3116.
། ། ། ། །
PUBLIC RECORD OFFICE
זוק יייייי
19
C.O. 885
Reference :-
10 PUBLIC RECORD OFFICE, LONDON
ALLY WITHOUT PERMISSION OF THE BE REPRODUCED PHOTOGRAPHIC- COPYRIGHT PHOTOGRAPH-NOT TO
No. 244.
(NEW SOUTH WALES.)
LAW OFFICERS to COLONIAL OFFICE.
MY LORD DUXE,
Lincoln's Inn, March 31, 1864. WE are honoured with your Grace's commands, signified in Sir Frederic Rogers' letter of the 24th March instant, stating that he was directed by your Grace to transmit to us the copy of a Despatch from the Governor of New South Wales respecting a doubt which exists as to the jurisdiction of the law courts of a Colony over the person holding Her Majesty's commission as Governor.
Sir Frederic Rogers was also pleased to state that your Grace requested that we would favour you with our opinion whether the Governor of a Colony can by subpoena or otherwise be required to attend and give evidence before a Colonial court of justice, and if so, whether it is competent to such a court, having the power to enforce his attendance, to protect him in the manner contemplated by Sir John Young from a vexatious summons.
In obedience to your Grace's commands we have taken this matter into considera- tion, and have the honour to
Report
That it might, perhaps, be proper (if this question should ever be so raised as to require a positive determination in any particular case) to consider the terms of the Letters Patent or other instrument by which the Governor of the particular Colony is appointed, in conjunction with those of the charters or statutes from which the courts of justice in the same Colony derive their authority.
So far, however, as the question can properly be considered to depend for its solution upon general principles, it appears to us that the Governor of a Colony, as the repre- sentative of the Crown and the head of the Executive Government, ought to be, and must be, privileged and exempt from all ordinary process of law, and that he is, therefore, not compellable by subpoena or otherwise to attend and give evidence before a Colonial court of justice, although, at the same time, we think that Sir John Young exercised a very sound and wise discretion in determining voluntarily to appear to give evidence before the courts at Sydney, if it had been intimated to him by the judges presiding there that such evidence was or might be necessary for the purposes of justice.
and
We apprehend that if the Governor were bound to attend and give evidence under a subpoena in the ordinary way it would not be competent to the court having the power to enforce his attendance, to protect him from a vexatious summons, in the manner contemplated by Sir John Young, otherwise than by the use of moral influence and authority with the parties issuing the subpoena and their counsel.
We have, &c. (Signed) ROUNDELL PALMER.
R. P. COLLIER.
His Grace the Duke of Newcastle, K.G.,
&c.
&c.
&c.
18978.-509.
25.-2/66.