8612.
PUBLIC RECORD OFFICE
nin
19
C.O. 885
Reference :-
No. 426.
(CAPE OF GOOD HOPE.)
LAW OFFICERS to COLONIAL OFFICE.
-
Lincoln's Inn, September 4, 1866. MY LORD,
We are honoured with your Lordship's commands, signified in Mr. Elliot's letter of the 17th of August ultimo, stating that he was directed by your Lordship to request that we would favour you with a report on the following subject.
There is a cluster of small islands off the north-west coast of the Cape of Good Hope, guano known as the Penguin Islands, which are valuable on account of the deposits of found there. These islands have been taken possession of by one of Her Majesty's vessels of war in accordance with instructions to that effect from the Lords Commis- missioners of the Admiralty, as we should perceive by the enclosed Admiralty letter; July 25 1666. and it is desired to annex them to the Cape Colony, but doubts are entertained whether and by what means Her Majesty has power to direct or effect such annexation to a Colony in which representative institutions are established.
If not so annexed they would fall within the scope of the Falkland Islands Act,
6 & 7 Vict. c. 13., as extended by the Falkland Islands Amendment Act, 23 & 24 Vict. c. 121.
Mr. Elliot was therefore pleased to request that we would inform your Lordship whether and by what method such an annexation can be effected; whether by mere proclamation or by proclamation under authority of an Order in Council alone, or under authority of an Order in Council preceded or followed by local legislation or only by Act of Parliament.
Mr. Elliot was also to request that we would inform your Lordship by what method, whether by Despatch from the Secretary of State, by Order in Council, by Letters Patent, or by instructions under the Signet and Sign Manual, the Queen could, without annexing these islands to the Cape, authorise the Governor of that Colony to lease or grant them to those who are desirous of exporting the guano which they contain.
In obedience to your Lordship's commands we have taken this matter into con- sideration, and have the honour to
Report
That we are of opinion Her Majesty has not the power to effect by proclamation or otherwise the annexation of the Penguin Islands to the Colony of the Cape of Good Hope, nor do we think that the power possessed by the Legislature of that Colony would enable them to accept or give effect to such an annexation.
This annexation cannot in our opinion be accomplished except by an Act of the Imperial Parliament.
We are further of opinion that without annexing these islands to the Cape it would be competent for Her Majesty, by instructions under the Signet and Sign Manual, to authorise the Governor of the Cape of Good Hope to lease these islands or (what in our opinion would be preferable) to grant licences for taking guano from them. A grant of the islands themselves would be in the nature of a grant of Crown landa, requiring enrolment, and would be otherwise inconvenient.
This power of granting leases or licences might or might not be accompanied by an appointment under the Great Seal of the Governor of the Cape as Governor of the Penguin Islands.
If he should be appointed governor, the commission should refer to the collateral instructions as to leasing or licensing.
The Falkland Islands Acts if applicable to these islands would not require to be resorted to unless courts, laws, and Ordinances were to be erected and made.
The Right Hon. the Earl of Carnarvon.
&c.
&c.
&c.
We have, &c. (Signed)
H. M. CAIRNS.
WM BOVILL.
0 16278.----93.
CB.-5/86.
11 PUBLIC RECORD OFFICE, LONDON
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