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New Zealand Mail, Issue 422, 13 March 1880, Page 23

Sosie time ago we published a rather curious rumor to the effect that proceedings were about to be initiated against the Governor for having assented to the Maori Prisoners Trials Act, 1879. This, if not the exact words of the rumor in question, is the substance of it, and it is certainly vague enough. The Act in question is without doubt most exceptional and extraordinary in its character, but it must be admitted at the same time that the occasion for it was also most extraordinary and exceptional. Both Mr. Sheehan" and the Treasurer of the present Government, in their places in the House, stated positively that if these prisoners were liberated the inevitable result would be a native war. We presume that the whole amount of truth, which may underlie this rumor is that the counsel for the Maori prisoners wish in some way to test the validity of the Act by virtue of which their clients are detained in prison without trial. The cases referring to the liability of Colonial Governors are certainly not free from difficulty, and it is not always easy to reconcile the language used by the different Judges. But still we think the following pro positions may be safely stated without risk of much deduction from their general accuracy. No proceedings, civil or criminal, can be taken against a Governor in the courts of the colony over which he rules for any official act of State ; but he may be proceeded againstinthosecourtsfora private debt, or other private cause of action incurred by him. Even in this case, however, it seems that execution could not be had against him, at least while he continued in office. On the other hand, the Governor can be proceeded against either civilly or criminally in the Court of Queen's Bench in England (even, it seems, during htis official tenure,) for an act of State done by him as such Governor. No doubt such an act in order to found an action must be such as the law will recognise as a technical injury or wrong done to a subject. There would also be in the case of a proceeding in England a practical difficulty somewhat analogous to the case of a private civil process against him in the colony ; in order to make the remedy effectual against him lie must be found within the jurisdiction of the English Court, and that might be very difficult. Passing, however, all this, let us look at the state of the matter as regards the contention of " repugnancy" to the Hoyal instructions, or on any other ground. The repugnancy which is spoken of in clause 9 of the Boyal instructions refer* exclu sively to the eight classes of Bills therein enumerated, and it may, we think, be safely asserted the Maori Prisoners Trials Act does not fall within any one of them. But there is another repugnancy.

that namely which is meant in the 53rd section of the Constitution Act: —" It shall be competent for the General Assembly to make laws for the pence, order, and goo:! government of New Zealand, provided that no such laws be repugnant to the law of England," &c. Now, since by the Act the Governor is himself a constituent part of the General Assembly, this restriction,, whatever it may be, or mean, is certainly binding upon. him. What, then, is repugnancy to the law of England % We are not left to speculate on this point; for the phrase has been expressly defined by the Imperial Act of 2S and 29, Vict., c. 63, " An Act to remove doubts as to the validity of colonial laws." Sections 2,3, and 4 of this Act all relate lo this subject. The 4th section defines what would be a fatal repugnancy to " Instructions," but as we already said that is not here material. Sections 2 and 3 are as follows :

2. Any colonial law which is or shall be in any respect repugnant to the provisions of any Act; of Parliament extending to the colon)' to which such law may relate, or reputruant to any order or regulation made under authority of such Act of Parliament, or having in the colony the force or effect of such A.ct, shall be read subject to such Act, order, or regulation, and shall to the extent of such repugnancy, but not otherwise, he and remain absolutely void and inoperative

3. No colonial law shall be or be deemed to have been void or inoperative on the ground of repugnancy to the law of England, unless the same shall be repugnant to the provisions of some such Act of Parliament, order, or regulation as aforesaid.

The negative words of section 3 narrow down the definition of " repugnancy to the law of England " in a way not to be mistaken : it is the sort denned in this Act and no other sort. Are there, then, any such Act or Acts of Parliament extending to this colony, or orders or regulations made under such to which the Maori Prisoners Trials Act, 1879, can with any plausibility be said to be repugnant % This, we apprehend, is the question which, in the first instance, the prisoners' counsel must ask themselves and answer. Ag in, if such there be what is the proper mode of challenging the validity of the colonial Act ? These, we say, are questions for them especially ; it is not for us to suggest, or even perhaps to speculate farther. At the same time this casehas, it may be said, mere than one side to it: it .has a public and general aspect as well as a special aspect. After making all large allowances, as we have already liberally done on the ground of public expedienc\ r , there still remains the substantial consideration that such precedents are most dangerous. Nothing short of necessity of the extremest kind can justify them, for " necessity is the tyrant's plea." The subject is one of the most delicate nature, and needs in him who approaches it, the wariest walking ; on the one side yawns Sctmga,. on the other Chaeybdis hisses. A step too much, a word too many, on either side, may lead to injury and mischief. Probably, without saying all which may in the course of our remarks have suggested itself to our minds as possible to say, we have said enough to give direction to the thoughts and words of our fellow citizens. Each one, in speaking or refraiuing from speech, will, no doubt, use that discretion which is by far the better part of liberty, and which, in fact, none know how to use but those who have been bred up under a system of freedom.