E.—No. 1.

went on to provide that no person should be detained in custody, by virtue of powers contained in tlie Act, for a longer time than three calendar months from the timo of his arrest, without being brought to trial for the offence or offences for which he was detained in custody. Considering, therefore, the law as it stood in this country, the analogy to be be drawn from similar laws enacted in other countries to meet similar emergencies, the fact that the prisoners were not in a disturbed district, that they had been more than four and a-half months in custody, that they could at any moment be brought to trial before the ordinary courts of the country, the Governor felt that he was not, on the 19th of April last, authorised either in law or equity to do that which Ministers advised him to do ; and that if he had acted upon their advice, he would have been personally responsible for doing that which he believed would have been regarded as an act oppressive in itself, and not only without the authority of the law, but against the authority of the law, and for which no adequate excuse could, in the Governor's opinion, have been found at that time. Government House, Auckland, 20th October, 1864. G. Gkey.

No. 48. MEMOEAXDTTM of Ministers in reply to His Excellency's Memorandum of 20th October. Ministers are glad to have afforded His Excellency an opportunity of explaining his reasons for having declined to act on the advice of his Eesponsible Advisers, when on the 19th April last they advised him that the whole of the prisoners should be forthwith brought to trial before a court constituted under the " Suppression of Eebellion Act," particularly as it affords Ministers in return an opportunity of expressing most respectfully their opinion that His Excellency has fallen into several errors, both of law and fact. Ministers would, however, have been glad if His Excellency had availed himself of the same opportunity to afford them the information which in the Memorandum of the Colonial Secretary of the 14th inst. they respectfully requested His Excellency to give. Ministers cannot help expressing their surprise and their sincere regret that His Excellency having declined to act on their advice in April last, should only on the 20th of October, after a lapse of six months, have condescended to give them his reasons for doing so. An explanation of the reasons why His Excellency declined to act on the advice of his Ministers would, if given at the time, certainly have been courteous, and might have been useful; but so tardy an explanation as that now afforded, after so many events of importance have occurred in reference to the same subject, and particularly after a great responsibility has been incurred by the escape of the prisoners untried, suggests remarks on the explanation now being given which Ministers respectfully abstain from making. Ministers are unable to appreciate the distinction which His Excellency is pleased to make between a " trial " and a " legal trial." To their apprehension it would have appeared that a proposal made to try prisoners meant a trial according to law, and not " a trial that would have been illegal and contrary to equity." But if Ministers did commit so grave an offence as to advise His Excellency to subjete the prisoners to a trial not authorized by law, it appears to them remarkable that His Excellency, who is ordinarily not averse to pointing out their failings, real or supposed, should for six months have passed over one of such great importance, and waited patiently for the chance of an opportunity being afforded by the Colonial Secretary for explanation. Ministers might give a short answer to His Excellency's allegation that the trial they proposed was not a legal one, by reminding His Excellency that under the system of Eesponsible Government i: was for the Attorney General to advise on the question of legality ; and that if the Governor were to assume the function of interpreting Acts of Parliament on technical points, against or without the advice of that officer, there must be an end of any such system of Government. They will not, however, avail themselves of this obvious reply to Ilis Excellency's opinion on the points of law involved in the case. They will respectfully state their reasons for thinking that His Excellency's opinion is wrong. His Excellency states that " the New Zealand Settlements Act authorizes the Governor in those eases where the ordinary course of law was wholly inadequate for the prompt and effectual punishment of persons engaged in rebellion, to cause such persons to bo brought to trial in a summary manner by Court Martial, at the earliest possible period for all offences committed in the furtherance of rebellion." Ministers have carefully examined the Act referred to, without finding any such provision as His Excellency specifies, and they presume His Excellency must mean " The Suppression of Eebellion Act," in which there is a provision somewhat to that effect. If that be the Act to which His Excellency refers, Ministers beg to call His Excellency's consideration to its 2nd Section. It does not, as His Excellency states, " authorize the Governor to cause all persons engaged in rebellion to be brought to trial in a summary manner by Courts Martial at the earliest possible period," but it authorizes the Governor " to issue orders to arrest and detain in custody all persons engaged or concerned in rebellion or suspected thereof, and to cause all persons so arrested or detained," that is under orders previously given under this Act, "to be brought to trial at the earliest possible period." The earliest possible period, means the earliest possible period after the persons referred to have been brought under the operation of the Act, by such order as above mentioned. No such order was ever issued as regards these prisoners; they were never brought within the provisions of the Suppression of Eebellion Act; but they might at any time have been detained under an order issued under that Act, and then they must have been brought to trial "at the earliest possible period" thereafter. It was quite competent to the Governor in April last to have brought the prisoners to a " legal trial " under that Act; and had he accepted the advice of his Ministers, the first thing they would have done would have been to advise the issue of the necessary " order," and then they would have proceeded to trial without delay, i.e., " at the shortest possible period " after the persons charged with rebellion had been brought under the operation of the Act. His Excellency states that if his views had been carried out the most guilty would have been tried by Courts Martial within a week or ten days of their capture. Ministers never understood His

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MEMORANDA AND REPORTS