CO885-(10-11) — Page 641

PUBLIC RECORD OFFICE

Reference :-

PERC.O. 885

11 PUBLIC RECORD OFFICE, LONDON

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

4662.

MY LORD DUxr,

letter

to

of

us

of

No. 507.

(New Zealand.)

LAW OFFICERS to COLONIAL OFFICE.

Temple, May 4, 1868.

Wi are honoured with your Grace's commands, signified in Sir Frederic Rogers' the 18th of March last, stating that he was directed by your Grace to transmit the copy of a Despatch from the Governor of New Zealand enclosing an opinion No. 142. the Attorney General of that Colony regarding the legality of the appointment of Dec. 24, the members of the Legislative Council and the validity of the acts of the General 1867. Assembly.

Sir Frederic Rogers was also desired to annex copies of the following documents :-- 1. Warrant in use for summoning persons to be Legislative Councillors up to 2. Instructions to Sir George Grey in July 1852. 3. Instructions to Governor Browne in 1855. 4. Instructions to Sir George Grey in 1861.

December 1861.

5. Additional instructions to Sir George Grey in March 1862. 6. Instructions to Sir George Bowen in 1867.

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Sir Frederic Rogers was further pleased to add that as bearing upon the present question he was desired to state that no clauses similar to those in the New Zealand instructions are to be found in the instructions to the Governors of Canada, but that from the passing of the Act 3 & 4 Vict. o. 35. 8. 4. until the Legislative Council was made elective under the powers given by 17 & 18 Vict. c. 118. the practice was for the Governor to submit to Her Majesty the name of the person to be summoned to the Council, and thereupon he was authorised by warrant under the Royal Sign Manual and Signet to summon such person.

Sir Frederic Rogers was also desired by your Grace to request that we would favour your Grace with our opinion upon the questions—

1. Whether the clauses relating to the appointment of Legislative Councillors in the instructions which have been issued are repugnant to the provisions of section 33 of

16 Vict. c. 72.? 2. Whether the appointments of Legislative Councillors to December 1861, which were followed up by warrants under the Royal Sign Manual and Signet, were valid?

3. Whether the appointments of Legislative Councillors since that date were valid? all or any of such appointments are invalid, whether an Act of Parliament should not be passed to remove doubts, and declare that all persons who have been summoned to the said Legislative Council shall be taken to have been legally sum- moned and to have been members of the said Council from the time of the respective In obedience to your Grace's commands we have taken this matter into our con- sideration, and have the honour to

15 &

4.

If

summonses?

to us.

Report

That we do not find the instructions to Sir George Bowen among the papers sent Probably they are in terms similar in substance to the others, and authorise the Governor to summon persons whom he deems to be prudent and discreet.

If so, we think that these, like the other instructions sent to us, are wrong, being repugnant to the 33rd section of the 15 & 16 Vict. c. 72.

We think that Her Majesty should exercise discretion as to these appointments, and that appointments made by the Governor under a general discretion vested in him and would be informal. The general authority to appoint the Senior Military the Colonial Secretary, and such officials, however, as in the instruction of 1852 we think, be held valid, but even this is doubtful. 2. Appointments made to December 1861, that is, as we gather, appointments made provisionally by the Governor and afterwards sanctioned by Her Majesty by such a warrant as that appointing John Curling, Esq., would be good from the date at which the appointee was summoned by virtue of such warrant and took his place at the

were

Officer,

might,

0

16278.-445. 25.-5/36.

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