81

turn is unierstood in law, does not necessarily imply a money consideration. (Bl. II, 571.)

By its charter, the New Zealand Company was empowered to purchase and hold land to its own use. Nevertheless, all grants of land issued to it, in the name and on the behalf of the Queen, by the respective Governors of the Colony, previous to the passing, in July, 1847, of the Imperial Act the 10 and 11 Vict. c. 112, were void because the power of issuing such grants had not been delegated to the Governor. In consequence, it was found necessary to introduce into that Act a provision legalizing all such grants. (Vide s. 14.) I may mention that those grants had been issued to the Company, by the orders and direction of the Secretary for the Colonies.

3. The remaining three of the nine acts mentioned, viz.: The Provincial Government Act; The Transfer of Powers Act; and The Audit Act, were passed for the purpose of constituting what is usually called “the Provincial Government” of the Province of Auckland. By the first of them, the Superintendent is appointed Governor, with power to appoint all officers required in the public service of the Province, and an Executive Council is created to aid and advise him in discharging the functions of that high office: the second transfers from the Governor of the Colony and vests in such Superintendent nearly the whole of the executive power appertaining to the government of the Province, and which, by her Royal Commission, the Queen had, in express terms, delegated to the Governor to be by him exercised as therein prescribed: and the third provides for the auditing of the accounts of such Provincial Government, and may be regarded as an accessory to the two former.

The Supreme executive power is, by our Constitution, vested in the Queen, and extends to all parts of the British dominions. It includes the prerogative of erecting offices and appointing officers to fill them: and the law has ordained by whom, and in what manner, such appointments shall be made.

“The King’s prerogative of power in civil affairs ammounts properly to termed multifarious as universities, for all the occupations of government are performed by his authority and influence. He confers honours and privileges; creates corporations; and, generally speaking, appoints all the judicial and executive magistrates of the state.”

“All executive power, all enforcement of the laws in being, is derived, mediately or immediately, from the Crown. Whatever the law requires to be done, can only be done, ultimately, by royal authority.” (Wood. I, 78.)

“Doubtless, those fundamental rights and principles on which the King’s authority rests, and which are necessary to maintain it, extend even to such of his Majesty’s dominions as are governed by their own local and separate laws. The King would be nominally and not substantially a sovereign over such his dominions, if this were not the case.” (Chitty Pre. 25.)

“The grant of an office should be regularly under the Great Seal.” Ibid, 84.

“Ancient offices must be granted in such form and manner as they have used to be; unless the alteration be by act of Parliament. Offices held immediately from the Crown must be granted by letters patent. Each office must be granted with all its ancient rights and privileges, and everything incident to it. For if any office incident to that which is granted is reserved, the reservation is void.” (Cruise iii, 110.)

“All new offices, in which the jurisdiction or authority of the offices is not ascertained and specified in the grant, are, on that account merely, invalid.” (Ch. Pre. 80.)

The powers of the Provincial Legislature are of the legislative kind, and very similar to those granted by royal charters, to municipal corporations. Like them, it may make laws and ordinances for the governance of all within its jurisdiction; but it has not the executive powers with which they are invariably invested. The words “to make laws” do not, in any case, imply or confer the power of appointing officers for the administration of law or of government, which, being a part of the royal prerogative, can never be delegated, except in express and distinct terms.

Although every municipal corporation has both by its charter and as being incident to it as a body politic, the power of making laws and ordinances, yet it could not institute a court, or create another corporation, or appoint a sheriff, a coroner, a magistrate, a clerk of the market, or claim waifs, estrays, wrecks, fairs, markets, or other franchises, except such powers and rights were conferred by the charter and distinctly specified therein. (Bacon, ii, 261).

The Company incorporated in 1609, for planting colonies in that part of the United States in America then known by the name of South Virginia; the one incorporated in 1629 for colonizing Massachusetts; the inhabitants of the colony of Rhode Island incorporated in 1663; Lord Baltimore, the palatine of Maryland; James, Duke of York, the palatine of New York; William Penn, the palatine of Pennsylvania; the Board of Proprietors of the two Carolinas, and the Board of Trustees for planting colonies in Georgia; were, each, empowered to make laws for the peace, order and governance of the respective colonies over which they had jurisdiction; they had therein all such powers of legislation as the local legislatures in this hemisphere have in the colonies for which they have been respectively constituted; and they had, in addition, the power of erecting courts, instituting corporations, appointing governors, judges and other officers necessary for the administration of the law and of the civil government. But these executive powers were not claimed as part of the legislative power of making laws and ordinances; they were conferred by the respective royal charters in express and distinct terms — in language that could not be misunderstood. Thus, in the royal charter issued in 1664, granting the territory of New York to the Duke of York, as a palatinate, that prince was empowered “to make, ordain, and establish all manner of orders, laws, directions, instructions, forms of government, and magistrates fit and necessary for the territory aforesaid.”

That none of these corporations, palatines, or boards, although invested with both executive and legislative powers, was regarded as above the laws of the land, or as being an imperial parliament over the colony subject to its jurisdiction, we may fairly infer from the termination of the career of the major part of them. By a suit in the King’s Bench, at the instance of the Crown, in 1624, the charter of the Virginia Company was adjudged to be forfeited, whereupon all its powers and jurisdiction re-vested in the King; a similar decision of that Court with regard to the Massachusetts Company annulled its charter, in 1684. A quo warranto issued against the colony of Rhode Island in 1685, and its government was dissolved in the year following. James the Second commenced proceedings against the Palatine of Maryland, and William the Third took the government of that province out of his hands; and it was not until 1716 that the patent was restored to Charles, Lord Baltimore; Penn was suspended, during some years, from the government of his palatinate, but a patent was passed in 1694 for his restoration; and the boards of proprietors and trustees for the Carolinas and Georgia surrendered, each, its charter.

By the 10 Geo. iv. c. 22, the King was authorised to appoint certain persons in Western Australia to make laws and ordinances for its governance, and, in addition, to erect courts, found institutions, and appoint officers, chaplains, and clergy-