9454.
PUBLIC RECORD OFFICE
חוויי!!
Reference :-
C.O. 885
PUBLIC RECORD OFFICE, LONDON ALLY WITHOUT PERMISSION OF THE BE REPRODUCED PHOTOGRAPHIC- COPYRIGHT PHOTOGRAPH—NOT TO
In obedience to your Grace's commands we have taken these papers into our consideration, and have the honour to
Report
That by the terms of the commission of the 13th March 1862, the "Legislative Council" when constituted is to have the power to make and establish ordinances for the good government of the settlement; the Governor being empowered to constitute and appoint judges. Moreover, the Legislative Council is to be composed (at the outset) of the Governor named in the commission, and of such public officers (not less than two) within the settlement as shall be designated by any "instructions" issued by the Crown with the advice of the Privy Council. Then follow "the instructions" whereby the chief judge, the Colonial Secretary, and the senior military officer in com. mand, or the persons for the time being lawfully discharging the functions of the said "chief judge, Colonial Secretary, and senior military officer," are associated with the It further appears that the Governor as members of the Legislative Council.
16
40
To
;
Governor has convened a Legislative Council, in order to enable him "to pass the necessary ordinances for the collection of Customs dues and other regulations for "but that amongst the members of the council the government of the settlement; 80 convened "the chief judge" of the settlement is not to be found, the Governor Although, not having as yet exercised his power of appointing such an officer. however, no "chief judge" has been nominated, a judicial staff has been constituted, consisting of two gentlemen described as "assessors of the criminal and commercial courts"; and they are members of the Legislative Council so convened.
The principal question, arising under these circumstances, is whether the so-called "assessors," can upon a true construction of the language of the "instructions," be considered as "lawfully discharging the functions of the said chief judge "? And we are of opinion that they cannot be so considered. The words are "the functions of the said chief judge "; clearly denoting as it seems to us that at least the office of chief judge, with its prescribed duties or "functions," has been constituted; although the officer may be absent for a time, or some interval of time may elapse between the death, resignation, or removal of one officer and the appointment of his successor, during any of which periods the functions of the chief judge may be lawfully dis- charged by any other person duly appointed, and such other person, so long as he member of the Legislative Council under the should continue so to act, would be
letter of the instructions. It is impossible, until the office of chief judge shall have been created and the duties of that office shall have been defined, to say that the "'assessors" discharge the functions of the "chief judge," even in the sense of dis- charging such functions as would, on the appointment of a chief judge, devolve on him, Non constat what such duties may, or will, be.
It follows (1) That Messrs. McCoskry and Legros are not really members of the council, they not having been "named or designated for that purpose by or in above mentioned; and no "warrant or warrants' virtue of the instructions
having issued appointing them, and
"
(2) That laws passed by the council (so called) are invalid. The power to make laws is conferred exclusively on the "Legislative Council," to be constituted as directed in the instructions," but no such Legislative Council has ever been constituted.
We think that the Governor and two existing members of council cannot, now pass a law giving retrospective validity to laws passed by the so-called "provisional council," and indemnifying persons who have collected taxes or duties, or performed any other act in pursuance of such laws. Such a power, it appears to us belongs to the Imperial Legislature only.
We have, &c.
His Grace the Duke of Newcastle, K.G.
(Signed)
WM. ATHERTON. ROUNDELL PALMER.
No. 136.
(ВАНАМАВ.)
LAW OFFICERS to FOREIGN OFFICE.
Temple, September 25, 1862. MY LORD,
We are honoured with your Lordship's commands, signified in Mr. Hammond's letter of the 16th instant, stating that he was directed to transmit to us, together with the former papers, a letter from the Colonial Office, enclosing a copy of the judgment Sept. 10. delivered by the Court at the Bahamas in the case of the "Oreto," and requesting to be informed whether it will be necessary to modify the instructions sent to the Governor of the Bahamas, founded upon our Report of the 29th July last, for the detention of the vessel said to have been fitted out at Liverpool for the service of the 80-styled Confederate States, should that vessel put into Nassau, and to request that we would take these papers into consideration, and furnish your Lordship with our opinion thereupon.
Mr. Hammond was also pleased to state that the instructions for the Governor of the Bahamas should be forwarded by the mail of the 27th instant. In obedience to your Lordship's commands, we have taken these papers into consideration, and have the honour to
Report
That we are of opinion that if the vessel "Oreto" should put into Nassau she ought to be there seized and proceeded against, provided that there be nothing in the condition of the vessel when at Nassau tending to rebut the inference which the Law Officers drew from the facts laid before them with respect to the vessel when she lay at Birkenhead.
We have, &c.
The Earl Russell,
&c &c.
0 16278.-954. 25.-2/06.
(Signed)
WM. ATHERTON. ROBERT PHILLIMORE.