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to Her Majesty's Government, that Her Majesty should relinquish the sovereignty over the territory in question, in such manner that the inhabitants thereof may establish such a form of government, independent of Great Britain, as they may themselves adopt.

And Mr. Merivale is lastly pleased to request that we would report to you our advice as to the legal steps which it may be necessary or expedient for Her Majesty's Government to take, in order to carry this intention into execution.

In obedience to your commands, we have taken the papers into considera- tion, and have the honour to report→

That we are of opinion that, under the very peculiar circumstances of this case, an Act of Parliament will be necessary in order to enable Her Majesty's Government effectually to carry into execution the contemplated relinquishment of sovereignty over the territory, in such manner that the inhabitants thereof may themselves adopt and establish a form of government independent of Great Britain.

That the act should contain all the necessary provisions for indemnifying and protecting those who have acted under British authority; for the adjustment of suits, claims, and differences connected with the territory, now pending; for securing, at least, to those born of English parents therein, during the existence of the sovereignty, the rights of British subjects, and the other provisions which the circumstances of the case may require.

We have, &c. (Signed)

The Right Hon. Sir J. Pakington, Bart.,

&c.

&c.

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blished before the date of the Letters-Patent, and that the non-publication of the Letters-Patent does not affect the question how the sovereignty is to be with- drawn or determined.

It is legally competent to the Crown to put an end to its sovereignty in the same mode in which it was assumed, namely, by Proclamation, revocation of the Letters-Patent, and the withdrawal of the British troops and authorities; but it is an important question (though not strictly a legal one) whether this can be justly and rightfully done without making some provision for the indem- nity and protection of persons who, during the existence of the sovereignty, have acted in reliance on the territory being part of the British dominions.

If it be deemed just and right to make such provisions, we think an Act of Parliament is necessary, and recommend that no step for relinquishing the sove reignty be taken until such Act has been obtained; but, if it is not deemed necessary to do more than relinquish the sovereignty, we think that may be done by Proclamation, and the revocation of the Letters-Patent.

His Grace the Duke of Newcastle,

&c.

&c.

J. D. HARDING. FRED. THESIGER. FITZROY KELLY,

SIR,

&c.

We have, &c. (Signed)

No. 64.

LABOUCHERE.

J. D. HARDING.

RICHARD BETHELL.

No. 64.

PUBLIC RECORD OFFICE

I b b b b J

C.O.8

Reference -

885

3 PUBLIC RECORD OFFICE, LONDON

ALLY WITHOUT PERMISSION OF THE BE REPRODUCED PHOTOGRAPHIC-

COPYRIGHT PHOTOGRAPH-NOT TO

No. 63.

Secus, the same

being a conquered Colony, over which the sovereignty was

assumed by Pro- clamation.

&c.

No. 63.

Copy of a LETTER from the QUEEN'S ADVOCATE and the SOLICITOR-GENERAL to the Duke of NEWCASTLE.

MY LORD DUKE,

Doctors' Commons; September 28, 1853.

WE are honoured with your Grace's commands, signified in Mr. Meri- vale's letter of the 19th of March last, stating that he was directed to transmit Us copies of the following papers :—

A letter from the Law Officers of the late Government to Sir John Pakington, dated December 20, 1852, on the subject of the necessary steps to be taken for the abandonment of the Orange River sovereignty; together with copies of the l'roclamation of February 3, 1848; of the printed correspondence, and of the Letters-Patent, and Instructions of January 1851, to which reference is there made; copies of two despatches subsequently received from Governor Cathcart, the one enclosing a Report by Mr. Porter, Attorney-General at the Cape of Good Hope, on the general subject of the Orange River sovereignty, the other notifying that the Letters-Patent and Instructions in question have never been proclaimed or published by the Governor.

And Mr. Merivale is pleased to request that we would jointly report to your Grace whether we agree with the opinion of the late Law Advisers that an Act of Parliament is necessary, or whether the subsequent information induces us in any way to modify that opinion; and, if we consider such an Act necessary, with any further suggestion as to the requisite provisions.

In obedience to your Grace's commands, we have the honour to report- That our attention has been carefully directed to the papers laid before the late Law Officers of the Crown, and the information subsequently received that the Letters-Patent and Instructions, which, in fact, contain the proposed Consti- tution of the "Orange River Territory," have never been proclaimed or published by the Governor.

It appears that the Queen's sovereignty over the Orange River territory was first assumed by the Proclamation of Sir Harry Smith in February 1848, and that his act was ratified by Her Majesty's Government.

Since that period property has been acquired and dealt with, and various acts done by British subjects and others within the territory, which must be considered as done in dependence on British authority.

It appears to us that the sovereignty of the Crown was asserted and esta-

Cury of a LETTER from the SOLICITOR-GENERAL to Mr. Secretary

1. Paper Buildings, Inner Temple, January 1, 1858.

under Act of Local

I AM honoured with your commands, signified in Mr. Merivale's letter Prisoner kept in of the 29th ultimo, stating that he was directed by you to inform me that eu-tody, untried. you had received from the President of the India Board a letter, transmitting for reasons of

State, cannot be copy of the enclosed despatch from the Governor-General in Council, stating legally detained (in that it was in contemplation to send the King of Delhi to the Cape of Good a Colony having Hope; and requesting that I would (jointly with the Attorney-General) advise Representative you as to the steps which it might be most expedient to take, in a legal and institutions), unless constitutional point of view, in order to secure the custody of this personage as Legislature. a State prisoner in some part of Her Majesty's dominions in South Africa.

Mr. Merivale was pleased to say that he was directed to observe that the Legislature of the Cape Colony consists of a Council and House of Assembly, both elected by the inhabitants, under the provisions of the Ordinance, of which a copy was annexed, and that the Governor of the Cape Colony was also Governor of British Caffraria, in which the power of legislation is vested by the Charter of that district (of which an extract was also annexed) in himself alone.

I am further honoured with your commands, signified in Mr. Merivale's letter of the 30th ultimo, with reference to the letter above alluded to, and stating that as the Attorney-General was absent from England, and that it was desirable to instruct the Governor of the Cape, by the mail which leaves on January the 5th, you would be obliged by receiving an answer from myself alone.

I, therefore, in obedience to your commands, signified in these letters, have taken the same into consideration, and have the honour to report-

That assuming the King of Delhi not to have been tried and found guilty of any crime by a competent Court (as I collect to be the case), I concur in the opinion that no valid return could be made to a writ of habeas sued out on his behalf at the Cape, and that, in order to justify his detention within the limits of that Colony, an Act of the Local Legislature would be necessary.

For aught that appears, however, otherwise than by report, the King of Delhi may be innocent, and, at all events, the permanent imprisonment of a person not convicted of any crime, is a status so opposed to all constitutional” principles, that the Legislature at the Cape might not unreasonably be unwilling to sunction it, nor can I recommend that Sir George Grey should be directed to propose it. The same objection would, I think, also attach to the issue of an Ordinance by him, as Governor of British. Caffraria.