CO885-(11-13) — Page 387

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As a mere matter of law there is no reason why the Act should not be passed.

But the consequences of the difference between the marriage laws of Scotland and England in this matter of divorce are so serious that, in my opinion, the Act assimilating the law of New South Wales to the law of Scotland and making the law of New South Wales at variance with the law of England should not be submitted for Her Majesty's

sanction.

The Right Hon. the Earl of Carnarvon,

&c.

&c.

&c.

I have, &c., (Signed) J. PARKER DEANE.

11,650.

A

}

PUBLIC RECORD OFFICE

CO.

Reference :-

885

12 PUBLIC RECORD OFFICE, LONDON

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

MY LORD,

No. 151.

(TRANSVAAL.)

LAW OFFICERS to COLONIAL OFFICE.

Temple, 25th September 1877. We were honoured with your Lordship's commands, signified in Mr. Herbert's letter of the 1st of August ultimo, stating that he was directed by your Lordship to transmit to us a copy of a Despatch from Sir T. Shepstone on the subject of the esta- blishment of a High Court of Justice in the Transvaal territory, and the appointment of officers to that Court.

2. That Sir T. Shepstone appeared to have found himself under the necessity of making legislative provision for an improved system of administering justice, while, owing to the advice given by Judge Kotze, of the Transvaal, he was in doubt whether the power to make such provision was vested in himself, or where it was to be sought for.

►

3. That the question as to the power of Her Majesty, in the circumstances which had happened, to legislate for the Transvaal by Order in Council, had already been referred to us by the letter from the Colonial Department dated the 9th of May 1877, and in our report upon that letter dated the 12th of May we stated that the Transvaal was to be regarded as conquered or ceded territory, and that Her Majesty had the same power of legislating by Order in Council in this case as in other cases of conquered or ceded territory.

4. That it would therefore appear that Judge Kotze (a copy of whose opinion was enclosed) was incorrect in the view he had taken that no legislative authority resided in Her Majesty with reference to the territory of the Transvaal.

5. That Judge Kotze, however, seemed to regard certain words of the Proclamation issued by Sir T. Shepstone when annexing the territory, (copy of which was annexed,) as being equivalent in their restrictive force to the grant of a constitution by Her Majesty to a conquered or ceded Colony, so as to preclude Her Majesty or the Adminis- trator from legislating by Order in Council, or by Proclamation.

6. That the words in question, as quoted by Judge Kotze, were a declaration "that "the Transvaal would remain a separate government with its own laws and legislature, "and that it was the wish of Her most Gracious Majesty that it should enjoy the "fullest privileges compatible with the circumstances of the country and the intelligence "of its people." That your Lordship, however, was inclined to view these words as pointing to the maintenance of the individuality of the Transvaal, and to a guarantee against its absorption in any other community, rather than as the constitution of any legislative authority within the State or restriction upon Her Majesty's legislative power's towards the Colony.

7. That Mr. Herbert was further pleased to state that he was directed by your Lordship to request that we would take these papers into our consideration, and favour your Lordship with our opinion:-

1. Whether in the circumstances Sir T. Shepstone had power to issue the Proclamation making provision for the administration of justice in the Transvaal, copy of which was sent therewith.

2. Whether the words of the Proclamation issued by Sir T. Shepstone on the annexa- tion of the Transvaal, quoted by Judge Kotze, have the effect of abrogating or limiting Her Majesty's power of legislating by Order in Council for the Transvaal territory.

3. Whether anything disclosed in the papers has the effect of abrogating or limiting the power of Her Majesty to legislate by Order in Council for the Transvaal, and, if so, to what extent.

4. Whether Sir T. Shepstone, as Administrator of the Transvaal under the commission issued to him (copy of which was sent therewith), has or has not power by Pro- clamation to make such provisions for the peace, order, and good government of the Transvaal as may appear necessary, no charter or constitution having hitherto been granted to the Transvaal by the Crown.

▲ 12916.-148. 25.-12/84.