5320.
PUBLIC RECORD OFFICE
19.
Reference :-
CO. 885
12 PUBLIC RECORD OFFICE, LONDON
ALLY WITHOUT PERMISSION OF THE BE REPRODUCED PHOTOGRAPHIC- COPYRIGHT PHOTOGRAPH—NOT TO
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MY LORD,
No. 60A.
(GENERAL-VICTORIA : TASMANIA.)
LAW OFFICERS TO COLONIAL OFFICE.
Lincoln's Inn,
May 11, 1875. We are honoured with your Lordship's commands signified in Mr. Malcolm's letter of 16th April ultimo, stating that in two recent cases connected with the Colonies of Victoria and Tasmania your Lordship has been under the necessity of troubling us for our opinion with regard to the validity of acts done by the Officer temporarily administering the Government in the absence of the Governor, and the attention which we have given to those cases will, Mr. Malcolm states that your Lordship trusts, enable us without much further inquiry to give your Lordship our opinion upon a separate question, connected with the form of Commission issued to Governors, which appears to your Lordship to be very important.
2. That we were aware the preparation of the Letters Patent under the Great Seal, which are issued to a Governor on his appointment, is attended with many formalities, compliance with, which unavoidably takes much time.
3. That it is consequently very frequently impossible for a new Governor to produce his Commission under the Great Seal when he presents himself to be sworn on his assumption of his Government, and, in order that he may not be without some instrument purporting to appoint and empower him, it is the practice to issue to him, pending the completion of his Commission under the Great Seal, a Commission under the Sign Manual and Signet authorising him to administer "the Government in case of the death, incapacity, or absence" of his predecessor, the powers granted to whom under the Great Seal this minor Commission purports to keep alive and vest in the new Governor in his capacity of temporary administrator.
4. That not only has the propriety of this course been more than once seriously questioned in a Colony, but doubts have been raised whether the Commission under the Sign Manual and Signet as Administrator" effectually empowers the holder of it to perform all the acts assigned by statute or otherwise to the "Governor," especially when the last Governor has ceased, by death or final retirement, to have any connection with the Colony to which his Letters Patent had reference, in which case it has further been questioned whether the Letters Patent retain their force.
5. That your Lordship is inclined to think that as a Colonial Constitution is granted and a Legislature created by Letters Patent, so the office of Governor should be invested with its power and authority by Letters Patent, in each case, of course, under the Great Seal, but that in the latter case, as in the former, the Letters l'atent should be permanent, constituting and empowering the office and not the individual temporarily holding it. With such Letters Patent remaining perpetually in force, your Lordship apprehends that a Commission under the Sign Manual and Signet would be not only an adequate but the more proper document of appointment to be issued to each successive person appointed Governor for the time being.
6. That if, therefore, we should be of opinion that this course is unobjectionable, Your Lordship would propose to issue, in the case of each Colony, permanent Letters Patent under the Great Seal, and on the occasion of the appointment of each Governor a Commission to him under the Sign Manual and Signet, and Mr. Malcolm was to request that we would inform your Lordship whether we concur in the terms of the Drafts* enclosed as altered in red, or what other terms we would think preferable.
In obedience to your Lordship's commands, we have taken these papers into con- sideration, and have the honour to
Report--
That in our opinion the course proposed to be adopted by your Lordship, of issuing in the case of each Colony Letters Patent under the Great Seal, creating and constituting the
* Enclosures to Circular, 20th October, 1875,
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