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the new Protectorates. That the Governor of the Gold Coast would be instructed to bring all these Orders in Council into force by Proclamation on the same day.
That Mr. Bertram Cox was to request that I would take these matters into my con- sideration, and advise you,
Whether the Draft Orders in Council were in each case sufficient and proper for the purposes desired; and if not, in what respects they should be amended ?
In obedience to your commands, I have now the honour to,
Report-
That as altered and initialled by me, the Drafts A to H* of the proposed Orders in Council are, and each of them is, sufficient and proper for the intended purpose.
&c.,
The Right Hon. Joseph Chamberlain, M.P., &c.,
&c.
I have, &c.,
R. B. FINLAY,
• The drafts showing the alterations are attached to 1651.
5078
SIR,
No. 70.
(VICTORIA.)
ATTORNEY-GENERAL TO COLONIAL OFFICE,
Royal Courts of Justice, February 8, 1901.
I was honoured with your commands signified in Sir M. F. Ominanney's letter of the 30th ultimo stating that he was directed by you to acquaint me that a question had arisen with reference to the authority under which Sir John Madden, K.C.M.G., the Lieutenant-Governor of Victorin, had administered the Government of that State since the establishment of the Commonwealth of Australia on the 1st January, 1901.
That prior to that date the succession to the Government of Victoria was regulated by the Letters Patent of the 21st February, 1879; and that, on the 15th January, 1900, on the departure of Lord Brassey, the then Governor, from the Colony on leave of absence, Sir John Madden, who had been appointed Lieutenant-Governor by Her late Majesty's Commission dated 29th April, 1899, assumed the functions of Governor with all the Governor's powers and authorities in pursuance of Article XII. of those Letters Patent.
That Lord Brassey ceased to hold the office of Governor upon the termination of his leave on the 1st of April, 1900, and that, no successor having been since appointed, Sir John Madden had continued in the administration of the Government up to the present time.
That, on the 29th October, 1900, in order to meet the altered conditions arising from the establishment of the Commonwealth, fresh Letters Patent were issued constituting the office of Governor of the State of Victoria, and providing for the administration of the Government in certain events, and that a Commission was issued at the same time appoint- ing Sir John Madden Lieutenant-Governor of the State, but that no appointment had yet been made to the office of Governor,
That it was understood that both of the above instruments were proclaimed on the 1st January.
That it would be observed that the new Letters Patent, which (by Article 1.) revoked the previous ones, provided (by Article XII.) that the Lieutenant-Governor should · administer the Government of the State" in the event of the death, incapacity; or removal of the Governor, or of his departure from the State." That similarly Article II. of Sir John Madden's Commission as Lieutenant-Governor, dated the 29th October, 1900, required and authorized him to administer the Government under the same circumstances, but that there was no express provision either in the Letters Patent or Commission to meet the contingency of there being no Governor.
That it was, however, provided in section 106 of the schedule to the Commonwealth of Australia Constitution Act (63 & 64 Vic. cap. 12) that the Constitution of each State should continue as at the establishment of the Commonwealth, or of the State, until altered in accordance with the Constitution of the State.
That it was further provided, by section 100 of the Schedule to that Act, that the provisions relating to the Governor of the State in the Constitution (of which it would seem that the Letters Patent formed part) extended and applied to the officer administer- ing the Government.
That had the old Letters Patent of the 21st February, 1879, remained in force after the establishment of the Commonwealth, there would appear to be less doubt as to the validity of the Acts performed by Sir John Madden while administering the Government since that dare, but that the question had been raised whether the sections of the Imperial Act abové referred to applied to the altered circumstances, notwithstanding the revocation of the earlier Letters Patent, or whether the Lieutenant-Governor's authority to exercise the functions of the Governor rested solely on the new Letters Patent and his Commission
of 29th October, 1900, and, if so, whether that authority was sufficient.
That Sir M. Ommaney was to request, therefore, that i would take the matter into my consideration and favour you with my opinion as to whether, looking to the provisions of the Commonwealth of Australia Act, and otherwise, Sir John Madden had, in the cir- cumstances above stated, lawfully continued to discharge the duties of Governor since the coming into operation of the new Letters Patent.
That should I consider the acts performed by Sir John Madden, as officer administer-
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ing the Government, after the date in question to have been invalid, Sir M. Omianney was to ask that I would advise as to the steps which should be taken to validate them.
I have taken the matter into my consideration, and, in obedience to your commands, have the honour to
Report--
That in my opinion Sir John Madden has lawfully continue to discharge the duties of Governor up to the present time.
On the departure of Lord Brassey Sir John Madden properly assumed the adminis- tration, and would be entitled to continue the administration until the revocation of the Letters Patent of 1879 and the Commission of 29th April, 1899, the Queen's pleasure to the contrary not having been signified. The only mode in which it can be suggested that the Letters Patent of 1879 and the Commission of 29th April, 1899, have been revoked is by the coming into force of the Letters Patent and Commission of 29th October, 1900. The Letters l'atent of 1879, and the Commission auxiliary to it, were, in terms of the Letters Patent of 29th October, 1900, to be revoked and determined "from and after the proclamation of these Our Letters Patent as hereinafter provided." The sixteenth Article provides for the proclamation by directing that the Letters Patent shall be read and proclaimed at such place or places within Our said State as the Governor shall think fit." The Governor mentioned in Article XVI. is evidently the Governor to be appointed under the Letters Patent of 29th October, 1900, and it appears that his proclamation of the Letters Patent and assumption of office with the consequent revocation of the previous Letters Patent were to be concurrent.
