enactments of the General Assembly. What the scope or extent of such Imperial legislation should be we are not in a position to suggest, as we are ignorant of the wishes of the General Assembly, and of the views of Her Majesty's Government with reference both to the future generally and to the effect to be allowed to the New Provinces Act and any acts done in pursuance thereof in particular, nor is any statement laid before us as to what the actual course of proceeding has been in relation to the new provinces, whether, that is to say, where the Constitution Act (as altered by the subsequent Imperial Acts) and the New Provinces Aot vary, the one has been followed in practice or the other. These and other matters which will readily occur to the minds of the legal advisers of the Colonial Government on a perusal of the present report will require to be carefully examined and considered, with the view to an Imperial enactment adapted to a thorough extrication of all parties from existing difficulties. This necessity of course renders it impossible that any Bill for the purpose should be laid before Parliament during the present session." would throw out for consideration in the meantime the expediency of passing an Im- perial Act to give validity in general terms to the New Provinces Act, and to all acts, matters, and things done thereunder or to be done thereunder with reference to the new constituted provinces of Hawk's Bay and Marlborough, and the constitution and establishment thereof or in anywise concerning the same, on or before a given day, or until the earlier repeal thereof the day named being sufficiently distant to allow of the passing of an Act by the General Assembly in the meantime, and of empowering the General Assembly to repeal the New Provinces Act, with proper savings of acte done, existing offices, and the like. So much for the past. The future (the New Provinces Act having been thus got out of the way) would without more be governed, as regards new provinces and other matters, by the three Imperial Statutes as laid down in the fourth section of the Act of 1861 and by Acts of the General Assembly to be made in conformity therewith. For avoidance of doubt, however, some expres- sion to this effect might, if thought fit, be used. This part of our suggestion, of course, raises the point, whether it is intended that the law should or should not continue to be determined by the Acts in question?

We

It will be desirable, that with the view to a new Imperial Act, attention should be directed to all the clauses in the New Provinces Act, although not adverted to in the comments and questions of the Colonial Attorney General. The object must be to determine the full extent to which the Colonial Act infringes Imperial Statutes, and to ascertain which of the conflicting laws has been acted upon since 1858.

We have, &c.

His Grace the Duke of Newcastle, K.G.

&c.

&c.

&c.

(Signed)

• Sic in original report.

WM. ATHERTON. ROUNDELL PALMER.

Page 150Page 151

4553,

SIR,

No. 114.

(BAHAMAS)

FOREIGN OFFICE to COLONIAL OFFICE.

Foreign Office, May 6, 1862. I HAVE laid before Earl Russell your letter of the 17th of April, enclosing a copy of a report from the Attorney General at Nassau upon the case of the wife and children of Dimmock Charlton illegally held in slavery in Savannah, and I am directed by his Lordship to request that you will state to his Grace the Duke of Newcastle that this document has been laid before the Queen's Advocate, who is of opinion that as Charlton left Nassau for the United States without any expressed intention of returning, Her Majesty's Government cannot take further steps in the matter unless Her Majesty's Consuls at Charlestown, New York, and Philadelphia should be able to furnish additional material information.

I am accordingly to request that you will move his Grace to inform Lord Russell whether under the circumstances he is of opinion that any further inquiries should be made in this case.

r

Sir Frederic Rogers, Bart.,

&c.

&c. &c.

• 16278.---754. 25.--2/86.