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No. 40.
(New Brunswick.)
QUEEN'S ADVOCATE to COLONIAL OFFICE.
MY LORD DUIR,
Doctors' Commons, November 7, 1860. I AM honoured with your Grace's commands, signified in Sir Frederic Rogers' letter of the 23rd October, ultimo, stating that he was directed to request my consider- ation of an Act passed by the Legislature of New Brunswick in the month of April last, intituled "No. 2,745, An Act to amend the law relating to divorce and matri- monial causes"; and that I would report to your Grace whether this Act may properly receive Her Majesty's sanction.
In obedience to your Grace's commands I have taken this Act into consideration, and have the honour to
Report
That the previous Colonial Acts in pari materia which are cited in the 1st and 18th sections of this Act (No. 2,745) are not accessible to me, and that there is no explana- tion or report forthcoming from the Governor or the Colonial Attorney General, or any person whatever, on the subject of the Colonial Law of Divorce, or of the object of, or reasons for, the passing of the particular Act in question. I beg respectfully to submit that, without some suoh explanation, I am not in a position to advise your Grace either in this particular case, or in this class of cases, with any confidence, and that it would be desirable that instructions should be issued to Colonial Governors to transmit such explanations, with all Aots of this character,
Subject to these observations, I can see no sufficient reason on the face of this Act why it should not receive Her Majesty's sanction.
The Right Hon. the Duke of Newcastle.
&o.
&o.
&o.
I have, &c. (Signed)
J. D. HARDING.
9 16978.—597.
25.-2/96,
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No. 41.
(Jamaica.)
LAW OFFICERS to COLONIAL OFFICE.
Lincoln's Inn, December 3, 1860. MY LORD DUKE,
We were honoured with your Grace's commands, signified in Sir Frederic Rogers' letter of the 7th May last, in which he stated that he was directed by your Grace to transmit to us the copy of a Despatch from the Governor of Jamaica, forwarding, among other enclosures, copies of evidence taken before Committees of the House of Assembly in that island regarding certain judicial cases in which Mr. Justice Cargill is alleged to have given unjust and arbitrary decisions.
Sir Frederic Rogers was pleased to say that he was also directed to annex copies of the local Acts referred to in these papers, and
44
That your Grace requested that we would take these papers into consideration, with especial reference to the order to indict Mr. Patrick Morgan for perjury in the action Fitz Morris v. Morgan," and to the sentences passed on the 28 rioters in the case of assault on (an) Obeahman and his accomplices, together with the proceedings consequent on those sentences, and also with a general reference to the conduct of the judge as represented in all the cases set forth in the evidence taken by the Committees of Assembly, and requesting us to favour your Grace with our opinion whether the Executive Government is called upon to take any proceeding in the matter, and, if so, whether there should be a preliminary proceeding under the local Act before the Governor in Council, or whether the questions at issue should be brought under the cognizance of the Judicial Committee of the Privy Council, or otherwise dealt with.
We were also favoured with a further letter from Sir Frederic Rogers, dated 26th July last, transmitting to us copy of a further Despatch from the Governor of Jamaica, enclosing papers which he had omitted to forward in his previous Despatch, and requesting that we would take these additional papers also into our consideration.
In obedience to your Lordship's command, we have taken the several Despatches, with the enclosures, into our consideration, and have the honour to
Report
That we observe that, under the Colonial Statutes referred to, the power of dis- missing judges in Jamaica rests with the Crown alone; but the Governor, with the advice and consent of a majority of a board of the Council, may suspend any judge until the pleasure of Her Majesty be known. In England the constitutional course for the removal of a judge is an address to the Crown by both Houses of Parliament, but the House of Assembly in Jamaica is not entitled to claim any similar constitu- tional right or function. Still, the analogy is so strong between an address to the Governor by the House of Assembly and an address to the Crown by both Houses of Parliament, that we are of opinion that although dismissal of the judge ought not to follow as of course on the address of the House of Assembly, as in England it would follow on the address of both Houses of Parliament, yet, that on receiving such address the Crown ought to make the conduct of the judge the subject of immediate quasi judicial investigation.
It would have been well, in our opinion, if the Governor had at once suspended Mr. Justice Cargill upon the address of the House of Assembly, but we cannot recom- mend that after the time which has elapsed any such course should now be taken.
We think it essential for the satisfactory administration of justice in the island that Mr. Justice Cargill's conduct in the matters in which it has been impeached by the two Select Committees and House of Assembly should be submitted to a full and formal investigation.
There is certainly much difficulty in ascertaining in what manner this. can be con- veniently and effectually done, and we are unable to suggest any other course than
that Her Majesty should by Order in Council refer the address of the House of See Privy Assembly and the reports on which it was founded to the Judicial Committee of the Council Act, Privy Council.
On this being done, a communication of the fact might be made by the Governor to the House of Assembly, and that body would probably direct evidence to be adduced
16278.-180.
95.-2/86.
1.4.