.roaft
11891.
PUBLIC RECORD OFFICE
गय
Reference :-
C.O. 885
10 PUBLIC RECORD OFFICE, LONDON
ALLY WITHOUT PERMISSION OF THE BE REPRODUCED PHOTOGRAPHIC- COPYRIGHT PHOTOGRAPH-NOT TO
No. 43.
(NATAL.)
LAW OFFICERS to COLONIAL OFFICE.
』;! MY LOAD DUKE,
Lincoln's Inn, December 15, 1860. We were honoured with your Grace's commands, signified in Sir Frederic Rogers' letter of the 20th October last, in which, he stated that he was directed by your Grace to request that we would favour you with our opinion on the following case, viz.:-
That the Legislative Council of Natal was constituted by certain Letters Patent under the Great Seal of the United Kingdom, and was thereby authorised to make laws for the government of the Colony, and (with certain exceptions not material to the present purpose) to alter the provisions of the charter itself. That-
1.
By the same Letters Patent the Lieutenant-Governor was authorised to suspend from "the exercise of his office within Our said Colony any person exercising any "office or place under or by virtue of any commission or warrant granted, or which 46 may be granted by Us, in Our name or under Our authority" that the suspension was to be effected by the Lieutenant-Governor after taking the advice of his Executive Council in the manner required by the Royal Instructions (8. 38), and acting under those Letters Patent the Legislative Council passed a law (No. 10 of 1857) constituting a supreme court of three judges (ss. 4, 6).
And that this law provided for appointing persons to act provisionally during the "suspension from office" of any judge, and (8. 10) that the judges should respec- tively hold office "during good behaviour." The law contained no further provisions respecting suspension.
That by warrants under the Sign Manual the Lieutenant-Governor of the Colony had been directed to appoint the persons therein respectively named to be judges of Natal, "to have, hold, exercise, and enjoy the said office and place upon such terms and conditions as are prescribed and set forth in and by an Act passed on the "10th day of July last," and intituled “An Act for the better Administration of "Justice within the Colony of Natal," being the Act above mentioned.
$6
It was assumed that the appointments had been made accordingly.
Our opinion was requested, Ist. Whether, having reference to the instruments and law above quoted, the Lieutenant-Governor may suspend the judges of Natal for misbehaviour in the manner prescribed in the above-mentioned Letters Patent and Instructions; and 2nd. If we were of opinion that judges may be so suspended, our opinion was requested,-I. Whether the Lieutenant-Governor and Council were at liberty to prescribe such rules or act on such principles as they might, in their discre- tion think fit, respecting the admission of evidence and the mode of procedure (so far as the same were not prescribed by the Royal Instructions) or whether any particular rules were to be observed in those respects; and II. Whether the judge might appeal from such suspension (if confirmed by the Secretary of State) to the Privy Council or any Committee of the Privy Council.
3. If we were of opinion that judges could not be suspended by the Lieutenant- Governor under the above Letters Patent, we were requested to state by what process the suspension alluded to in 8. 9 of the above-mentioned Natal Ordinance was to be effected.
Sir Frederic Rogers was also pleased to draw our attention to the Imperial Act, 22 Geo. 3. c. 75, which had reference to the removal of Colonial judges, and to the 7th and 8th clauses of a law passed by the Legislature of the Cape of Good Hope (No. 14 of 1845) for erecting the district court of Natal.
In obedience to your Grace's commands-
We have fully considered the several papers laid before us, and beg leave to
Report
That in answer to the first question we are of opinion that the power of suspension of a judge for conduct inconsistent with "good behaviour" still remains in the Lieutenant-Governor, acting with the advice of the Executive Council, and in the manner prescribed by the Letters Patent and Instructions.
0 16278.-13. 25.-2/66.