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PUBLIC RECORD OFFICE

6

Reference :-

CO. 885

12 PUBLIC RECORD OFFICE, LONDON ALLY WITHOUT PERMISSION OF THE BE REPRODUCED PHOTOGRAPHIC- COPYRIGHT PHOTOGRAPH-NOT TO

2

We are not aware of any strictly legal objection to the issue of an Order in Council under section XVIII. of the Act of 1870, suspending the operation of that statute within the Dominion of Canada so long as the new Canadian Act remains in force; but we beg to point out that the power conferred upon the Minister of Justice by section XVI. of the Canadian Act, sub-section 3, is very extensive, and that the exercise of such power would in most cases constitute a breach of Treaty obligations.

The Earl of Derby,

&c.

&c.

We have, &c.,

(Signed)

JOHN HOLKER. HARDINGE J. GIFFARD. J. PARKER DEANE.

14,098.

MY LORD,

No. 154.

(BARBADOS.)

LAW OFFICERS to COLONIAL OFFICE.

Temple, 24th November 1877. We were honoured with your Lordship's commands signified in Mr. Malcolm's letter of the 20th November instant, stating that he was directed by your Lordship to forward to us copy of a memorandum by the acting Colonial Secretary of the Island of Barbados, and to request the favour of our opinion upon the question raised therein.

2. That it was the fact, as mentioned in the memorandum, that previous to the year 1876 there existed in the Island of Barbados one Council, which discharged the functions both of Executive and Legislative Council. That in the year 1876 it was deemed expedient to make a separation between the executive and legislative functions of the Council, and to constitute a new Council, to be called the Executive Council, while the previous Ccuncil was continued as the Legislative Council. That that was done by the Letters Patent dated in 1876, appointing Mr. Pope Hennessy to be Governor of Barbados (copy of which was sent therewith), clause III., and was again effected in a permanent form by the Letters Patent dated in 1877, constituting permanently the office of Governor, clause V., (copy of which was also sent therewith).

3. That it was to be observed that though the Council of the Island of Barbados, as it existed previously to 1876, was known simply as "the Council," yet the terms "Executive Council" and "Legislative Council were officially applied to it according to the functions it discharged; thus in the "Minutes of Council" for the session 1875-76, on the first page it would be seen that both terms were made use of to designate in the one case the Council sitting as Executive Council, and in the other to designate the Council sitting as Legislative Council.

4. That various statutes of the Island Legislature had prescribed acts to be done by the Governor in Council or by the Governor and Council. That those acts had been, prior to 1876, performed by the Council in its executive or legislative capacity, as the case might require.

5. That by the Letters Patent of 1876 above referred to, clause III., and by the Letters Patent of 1877, clause V., it was provided that all the powers, duties, and authorities formerly vested in or exercised by "the Council" of Barbados should, except as otherwise directed, continue to be vested in the Legislative Council, that Council being constituted in the same manner as the old " Council," and being in fact the same body with the appellation "Legislative" officially applied to it for all purposes.

6. That it appeared, however, that certain acts which were prescribed by the statutes above mentioned to be done by the Governor in Council, or by the Governor and Council, had been done by the Governor in the Executive Council, a body very much smaller than the old Council, and consisting wholly of officials. That those acts had been doubtless such as used to be done by the old Council when sitting in its executive capacity.

7. That, in particular, it was believed that writs for the election of members to serve in the assembly of the Island had recently been issued by the Governor in his Executive Council. That those writs were issued in pursuance of the Barbados Law, No. 134, Copy of law. section 28, which enacted that they were to be issued by the Governor "by and with the advice of the Council": and the question consequently arose whether, if they had been issued by the Governor in the Executive Council, they had been properly issued, regard being had to what had been stated above.

8. That a further question had been raised, whether if the writs had been issued by the Governor in Executive Council when they ought to have been issued by the Governor in the Legislative Council, the error was such as to invalidate the elections, or whether the return made by the sheriff under section 36 of the Act would be good notwithstanding the error in procedure. We were accordingly requested to advise :-

1. Whether, having regard to the terms of the Letters Patent of 1876 and 1877 above referred to, the functions prescribed by the Barbadian statutes prior to 1876 to

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be performed by the Governor and Cour cil, or by the Governor in Council, could (in the absence of special enactment or instruction) be performed by the Governor in the Executive Council as constituted in 1876 ?

