Enclosure 8 in No. 9.

Memorandum for His Excellency.

In reply to his Excellency's Memorandum of the 27th ultimo, the Premier respectfully would observe that Ministers do not admit that the case is one in winch "it is the duty of a Governor to exercise the power vested in him in "his capacity as an imperial officer, without limitation or restraint." If this were so the Governor might make appointments to the Council without the advice of Ministers.

The reference of Ministers in the Memo, to the authority quoted (Todd) was merely a reply to the assumption of those who would contend that, while the appointment of Councillors was different from the ordinary exercise of the Governor's powers, Ministers were bound to resign if their advice was not taken.

That this limitation was placed on the quotation is evident from the fact that Ministers immediately proceeded to state their own opinion with respect to Ministerial responsibility.

The same authority goes on to say (Todd, page 590): "But according to" constitutional analogy, no right should he claimed by the Governor, except "in cases wherein, under the Royal Instructions, he is bound as an Imperial page 34 "officer to act independently of his Ministers." Ministers do not find that in respect to the question under consideration such independence is expressed or implied in the Royal Instructions. They believe the powers referred to in the passage quoted are of a different character from those exercisable in the appointment of Members to the Legislative Council.

His Excellency states that "he feels himself bound to resist their advice" upon the ground that to grant the number Ministers asked for would be an "unconstitutional interference with the liberties of the Legislative Council."

This Ministers submit, is the whole question at issue. They have given reasons why the appointment of twelve Members would be constitutional and proper, and they respectfully remark that his Excellency has stated no reason why nine would be constitutional and twelve unconstitutional, or upon what grounds it would be "an unconstitutional interference with the liberties of "the Legislative Council."

In reference to the last paragraph of his Excellency's Memorandum, Ministers do not agree that the Governor is "personally responsible to the Crown for the" manner in which he exercises the prerogative right of making appointments to "the Council" in any other sense than the exercise of responsibility upon the advice of his Responsible Advisers.

They would further observe that the appointment of Councillors is not a "prerogative right," but a statutory act under "the Legislative Council Act," 1891" (N.Z.).

His Excellency's attention is respectfully directed to Despatch of 11th April 1891 from Lord Knut ford to Lord Onslow, in which the Secretary of State remarks : "With regard to the appointments to the Legislative Council "recommended by the late Government, I am of opinion that, in accepting the "advice tendered to you by your Lordship's responsible Ministers under the "circumstances described in your Despatches, you acted strictly in accordance "with the Constitution of the Colony; but I do not desire to be understood to "offer any opinion upon the action of your Ministers in tendering that advice." The terms of this Despatch, Ministers are of opinion, show that the appointment of Councillors is not "a personal act "on the part of the Governor in the sense referred to by Todd in the passage cited by his Excellency.

Ministers agree with his Excellency that the difference between nine and twelve appointments is "an inadequate reason for creating a question between "his Excellency and Ministers," but they also think that this argument applies also to the effect on the "liberties of the Legislative Council" of the three appointments his Excellency has been unwilling to make. If these form an inadequate reason for creating a question between his Excellency and Ministers, they are as inadequate to deserve the name of "an unconstitutional interference "with the liberties of the Legislative Council."

Ministers thought, and were therefore bound to advise, that less than 12 would not be sufficient to enable the functions of the Council to be properly discharged. They also think their advice was not unreasonable or unconstitutional.