CO885-(11-13) — Page 416

PUBLIC

RECORD OFFICE

Reference :-

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CO.

885

2

7. That Mr. Herbert was to request that we would favour you with our opinion upon the following questions:-

(1.) Whether Her Majesty, or the Governor of the Colony acting in her name, could lawfully appoint a person to discharge temporarily the duties of an office in a Colony held under the Crown which was vacant or the holder of which was from any cause prevented or incapacitated from discharging its duties, (2.) Whether such temporary appointment could be lawfully made when the holder of the office, though temporarily prevented or incapacitated or relieved from the discharge of his duties, was not absent from the Colony: (1) in cases where there was a Colonial law which expressly authorised an acting appoint ment during the absence of the permanent officer, as in the case of the St. Vincent laws mentioned in Mr. Choppin's second report; (2) in cases where there was no such law.

(3.) Whether the holder of a Colonial office under the Crown by being temporarily appointed to discharge the duties of another office, and in consequence of and during such temporary appointment ceasing to discharge the duties of his original office, vacated the latter.

(4.) Whether Her Majesty should be advised to exercise her power of disallowance

in respect of the St. Vincent Ordinance No. 2 of 1878.

(5.) Whether any Imperial legislation was necessary or desirable to legalise or affirm the lawfulness of the existing practice in reference to acting appoint- ments to Colonial offices, in any and what respect, and, if so, whether such legislation should be retrospective.

In compliance with the request contained in Mr. Herbert's letter we have the honour to

That-

Report

1. In our opinion Her Majesty, or the Governor of the Colony acting in her naine, can lawfully appoint a person to discharge temporarily the duties of an office in a Colony held under the Crown which is vacant, or the holder of which is from any cause prevented or incapacitated from discharging its duties.

2. We do not think that the power of the Governor is restricted in either of the cases stated to cases where the holder of the office is absent from the Colony.

3. We do not think he does.

4. We recommend that Her Majesty should be advised to disallow the St. Vincent Ordinance No. 2 of 1878.

5. We think not.

The Right Hon.

Sir Michael Hicks Beach, Bart.,

&c.

&c.

&c.

10,696.

MY LORD,

No. 178.

(GIBRALTAR.)

LAW OFFICERS to FOREIGN OFFICE.

We were honoured with your Lordship's commands signified in Sir Julian

Temple, 9th August 1878. Pauncefote's letter of the 20th of July last, stating that with reference to our report of the 14th of that month, pointing out the objections to the proposed Order in Council giving the Governor of Gibraltar power to determine what waters round the Rock should be deemed to be within the limits of the port, and suggesting that a defined and fixed line in the bay should be adopted as the boundary between British and Spanish waters, he was directed by your Lordship to transmit to us a further letter from the Colonial Office accepting the proposal of a that, pending the settlement of that question, an Order in Council should be issued medium filum aquæ," but recommending extending the limits of the port all round the Rock, at a distance not greater than the existing anchorage and quarantine ground.

66

Sir Julian Pauncefote was further pleased to state that your Lordship would be glad

if we would take this further suggestion into our consideration, and inform your Lord- ship whether we saw any objection to such an arrangement.

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

Report

That we gather from Lord Cadogan's letter that the police of the port have the required powers within the limits of the anchorage and quarantine ground in the bay.

It seems to us, therefore, that nothing would be gained by Order in Council confirming or recognising these powers, and we entirely concur in the observation of Sir J. Pauncefote that such an Order might be construed into an admission that our legis- lative power extends no further.

Different considerations apply to the waters round Europa Point and at the back of the Rock. But even as to these waters we doubt whether it is expedient to make any Order in Council.

Should, however, such an Order be deemed necessary, great care must be taken that Spanish waters on the Mediterranean side be not interfered with.

We have, &c.,

(Signed)

JOHN HOLKER., HARDINGE S. GIFFARD.

The Marquis of Salisbury,

&c.

&c.

(Signed)

We have, &c.,

JOHN HOLKER. HARDINGE GIFFARD.

J. PARKER DEANE.

▲ 19916.-178. 25.-19/84.

12 PUBLIC RECORD OFFICE, LONDON

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