CO885-(10-11) — Page 816

7566.

PUBLIC RECORD OFFICE

Reference :---

།་།།་།།།། ......................C.O. 885

11 PUBLIC RECORD OFFICE, LONDON

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

MY LORD,

No. 649.

(GAMBIA.)

LAW OFFICERS to COLONIAL OFFICE.

Temple, July 13, 1870.

We are honoured with your Lordship's commands signified to us in Sir Frederic Rogers' letter of the 27th ultimo, stating-

1st. That he was directed by your Lordship to transmit to us for our consideration copies of part of a correspondence which had passed between the Colonial Office and the Foreign Office relative to the contemplated cession of Gambia to the French Government.

2nd. That it would be seen from that correspondence that both your Lordship and Lord Clarendon concurred in the opinion that the consent of Parliament should be obtained to that transfer, and in the first proposal contained in the instructions sent to Her Majesty's Ambassador at Paris (a copy of which was therewith enclosed for reference) we would observe that the "consent of Parliament and of the natives made a condition precedent to the cession.

"2

Wae

3rd. That in accordance with that view, it was stated a few nights ago in the House of Commons, that the cession would not be completed before the whole subject. had been brought before Parliament.

4th. That a question had arisen on former occasions, as for example in 1854, upon the question of the abandonment of the Orange River territory, (vide Hansard, third series, Vol. 133, pp. 52-66) whether the Crown has power to alienate British territory by its prerogative except under a treaty of peace, and your Lordship desired to be favoured with our opinion as to the manner in which the present question should be brought before Parliament, and in which such consent should be obtained, and especially (1) whether the matter having been fully laid before both Houses and expressly or tacitly approved, it would be competent to Her Majesty to effect the cession by prerogative; or (2) whether it would be necessary to have recourse to an Act of Parliament empowering Her Majesty to enter into a convention with the French Government; or (3) whether the convention should first be made, subject to the assent of Parliament, and then brought before Parliament for ratification by resolu- tion or otherwise.

4. With reference to the question numbered (1), Sir Frederic further stated that he was to add that the Gambia had fallen under Parliamentary legislation; that it was surrendered in 1749 by the African Company to the British Government; that in 1843, after the passing of the Imperial Act, 6 Vict. c. 13., and by virtue of the provisions of that Act, a Government of the River Gambia Settlement was constituted by Charter of the 24th June.

5. That this Charter and the Government constituted by it remained in force until 1866, when the Charter was revoked by Letters Patent of the 19th February (copy of which was enclosed) and Gambia was placed under the general government of the West Africa Settlements, the Governor of Sierra Leone being the Governor-in- Chief.

In obedience to your Lordship's commands we have considered this matter, and have the honour to

• Report

That we are of opinion that the cession of this settlement cannot be effected by the prerogative alone. The Crown, on the principle that salus Republica suprema lex, has the sovereign power of alienating State domain in treaties of peace, or as act of supreme necessity in war to save the rest of the dominions.

Even in such a case a Minister would probably have recourse to an Act of Indemnity for the advice which he had given leading to such a result. Beyond the power above stated we think that the sovereign has no power to cede territory without the consent of the Legislature.

O 16278.-140. 25.-5:86.

2