746.
PUBLIC RECORD OFFICE
Reference :-
C.O. 885
SIR,
No. 387.
(JAMAICA.)
LAW OFFICERS to COLONIAL OFFICE.
Lincoln's Inn, January 19, 1866.
We are honoured with your commands, signified to us in Sir Frederic Rogers' letter of the 17th instant, stating that he was directed
29 Vict. cap. 11.-"An Act to "alter and amend the Political Con- "stitution of this island."
29 Vict. cap. 24.-"An Act to ** amend an Act passed in the pre- "sent session, intituled An Act to alter and amend the Political Con- "stitution of this Island.
you to transmit to us copies of the Acts of the Legis- lature of Jamaica noted in the margin, and to request that we would report whether and in what form the Queen could proceed to exercise the power of constituting a Crown Council or other form of Legislature which pur- ported to be conferred upon Her Majesty by the 2nd clause of the Act, chap. 24. Sir Frederic was pleased to observe that Mr. Cardwell would be glad to receive an immediate opinion on that question, the matter being one of much urgency.
In obedience to your commands we have the honour to
Report
That it was not, in our opinion, competent for the Jamaica Legislature, with the assent of Her Majesty, to abolish the existing constitution of that Island, and to confer upon Her Majesty the absolute and unlimited powers attempted to be given by the Jamaica Act. 29 Vict. cap. 24.
When a constitution was originally granted to Jamaica the Crown parted with the. right of legislating for that Island otherwise than in accordance with such constitution (Campbell v. Hall, 1 Cowper, 204). Nor could the Legislative Council and Assembly (unless expressly so authorised by the terms of their charter, which we cannot presume or believe) deprive the inhabitants, for whose benefit the constitution was given, of their constitutional rights and liberties so as to revest an arbitrary Legislative power in the Crown by any act of surrender or self-renunciation whatsoever.
The ordinary power of such assemblies, according to all the charters of which we have any knowledge, is to make laws, with the Royal assent, for the order and good government of the particular Colony. But such a power cannot, we think, extend to the annihilation by a local enactment of the Legislature itself with its whole power of legislation.
We are confirmed in this opinion by the recent Statute 28 & 29 Vict. cap. 63, sec. 5, which expressly confines, and by declaration establishes, the power of every Colonial Legislature to make laws respecting the constitution, powers, and procedure of such Legislature." Under these words the Jamaica Act of the 7th December last, "to alter may, perhaps, notwithstanding " and amend the political constitution of this island the form of the first section (which must, of course, be read with the other provisions of the Act) have been competently made. But we do not see how the subsequent Act which repeals every part of the former, except this first section (leaving the existing Legislative Council and House of Assembly simply and wholly abolished), and then attempts to transfer an absolute legislative power to the Crown alone, can in any way be represented as a law, "respecting the constitution, powers, or procedure " of tha Legislature by which it was passed.
Our conclusion is, that this Act is ultra vires and void, and that Her Majesty cannot in any manner whatever (unless it should be confirmed by the Imperial; Parliament,) proceed to exercise the powers attempted to be thereby conferred upon Her Majesty.
We have, &c. (Signed) ROUNDELL PALMER.
R. P. COLLIER
The Right Hon. Edward Cardwell, M.P.
&c.
&c.
16278.-391.
25.-5/86.
&c.
11 PUBLIC RECORD OFFICE, LONDON
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