6044.
PUBLIC RECORD OFFICE
C.O.885
Reference :-
ALLY WITHOUT PERMISSION OF THE BE REPRODUCED PHOTOGRAPHIC- COPYRIGHT PHOTOGRAPH-NOT TO
13 PUBLIC RECORD OFFICE, LONDON
MY LORD,
No. 115.
(WESTERN PACIFIC.)
LAW OFFICERS to COLONIAL OFFICE.
We were honoured with your Lordship's commands signified in Mr. Edward
Royal Courts of Justice, March 28, 1888. Wingfield's letter of the 23rd_ultimo, stating that he was directed by your Lordship to transmit to us a copy of a Despatch from the High Commissioner for the Western Pacific enclosing a correspondence with Mr. Berkeley, Acting Chief Judicial Commis- sioner, in which the question was raised whether or to what extent the High Commissioner could exercise the functions vested in him when he was not residing within the limits of the Western Pacific Islands.
That Mr. Wingfield was to enclose copies of the three Orders in Council (1877, 1879, and 1880) which had been issued under the Pacific Islanders Protection Acts, 1872 and 1875.
That the office of High Commissioner had hitherto been held in combination with that of Governor of Fiji or New Zealand, and that the High Commissioner had always been also the Governor of a Colony, and had resided and exercised the functions of his office in the Colony of which he was Governor.
That when the Western Pacific Orders in Council of 1879 and 1880 were drafted by the late Sir F. S. Reilly, the High Commissioner was also the Governor of Fiji, and his "ordinary place of residence as referred to in those Orders was necessarily in Fiji; and that it was then fully understood that the High Commissioner could exercise his functions not only when in Fiji, but even when in a place which could in no sense be said to be within the Western Pacific Ocean; and that it would further be observed that the regulations to be issued by the High Commissioner under the 24th Article of the Western Pacific Order in Council of 1877, were directed to be published in the Royal Gazette of Fiji, and that the Chief Justice of Fiji and the Supreme Court. of Fiji were, throughout that Order, charged with duties in rolation to the Western Pacific Islands.
That for those reasons it had been held that the High Commissioner had now, and at all times had had, full power to act in exercise of the functions assigned to him for and over the islands and places of the Western Pacific Ocean, to which the Order in Council of 1877 was, by the 5th Article thereof, declared to extend and apply, not- withstanding that he might not have been or might not be within one of the said islands or places when so acting,
That your Lordship would be obliged by our informing you whether, in our opinion, that view was correct, and if not, whether we would advise the issue of a further Order in Council, empowering the High Commissioner to exercise his functions when not within any island or place in the Western Pacific Ocean, and validating all acıs hitherto done in Fiji or elsewhere by the several persons who had held the office of High Commissioner.
We have taken the matter into our consideration and have the honour to
Report
That in our opinion the general principles which are to be applied in dealing with the questions raised are that judicial or quasi-judicial acts can only be performed by the High Commissioner when he is within the territorial limits assigned by the Order; that ministerial acts, or acts of Government, may be performed by him although he is not at the time within such limits, subject of course to the terms of the Order in any particular case.
To deal with the particular matters raised by Sir C. B. H. Mitchell in his letter of the 8th December 1887 to the Secretary of State :--
1. Appointment of Judicial Commissioners, Deputy Commissioners, Suspension of Deputy Commissioners.
These acts may, in our judgment, be performed by the High Commissioner, though he is not at the time within the limits of the Order as defined by Article V. of the Order of 1877.
A
52950.-15. 25.-4/88.