PUBLIC RECORD OFFICE
Reference :--
TILLCO. 885
سيليسيا
12 PUBLIC RECORD OFFICE, LONDON ALLY WITHOUT PERMISSION OF THE BE REPRODUCED PHOTOGRAPHIC- COPYRIGHT PHOTOGRAPH—NOT TO
But the fact remains that the application by the Spanish consul, based upon no ground of international right, was the foundation and the cause of the error that has been committed, whether that error proceeded from a wrong inference drawn from the phrases employed, or from a wrong exercise of discretion applied to the true state of faota.
The second question submitted to us presents different considerations. If it were clear that the consul had requested that a political offender should be delivered over by arrangement under cover of a mere order of expulsion, we should feel disposed to answer the question in the affirmative; but it seems doubtful whether this is the case. On the one hand, the formal application requests that Maceo may be expelled from the garrison "if possible;" yet it must be observed that the same documents show that the Spanish authorities desired" the apprehension" of Maceo, and the informal note of the 16th August expresses the hope" that we may do something in the matter should they" (the fugitives) "come to this place."
There was also perfect readiness on the part of the Spanish police to accept the surrender, as distinguished from expulsion, and to take advantage of the opportunities presented to rearrest Maceo and his companions.
Leaving the exact nature of the request in doubt, we think that no charge should be made against the Spanish authorities of having acted in bad faith, or even of having with intention made a demand they had no right to make; but there appears to us to be ground for representing most strongly to the Spanish Government that the applica tion made by their representative was the source from which the error of the British officials has proceeded, and that the excessive desire of those officials to act in a friendly spirit towards the Spanish Government having led them into that error, advantage ought not to be taken of an act occasioned by such a cause, and which certainly cannot be justified as between Her Majesty's Government and their officials, or between the British Government and the persons arrested.
We do not think the case of the convict Lawler can be quoted to the Spanish Government as one parallel to the present. The prisoner was then brought from Spain without the knowledge, and not by the action, of the Spanish authorities.
In the opinion of the Law Officers, the man having been made insensible, and brought away in that condition by a British official, the case was the same as if his removal from Spanish territory had been forcible, and it was therefore clear that a breach of international law had occurred. Nothing of the kind, however, can be alleged here.
The Right Hon. the Earl Granville, K.G.,
&o.
&q.
&c.
We have, &c., (Signed)
HENRY JAMES. FARRER HERSCHELL.
583.
MY LORD,
No. 284.
(JAMAICA.)
LAW OFFICERS to COLONIAL OFFICE.
We were honoured with your Lordship's commands signified in Mr. Robert G. W. Herbert's letter of the 3rd January last, stating that he was directed to request that we would favour your Lordship with our opinion upon the following point.
Royal Courts of Justice, 11th January 1883.
The Legislative Council of Jamaica was established by an Order in Council of the 11th of June 1866, which was amended by a subsequent Order of the 11th of November 1869; copies of those Orders were enclosed.
That all the unofficial members of the Legislative Council, with the exception of one who was absent on leave in this country, had recently resigned their seats, and Her Majesty had accepted their resignations.
That between the date of those resignations and the date of their acceptance, the Legislative Council held meetings attended by the quorum prescribed by the Order in Council of 1866, at which several laws were enacted.
That Mr. Robert Herbert was directed by your Lordship to request that we would advise your Lordship whether, in our opinion, the Legislative Council was effectively constituted for the despatch of public business-
(1.) After the resignation of all the unofficial members present in the Colony, but
before the acceptance of such resignation;
(2.) After such acceptance; and
(3.)
Whether it would be effectively constituted if the remaining unofficial member should resign, and his resignation should be accepted and no unofficial member should be appointed.
In obedience to your Lordship's commands we have the honour to
That-
Report
1. We are opinion that the Legislative Council was effectively constituted for the despatch of public business after the resignation of all the unofficial members present in the Colony, but before the acceptance of such resignation. Clause 16 of the Order in Council of June 1866 expressly provides that the resignation of an unofficial member shall not take effect until accepted by the Governor or Her Majesty.
2. We think that, even after the acceptance of the resignations, the Council was effectively constituted when the quorum required by clause 9 of the Order in Council was present. No distinction exists, we think, after their appointment between the official and unofficial members.
be
3. We think it would be effectively constituted, in the sense that its acts would legal, even though there were no existing unofficial members. But we do not think it would be a constitutional proceeding that the Council should act whilst consisting of official members only. The Order in Council clearly contemplates that the Council shall consist of both classes; for it provides (by clause 5) for the provisional appointment of unofficial members when the number of such members should be reduced below six.
We have, &c.,
(Signed)
The Right Hon. the Earl of Derby,
&c.
&c.
&c.
HENRY JAMES. FARRER HERSCHELL.
▲ 19916.-964. 25.—12/84,