4435.
MY LORD,
No. 55.
(TASMANIA.)
LAW OFFICERS to COLONIAL OFFICE.
Lincoln's Inn, 20th April 1875. We are honoured with your Lordship's commands, signified in Mr. Malcolm's letter of the 12th instant, stating that he was directed by your Lordship to transmit
11 Jan. 1876.
to us a copy of a despatch from Chief Justice Sir Francis Smith, who at the time of Confidential, his writing was temporarily administering the Government of Tasmania, raising a question with respect to the validity of his appointment as Administrator of that Government and to its effect upon his office of Judge.
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2. That the doubt appeared to have arisen in consequence of a clause in the Charter
of Justice establishing the Supreme Court of the Colony declaring "that no Judge of
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the Supreme Court shall be capable of accepting, taking, or performing any other
office or place of profit or emolument on pain that the acceptance of any such office or place shall be de facto an avoidance of his office of Judge."
That the same Charter provided "That nothing in these presents contained shall
extend to prevent us, our heirs and successors, to repeal these presents or any part thereof."
3. That your Lordship desired him, Mr. Malcolm, to request that we would consider the question raised by Sir Francis Smith in his despatch, and that we would favour your Lordship with our opinion, whether there is any reason for differing from the conclusion to which Sir Francis Smith had arrived, to the effect that his acting in the Administration of the Government did not vacate his office as Judge.
4. That he, Mr. Malcolm, was to request that the matter might receive our early attention, as in the event of Sir Francis Smith's acts, either as acting Governor or as Chief Justice, having been invalid, immediate steps would have to be taken to give them validity; and if Imperial Legislation should be necessary no time must be lost.
In obedience to your Lordship's commands we have the honour to
That we are of opinion-
Report,
1. That Sir Francis Smith's appointment as the officer to administer the Govern- ment of Tasmania is valid.
2. That with regard to the effect of the appointment just referred to, upon Sir Francis's office of Judge, we entirely agree in the view put forward in the despatch of the 11th January 1875, and therefore we consider the office of Judge is not vacant.
The Right Hon. the Earl of Carnarvon,
&c.
&c.
&c.
We have, &c., (Signed) RICHARD BAGGALLAY,
JOHN HOLKER.
▲ 12016-54. 25.-12/84.
PUBLIC RECORD OFFICE
Co.
Reference :-
885
12 PUBLIC RECORD OFFICE, LONDON
ALLY WITHOUT PERMISSION OF THE BE REPRODUCED PHOTOGRAPHIC- COPYRIGHT PHOTOGRAPH-NOT TO
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