CO885-(11-13) — Page 305

PUBLIC RECORD OFFICE

TPERE

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CO.

Reference :-

885

12 PUBLIC RECORD OFFICE, LONDON

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

2

an Ordinance, a period which, looking to the 18th and other preceding clauses, would not have arrived until after the Governor had assented to it in Her Majesty's

name.

10. With regard to the first ground, it was to be observed that the 26th clause of the Letters Patent gives the Council power, from time to time as occasion might require, to adopt Standing Rules and Orders for the orderly conduct of business, which rules and orders shall "take effect" when confirmed by the Governor.

11. And that by the 115th Standing Order it is directed that when an Ordinance has once been passed through its final stage in the Legislative Council (as the Ordinance in question had), no new Ordinance on the same subject can afterwards be originated during the same Session.

12. That it seemed, therefore, to be contended that the Standing Orders of the Council are binding, even to the extent of limiting the Governor's power of giving the "other directious" referred to above, if such directions consist of the return of a Bill to the Council for amendment during the same Session in which it had been passed, and that a passed Bill cannot be again brought under consideration during the same Session of the Council, being in effect a new Bill.

"

13. That, on the other hand, it would seem reasonable to contend that the power to make Standing Orders for the conduct of business in the Council cannot limit the power of the Governor to give such "other directions as the Letters Patent may empower him to give; and that, as regards the rules and orders of the Council itself, a motion in the Council to recommit and amend a Bill made upon the Governor's recommendation, and carried after debate, would amount to a valid suspension of the Standing Order.

14. That under those circumstances Mr. Malcolm stated that he was to request that we would advise your Lordship,—

(1.) Whether the Governor of Griqua Land West has a general power under the Letters Patent and Royal Instructions, when a Bill passed by the Legislative Council is submitted to him, to give such a direction with respect to it as was given in this case.

(2.) Whether, supposing the Governor to have such power, it can be limited or over-ridden by Standing Orders of the Legislative Council made in accordance with the 26th clause of the Letters Patent, or whether such power would not over-ride the Standing Orders so far as they are inconsistent with the exercise thereof.

(3.) Whether, supposing such Standing Orders not to be over-ridden by the power of the Governor to give such direction as aforesaid, the above-mentioned action of the Legislative Council and the Governor in the matter amounted to a valid suspension or alteration pro hoc vice of the Standing Orders. (4.) And, lastly, whether it can be held that the Ordinance is null and void for informality in passing it, looking to the fact that it has been submitted and approved by the Legislature in its present form.

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

That we are of opinion-

Report

1st. That the Governor of Griqua Land West has a general power under the Letters Patent and Royal Instructions, when a Bill passed by the Legislative Council is submitted to him, to give such a direction in respect to it as was given in this case.

2nd. That the Governor's power is not limited or over-ridden by Standing Orders of the Legislative Council, although made in accordance with the 26th clause of the Letters Patent.

3rd. We doubt whether, supposing the Standing Orders not to be over-ridden by the power of the Governor, the action of the Legislative Council and the Governor in the matter amounted to a valid suspension or over-riding pro hæc vice of the Standing Orders; but we think, upon the true construction of the 115th Standing Order, a Bill sent back for reconsideration is not within it.

4th. That the Ordinance is not null and void for informality in passing it, even assuming informality to have occurred in passing it.

The Right Hon. the Earl of Carnarvon,

&c.

&c.

&c.

We have, &c., (Signed) JOHN HOLKER.

HARDINGE S. GIFFARD.

14,002.

No. 82.

(MAURITIUS.)

LAW OFFICERS to COLONIAL OFFICE.

MY LORD,

Temple, 23rd December 1875. We were honoured with your Lordship's commands, signified in Sir Julian Pauncefote's letter of the 2nd November ultimo, stating that he was directed by your Lordship to transmit to us, for our consideration and advice, the enclosed copy of an Ordinance passed by the Legislature of Mauritius, and entitled "An Ordinance to Ordinance amend the law relating to offences committed as to new-born infants," and also a copy of the Report of the Procureur-General of Mauritius on that measure.

2. That the practice of the Colonial Office in reference to the legislation of Crown Colonies on matters relating to the criminal law has been to discourage any substantial departure from the Law of England, except where the local circumstances clearly justify such a course; and that the adoption in many Colonies of the Criminal Law Consolidation Acts of England had been attended with great convenience to the Colonial Judges and local Bar, who are able to profit by the decisions of our Courts on the numerous points of law which must necessarily arise. That in the Ordinances under consideration section varies considerably in its language from section 60 of 24 & 25 Vict. c. 100. It prescribes a minimum as well as a maximum punishment, and fixes the latter at five years' imprisonment; whereas by the Imperial Act the term of imprisonment is limited to two years. It contains also a provision whereby the burden of proof is shifted on the mother of the child when she happens to be the person accused.

3. That we would observe, moreover, a further proviso relieving the prosecution from the onus of proving that the child had arrived at that stage of maturity at which it is possible for a child to be born alive.

4. That your Lordship would be glad to be favoured with our opinion as to whether we concur with the Colonial Procureur-General in thinking expedient this special legislation in respect of the offence of concealing the birth of a child, or whether we consider that it would be more desirable to adhere to the Law which prevails in England on that subject.

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

Report

That we do not concur with the Colonial Procureur General in thinking expedient a special legislation with respect to the offence of concealing the birth of a child, but we think it would be more desirable to adhere to the Law which prevails in England on that subject.

The Right Hon. the Earl of Carnarvon,

&c.

&c.

&c.

▲ 12916-82. 25.-19/84.

We have, &c., (Signed) JOHN HOLKER.

HARDINGE S. GIFFARD.

No. 20, 1875.

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