2. Whether the issue of writs for the election of members under section 28 of the Barbadian Law 134 could under the circumstances be properly made by the Governor in the Executive Council ?

3. Whether it would be competent for Her Majesty, by Letters Patent, er by instruction under the Sign Manual, to direct that acts prescribed by Barbadian statute prior to 1876 to be performed by the Governor and Council, or by the Governor in Council, should be done in Executive Council ?

4. Whether the issue of the writs for the election of members was made by the Governor in Executive Council, when it ought to have been made in the Legislative Council, such error would invalidate the elections, or whether the return of the sheriff under section 36 would be a good return notwithstanding? 5. If the elections were invalid for the foregoing reason, how could the error best be

remedied ?

That as the elections were on the point of being held, your Lordship requested our

opinion at the earliest possible moment.

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

That-

Report

1. The functions prescribed by the Barbadian statutes prior to 1876 to be performed by the Governor and Council, or by the Governor in Council, cannot (in the absence of special enactment or instruction) be performed by the Governor in the Executive Council as constituted in 1876.

2. The writs for the election of members under section 28 of the Barbadian Law 134 could not properly be issued by the Governor in the Executive Council.

3. Acts which inust now by Barbadian law be performed by the Governor and the Legislative Council cannot now be transferred by the mere issue of fresh Letters Patent, or fresh instructions under the Sign Manual, to the Governor and Executive Council.

4. The error in question would invalidate the elections.

5. By the issue of fresh writs by the Governor with the concurrence and advice of the Legislative Council, in accordance with section 28.

The Right Hon. the Earl of Carnarvon,

&c.

&c.

We have, &c., (Signed)

JOHN HOLKER.

HARDINGE S. GIFFARD.

14,575.

No. 155.

(BARBADOS.)

LAW OFFICERS to COLONIAL OFFICE.

Mr. Bennessy's

MY LORD,

Temple, 6th December 1877. We were honoured with your Lordship's commands, signified in Mr. Herbert's letter of the 5th instant, stating that, referring to our report of the 24th of November ultimo, respecting the validity of writs of election issued in the Island of Barbados by advice of the Executive Council, he was directed by your Lordship to acquaint us that the following information had since been received from the Colony by telegraph

"The records of the Privy Council and of the Legislative Council have for a long Bartades law. period been kept distinct, and they show an unbroken practice of issuing writs in the Commission a Privy Council. The Attorney-General contends that the writs for the election now in progress are legally issued in accordance with the 28th section of the Local Act No. 134; and he relies upon the above practice, and also refers to the first six lines of the 6th clause of Mr. Hennessy's Commission, and to the 57th clause of his Instructions."

That by the words “Privy Council" in the foregoing telegram it was to be understood that the Council sitting as an Executive Council was intended.

That Mr. Hennessy's Commission and Instructions referred to in the telegram were in force at the time the writs were issued.

That we would see from that that the proceedings of the Executive and Legislative Councils had for a long period been kept as distinct records; and as they showed an invariable practice of issuing the writs in Executive Council, it was considered in the Colony that the writs for the elections now in progress were properly issued in the Executive Council as now constituted.

That Mr. Herbert was to request us to be good enough to consider the point now raised, and favour your Lordship with our opinion whether, looking to the words of the said 6th section and the old-established practice of the Colony, the view taken by the Colonial Authorities was not correct.

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

Report

That the foundation of our report to your Lordship of the 24th of November was the statement that the body under whose sanction the writs were issued was a separate and distinct body from that referred to in the 28th section of the Local Act.

As we understand the telegram which the Attorney-General of the Island has forwarded to your Lordship, this appears to be in dispute; and we would submit for your Lordship's consideration whether, while pointing out that the principle upon which the legality of the issue of the writs must depend is the identity of the Council by advice of which the writs have been issued with the Council referred to in the 28th section, it might not be proper to leave to the authorities of the Island to decide upon this question, as they must be in a position to decide it with much more certainty than, with the imperfect information before us, we are able to do.

We have, &c.,

The Right Hon. the Earl of Carnarvon,

&c.

&c.

&c.

(Signed)

JOHN HOLKER.

HARDINGE S. GIFFARD.

Instructuti.

19916.-151. 25-12,84.