8248.
MY LORD,
No. 723.
(CANADA.)
LAW OFFICERS to COLONIAL OFFICE.
We are honoured with your Lordship's commands, signified in Mr. Meade's
Temple, August 16, 1871. letter of the 31st ultimo, stating that with reference to the opinion with which we favoured your Lordship on the 4th January last respecting the question of the power of the Executive Government of New Brunswick to dismiss from office the clerk of the Legislative Council without the concurrence of that body, he (Mr. Meade) was directed by your Lordship to transmit to us copies of the following papers which had been received through the Governor-General of Canada, viz. :—
The statement of the case of the clerk.
The address of the Legislative Council.
The Lieutenant-Governor's Despatch and enclosures.
Mr. Meade was also pleased to enclose copies of the Commissions to the Lieutenant- Governor of New Brunswick and the Governor of Canada, sent to us in Mr. Herbert's letter of 3rd January
That he was to point out with reference to that part of our former Report which stated that Mr. Botsford was appointed to hold office during the pleasure of the Lieutenant-Governor, that it now appeared that this was not quite correct, inasmuch as Her Majesty issued a warrant in the ordinary form directing the Lieutenant- Governor to issue Letters Patent constituting Mr. Botsford to be clerk during Her Majesty's pleasure, and the Colonial Letters Patent which are set out in the statement are framed according to the directions in the warrant.
That he was to add for our information that no warrant of that kind was issued in the case of Mr. Botaford's predecessor, but that Mr. Botsford's warrant was issued in 1848, in accordance with the then existing Colonial Regulation, which provided that, in the case of officers of which the emoluments exceeded 2001. per annum,
firmation of the Governor's appointment takes place in the form of a warrant under the Royal Sign Manual and Signet." But it was apprehended that there could be
66
LO
"the con-
no doubt that the Governor, under the powers given him by his commission, could remove or suspend a person appointed by Colonial Letters Patent, issued in pursuance of a warrant, as in the present case.
And that he was to request that we would take the papers into consideration, and favour your Lordship with our opinion
1. Whether we saw any reason to alter the opinion expressed in our Report of 4th January,
2. Whether, as was suggested by Mr. Botsford's counsel, that gentleman could test by legal proceedings the legality of the removal.
In obedience to your Lordship's commands, we have taken this matter into con- sideration, and have the honour to
Report
We think
1. That we see no reason to change the opinion we before expressed. that the Lieutenant-Governor was empowered to signify the determination of the Queen's pleasure during which alone Mr. Botsford held his appointment.
2. As to the second question, we know of no means by which a person in the position of Mr. Botsford can be restrained from trying the legality of his dismissal in the courts of law. If he is still Clerk of the Council, then Mr. Bliss receives his salary for him, and the money received by Mr. Bliss could, we apprehend, be recovered by Mr. Botsford in an action brought by him against Mr. Bliss for money had and received. In such an action the validity of Mr. Blise's appointment would at once come in issue, and be matter for judicial decision. But whatever may be the merits
• No. 682.
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PUBLIC RECORD OFFICE
Reference :-
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C.O. 885
ALLY WITHOUT PERMISSION OF THE BE REPRODUCED PHOTOGRAPHIC- COPYRIGHT PHOTOGRAPH-NOT TO
11 PUBLIC RECORD OFFICE, LONDON