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PUBLIC RECORD OFFICE

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PUBLIC RECORD OFFICE, LONDON

power continued to subsist in New South Wales in 1843, and that it authorised the amotion of a judge of the Supreme Court of that Colony by the Governor and Council for misbehaviour, after a proper hearing, although that court had been established under an Imperial Statute (9 Geo. 4. c. 83.) which provided that "it should and might "be lawful for His Majesty, 'his heirs and successors, from time to time as occasion "should require to remove and displace any such judge."

The New South Wales Government Act (18 & 19 Vict. c. 54.) expressly repeals certain specified Imperial Statutes and parts of Statutes, the necessity of repealing which made it impossible for the Crown to assent to the Provincial Act 17 Vict. No. 41 (which is set forth at length in the first schedule thereto) without the concurrence of the Imperial Legislature. But the Act 22 Geo. 3. c. 75. is not one of the Statutes which are, wholly or in part, repealed by that Act, from which it may be inferred that the 38th and 39th sections of the Provincial Act' were not then considered to be repugnant to the 22 Geo. 3. c. 75. or to require its repeal so far as related to New South Wales.

Nor does it appear to us, upon a just consideration of the purport and effect of these sections, that there is really any such repugnancy. The 38th section of the Provincial Act provides that the Commissions of the judges shall continue in force during their good behaviour, subject "nevertheless" (under the 39th section) to a power in the Crown "to remove any such judge or judges upon the address of both Houses of the Legislature of the Colony." It is consistent with both sections that such legal means of removing a judge for misbehaviour in his office, as previously existed, should remain in force.

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We think, therefore, that in the Colony of Queensland the Governor and Council have power to remove any judge who (in the words of 22 Geo. 3. c. 75) "shall be wilfully absent from the Colony without a reasonable cause, to be allowed by the Governor and Council, or shail neglect the duty of his office or otherwise misbehave "therein."

In so advising, it is hardly necessary for us to add that what the Statute contemplates is a case of legal and official misbehaviour and breach of duty, not any mere error of judgment or wrongheadedness consistent with the bond fide discharge of official duty; and we should think it extremely inadvisable that this power should be exercised at all, except in some very clear and urgent case of unquestionable delinquency; the power given to the Crown, upon the address of the Legislature, being adequate and more appropriate for all other exigencies which may arise."

2. We apprehend that in case of an appeal to the Privy Council against an order of amotion the Governor personally would be (as in Sir George Gipp's case) the proper respondent. We are not aware of any precedent for ordering the Governor to pay costs under such circumstances, but under the 15th section of the Act 3 & 4 Will. 4. c. 42., constituting the Judicial Committee, it would appear to be in the power of Her Majesty, acting under the advice of the Judicial Committee, to order the Governor to pay costs, if it were thought proper to do so, which of course could only be supposed in some case in which the Governor might have been guilty of some gross miscarriage in the discharge of his duty. We do not think that any action would lie against the Governor for any act bond fide done by him under the powers of the Statute 22 Geo. 3. c. 75.

3. We do not think that the Governor has any power, with or without the advice of his Executive Council, to suspend a judge. An order of suspension (as distinguished from amotion) would be, in our opinion, a mere nullity; though, in order to determine that question, an appeal to Her Majesty in Council, if presented, would doubtless be entertained. And we think that an action would lie against the Governor if he were to attempt to enforce any such order of suspension.

4. The Royal Instructions authorise the removal or suspension by the Governor of any officer who holds his office merely during the pleasure of the Crown. They do not, in our opinion, authorise the removal (except for misbehaviour, under 22 Geo. 3. c. 75.) nor the suspension in any case of any officer who holds his office for life or during good behaviour.

5. We do not think that the Governor has any power of suspension, even under the circumstances supposed by this question.

His Grace the Duke of Newcastle, K.G.

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&c.

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We have, &c. (Signed) WM. ATHERTON.

ROUNDELL PALMER.

11980.

MY LORD,

No. 146.

(BERMUDA.)

LAW OFFICERS to FOREIGN OFFICE.

Temple, December 3, 1862. We are honoured with your Lordship's commands, signified in Mr. Hammond's letter of the 15th November, stating that in our report of the 31st October" on the subject of Admiral Wilkes' proceedings at Bermuda, we state with reference to the question propounded by Vice-Admiral Sir A. Milne in the following words :---

"To what extent from the mainland of Bermuda does Her Majesty's territorial jurisdiction extend? Is this limit three marine miles from the northern reefs, which in themselves are eight miles and a half from the shore of the island? But were it not for a letter from the Secretary of State for Foreign Affairs, dated the 12th of July 1849 respecting the cays of Cuba, I should have no doubt as to the question. I cer- tainly consider these reefs as part of Bermuda; "that we were of opinion" that the authority (the dominium eminens) of Her Majesty does extend to three marine miles from the northern reef. We think that these reefs must be considered as belonging to the territorial jurisdiction incident to the possession of Bermuda, so far, at least, as that between them and the island. Her Majesty has a right to prevent the exercise of hostilities, and that if we are right in considering them as part of Bermuda, it would follow that Her Majesty's jurisdiction must extend for three marine miles from that point."

Mr. Hammond was also pleased to state that the papers relating to the question which arose in regard to the cays of Cuba were not sent to us with his letter of the 29th of October, but the Lords Commissioners of the Admiralty being desirous that our attention should be called to them with reference to the present case, your Lordship directed him to forward to us the accompanying volumes, in which, at the places marked, we should find the correspondence in question, which originated, as we should perceive, in the interference of the Spanish authorities with British fishing vessels.

Mr. Hammond likewise enclosed a list of the papers to which our attention is called, and was to request that we would consider the point raised by Vice-Admiral Milne, and report to your Lordship our opinion thereupon at our earliest convenience.

We are also honoured with a further letter from Mr. Hammond (of the 17th No- vember) with reference to this matter, transmitting to us, by your Lordship's direction, a letter from the Colonial Office, enclosing a Despatch from the Governor of Bermuda and a report of the Attorney-General of the Colony on the same subject, and requesting that we would take the same into consideration simultaneously with the papers

before us.

We are also honoured with Mr. Hammond's letter of the 19th November, trans- mitting, by your Lordship's directions, a volume containing further papers relative to the view taken by Her Majesty's Government of the claims of Spain in respect of the cays adjacent to the island of Cuba.

In obedience to your Lordship's commands, we have taken these papers tions into consideration, and have the honour to

Report

and

ques-

That we are still of opinion that the territorial jurisdiction of Bermuda must be estimated at the distance of a marine league from the North Rock on the outer ledge of the coral reef, or at all events from the rock, and the outer ledge of that part of the coral reef which is not covered by the sea at low water.

It appears that the islands of Bermuda consist of a collection or group of about 365 ledges of coral formation emerging above the water. The whole group lies upon a coral bank, of which the "ledger flats" are a continuation,

The North Rock, which is 14 feet above water, forms part of these flats, and lies at the mouth of what is marked on the Ordnance Map as the western channel, though only upon one occasion, as we are informed by Captain Barnett (who has been em- ployed by Government to survey the islands), was it ever passed through by men-of-

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• No. 142.