PUBLIC RECORD OFFICE
Reference :-
C.O. 885
11 PUBLIC RECORD OFFICE, LONDON
FALLY WITHOUT PERMISSION OF THE BE REPRODUCED PHOTOGRAPHIC-
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to all who suffered from acts of Governor Eyre against alleged conspirators against the peace of Jamaica which in point of law were not capable of justification.
8. The original arrest and imprisonment of the General having been made on the ground that he was supposed to be implicated in the Jamaica outbreak, and his subsequent deportation having been ordered because he was suspected of plotting against Hayti, his claims in respect of these two grievances are essentially distinct. It appears that no statutory power existed in the island under which the Governor was authorised to deport the General or the other Haytians, and, as pointed out by Mr. Cardwell," the banishment of the Haytians is an act the justification of which "must depend upon its necessity, and cannot be supported upon any grounds of "international obligation.”
7. It appears to us that General Salomon's claim was not rightly referred in the first place to the Colonial Government, and that if the claim can be made at all it would properly be made upon and satisfied by the Imperial Government.
The question as to how this case should be treated is one of considerable perplexity and difficulty, but so far as any claim upon the Government, made either by the General on his own behalf or by his Government for him, is concerned, we think it should not be admitted.
We think that General Salomon having taken up his residence voluntarily in Jamaica became temporarily subject to the government of that island, and liable to all obligations, responsibilities, and inconveniences which any subject of Her Majesty resident in Jamaica might have to bear. If a British subject has ground of complaint against the late Governor or others in Jamaica for acts done by him or them (which have not by ratification by the Imperial Government become acts of State, so that he would be precluded from pursuing his private remedy by action), he must seek his remedy in the courts of this country, which are open to him. The same remedies in the same courts are open to the foreigner who alleges that during his residence in Jamaica he was treated illegally, but it appears to us that the foreigner has no right to be placed in a better situation than the British subject, by declining to resort to the courts of justice and claiming compensation from the Imperial Govern- ment.
General Salomon's statement in his letter of the 12th March 1866 should not be passed unnoticed. The Governor of Jamaica is said to have acted harshly and with undue severity towards British subjects and foreigners alike, under what was deemed There can be no doubt that the arrests of to be the urgent necessity of the case. suspected persons which were made, even if made hurriedly and to some extent in could only be panic, were at all events made bonâ fide and in the belief that the conspiracy which the General says never exceeded the proportions of an
It cannot be said that the Governor acted towards stifled by such extreme measures. foreigners otherwise than they acted towards British subjects. There seems to be no ground for the General's statement (p. 15) "Tous ces faits accusent de la part "de Monsieur le Gouverneur E. Eyre la volonté bien arrêtée de me nuire, vexer, "humilier, flétrir, déshonorer.”
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If the General has been wronged by the Executive in Jamaica, those who acted illegally towards him, if neither by the Statute of Indemnity nor otherwise they can defend themselves, will be liable to him, as they would be to British subjects, but the consequences of the Imperial Government admitting that they are liable for illogal acts (if they were illegal) done by officials in Jamaica are so serious that we think that no such admission should be made, and moreover that any such liability should be repudiated.
The Duke of Buckingham and Chandos.
We have, &c.
(Signed)
JOHN B. KARSLAKE, W. B. BRETT. TRAVERS TWISS,
2413.
No. 496.
(WESTERN AUSTRALIA.)
LAW OFFICERS to COLONIAL OFFICE.
Temple, March 7, 1868. MY LORD DUKE,
We are honoured with your Grace's commands, signified in Sir Frederic Rogers' letter of the 30th January last, stating that he was directed by your Grace to request that we would favour you with our opinion upon the following case, viz. :-
1st. That by an Imperial Act, 10 George IV. c. 22. His Majesty was empowered by Order in Council to make, ordain, and to authorise and empower any three or more persons within the settlements of Western Australia to make, ordain, and establish laws, institutions and ordinances, and to constitute courts and officers.
2. That this Act was from time to time continued, and by the 10th section of 13 & 14 Vict. c. 59. it was finally continued in force until the issue of writs for the election of members of the Legislative Council of Western Australia. That as such writs have never been issued, the Act is still in force.
3. By an Order in Council of the 1st November 1830 a Legislative Council was established in Western Australia. This Order in Council will be found set out in Clarke's Colonial Law, page 671.
4. That this Legislative Council was reconstituted by an Order in Council of the 18th July 1838, a copy of which was transmitted for our information. By this Order in Council the former Order in Council of 1830 was revoked, and the Council was reconstituted, and provision was made for supplying vacancies which might occur in the list of the unofficial members.
5. That subsequent Orders in Council were passed on 10th November 1840, 20th November 1844, and 13th November 1850, making further provision for filling up Buch vacancies by adding new names to the list, from which, under the Order in Council in 1838, unofficial members were to be taken in rotation.
6. That by an Order in Council of 1st August 1846, the collector of Revenue for the time being was made an additional member of the Legislative Council.
7. That in 1850 the Imperial Act, 13 & 14 Vict. c. 59. was passed, and Sir Frederic Rogers stated he was directed to call our attention to sections 9 and 10 of that
Act.
8. That in the year 1855 a Draft Order in Council was prepared for the purpose of removing from the Legislative Council the senior officer of Her Majesty's land forces who had been made an official member by the Order in Council of 1st November 1830, that this Draft Order it appeared was submitted to the then Law Officers, who re- ported that they entertained great doubt whether Her Majesty could by Order in Council direct such removal. A copy of their opinion, as set out in a letter of Mr. Bathurst's of the 6th March 1855, was transmitted for our information.
9. That it would be observed that the question in that case arose upon the proposed removal of a councillor; and that there had been, as before-mentioned, several Orders in Council for filling up vacancies, and one in 1846 for the appointment of an additional member to the Legislative Council. That the Draft Order in Council of 1855 was not proceeded with.
10. That by an Order in Council of 20th March 1857, a copy of which was transmitted to us, the above-mentioned Orders in Council were revoked, and Her Majesty, under the powers given to the Crown by 10 George IV. c. 22., reconstituted the Legislative Council.
11. That lastly, by an Order in Council of 3rd March 1859, a Mr. Lionel Samson was appointed a councillor in the room of a Mr. Clifton who (as it is therein recited) bad tendered his resignation, which Her Majesty bad accepted.
12. That in 1865 a petition, praying that an Elective Legislative Council might be established, was presented in accordance with section 9 of 13 & 14 Vict. c. 59.
13. That when the petition was discussed before the Legislative Council an amend ment was proposed and carried to the effect that the number of non-official members should be increased so as to equal the number of official members, and that the tenure
of their seats should be for three years instead of for life, and that this proposal was P. P. 348. sanctioned by Her Majesty's Government in July 1867, as in page 16 of a parliamentary 15 Aug. paper, a copy of which was transmitted to us.
0
25.--5/86. 16278.--849.
1867.