The proclamation is stated to have been effected on 1st January, 1901, and was, I presume, by the direction of Sir John Madden as Lieutenant-Governor. If he was acting under his old Commission in directing this proclamation I do not think that the procla mation was effectual to bring the new Letters Patent and Commission into operation.
He, no doubt, had them proclaimed on the assumption that he was entitled to act under the new Letters Patent and Commission.
Whether the terms of the new Letters Patent and Commission entitled him to act as But if he Governor when there was in fact no Governor is a question of some difficulty. was not so entitled, the proclamation by his orders of the new Letters Patent and Com- mission would be as invalid as all his other acts, and he is still entitled to act as Governor under the Letters Patent of 1879 and his own Commission which have never been validly revoked.
If, on the other hand, he had power to bring the new Letters Patent and Commission into operation it must have been under his new Commission coupled with the new Letters Patent which, ex hypothesi, will have come into force so as to validate all his other acts as well.
It seems to me, therefore, that in any view of the case Sir John Madden has been justified in continuing to act as Governor.
As soon as the new Governor has been appointed he should have the Letters Patent and Commission of 29th October, 1900, proclained afresh.
I have, &c.,
The Right Hon. Joseph Chamberlain, M.P.,
&c.,
&c.,
&c.
R. B. FINLAY.
5079.
SIR,
No. 71.
(GENERAL.)
ATTORNEY-GENERAL TO COLONIAL OFFICE.
Royal Courts of Justice,
8th February, 1901. I was honoured with your commands signified in Sir M. F. Ommanney's letter of the 1st instant stating that he was directed by you to request my consideration of certain questions which had arisen in consequence of the demise of the Crown.
That by the Imperial Act of Parliament 1 William IV., cap. 4, sec. 2, it was provided that no patent, commission, warrant or other authority for the exercise of any office or employment, civil or military, within any of His Majesty's plantations or possessions abroad, determinable at the pleasure of His Majesty, or of any of. His Majesty's heirs and successors, should by reason of any future demise of the Crown be vacated or become void until the expiration of eighteen calendar months next after any such demise of the Crown as aforesaid. That it was presumed that under the provisions of that section existing Letters Patent, Commissions, Instructions and other instruments in force in the Colonies at the death of Her late Majesty Queen Victoria were continued in operation, and that the term "plantations" in that section might be taken as meaning Colonies, although the word as used at the date of the Act might possibly have been more properly confined to the American possessions of the Crown (see Sir George Cornewall Lewis's Essay on the Government of Dependencies, edited by Mr. C. P. Lucas, p. 174).
That it appeared, however, to be a matter of considerable doubt whether Protectorates, which were technically foreign countries in which His Majesty excrcised jurisdiction under the powers conferred by the Foreign Jurisdiction Act, 1890, could be regarded as plantations or possessions, and that it would be a question for my consideration whether the Orders of Her late Majesty in Council providing for the government of Protectorates, and the Commissions issued to High Commissioners and other officers administering the government of Protectorates, had not lapsed as and from the 22nd ultimo.
That, in any case, however, it would seem that at the end of eighteen months documents covered by the section above referred to would come to an end and have to be renewed unless provision was made to the contrary. That such documents were in fact renewed in 1838 on the death of King William IV.
That the instruments in use in the Colonies were Letters Patent, Instructions to Governors and Officers administering the Government, Commissions appointing Governors and Lieutenant-Governors, dormant Commissions providing for succession to the Govern- ment on the death, absence or incapacity of a Governor, Warrants for the appointment of Judges; and Warrants for the appointment of Legislative and Executive Councillors. That it was also probably the case that certain Attorneys-General, Colonial Secretaries. Queen's Counsel, &c., held office in the Colonies under the authority of Warrants from the Crown.
That copies of all the existing Letters Patent, Instructions and Commissions at present in force, together with specimens of Warrants for the appointment of Judges, &c., and of Executive and Legislative Councillors and of Queen's Counsel, were forwarded for my information.
That at the time of the passing of the Act of William IV, it was customary whenever a new Governor was appointed to issue fresh Letters Patent reconstituting the (iovern ment of the Colony. That the copy of the Commission dated the 20th August, 1872, appointing Sir Henry Barkly Governor of the Cape of Good Hope, and the copy of the Letters Patent dated the 10th March, 1874, appointing Mr. Cairns to be Governor of Trinidad, which were also enclosed, would show the manner in which in those Colonies, and until recent times, it was customary to appoint a Governor. That the more modern practice, however, had been to issue general Letters Patent providing for the constitution of the Colony and giving power to appoint a Governor by Commission under the Royal Sign Manual and Signet, and that instructions were issued to the officer administering the Government for the time being under the authority given by the standing Letters Patent. That you entertained some doubt whether it might not be argued that the Letters Patent in the more modern form might be considered as not determining on the demise of the Crown, and as being, at all events in some cases, altogether outside the provisions of the Act of 1 William IV., cap. 4, sec. 2, inasmuch as the Letters Patent
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