13,770.
PUBLIC RECORD OFFICE
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CO.
Reference :-
885
12 PUBLIC RECORD OFFICE, LONDON
ALLY WITHOUT PERMISSION OF THE BE REPRODUCED PHOTOGRAPHIC- COPYRIGHT PHOTOGRAPH-NOT TO
1
No. 236.
(JAMAICA.)
LAW OFFICERS to COLONIAL OFFICE.
MY LOBD,
We were honoured with your Lordship's commands, signified in Mr. Wingfield's
Temple, 3rd September 1880. letter of the 20th July last, stating that he was directed by your Lordship to bring before us certain representations and suggestions which had been made to you on the subject of the position of Colonial Governors, as affected by the recent judgment of the Judicial Committee of the Privy Council in the case of Musgrave v. Pulido (reported in 5 Law Reports, Appeal Cases, 102), a copy of which was therewith enclosed.
2. That it appeared to be thought probable by some Colonial Governors of considerable and varied experience, and other persons acquainted with the Colonies, that when the purport of the judgment above referred to becomes generally known in the Colonies, the institution of actions against the Governors in the courts of the Colonies over which they preside will become of frequent occurrence, especially in Crown Colonies, and that that would lead to the serious hindrance of the administration of the ment, not only by lowering the authority and dignity of the Governors and diminishing govern- the respect for the office, but also by creating a strong inducement to a Governor to refrain from the exercise of authority in cases in which, though such exercise might be desirable in the interests either of the Colony or of the Empire, there might be room for doubt whether it was covered by the terms of the Governor's commission or instruments, rather than expose himself to the annoyance and indignity of a personal action in the local court.
3. That it was stated that the institution of such actions had hitherto been checked by a generally prevailing impression among the Colonists, that the dictum of Lord Mansfield in Fabügar v. Mostyn (1 Governor of a Colony locally during his government, was good law. That it was also 161), that no action would lie against the urged that the submission of the official acts of a Governor to the cognisance of the local tribunals was likely to be specially prejudicial to the public interest in reference to proceedings taken by Governors on Imperial rather than local grounds, 6.g. repres- sive measures adopted for the prevention of acts of hostility against friendly nations or breaches of neutrality committed in Colonial territories; in such cases, (which frequently involved points of much nicety and difficulty,) it was suggested that Colonial juries could not be relied upon to give fair and unprejudiced verdicts, their sense of the cogency of international obligations being presumably liable to be overborne (consciously or unconsciously) by the desire to maintain the pecuniary advantages which might be expected to accrue to the Colony from the prohibited practices, while any check which might be imposed by reluctance to inflict injury upon the Governor personally would, in such cases, be obviated by the belief that he would be held harm- less by the Imperial Treasury.
4. That Mr. Wingfield was also to enclose a copy of a despatch addressed by Mr. Gladstone, when Secretary of State for the Colonies, in 1846, to the Governor of South Australia, from which it appeared that the views in accordance with those above stated were held by the Colonial Office at that date, which, it might be observed, was subsequent to the decision of the Judicial Committee of the Privy Council in Hill v. Bigge (3 Moore, P.C., 465), by which Lord Mansfield's dictum, so far as it affected actions brought against a Governor on claims arising out of his private transactions, was overruled.
5. That Mr. Wingfield was also to transmit the enclosed copies of reports from the Law Officers of the Crown, dated the 31st March 1864, the 25th August 1870, and the 2nd May 1878, bearing upon this question, and also to enclose the forms of Letters Patent constituting the office of Governor, and of the Instructions issued to the Governor in a Crown Colony, and a Colony possessing Responsible Government respectively, now
in use.
6. That with the view of preventing the evils which were thus apprehended as likely to arise under a continuance of the existing state of the law, as laid down in Hill v. Bigge and Musgrave v. Pulido, the following courses had been suggested:
(1.) That by an enlargement of the terms of their commissions or of the Letters Patent constituting their respective offices, Colonial Governors should be
▲ 12916.-27. 25,-15/84.
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