}
1831.
PUBLIC RECORD
OFFICE
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Reference :-
C.O.
•885
13 PUBLIC RECORD OFFICE, LONDON
ALLY WITHOUT PERMISSION OF THE BE REPRODUCED PHOTOGRAPHIC- COPYRIGHT PHOTOGRAPH~NOT TO
SIB,
No. 110.
(VICTORIA.)
LAW OFFICERS to COLONIAL OFFICE.
1854.
1886.
1887.
Royal Courts of Justice, 26th January 1888. We were honoured with Mr. Bramston's letter of the 3rd November last, stating that he was directed by you to request our consideration of the accompanying corre- Gov. Con. 30 Sep. spondence which had passed between the Secretary of State and the Governor of To Gov. 21 Nov. Victoria, respecting the alleged illegality of portions of the Letters Patent of 21st of Gor. Con. 4 Aug. February 1879, constituting the office of Governor and Commander-in-Chief of the Gov. Con. to Bep. Colony of Victoria, and its dependencies, and of portions of the Royal Instructions of Letter Patent the same date. That copies of those instruments were enclosed, and a copy of a par- Feb. 1679. liamentary paper presented on the 24th of July 1856, at page 45 of which would be PP. 24 July 1856. found Lord John Russell's despatch of 20th July 1855, alluded to by the Chief Justice and Attorney-General in the enclosures to the despatch of 4th August 1887.
That Mr. Bramston was to invite our attention to the Act 18 & 19 Victoria, chapter 55, the schedule to which was the Constitution Act referred to; and to observe that the 7th and 15th paragraphs of Lord John Russell's despatch were those which seemed to have most bearing on the present questions.
1887.
and Instructiona
No. 91.
That a copy of the Local Act No. 91 of the 23rd year of Her Majesty's reign was Victorian Act also enclosed.
That Mr. Bramston was further to explain that in some of the Australian Colonies Victorian Act the Executive Council consisted solely of the Ministry of the day, who, as a rule, retired No. simultaneously from their offices and from the Council. But that in Victoria the practice was different; that ministers on leaving office continued, as in the Privy Council in England, to be members of the Executive Council though not summoned to attend its sittings. That the meetings were attended only by the ministers in office, who were ordinarily spoken of as the Cabinet.
That the Victorian Legislature had passed no laws dealing with the constitution or proceedings of the Executive Council, except that the office of Clerk of the Council was one of those which by section 48 of the Constitution Act the Governor was empowered to abolish, and which a later Act empowered him to restore.
That the constitution of the Council consequently rested (as it did before 1855) upon the Letters Patent issued in England; and that the regulation of its proceedings rested upon the Royal Instructions issued by Her Majesty in Council.
That the Legislature, however, had repeatedly and in numerous statutes recognized this body by conferring various administrative powers upon the "Governor in Council," a phrase which, by a statute passed in 1857, was interpreted to mean “Governor with the advice of the Executive Council"; that was to say, according to the practice above described, with the advice of the ministers in office, or Cabinet.
That you had thought it right to explain the position of affairs as regarded the Executive Council, for otherwise some of the allusions in the enclosed correspondence might not be quite clear; but that you trusted that the other questions raised by the Chief Justice and the Attorney-General would be found to be sufficiently explained in their reports without the necessity of troubling us with a further statement of facts.
That it might be that some portions of the Instructions were not really required, and hat others might be expressed in more appropriate language, but that it seemed to you hat they would not therefore be illegal, although you proposed to consider whether the .orm and language of the Instructions should not be revised.
That it would seem that exception was taken by the Chief Justice and the Attorney- eneral, or one of them, to the legality of clause 2 of the Letters Patent, and of clauses i, 7, and 11 of the Instructions; and that Mr. Bramston was to request that we would De so good as to take those papers into our consideration, and advise you—
(i.) Whether they, or any of them, were at variance with the constitution of the Colony or otherwise illegal. That as bearing upon clause 11 of the In- structions, Mr. Bramston was to call our attention to sections 318-320 of the Victorian Act, No. 233, passed in 1864, being "The Criminal Law and Practice Act, 1864."
59950.-10. 95.-2/88,
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