Enclosure 2.

Memorandum for His Excellency the Governor.

In transmitting the accompanying resolutions of the Legislative Council to His Excellency the Governor, Ministers desire to append thereto the following remarks by the Colonial Secretary and Native Minister.

Alfred Domett.

The difference of opinion as to the breach of privilege complained of by the House of Representatives evidently arises from the ambiguous mode of legislation adopted in the clause of the Native Land Bill inserted by the Legislative Council. A price fixed, virtually, for the sale of land, was imposed in the shape of a fee upon the instrument conveying the land. Considered in the latter light (as a fee, to be imposed not in respect of benefit taken, to be paid into the Public Treasury, and to be publicly accounted for) the imposition of the half-crown per acre on the certificate was evidently a breach of privilege by the Legislative Council.

Considered as a fixed uniform price of land, settled in a kind of commercial transaction between the Government or the Crown and the public as voluntary purchasers, the Legislative Council had an undoubted right to impose it.

The principle on which the exclusive right of the House of Representatives to deal with money is founded is, of course, that of the right (by some called sacred) of property. No man is to take that which belongs to another. Money taken in the page 42 shape of taxes, fees, &c., for Government purposes is to be taken only by the representatives of the people, that is, by themselves from themselves, or, in other words, it is considered not as taken but voluntarily given.

But, where the subject-matter is the fixing a sum to be taken for a full equivalent given, a mere exchange of money for a material object of barter, and where it is quite at the option of the payer to pay or leave it alone and not enter into the transaction at all, this principle of the right of property does not enter. There seems no reason, in this case, why the consent of the payers (through representatives) should be required, or why the Legislative Council should not legislate as well as the House of Representatives.

It is true another argument might be used. It might be urged that these two cases are similar in one respect, viz., that in both an equivalent for money is given, only in one case the return is in government and its advantages, or in the mental labour of the governing body, and in the other case in a material object, i.e., in land: that, where any price is to be fixed by the Legislature, both the buyers and the sellers should concur in that price, and, as the lands to be sold belong to the whole public, and the whole public may be buyers, the House of Representatives alone should fix this price. But I think this would prove too much, and limit to an extent never demanded or advocated (as far as I know) the powers of this or any non-representative branch of a Legislature.

The above is the view taken of the clause by the Chairman of the Committee of the Legislative Council. On the other hand, the Native Minister urges the following (which expresses the opinion of the House of Representatives) as the more correct statement of the character and effect of the clause under consideration.

The Bill, as originally passed, conferred on the Natives the power of selling their lands after obtaining certificates of ownership.

The amendment of the Legislative Council deprived them of this power, because by it the original certificate was made only to confer a right of leasing. Unless the certificate obtained the signature and seal of the Governor it was not, under the amendment, to confer the power of sale; page 43 and for this signature and seal a fee of 2s. 6d. was to be paid.

There are three documents conferring power of sale under the Bill as originally passed ana finally amended.

(1.)	Certificate issued by the Court (after confirmation of its proceedings by the Governor), not signed or sealed.
(2.)	Certificate signed by Governor and sealed with colonial Seal (for not more than twenty persons), having all the effect of a Crown grant.
(3.)	Crown grants to be given in exchange for either of the foregoing classes of certificates.

A fee of 2s. 6d. was chargeable on the last two documents.

The amendment of the Council took away the power of sale from the first class of certificates, limiting it to the second class—that is, the Natives, to acquire a general power of sale, would have to pay the 2s. 6d. fee and get the second class of certificate. Looked at in this light, the Council's amendment evidently amounted to the imposition of a fee or tax, as it could not be to the Native the price of his own land. It is not a sufficient answer to say the European purchaser would really pay the 2s. 6d., because he would deduct it from the price to be paid to the Native.

And, as the Bill conferred on the Native the right of absolutely selling his land, only requiring the payment of 2s. 6d. per acre for the additional privilege of getting a Crown grant or equivalent document for it, the true opinion seems to be that the 2s. 6d. was always a tax or fee, not a price for land. In such case the amendment of the Legislative Council was a breach of privilege.

Alfred Domett.