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CPC.O.885
16 PUBLIC RECORD OFFICE, LONDON
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The question must, of course, come before the Cabinet, but both Lord Elgin and Sir E. Grey are anxious to have your view first as to whether, instead of having recourse to Imperial legislation, an Order in Council under the Act of 1819 can be issued to deal with service of process; and secondly, whether such an Order in Council could also deal with the use of purse seines.
I shall be, of course, at your service at any moment should you wish me to explain the situation further:
22561:
Believe me, &c.,
H. BERTRAM COX.
Opinion of the Lord Chancellor.
In addition to a consideration of the papers and the opinions of the Law Officers I have had the advantage of Mr. Bertram Cox's assistance in these com- plicated questions.
1. I will not say that an Order in Council under the Act of 1819 could in no If, for case override the provisions of a Colonial Act passed subsequently. example, the Colonial Act derogated from the rights conferred on American citizens by the Convention of 1818 and sanctioned by the Act of 1819, it might be that an Order in Council under that Act would prevail. No authority that I am aware of exists to guide us on such a point. I think that when, after a Con- vention is made and an Act of Parliament passed to provide for future effect being given to it by Order in Council, the Colony affected receives self-government under an Order in Council, the Act of Parliament still runs alongside of the self- government in actual strictness of law. But this view has never been tested by argument and decision. And it is certain that if it be pressed to extremities it would lead to an unconstitutional position, for it might come to mean that a Government endowed with the power of making laws for the peace, order, and good government of a Colony would be deprived pro tanto of that power by the act of the Imperial executive.
Accordingly. I think that the course proposed, though perhaps in strictness lawful, would be a resort to an obsolete legal weapon, likely to be resented by self-governing Colonies, and sure to be questioned on constitutional as contrasted with legal grounds.
So thinking, I believe it would be an impolitic course to proceed by Order in f'ouncil, whatever be the legal view.
Further, except in the case of Lord Salisbury's action relating to the French rights of fishing, this is the first occasion of a self-governing Colony so persisting in its own local policy as to bring this country in sight of serious complications with a foreign Power. In Lord Salisbury's case, Newfoundland gave way, but not It seems to me that is until he had brought a Bill into the Imperial Parliament. the right course in such a case. A public statement here will dispel misunder- standings at home, will bring Newfoundlanders to a real sense of the necessity of considering other interests besides their own in their treatment of foreign rights. And I think it would be of great value to show by a signal example that the United Kingdom owes a duty to itself and to the entire British dominions not to let the peace of the whole be imperilled by the unreasonable attitude of a small section. No one can defend the action of the Newfoundland Government, but if they are, as they ought to be, overridden, it ought to be done in the most open manter and with the sanction of Parliament in as solemn a form as possible.
2. This question is also covered by the observations already made.
June 22, 1907.
LOREBURN.
23174
MY LORD,
No. 73.
(WESTERN PACIFIC.)
LAW OFFICERS to COLONIAL OFFICE.
[Draft Orders in Council respecting Civil and Religious Marriages.]
Royal Courts of Justice,
June 27, 1907. We were honoured by Your Lordship's commands signified to us by Mr. Bertram Cox in his letter of the 16th April last, stating that with reference to our report of the 12th October* on the subject of the marriage law of the British Pro- tectorates and possessions in the Western Pacific, he was directed by Your Lordship to transmit to us the draft of an Order in Council which had been concurred in by the High Commissioner for the Western Pacific to provide for civil marriages in these islands.
That he was also to enclose a draft of an Order in Council to amend the pro- visions of the Pacific Order in Council, 1893, as to religious marriages.
That Your Lordship would be glad if we would take these drafts into our con- sideration and report whether they were sufficient for the purposes for which they were intended.
We have taken the matter into our consideration, and in obedience to Your Lordship's commands, have the honour to
Report-
That, in our opinion, the draftst as initialled by us are sufficient for the purposes for which they are intended.
The Right Honourable
The Earl of Elgin, K.G.,
&c.,
&c.,
&c.
We have, &c.,
JOHN L. WALTON. W. S. ROBSON.
DRAFT ORDER IN COUNCIL.
Whereas it is expedient to amend the Order of Her late Majesty Queen Victoria in Council, bearing date the 15th day of March, 1893, and intituled the Pacific Order in Council, 1893:
Now therefore His Majesty, by and with the advice of His Majesty's Privy Council, is pleased to order and it is hereby ordered as follows:-
I. Article 118 of the Pacific Order in Council, 1893, shall on the commencement
of this Order be revoked, without préjudice to anything lawfully done thereunder, and the following provisions shall be read in place thereof:-
118. (1) The High Commissioner, upon receiving a requisition from any minister of religion ordinarily officiating as such, or from the head of the denomination to which such minister belongs, stating that he is a British subject, specifying the religious denomination of such minister and his designation and usual place of residence together with the place where he officiates, and desiring that he may be registered as a minister for celebrating marriages in the Western Pacific, may, if he shall think fit, register the name of such minister with the foregoing particulars in a register-book to be kept for that purpose. No fee shall be payable in respect of any such registration.
One is the revised print of Australian No. 184 attached to 23174.
• No. 46.
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