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men ; and by the 4 & 5 Win. iv, c. 95, the King was empowered to appoint certain persons in South Australia to exercise therein similar powers and au- thority; and when it was found inconvenient, some years after the founding of that province, that the Commissioners should have the appointing of offi- cers and clergymen, the act was repealed and re- enacted with amendments; but the clause giving such power was omitted. Whereupon the Queen’s right of making such appointments which had been previously suspended by the operation of the act, revived and was exercised.

By her Majesty’s letters patent of Nov. 16, 1840, erecting these islands into a colony, a legislative council was constituted with power to make laws and ordinances; but in a subsequent part of the same instrument, the Governor is authorized to appoint all judges, magistrates and other officers necessary for the purposes of government: and in the Royal Instructions accompanying the same, the Governor is empowered to erect corporations and confer a variety of franchises, privileges, and immunities, upon the inhabitants: and similar provisions are to be found in the Charter of Dec. 23, 1846.

New Zealand is not the only colony wherein the one governor had delegated to him the power of governing two provinces and of enforcing the laws enacted by more than one council or assem- bly, within his jurisdiction. From 1702 to 1768 New York and New Jersey had the same person for governor, but each had its own assembly: and in the case of Pennsylvania and the territory called Delaware, each had its separate legislature from 1703 until the commencement of the American Revolution, but the one person uniformly pre- sided over both, as governor.

The power given to the Local Legislature of this Province of making laws for its peace, order, and governance, does not include that of constituting a government for it; whilst full power and au- thority to govern New Zealand and its provinces have been delegated, by her Majesty, to His Excel- lency the Governor.

I am of opinion that what is called the Provin- cial Government of this Province does not exist by lawful authority, and that it is a usurpation of the Queen’s prerogative of governing; and that no person can legally hold any public office therein connected with the administration of justice or of the civil government, unless appointed thereunto, not by His Honor the Superintendent of the Pro- vince, but by His Excellency the Governor of the Colony.

His Excellency may, if he should deem it ad- visable, confer upon the Superintendent, or upon any other person, the privilege of nominating to such offices; but the legal appointments thereto can be conferred by none, save His Excellency. This was the course pursued by none, save in the District of Port Phillip (now the colony of Victoria) when it formed part of New South Wales. Its Superin- tendent nominated, but the Governor appointed, to offices therein. And when these islands were an integral part of that colony, the Governor in Syd- ney appointed to offices herein, on the recommen- dation or nomination of the lieutenant-governor.

The present position of His Excellency the Go- vernor, with respect to the so-called Provincial Governments, is a very singular one; and probably such as no governor has ever been placed in before. The right, when legally conferred, of discharg- ing certain duties of a public nature, whether fees or emolument appertain thereunto, or not, con- stitutes a public office; and when the same is to be exercised within a particular district, it is deemed real property. The bearer of such office has an estate therein, just as a landholder has in the lands whereof he is seised or possessed. A man may have an estate in fee-simple, fee-tail, for life, or at will, in an office; and when it is of in- heritance, it is subject, like similar estates in land, to curtesy and dower. The Duke of Norfolk hold- ing the office of earl marshal of England, in fee sim- ple. Like other real property, an office is subject to forfeiture for treason or felony; but, as the con- dition is implied in the grant of every office, that the grantee shall faithfully and diligently execute the same, it is further liable to forfeiture for mis- user or non-user.

The one office may be granted to two persons to hold jointly, in which case, the concurrence of both is requisite to the validity of every official act. Thus, in some incorporated towns, the office of chief magistrate is granted to two bailiffs, instead of, as in others, to one mayor. But as two per- sons cannot be severally seised in fee-simple of the same parcel of land, so two persons cannot hold in severally the same identical office. It would be contrary to policy that they should do so, since the one might order that to be done which the other had previously inhibited. The office of Governor, whether of a colony or province, cannot be holden in severally by two persons.

If the Imperial Parliament has conferred upon the local legislatures of the provinces the power of constituting governments for the same, respec- tively, her Majesty’s prerogative of governing therein is necessarily suspended, and His Excel- lency will not be justified in acting as Governor, although appointed to such office, by Royal commis- sion. But, if those bodies have no such power, His Excellency, by allowing the present anom- alous state of things to continue, becomes a party to their illegal acts; and his office is subject to forfeiture at law for misuser or non-user, as the case may be. He is bound, not only to appoint officers for the administration of justice and of the civil government of the colony, but further to take measures for the removal of all persons acting as such, without lawful authority.

The Merchant Seamen’s act having been disal- lowed by the late administrator, it will be unneces- sary to make any comment respecting its provi- sions.

The Foreign Seamen’s Act purports to punish as a criminal offense the non-fulfillment of a civil contract entered into by two foreigners, as ship- master and seaman, in their own country. The Imperial Parliament itself could not, without a breach of International Law, exercise or delegate such power.

The third section of The Deeds Act purports to render valid certain deeds previously executed and supposed to be void or voidable. A power of confirming that which is voidable, much less that which is void, is not comprised in delegated power but is incompatible therewith. None but the person or body having original power and the consti- tuting of the delegate, whether the same be one or many persons, can confirm that which is void- able. That which is void cannot be rendered valid but by Act of Parliament.

The remaining Acts might be re-enacted with some alterations, particularly by substituting in many of them the word “Governor” for the word “Superintendent.”

I have the honor to be,

&c.,

SINGLETON ROCHFORT,

Law Officer of the Province of Auckland.

His Honor W. Brown, Esq.,
Superintendent of the Province of Auckland.

NATIVE LAND PURCHASE ORDINANCE.

Princes street, Auckland,
March 13, 1856.

Sir,—I left at your Honor’s office yesterday the draft of a Bill for the repeal of the Native Land Purchase Ordinance, and I have now the honor of transmitting the following opinion respecting that measure of the late Legislative Council of this colony: