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PUBLIC RECORD OFFICE

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12 PUBLIC RECORD OFFICE, LONDON

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authorised by telegraph to assent to the Bill in the following words, "You may assent to the Tobago Legislature Bill,"-in order that the measure might come home in a complete form, and the Queen's pleasure being then taken upon it no time might be lost in bringing it into operation.

9. On the receipt of this telegram, the Governor reported first that he should direct the Administrator to assent to the Bill; and secondly, that he should deal with the telegram as conveying Her Majesty's assent to the measure (meaning thereby, appa- rently, Her Majesty's approbation of it) and should further instruct the Administrator to proclaim the Act and to commence operations under it.

10. Your Lordship, however, being doubtful whether the telegram directing the Governor to assent to the measure could also be held to be a signification of Her Majesty's pleasure under the 40th clause that the Act should be brought into operation, and therefore whether the Act was properly in force, instructed the Governor-in-Chief by telegraph to stay proceedings under the Act until Her Majesty's pleasure thereon should be communicated to him by despatch (on receipt of the authenticated copy of the Act in the usual way).

11. The Governor-in-Chief has now sent home an authenticated copy of the Act duly assented to, but it appears that before he could act upon the telegram last referred to the Act had been proclaimed, the nominee members of the new Legislative Assembly had been appointed, and writs had been issued for the election of the other members.

12. In these circumstances Mr. Herbert was to request our opinion on the following points.

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1. Can the Act be deemed to have been sufficiently brought into operation by the proclamation above referred to, having regard to the fact that there never has been any question as to the Queen's approbation of the terms of the Bill; though the telegram sent to the Governor merely directed him to assent to the Bill, and no copy of the Act duly assented to and authenticated in the manner prescribed by the instruc- tions had been transmitted to the Secretary of State for the signification of Her Majesty's pleasure thereon.

2. If the Act cannot be deemed to be now in force, should Her Majesty's allowance of the Act be now signified by despatch and proclaimed in proper form in the Colony, and the nominee members be re-appointed and fresh writs be issued for the election of the other members, or should the members already appointed and elected be summoned for business, and any invalidity in their appointment, election, or proceedings, be cured by further legislation; and if the latter, could such legislation be that of the new local legislature, or would an Act of the Imperial Parliament in the ensuing session be requisite. In the event of our not considering any of these courses proper or sufficient, Mr. Herbert was to request that your Lordship may be informed what other course we would advise, it being very desirable to avoid raising any constitutional questions in the island to an extent greater than is absolutely necessary.

In obedience to your Lordship's commands we have taken these papers into con- sideration and have the honour to

Report

That the Act in question cannot be deemed to have been sufficiently brought into operation by a proclamation which appears to have been issued before Her Majesty's pleasure thereon had been in fact signified.

2. That there are two ways in which the mistake made cau legally be rectified:- Her Majesty's approbation of the Act may now be signified by despatch and pro- claimed in the Colony in proper form; the nominee members of the legislature may be thereupon re-nominated, and fresh writs issued for the election of the other members; or

(B.) An Act of the Imperial Parliament may be passed, constituting the members

already nominated and elected a valid legislative body.

The new local legislature, having no validity, could not confer upon itself validity by any Act of its own.

The question which of these courses, either of which will confer a valid legislature upon the island of Tobago, should be adopted is one of policy, which we submit for your Lordship's consideration.

The Right Hon. the Earl of Carnarvon,

&c.

&c.

&c.

We have, &c.,

(Signed)

RICHARD BAGGALLAY. JOHN HOLKER.

E

13,624.

No. 44.

(NATAL.)

LAW OFFICERS to COLONIAL OFFICE.

MY LORD,

Lincoln's Inn, 27th November 1874. We are honoured with your Lordship's commands, signified in Mr. Malcolm's letter of the 25th instant, stating that with reference to the opinion given by us, dated the 12th instant, with respect to the imprisonment of the Kafir Chief Langalibalele, Mr. Malcolm was directed by your Lordship to request that we would favour your Lordship with our opinion as to the legality of certain courses which it has been suggested to your Lordship might be adopted in dealing with the Chief with the view of mitigating his sentence.

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That we were informed in the letter from the Colonial Office of the 7th instant, that Langalibalele having been sentenced by a court in the colony of Natal to "banishment or transportation for life to such place as the Supreme Chief or Lieutenant-Governor may appoint," had been removed under this sentence to Robben Island in the Colony of the Cape of Good Hope, where he is at the present moment confined. We advised that under the circumstances stated in that letter, Langalibalele is at present in legal custody by virtue of an Act of the Cape Legislature, though the Court had no power to impose the sentence referred to.

That, while it is your Lordship's wish to reduce the sentence which you believe to have been excessive, you are not desirous that the prisoner should, at any rate for a time, be permitted to return to the Colony of Natal inasmuch as his presence there might be productive of the gravest consequences to the peace of the colony. Your Lordship is therefore of opinion that while the prisoner should be released from confinement, he should not be permitted to go beyond the boundaries of the Cape Colony.

That we would observe that in the Act of the Cape Legislature (No. 3 of 1874 sent herewith) it is in effect enacted that the sentence pronounced by the Court of Natal shall be deemed to have been pronounced by the Supreme Court of the Cape of Good Hope, and that the sentence itself is "banishment or transportation for life to such place as the Supreme Chief or Lieutenant-Governor (meaning the Lieutenant-Governor "of the Colony of Natal) may appoint."

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That under these circumstances your Lordship requests that we would advise you

whether

(a.) It is competent for Her Majesty, in the exercise of Her prerogative, to direct that the sentence of Langalibalele shall be commuted into a sentence of banishment to or confinement within the Colony of the Cape of Good Hope.

(b.) Or whether it is competent for Her Majesty to grant the prisoner a pardon conditional upon his not going beyond the boundaries of the Colony of the Cape of Good Hope, and what would be the consequences to the prisoner in the event of his not abiding by such condition.

(c) Or whether it would be competent to the Lieutenant-Governor of Natal, having regard to the terms of the above-mentioned Act of the Cape Legislature, to appoint the Colony of the Cape as the place of the prisoner's banishment under his

sentence.

(d.) If the confinement of the prisoner to the Cape after his release from prison cannot legally be effected by any of those means your Lordship wished us to advise in what way it may be accomplished.

you

That as the matter is one of the greatest importance to the Colony in question, and as the decision on it ought on all grounds to be arrived at with the least possible delay, Mr. Malcolm was desired by your Lordship to request us to be good enough to favour your Lordship with our opinion at the earliest moment which may be practicable for us.

In obedience to your Lordship's commands we have taken the matter into considera- tion and have the honour to

Report

That we are still of opinion that the original sentence pronounced upon Langalibalele by the Natal Court is null and void, and that Langalibalele is now undergoing lawful

▲ 12916.-13. 25.-12/84.