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MY LORD Duke,

No. 189.

(JAMAICA,)

LAW OFFICERS to COLONIAL OFFICE.

Temple, June 9, 1863. We are honoured with your Grace's commands signified in Mr. Elliot's letter of the 12th ultimo, stating that he was directed by your Grace to transmit to us the copy, enclosed, of a resolution which had been passed by the House of Assembly of Jamaica to the effect "that no officer attending on the Legislative or Privy Council or House of Assembly of this Island, or whose duty it is to give attendance at, or be responsible to, any public board composed wholly or principally of members of the Legislative Council or Assembly shall be qualified to sit or vote in this House." And also an extract of the Despatch from the Lieutenant-Governor of Jamaica, for- warding the resolution to your Grace's department, from which we should perceive that its object is to debar the Colonial Engineer, Mr. Leahy, who has been elected a member, from voting in the House of Assembly.

And to request that we would favour your Grace with our opinion-

1. Whether the House of Assembly in declaring that certain persons who are not disqualified by any existing statute shall be ineligible to sit or vote in the House have exceeded their jurisdiction.

And, 2, if this is so, whether there be any, and if any what, remedy in case the Assembly persist in enforcing their resolution."

In obedience to your Grace's commands, we have taken these papers into considera. tion, and have the honour to

Report

That we think the House of Assembly (which is not the whole Legislature of Jamaica, but only one of its component parts) has exceeded its legitimate jurisdic- tion, by declaring that certain persons who are not disqualified by any existing statute shall not be qualified to sit or vote in that House.

There is, however, no legal remedy as against the House of Assembly, and there is no power of controlling their proceedings in case of their persisting in the illegal exclusion of one or more of their members from the right of sitting and voting. Legislative bodies of this kind are necessarily independent of the executive and judicial authorities; and there is, therefore, no process by which their excesses or trans- gressions of law can be restrained or corrected. The general presumption is that they will act legally and constitutionally; and no provision has been made for the contrary event. This is more especially true when the matter in question relates to the internal action of such a Legislative Assembly in the discharge of its own public functions. Whenever the qualification of one of its members is in question the Assembly is itself the proper and only judge of that question; although in determining it, it ought to proceed according to law, and not to usurp the power of creating by its own mere will any new disqualification. The Assembly has also the power of expelling any of its own members for what it may deem sufficient cause; although if this power should be used for the arbitrary purpose of introducing, without the concurrence of the Council and the Governor, some disqualification unknown to the law, that course would be grossly unconstitutional. The discussions which took place in the British Parliament during the last century in the cases of Wilkes and Horne Tooke. may be referred to as illustrating the constitutional principles involved in this subject, and the great public inconvenience and mischief involved in any departure from them.

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

ROUNDELL PALMER.

His Grace the Duke of Newcastle, K.G.,

&c.

&c.

&c.

D 16978.-196.

95.-2/64.

PUBLIC RECORD OFFICE

C.O.

Reference :-

885

10 PUBLIC RECORD OFFICE, LONDON |

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