CO885(2-3) — Page 140

PUBLIC RECORD OFFICE

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Reference

C.O.885

3 PUBLIC RECORD OFFICE, LONDON

ALLY WITHOUT PERMISSION OF THE BE REPRODUCED PHOTOGRAPHIC-

COPYRIGHT PHOTOGRAPH-NOT TO

under 46 Gen. III,

c. 54. may still be

issued since 12 & 19

Vict., c. 96.

No. 28.

Parliament, law of, tist applicable to Colonial Assem- blies

34

Lordship to transmit to us the enclosed despatch from the Governor of Antigua. Mr. Merivale then stated that the Anegarla Reef, mentioned in this despatch, is off' Anegada, one of the Virgin Islands, and a dependency of Tortola; and that he was to request that we would favour your Lordship with our opinion on the following questions:

Whether, since the passing of the Act "to provide for the prosecution and trial in Her Majesty's Colonies of offences" committed within the jurisdiction of the Admiralty (12 & 13 Vict., cap. 96), it remains in Her Majesty's power to issue Commissions to the Colonies, as was customarily done under the 46th of Geo, III, cap. 54, for the trial of the offences specified in that Act? and whether Commissions so issued before that Act are still in force?

The parties charged with the offence referred to in the Governor's despatch were so charged within Tortola, which is a Colony, having Courts of Criminal Justice within the meaning of the Act, but to which no Commission has ever been issued under the 46th Geo. III, cap. 54; and our opinion was further requested whether it was competent for the authorities of Tortola to have transferred these parties for trial to any neighbouring Colony to which such a Commission has been issued by Her Majesty if we considered such Commission to be still in force).

Mr. Merivale then stated that he was directed to subjoin a paper which was drawn up shortly before the passing of the Act of 12 & 13 Vict., explanatory of the reasons for its introduction. The provision mentioned at the end of that paper, for the transmission of persons charged with these offences from one Colony to another, or to England, was withdrawn in the course of the discussions on the Bill.

In obedience to your Lordship's command, we have perused the several documents transmitted to us, and have the honour to report that the 12th & 13th Vict., cap. 96, appears to be an enabling statute, not repealing any authority possessed by the Crown prior to it; and we are therefore of opinion that, since the passing of that Act, it remains in Her Majesty's power to issue Commissions, as was customarily done under the 46th Geo III, cap. 54, for the trial of offences specified in this Act, and that Commissions issued before that Act are still in force. We think that if the persons mentioned in the despatch of the President of Tortola committed an offence which could be tried by the Maritime Courts of that island, such persons should now be tried by such Court; but if the Governor is convinced of the impossibility of obtaining an impartial trial in the Colony, we think that it is competent for him to transfer such persons for trial to another Colony, where there is a Commission in force.

The Right Hon. Earl Grey,

&c.

&c.

&c.

SIN,

We have, &c. (Signed)

Montserrat.

No. 28.

J. DODSON.

JOHN ROMILLY.

A. E. COCKBURN.

Copy of a LETTER from the ATTORNEY and SOLICITOR-GENERAL to Mr. Secretary LABOCCHERE.

Temple, February 15, 1856.

WE were honoured with your commands, contained in Mr. Merivale's letter of the 17th ultimo, in which he stated that he was directed by you to

35

request that we would consider the accompanying papers, and favour you with our joint opinion upon the following case :----

That the Legislature of Montserrat passed two Laws, Nos. 253 and 254, abolishing tonnage and import duties, and a third, No. 255, imposing instead a property tax, but the latter enactment was not to take effect until after the publication of Her Majesty's Order in Council allowing the Act abolishing import duties. That the latter Act was not yet in force, as, though assented to by the Governor, it had not yet been proclaimed.

That parties interested in defeating the measures, contended that the Acts are invalid, owing to an alleged informality in the mode by which the Governor's assent was given.

That Montserrat is an island having a separate Legislature under the Government in chief of the Governor of Antigua (or the Leeward Islands). In his absence from Montserrat the local government is administered by a distinct officer. But Acts of the Council and Assembly are referred by the officer administering the government to the Governor, who gives the former per- mission (if he thinks proper) to assent thereto.

That it appeared that, on the 3rd of October, the officer administering the government, in person, announced to the Legislature that he had permission from the Governor-in-chief of the Leeward Islands to assent to these Bills, and then formally prorogued the Assembly until the 5th of October, with a view to its immediate dissolution. But it is stated that the officer administering the government did not actually sign the Bills in question, which in such cases appeared to be the formality observed in notifying the assent of the Executive, until the 4th October, when the Legislature was not in Session. That it was, therefore, contended that the custom of Parliament, as regards the effect of prorogation in suspending all business, applied in a colony, and consequently that the Acts had been assented to informally, and were of no validity.

That it was, on the other hand, argued that there was no analogy between the formalities of Parliament and those of Colonial Legislatures; and that the latter in their proceedings were governed by Royal Instructions, and such incidents as necessarily resulted from their position, and, no doubt, a certain amount of inconvenience followed the rule (if established) that Colonial Laws must be assented to in the Session in which they were passed, especially in cases where a non-resident Governor-in-chief had to be consulted.

That the Royal Instructions did not, however, provide for the case Clause 10, of which a copy was inclosed, containing the Rule as to the assent, &c., to Bills. As a matter of fact, there appeared no distinct evidence of the usage; but it was stated that the Assembly was always in Session, unless brought to a close by prorogation, which was of rare occurrence.

That in Tobago, one of the Windward Islands, which are governed by similar instructions, a similar question was considered by the local authorities in 1844, and to obviate the objection which had been raised, an Act was passed authorizing the Governor to assent to Bills after the close of the Session in which they had been passed. The Act was annexed.

Mr. Merivale concluded by stating that, adverting to the foregoing circum- stances, he was to request that we would report to you our opinion whether it would be proper for you to advise Her Majesty to assent to the three Acts; and in considering that question, he was to invite our attention to the fact that, if the analogy of Parliament was to be insisted upon in this case, it must be remembered that the officer administering the government had himself per- sonally announced his authority from the Governor-in-chief to assent to the laws while the Legislature was still in Session, although he did not subscribe his name us so assenting until after it was out of Session.

In obedience to your commands, we have taken the several questions sub- mitted to us into our consideration, and have the honour to report:-

That the law and practice of Parliament, as established in the United Kingdom, are not applicable to Culonial Legislative Assemblies, nor does the rule of the one Body furnish any legal analogy for the conduct of the other.

The whole of the arguments of Mr. Baynes, therefore, appear to us to rest on an erroneous assumption, and we agree with Mr. Rushworth that, for the reasons stated in his letter of 15th October, 1855, Mr. Baynes' arguments are quite irrelevant to the case.

K

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