R
25769.
PUBLIC RECORD OFFICE
Reference :-
TPETC.O. 885
ALLY WITHOUT PERMISSION OF THE BE REPRODUCED PHOTOGRAPHIC- COPYRIGHT PHOTOGRAPH-NOT TO
15 PUBLIC RECORD OFFICE, LONDON
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SIR,
No. 155.
(CAPE OF GOOD HOPE.)
LAW OFFICERS to COLONIAL OFFICE.
[Suspension of the Cape Constitution.]
Royal Courts of Justice,
24th June 1902.
We were honoured with your commands signified in Mr. H. Bertram Cox's letter of the 20th instant stating that he was directed by you to request our considera- tion of the legal steps which might be required for the temporary suspension of the Constitution of Cape Colony in the event of it becoming necessary to make such provision in view of the circumstances existing in South Africa.
That the present Cape Constitution was established under Letters Patent of the 23rd of May 1850, and the 11th of March 1853, whereby a Parliament consisting of a Legislative Council and a House of Assembly was established in a manner prescribed by certain Ordinances passed by the Governor of the Cape Colony with the advice and consent of the Legislative Council of the Colony then existing.
That laws had from time to time been passed in the Cape Colony prescribing the mode of election, and dealing with other matters connected with the Parliament, and that those Statutes would be found in the accompanying volumes of the Cape Statutes, but that it seemed unnecessary to trouble us with those provisions in detail, inasmuch as the establishment of representative Government in the Cape Colony seemed to depend on, and to date from, the Letters Patent above referred to.
That in the event of the present Constitution being abolished it was probable that the form of government established would be that of a Crown Colony, consisting of a Governor and Executive and Legislative Councils, the latter body not being elected, but consisting of Official and Non-Official Members nominated by the Governor with the approval of the Crown, and that the ordinary course would be to establish this form of Government by Letters Patent under the Great Seal. That you, however, had great doubt whether representative Government having been granted to the Cape Colony, it was now possible for the Crown to set up such a form of Government by the exercise of the Prerogative, and that in that connection Mr. Bertram Cox was to refer us to the cases of Campbell v. Hall 20 State Trials 239 (S.C. 1, Cowper's Report, p. 204), Long v. Bishop of Cape Town, 1 Moore's P.C.C. N.S. 411 and in re Bishop of Natal 3 Moore's P.C.C. 115, from which cases it would appear that, having granted self-government to the Colony, the Crown could not now exercise powers of Government by Letters Patent.
That in the case of the suspension of the Constitution of Jamaica in the year 1866, the Legislative Council and Assembly of Jamaica passed an Act empowering the Queen to constitute a Government for the Island in such form, and with such powers, as to Her Majesty might seem fitting, and that provision for bringing that Ordinance into effect was made by the Imperial Act 29 Victoria Cap. 12.
That the debate upon
the second reading of that Act would be found in Hansard, 3rd Series, vol. 181,
P. 918.
That in the earlier case of the suspension of the Constitution of Lower Canada in the year 1838 it would be observed that that Constitution had been established by an Imperial Act of Parliament 31 Geo. III. Cap. 31, and that accordingly an Act of the Imperial Parliament 1 and 2 Victoria Cap. 9 was passed, which provided that Her late Majesty might appoint a Special Council for Affairs of Lower Canada, and that the Governor and that Council might make laws for the Government of the Province.
That as, therefore, the Constitution of the Cape Colony was created by Letters Patent, and the Constitution of Jamaica was abolished after a resolution of the existing Legislative Bodies in the Island, a resolution which it might be impossible to obtain from the Cape Parliament, the circumstances of those two cases of suspension of the Constitution did not appear to be similar to the circumstances at present existing in Cape Colony, or to afford any exact precedent for the course which should be followed in the present case.
E 22091.-2. 25.-7/09. Pk. 11. E. & S.