CO885-(10-11) — Page 93

PUBLIC RECORD OFFICE

Reference :-

PILLIC.O.

885

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

10 PUBLIC RECORD OFFICE, LONDON

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tion of the present Attorney General. In the Bill prepared by him, and which would have been introduced during the present session but for recent events proving that it would be useless to do so, various safeguards and securities are provided with a view to ensure notice to all persons interested of any application to register a title. They may be described generally as consisting of a series of public notices during a period of six months, of a most stringent and searching investigation of title by the convey. ancing Counsel of the Court of Chancery, and of provisions for indemnifying the owner of any defeated right or interest who was not guilty of any neglect in not bringing forward his claim.

We will examine the Colonial Act with reference to these requirements.

By the 23rd section it is enacted that the District Registrar shall give such notices, public and private, as shall be prescribed by the rules therein-after authorised, &c., and in section 71 the Governor in Council is empowered to make rules for regulating the procedure, &c.

These rules, if made, are not before us, but it is obvious that on them depends, in a great degree, the opinion to be formed of the justice and reasonableness of the proposed

We think your

Grace can hardly form a final judgment until the rules of procedure have been laid before you.

measure.

Secondly, with respect to titles, it is provided in the 26th section that all titles shall be examined by the District Registrar, who shall determine absolutely what steps, notices, &c. are proper to be taken and given for proving the title, and shall, if he is satisfied, enter the applicant on the register as proprietor with an indefeasible title.

We cannot think that the District Registrars are equal to the discharge of these most important and onerous judicial duties.

At the same time it is proper to recollect that the extent of the responsibility and the difficulty of the duties thus cast upon the District Registrars must depend on the nature of the present law with respect to titles to real estate in that Colony.

If it be already the law that every deed affecting land must be registered, and that no equity will prevail against the registered owner, even if he had notice of the claim at the time of registration, the duties of the District Registrar will be much less diffi- cult and complicated. Here again, therefore, we stand in need of further information (viz., on the subject of the existing real property law in the Colony) before we are in a condition to give a satisfactory opinion on the proposed measure.

With respect to the third point, namely, the suggestion that Acts of this description should contain provisions to enable the owners of any undiscovered or subsequently arising interest to enforce their rights against the registered proprietor (if originally liable thereto), or any person taking under him by descent, devise, or voluntary trans- fer, and also provisions for indemnifying the owner of any interest (not being guilty of laches) whose right has been absolutely defeated or lost through registration, the Act before us appears to be very deficient.

But these last-mentioned defects would not probably, having regard to the principle first stated, be sufficient grounds for refusing the Royal assent to the measure.

There remain, however, the subject of the Crown's estate and interests and the manner in which they are proposed to be dealt with by this Act.

And here again we stand much in need of exact information as to the position of the Crown with reference to land in New Zealand, and how its original rights, and the rights and liabilities it acquired and incurred by reason of its dealings with the New Zealand Company, have been affected by subsequent Colonial legislation. We also desire to know whether this Act was in its progress submitted by the Governor to the local Attorney General, and what opinion or advice were given by him on the subject of this important part of its enactments.

Upon a measure of this most useful nature we are sorry to send your Grace a report so unsatisfactory, but at present we are of opinion that, having regard to the insuffi- ciency of the provisions of the Act, especially with reference to the interest of persons absent from the Colony and the rights of the Crown, the measure appears to be open to serious objection.

But we desire to withhold our final opinion until the information we have requested be laid before us, if your Grace shall think it proper so to do.

His Grace the Duke of Newcastle, K.G.

&c. &c.

&c.

We have, &c.

(Signed) RICHARD BETHELL.

WILLIAM ATHERTON.

5704.

No. 69.

(GENERAL.)

(NORTH AMERICA.)

LAW OFFICERS to COLONIAL OFFICE.

Lincoln's Inn, June 22, 1861. MY LORD DUKE,

We were honoured with your Grace's commands signified in Mr. Elliot's letter of the 29th April last, in which he stated that he was requested by your Grace to request that we would take into our consideration the correspondence between tho Privy Council and the Colonial Office relating to a proposed change in the mode of leaving certain Acts to their operation.

Mr. Elliot was also pleased to request that we would inform your Grace whether there was any objection to the course which your Grace desired to adopt.

Mr. Elliot also stated that, with regard to the constitutions of the different Colonies, it might be enough to observe that the mode of dealing with Acts passed by the Australian Colonies (in which they are left to their operation by Despatch) was pre- scribed with regard to New Zealand by the Imperial Act, 15 & 16 Vict. c. 72 s. 56-60, with regard to New South Wales, Victoria, Van Diemen's Land and South Australia, 5 & 6 Vict. c. 76. s. 30, 33, and 40, and 7 & 8 Vict. c. 74. s. 7, recognised or kept alive

by subsequent local and Imperial Acts, among which are 13 & 14 Vict. c. 59 and 33., and 18 & 19 Vict. c. 54. 8. 3 and c. 55. a. 3.

In the Cape of Good Hope similar provisions are made by a local Ordinance passed by virtue of certain Letters Patent dated 23 May 1850.

The mode of dealing with Canadian Acts is prescribed by 3 & 4 Vict. c. 35. ss. 37, 38, 39.

Mr. Elliot was also pleased to say that in other Colonies having representative institutions Her Majesty's power of disallowance was reserved in the Governor's com- . mission or instructions generally in something like the following terms:-

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And it is Our further Will and Pleasure that all such Laws, Statutes, and Ordi- nances, of what nature or duration soever, be within three months or sooner after the making thereof transmitted to Us under the Public Seal of Our said Island and its Dependencies for Our approbation or disallowance of the same, as also duplicates thereof by the next conveyance, and in case any or all of the Laws, Statutes, and Ordinances not before confirmed by Us shall at any time be disallowed and not approved and so signified by Us Our Heirs and Successors under Our or their Sign Manual and Signet, or by order of Our or their Privy Council unto you, then such and so many of the said Laws, Statutes, and Ordinances as shall be so disallowed and not approved shall from thenceforth cease, determine, and become utterly void and of none effect, anything to the contrary thereof notwithstanding."

In obedience to your Grace's commands we have taken the above correspondence into our consideration, and have the honour to

Report

That the technical phrase which has been adopted of leaving a Colonial Act to its operation, means, in reality, that the Crown does not think proper to disallow it, that is, the Crown confirms the assent previously given to the Act by the Governor of the Colony.

In principle, we think there is no difference between the Royal Confirmation of the assent that has been already vicariously given by the Governor, and the original allowance or disallowance by the Crown of an Act reserved expressly for that purpose. In strict constitutional law we think the Royal pleasure should in all these cases be certified in the same manner, namely, either under the Sign Manual and Signet of the Queen, or by Order of Her Majesty in Council. In matters of constitutional law, and especially that most important branch of it the Royal Assent to Acts of Legislative Assemblies, we are unwilling to alter & single form. Great responsibility may attach to the act of leaving a Colonial Law to its operation. The powers of Colonial Legis- latures are limited, but their Acts may in many cases be ultra vires affecting Imperial interests, or possibly contravening some Imperial statute.

The leaving any Colonial Act to its operation should be the result of consideration and advice, and to save trouble in the despatch of business is not, in matters of this high nature, a sufficient cause for departing from established usage. For these reasons

Q 16278.-806.

25.-2/86,