CO885-(11-13) — Page 31

PUBLIC RECORD OFFICE

Reference :-

EPELLC.O. 885

11

PUBLIC RECORD OFFICE, LONDON

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

under the advice of the Law Officers, or by a commission from the Queen similar to that recently adopted in the case of the annexation of Griqualand to the Cape?

Upon that point Mr. Holland was to refer us to our reports of the 6th and 8th May, and to transmit a copy of the commission issued in that case. He was also to refer us to our reports of the 20th and 28th October upon the Colonial Act annexing Basutoland. Mr. Holland was to add that your Lordship would be glad to receive our report at an early opportunity.

In obedience to your Lordship's commands we have taken the questions submitted to us into our consideration, and have the honour to

Report

That in answer to the first question we think the Colonial Legislature has no such Letters Patent to destroy itself.

To exercise such power would be using the Constitution created by the We do not think under the terms in the Letters Patent giving the Legislature power to make laws that it was intended to investigate with authority to enact laws of every kind, but simply with authority to make such laws as are not inconsistent with the form of Government constituted by the Letters Patent themselves. We are also of opinion that the Legislature has not power to delegate to others the function of legislation entrusted to itself. It follows that the Colonial Legislature has not power to divide the Colony into provinces, if by that division anything more is intended than a subdivision for administrative purposes, which will leave untouched the Constitution created by Letters Patent.

We are of opinion in answer to the second and third questions, that a Colonial Act is insufficient for the objects desired, and that passing an Imperial Act of Parliament is the proper course to be adopted. The course pointed out in the second question appears to us to be the best that can be chosen.

4. In answer to the fourth question we are of opinion that an independent State, such as the Orange Free State, may be united with the Cape Colony without an Act of the Imperial Legislature. The Parliament of the Cape Colony, together with the Crown have, we think, power to effect such annexation and after annexation to legislate for the government of the territory so annexed. In the case supposed by your Lordship a Colonial Act should be obtained. It follows from the reports which we have very lately had the honour to submit to your Lordship, that whether such an Act is preceded by a formal annexation of the territory under Letters Patent, or whether the course of proceeding be that which was lately taken in the case of the districts north of the Orange River, appears to us to be a matter of detail only, to be decided chiefly by considerations of administrative convenience.

The Right Hon. the Earl of Kimberley,

&c.

&c.

&c.

We have, &c. (Signed)

R. P. COLLIER.

J. D. COLERIDGE.

11598.

MY LORD,

No. 737.

(GENERAL.)

LAW OFFICERS to COLONIAL OFFICE.

We are honoured with your Lordship's commands, signified in Mr. Holland's

Temple, November 28, 1871. letter of the 20th November instant, stating that he was directed by your Lordship to request our opinion respecting a change which your Lordship had under consideration in the present mode of confirming laws passed in Colonies having Representative Assemblies with a suspending clause, that is, a clause which delays the operation of the law until it has received Her Majesty's assent, and until such assent has been made known in the Colony.

That in Crown Colonies, as well as in those Colonies which have Representative Legis- latures, the confirmation of an Act which had been assented to by the Governor and had no suspending clause is made through one of the Secretaries of State, that is, by Despatch. But while in Crown Colonies the allowance of a law assented to by the Governor but passed with a suspending clause is also signified by Despatch, in Colonies having Representative Legislatures the confirmation of such a law had hitherto been generally, but not invariably, signified by an Order in Council.

That it appeared to your Lordship that there was no substantial reason for retaining that distinction, the responsibility of allowing an Act which had a suspending clause to come into operation falling properly upon your Lordship's department, and no real increase of security is obtained for its faithful discharge by requiring that the form of allowance should involve a correspondence with the Council Office, on which no responsibility rests in the matter; that in some cases, moreover, inconvenience had been experienced from the delay which must occur before an Order in Council could be obtained and transmitted to the Colony.

Mr. Holland was pleased also to say that it would be seen that the proposed altera- tion does not affect the manner of assenting to laws which had been "reserved" by the Governor, or of disallowing laws; that the assent in the former and the disallowance in the latter case would still be signified, as far as regarded Colonies having Repre- sentative Assemblies, by Order in Council.

1871.

That a circular Despatch (a copy of which was annexed for reference) had been 12 January sent to the West India Colonies having Representative Legislatures, and the answers had been in favour of the change.

Mr. Holland also added that he was to request that we would favour your Lordship with our opinion whether there is any objection to the adoption of the proposed alteration.

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

Report

That we are of opinion that the proposed change may be properly made, subject, however, to two conditions.

1. That the suspending clause should be such as not itself to require the sanction of the Queen in Council.

2. That nothing special in the constitution of the individual Colony requires sanc-

tion of the Queen to be given in Council.

The Right Hon. the Earl Kimberley.

We have, &c. (Signed)

J. D. COLERIDGE.

G. JESSEL.

16978-176. 95.-5/86.