PUBLIC RECORD OFFICE
תון זזה
Reference :--
C.O.885
16 PUBLIC RECORD OFFICE, LONDON
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2
That you were, therefore, of opinion that it was not desirable to assent to the Bill unless, on legal grounds, the position which had been held by your prede- cessors, namely, that the power of appointing Deputy-Governors exercised in the Letters Patent was fully justified by law, was held by you to be untenable.
That you felt some difficulty in understanding precisely on what ground it could be held that the Crown had not the prerogative of authorising the Governor to appoint a Deputy who would be able to exercise all such functions of the Governor as might be deputed to him by the Governor. That it was clear that the Governor himself could not, save by the permission of the Crown, depute any of his powers, but that you did not see any difficulty in the Crown entrusting the powers of the Governor, in whole or in part, to a Deputy appointed by the Governor. That the propriety and usefulness of the practice was borne out by the fact that in the consti- tutions of the Dominion of Canada, the Commonwealth of Australia, and the Union of South Africa provision was made for the appointment of Deputies by the Governors-General and for the conferring of such powers on the Deputies as the Governors-General might think fit. That Mr. Just was to observe that the post of Governor-General was in each of these cases created by the Constitution Act, and that the power to appoint a Deputy was accordingly also given by Statute.
That Mr. Just was, accordingly, to request that we will be so good as to take into our consideration the facts set out in his letter, and to report whether, in our opinion, the prerogative of the Crown extended to authorising the Governor of an Australian State to appoint a Deputy-Governor with the powers contemplated in the 11th Clause of the Letters Patent of South Australia.
We have taken the matter into our consideration, and, in obedience to your commands, have the honour to
Report-
That, in our opinion, the prerogative of the Crown does extend to authorising the Governor of an Australian State to appoint a Deputy-Governor with the powers contemplated in the 11th Clause of the Letters Patent of South Australia.
This admits of no doubt, but is not, in our view, the point which the Bill was passed to meet.
The real question seems to be whether the Governor is authorised by the Letters Patent to delegate to his Deputy the powers conferred upon the Governor by Colonial Acts of Parliament.
The Letters Patent do not purport to confer any such power upon the Governor. Clause 11 only authorises the Governor to delegate" all such powers and autho- rities vested in the Governor by these Our Letters Patent.
In our opinion the authority of the Legislature is necessary to enable the Governor to delegate those powers which are conferred upon him, not by the Letters Patent, but by the Legislature.
The Right Honourable
Lewis Harcourt, M.P.,
Colonial Office, S.W.
We have, &c.,
RUFUS D. ISAACS. JOHN SIMON.
13482.
No. 137.
(GENERAL.)
FOREIGN OFFICE TO LAW OFFICERS.
[Position of British subjects, inhabitants of self-governing Dominions which with- draw from, or decline to adhere to a commercial treaty concluded by His Majesty's Government with a foreign Power.]
Foreign Office, March 3, 1911.
GENTLEMEN,
I HAVE the honour, by direction of Secretary Sir E. Grey, to transmit to you herewith the papers, as noted in the accompanying list, respecting the position of British subjects who are inhabitants of a self-governing Dominion in the event of that dominion withdrawing from, or declining to adhere to, a commercial treaty con- cluded by His Majesty's Government with a foreign Power.
2. In negotiating commercial conventions, it is now the custom of His Majesty's Government to provide in the convention not only for the separate adherence but also for the separate withdrawal of the different self-governing Dominions, on due notice being given. This is shown in the enclosed copy of the draft model treaty (Paper A), on which all commercial conventions at present concluded between the United Kingdom and foreign Powers are, as far as possible, based. It will be seen that the privileges secured, such as the right to acquire property, or exemption from special taxation or from military service, are secured to "the subjects of each of the con- tracting parties," but that, by Article 20, "the stipulations of the present treaty shall not be applicable to any of His Majesty's Colonies, &c., unless notice of adhesion shall have been given," most-favoured-nation treatment of Colonial produce being, however, secured, so long as it is reciprocal. As, however, the Dominions are still bound by a number of older conventions in which no provision is made for their separate withdrawal, His Majesty's Government have recently concluded with various countries special agreements for the purpose of obtaining for the Dominions so bound this right of separate withdrawal.
3. On the Colombian Government, however, being approached with a view to enabling the Dominions to withdraw, if they so desired, from the Commercial Convention of 1866 between Great Britain, and Colombia (Paper B), which also secured various rights to the subjects and citizens of the contracting parties, but contains no provision for the withdrawal of Colonies, the Colombian Government raised objections on the ground that, in the event of a self-governing Dominion with- drawing from the treaty, the inhabitants thereof would still continue, in their capa- city as British subjects, to enjoy the personal rights granted by the treaty to British subjects generally, whereas Colombian citizens would enjoy no corresponding privi- leges in the territory of the non-adhering Dominion. Copy of the note from the Colombian Minister for Foreign Affairs setting forth these considerations is annexed hereto (Paper C).
4. The immediate objection of the Colombian Government might possibly have been met by His Majesty's Government making certain concessions which the Colom- bian Government appeared, from the Minister's note, to be anxious to obtain in the matter of the most-favoured-nation treatment provided for in the convention, or else by arranging for the self-governing Dominions to withdraw in this and all future cases from those clauses only of commercial treaties which were commercial in chur- acter, as distinct from those which were political in character. The division would, however, in any case have presented difficulties, and it has been argued that it would not in fact be possible. However this may be, any such solution would have still left the status of Colonial British subjects vague and unsettled in the event of the point being raised again at any time, as it is quite possible it will be, in the case of any of the commercial treaties concluded by His Majesty's Government to which the self-governing Dominions, or some of them, are not adherents. His Majesty's Government have decided, therefore, that it is advisable to come to a clear decision as regards the main question before making any further progress with the Colombian Treaty.
5. In 1899 your then predecessors in office were consulted as regards the status in Japan of British subjects who belonged to a self-governing Dominion which had not adhered to the commercial treaty concluded by Her Majesty's Government in 1891
(21 105-9.) Wt 18-45. 25. 1/19. D&S. G. 1.