A compendium of official documents relative to native affairs in the South Island, Volume One.
I.—Legislation
I.— Legislation.
Proceeding upon the well-established principle of law that Her Majesty's subjects, settled in a country acquired as New Zealand has been acquired, carry with them as their birthright so much of the law of England as is applicable to their altered circumstances; that fundamental rule has been qualified in the infancy of the Colony by constituting a Legislature nominated by the Crown in New Zealand, as in other Australian colonies. The legislative power thus concentrated in few hands, imposes on those who hold it the duty of exercising it with constant regard to the principles of justice and to the welfare of the Colony.
To the Governor will belong the duty of originating and preparing for the adoption of the Legislative Council all laws which the peculiar exigencies of the local society may demand, a task of much apparent extent and difficulty. Happily, however, there are many aids within your reach which will greatly abridge this labour.
In the adjacent Colonies of New South Wales and Van Diemen's Land, laws have gradually been framed to provide for many contingencies of social life which must be expected to arise also in New Zealand, if not precisely in the same form yet with a general identity or correspondence in substance. I do not, of course, refer to enactments designed for the special government of convicts, but to those which are intended to facilitate the administration of justice, the alienation of property, the registration of deeds, the police of great towns, and the like. Now, on all these subjects your task will be greatly lightened by availing yourself, as far as may be practicable, of the labours of the Governors, the Legislative Councils, and the Crown lawyers of the older settlements in your vicinity. It has been the great advantage of New South Wales and Van Diemen's Land to have possessed amongst those to whom the higher offices, administrative, judicial, and legal, have been intrusted, many men of capacity and learning, rare in any country, but peculiarly so in countries where, there are so many urgent demands withdrawing the thoughts of educated men from the permanent to the transient interests of the public at large. I have reason to believe that the Chief Justices of New South Wales and Van Diemen's Land especially have, for the last twenty years, laboured at the work of reducing the law of England, on many principal subjects, into a form better adapted to the wants of the colonists. Seconded, as I understand, by some of the other Judges, and assisted by the active co-operation of the law officers of the Crown, they have progressively given to the Colonial Statute Book a character of practical aptitude to the circumstances of the colonists, while retaining the spirit of English law, which entitles them to a large share of public gratitude. You will therefore freely and safely borrow from those sources, though, of course, not with a servile, adherence to them as precedent, except as far as the similarity of circumstances may allow.
You will find, in the accompanying Royal Instructions, rules requiring that the utmost possible publicity should be given to every project of a law which it may be designed to submit to the local Legislature. If the counsels which may thus be invited should often reach you, as will probably be the case, in the unwelcome form of party cavil and unmerited censure, you will, I am persuaded, recollect that these are unavoidable evils in the formation of public opinion. Without turning aside to refute such remarks, you will endeavour to carry with you the good sense and good feeling of the community, and to impress the conviction on all that you are working for the benefit of all.
The legislative body will be composed of the three principal officers of your Government, and of the three senior Justices of the Peace not holding any place of emolument under the Crown. In their respective departments, each of the members of the Legislative Council will be expected to take a more particular charge of that branch of legislation with which his own appropriate duties may more immediately connect him. Thus, the Treasurer will prepare for your consideration such projects of law as he may think necessary for the improvement and security of the revenue; the Attorney-General will, in the same manner, make it his peculiar care to devise laws for the general protection of property, and for the prevention and punishment of crime; the Colonial Secretary will superintend the formation of that part of the colonial code which relates to the general duties of the local Government relatively to the whole society, or any particular class of it; and each of the three Justices, besides a general attention to the projects of his colleagues, will consider himself as called to exercise a peculiar care on whatever relates to the local wants of his own immediate vicinity.
At the great distance which separates Great Britain from New Zealand, and the consequent infrequency and tardiness of communication, the royal prerogative of disallowing legislative acts can seldom be exercised without inconvenience. Little as the confidential advisers of the Crown would be disposed to bring the laws of the Colony to the test of mere verbal criticism, and liberal as would always be the allowance they would be disposed to make for minor errors of every class, it must be remembered that the responsibility of Her Majesty's Government is peculiarly grave in assenting to laws enacted in a Colony in which there is no representation of the people. It will therefore be incumbent on you to use great circumspection for avoiding material errors, and explaining the grounds of any departure from the ordinary modes and principles of legislation. Your attention will be constantly given to those general rules which are laid down for your guidance in Her Majesty's standing instructions on this subject.