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7925.

PUBLIC RECORD OFFICE

Reference :-

TTILL C.O. 885

ALLY WITHOUT PERMISSION OF THE BE REPRODUCED PHOTOGRAPHIC- COPYRIGHT PHOTOGRAPH—NOT TO

11 PUBLIC RECORD OFFICE, LONDON

No. 522.

(GENERAL.)

LAW OFFICERS to COLONIAL OFFICE.

MY LORD DUKE,

Temple, July 25, 1868. WE are honoured with your Grace's command signified in Sir Frederic Rogers's letter of the 7th instant, stating that he was directed by your Grace to request that we would favour you with our opinion upon a question which has arisen with respect to the amount of pension to be awarded to Sir C. Darling, namely, whether he is entitled to the full rate of pension under the Colonial Governor's Retiring Pension Act, 28 & 29 Vict. c. 113.

1. General Sir George Cathcart was appointed Governor and Commander-in-Chief of the Cape of Good Hope by a commission dated the 20th January 1852.

2. The Kafir war (was) not then concluded, and as he was expected to go to the frontier immediately on his arrival in the Colony it was thought desirable that a Lieutenant- Governor for the whole Colony should be appointed, and Sir Charles Darling, then Mr. Darling, received a commission as such Lieutenant-Governor dated the 20th January 1852; copies of this commission and of the commission and instructions and additional instructions to Sir G. Cathcart were annexed for reference.

3. The grounds upon which Lord Grey, then Secretary of State for the Colonies, advised Her Majesty to grant this commission to Sir C. Darling, and the powers which it was intended to confer are fully set out in a Despatch of Lord Grey's to. Sir G. Cathcart of February 2nd 1852; a copy of this Despatch was also annexed for reference, and our attention was particularly requested to paragraphs 3 and 7.

4. Sir George Cathcart left Cape Town for the frontier on the 5th of April 1852, and it is believed that he did not return there for more than a few days during the whole time of his government which lasted until May 1854.

5. During a considerable portion of that time Sir George Cathcart was beyond the frontier of the Colony of the Cape of Good Hope as then constituted, and during the rest of that time he was engaged in active operations on the frontier. But during all the time from 5th April 1852 to May 1854 Sir Charles Darling in fact carried on, and received a salary for carrying on, the government at Cape Town, though, as would be observed, he was not by the terms of his commission authorised to "administer' the government except in the "absence or death or incapacity of the Governor."

6. If Sir C. Darling while thus in fact carrying on the government of the Colony can be considered as "administering the government" within the meaning of the Act of 28 & 29 Vict. he will be in a position to count a service of 18 years and will be entitled to a retiring pension of 1,000l. a year under the 4th clause of the Act.

7. If he cannot be considered as administering the government his service will be some months short of 18 years, and he will only be entitled to a reduced pension of 666Z. 138. 4d.

GE

8. Sir Frederic Rogers stated that your Grace was desirous of knowing whether there is any legal objection to treating Sir Charles Darling as having administered the government of the Cape within the meaning of the 4th clause or as having provisionally administered" that government within the meaning of the 12th clause of the Act. That in the former case the Secretary of State would be entitled to award Sir C. Darling the full rate of pension of his own authority; in the latter case with the concurrence of the Lords of the Treasury.

In obedience to your Grace's commands we have taken this matter into consideration and have the honour to

Report

That having regard to the terms of the appointments of Sir C. Cathcart, and of Sir C. Darling, the instructions contained in the Despatch of Earl Grey of the 2nd February 1852, especially paragraphs 3, 4, 5, the fact that Sir George Cathcart was not absent from "the Settlement and its Dependencies" during the whole period of Sir Charles Darling's Lieutenant-Governorship, and that the Governor was performing acts of government during that period, and we presume giving instructions to the Lieutenant-Governor, we think it is open to doubt whether Sir Charles can be con- sidered to have been "administering the Government" within the meaning of the

o 16978.--300.

25.-5/86.

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