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10. That the agreement of one colony with another should for the purposes of the Act be testified by a writing under the hand of the Governor. That there had, however, in that case been no formal agreement under the Act between the Governors of the Cape and Natal, though the fact that the colonies were agreed on the subject might be sufficiently gathered from correspondence which had passed between the Governors under their hands, that there had been no address to Her Majesty from the legislature of either colony, and that Her Majesty had not sanctioned the arrangement by an Order in Council, nor had any steps been taken for procuring such Order. That the proceedings between the colonies had thus had no reference to the provisions of the Imperial Act, and for the purpose of securing the legal custody of the prisoners, the course adopted had been to procure an enactment of the Cape Legislature (a copy of which was enclosed) authorising the detention of the prisoners at Robben Island, a place within the Cape Colony.

11. That we would remember that by the Imperial Act 28 & 29 Vict. c. 63, section 2, it is provided that any Colonial Law which is in any respect repugnant to the provisions of any Act of Parliament extending to the colony to which such law may relate shall be read subject to such Act, and shall to the extent of such repugnancy, but not otherwise, be and remain absolutely void and inoperative.

12. That it was not impossible that it might be contended that the effect of the Colonial Prisoners Removal Act, 1869, was to prohibit the removal of a prisoner from the colony where he was tried to another colony to undergo his sentence there, except after compliance with the conditions imposed by that Act, and that inasmuch as the Cape Act No. 3 of 1874 purported to legalise a proceeding prohibited by the Imperial Legislature it must be void for repugnancy by virtue of the Colonial Laws Validity

Act.

13. That he, Mr. Malcolm, was therefore to request that we would advise whether it was competent for the Cape Legislature to pass the Act No. 3 of 1874, and whether consequently on the above statement of the case the prisoner Langalibalelo was at that moment legally and properly detained in Robben Island.

14. That if we were of opinion that the Act in question is repugnant he, Mr. Malcolm, was to request that we would advise whether it might be treated as a simple nullity or whether it would be more advisable formally to disallow it.

15. That in the event of our being of opinion that, Langalibalele was at present illegally detained at Robben Island he, Mr. Malcolm, was further to request that we would advise whether upon his being set at liberty he would have any and what means of taking proceedings against either the authorities of Natal or those of the Cape for so illegally transporting and detaining him, and further whether it would not be expedient and even necessary to put a stop to such proceedings (if they could be taken) by means of an indemnifying Act to be introduced into the Imperial Parliament or how otherwise.

16. That he, Mr. Malcolm, was further to state that, inasmuch as the political circumstances of the colony rendered it desirable to come to a very early conclusion, your Lordship would feel much obliged if we would give your Lordship the advantage of our opinion with as little delay as possible.

In obedience to your Lordship's commands we have the honour to

Report

That in our opinion the Act No. 3 of 1874 passed by the Cape Legislature is not void for repugnancy, though open to the gravest possible objection on the ground of its inherent injustice. We think, however; that the Court of Natal, before which the prisoner Langalibalele was tried, had no power to impose a sentence to be executed on the prisoner outside its own jurisdiction. If this view be correct, Langalibalele, though not previously in legal custody, became so on his arrival in the Cape Colony by virtue of the Act, and will remain so as long as the Act is left in operation.

Under the circumstances we are of opinion that the prisoner will have a right to maintain an action against those persons in Natal who directed his imprisonment, and such right can only be taken away by Imperial legislation.

The Right Hon. the Earl of Carnarvon,

&c. &c. &c.

We have, &c.,

(Signed) RICHARD BAGGALLAY.

JOHN HOLKER.

13,200.

MY LORD,

No. 43.

(TOBAGO.)

LAW OFFICERS to COLONIAL OFFICE.

Lincoln's Inn, 16th November 1874. We are honoured with your Lordship's commands signified in Mr. Herbert's letter of the 30th October ultimo, stating that he was directed by your Lordship to request our opinion in the following matter.

That we are probably aware that when a Bill dealing with matters of first-rate importance, or containing unusual or special provisions has been passed in a Colonial Legislature, it has not been uncommon to suspend the commencement of the Act (or Ordinance) by the insertion of a clause to the following effect:-"This Act shall not come into operation until Her Majesty's pleasure thereon shall be known." regular course has then been for the Governor to assent to the Bill, and when it has The been perfected and made law by the signification of his assent, to transmit a copy of the Act authenticated by the public seal of the Colony, and his signature, to the Secretary of State to await the signification of Her Majesty's pleasure.

3. Her Majesty's "gracious confirmation and allowance" (to use the customary words) of Acts of this description, is signified in a despatch addressed to the Governor, who thereupon publicly proclaims the Queen's pleasure, and the Act thus comes into operation.

4. By reference to the annexed copy of the commission and instructions of the Governor-in-Chief of the Windward Islands, we should perceive that—

(a.) Under the 17th clause of that commission and the 4th clause of those instruc- tions the powers exercisable by the Governor-in-Chief in any island are in his absence therefrom vested in the Lieutenant-Governor or Administrator of the Government thereof, to whom, in that event, those instructions are to be deemed to be addressed.

(b.) By the 11th clause of those instructions the Governor-in-Chief is authorised to signify his assent to, or dissent from, Bills passed by legislative bodies of any of those islands, or if not present in the island, to instruct the Administrator of the Government to act for him.

(c.) By the 18th clause he is forbidden to assent to (amongst others) any Bill of an extraordinary nature and importance, unless such Bill shall contain a clause suspending the operation of such Bill until signification in the island in which it has been passed of Her Majesty's pleasure thereupon.

(d.) By the 20th clause he is instructed that transcripts of Acts transmitted to the Secretary of State for the Queen's approbation or disallowance, are to be duly authen- ticated under the public seal of the Colony and by the Governor's signature.

5. A Bill was passed by the Legislative Council and Legislative Assembly of Tobago, one of the Windward Islands, in May last, intituled, "An Act to amend and simplify the Legislature of the Island of Tobago," which, being a Bill of "extraordinary import- ance," contained a suspending clause (40) to the following effect: "This Act shall not come into operation until Her Majesty's pleasure thereon shall be known."

6. The Bill was not assented to by the Governor-in-Chief or by the Lieutenant- Governor, but the Governor-in-Chief transmitted to the Secretary of State a copy (annexed) of the Bill unassented to as aforesaid and not authenticated by the seal of the Colony or bearing the Governor's signature, although with respect to the latter point, Mr. Herbert was to observe that the signatures of the Governor-in-Chief and the Lieutenant-Governor to the despatches accompanying this Bill leave no doubt that it was in fact an authentic copy.

7. Your Lordship thereupon informed the Governor-in-Chief that on receiving the authenticated copy of the Act, your Lordship would be prepared to advise Her Majesty to assent to it. The intention being that the Governor should complete the measure by signifying his assent thereto, and that then Her Majesty should be advised to signify Her approbation of the Act with a view to its coming into operation,

8. But

appeared from the Governor-in-Chief's despatch that, inasmuch as the Bill contained a clause suspending its operation, he did not think it was necessary that it should be assented to by him before the Queen's pleasure was taken upon it. this was an erroneous view of the course which he ought to have taken, he was

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