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14,001.

PUBLIC RECORD OFFICE

Reference :-

PELLICO. 885

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

12 PUBLIC RECORD OFFICE, LONDON

MY LORD,

No. 81.

(CAPE OF GOOD HOPE.)

LAW OFFICERS to COLONIAL OFFICE.

Temple, 23rd December 1875. We were honoured with your Lordship's commands, signified in Mr. Malcolm's letter of the 5th of November ultimo, stating that he was directed by your Lordship to request that we would be good enough to give him our opinion upon certain questions which have arisen upon the mode in which an Ordinance to establish a Land Court in the province of Griqua Land West has been passed by the Legislature of that province.

2. Mr. Malcolm also stated that he was to forward, for our information, a protest from certain members of the Legislative Council in that matter, together with a despatch from the Governor, Sir H. Barkly, and the opinion of the Attorney-General of the province upon the question referred to him.

3. That the facts of the case to which it is material to call our attention are briefly as follows:-

4. That during the time when Mr. Southey, the late Lieutenant-Governor, was administering the Government of the province, a Bill was introduced into the Legis- lative Council to constitute a Land Court. That Bill having gone through all its stages was read a third time and passed. The Attorney-General, however, observing that it differed widely from the principles which the Secretary of State had prescribed as those which should govern the case, refused to give the usual certificate that the Bill was one to which, in his opinion, the Royal Assent ought to be given. That about that time Sir H. Barkly assumed the administration of the Government, and fully concurred with the views of the Attorney-General; he, when the Bill was submitted to him, in accordance with the 12th clause of the Letters Patent creating the Constitution Letters of the province (copy of which was sent therewith) for his assent, disallowance, or Patent. other direction thereupon," directed that the Bill should be returned to the Legis- lative Council, and that certain amendments therein should be proposed; that a motion was thereupon made in the Legislative Council that the Bill should be re-committed, which motion was carried after debate. That the amendments proposed were carried, and the Bill was returned to the Governor, who assented to it in the name of Her Majesty, and, by virtue of the powers in that behalf conferred upon him, brought into operation immediately. That a judge has been appointed, and there is every reason to suppose that the Court at the present moment is in active operation.

5. That the amendments were very material, since, under clause 5 of the Bill as it first passed the Council, the Court had jurisdiction only over such claims as the Governor should submit to it, subject to an appeal to the High Court to order such a submission in any case; while, under the same clause 5 as now amended, the Court has jurisdiction in all claims to land whatsoever. (A copy of the original and of the amended Bill was also sent therewith.)

6. That it would be observed that the Governor, in returning the Ordinance for reconsideration and amendment, relies upon the 12th clause of the Letters Patent, which enacts that all Bills passed by the Council shall be submitted to him for his assent, disallowance, or "other direction" thereupon, and it seems reasonable to suppose that the words "other direction" enable him to return a Bill to the Council for reconsideration and amendment.

7. That in support of that view the Governor referred to the provision of an Act of the Cape Legislature giving him power to act in that way. That that reference, however, can be used by way of illustration only, as the operation of Cape Acts does not extent to Griqua Land West.

8. That it would be further observed that the protest of the members alleges that it was not competent for the Governor to ask for the recommittal of the Ordinance, upou two grounds:

(1.) That it was in violation of the rules, orders, &c. of the Legislative Council, a

copy of which was therewith sent.

(2.) That it was in contravention of clause 20 of the instructions issued to the

Governor under Her Majesty's Sign Manual (copy therewith).

9. That, with respect to the second ground, it seems clear that the clause referred to has no bearing upon the present case, but applies only where the Governor has passed

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