CO885-(11-13) — Page 498

11,918.

PUBLIC RECORD OFFICE

CO.

Reference :-

885

12 PUBLIC RECORD OFFICE, LONDON

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That-

1 and 2. We are of opinion that the principal objects desired by your Lordship can be obtained without a special Act of Parliament by an Order or Orders in Council under the Foreign Jurisdiction Acts, 1843 (6 & 7 Vict. c. 94.), 1865 (28 & 29 Vict. c. 116.), 1866 (29 & 30 Vict. c. 87.), 1878 (41 & 42 Vict. c. 67.), ss. 3 and 5, and the Act of 37 & 38 Vict. c. 27.

The South Africa Act of 1863 (26 & 27 Vict. o. 35.) does not appear to us to create any difficulty. It does not extend to the countries north of the 25th degree, to which alone we understand the question to relate, and even if the question relates also to countries south of the 25th degree, we think that the application of the Act of 1878 is not excluded by the Act of 1863, except so far as (if at all) the two Acts are inconsistent.

3. We are of opinion that it is so doubtful whether the Foreign Jurisdiction Acts, or any of the Acts mentioned in the Schedule to the Foreign Jurisdiction Act, 1878, empower Her Majesty to authorise a Court to which jurisdiction is assigned under the Foreign Jurisdiction Acts to issue a subpoena to enforce the attendance of a witness resident in the native territories, that we cannot advise that any exercise of such supposed power should be attempted. When such a power is meant to be given, it is given expressly, as in the 23 & 24 Vict. c. 121. (in which the power is limited to witnesses in other possessions of Her Majesty). But the desired object can to some extent be attained by applying the 26 Vict. c. 20., as authorised by the Foreign Jurisdiction Act, 1878, and issuing a commission from the Court which desires the evidence to the judicial officer of the native territory to examine British or (with the consent of the native chief) native witnesses there.

4. We are of opinion that Her Majesty can by treaty with a native chief obtain jurisdiction within his territories over subjects of foreign civilized States resident within such territories, but the exercise of any such jurisdiction might be made the ground of diplomatic objection by the civilized State to whose subject it is extended, and it should not as a rule be exercised without the concurrence of that State given generally or in the particular case. No such treaty could give power to Her Majesty to exercise any such jurisdiction beyond the territories of the chief.

The Right Hon. the Earl of Kimberley,

&c.

&c.

&c,

We have, &c., (Signed) HENRY JAMES.

FARRER HERSCHELL.

No. 233.

(GENERAL.)

LAW OFFICERS to COLONIAL OFFICE.

MY LORD,

Temple, 4th August 1880. We were honoured with your Lordship's commande, signified in Mr. Bramston's letter of the 24th July last, stating that he was directed by your Lordship to request our advice upon the following matter:-

1. That by the St. Vincent, Tobago, and Grenada Constitution Act, 1876, 39 & 40 Vict. o. 47. Her Majesty in Council had power to create a legislature for each of those Colonies and to alter and amend the constitution and powers of those legislatures.

2. That by three Orders in Council dated the 7th February 1877 (copies enclosed) Her Majesty created a Legislative Council for each of the three Colonies with certain

powers.

3. That by Letters Patent dated 30th of May 1877, the draft of which was in the usual way approved by the Queen in Council by an Order dated 30th April 1877, (enclosed with draft annexed) Her Majesty had altered the provisions of those Orders in Council-

(a) In Article VII. by declaring that members of the respective Legislative Councils were to be nominated by instructions to the Governor, but omitting the reference to the Privy Council which was contained in the first clause of the Orders in Council, and adding a power to the Governor to make provisional appointments.

(b) In Article IX. by providing that the disallowance of laws could only be effected by Her Majesty by Order in Council or under the Sign Manual and Signet, conditions which were not included in the second clause of the Orders in Council, the ordinary practice being for Her Majesty's disallowance to be conveyed by despatch from the Secretary of State.

(c) In Article X. by giving the Governor a power of veto..

4. That by instructions also dated 30th May 1877, and purporting to be issued under the Letters Patent, provision was made for the conduct of business, and Article XXII. for appointing members of the three Legislative Councils, not mentioning the Governor,, who, by the Orders in Council, was declared to be a member thereof. Article XXXI. provided that the standing orders of the three Councils were not to be repugnant to the Orders in Council. That those instructions were approved by the Queen in Council, and annexed to the same Order as the draft Letters Patent.

5. That under those circumstances, the question arose how far, if at all, these three Legislative Councils were now exercising powers derived from the Orders in Council of 7th February 1877, and how far from the Letters Patent and Instructions of 30th May 1877.

6. That those Letters Patent and instructions had been found to require amendment in certain particulars, and opportunity was being taken to revise the language through- out with a view to greater conciseness and simplicity, and it was proposed that the new instruments should contain the constitution and all the powers of the several Legislative Councils of St. Vincent, Grenada, and Tobago, as well as those of St. Lucia and of Barbados.

That Mr. Bramston was therefore to request that we would advise your Lordship- 1. Whether the Letters Patent and Instructions of 30th May 1877 might be taken to have entirely superseded the Orders in Council of 7th February 1877, or how far the latter were still in operation.

2. Whether it was necessary or expedient with a view to avoiding doubts in future, that Orders in Council should be passed declaring, with reference to the Orders of 7th February 1877, that the Legislative Councils of Grenada, St. Vincent, and Tobago would, from the day when the Letters Patent took effect, be con- stituted in the mode and with the powers prescribed by the new Letters Patent. That Mr. Bramston was also to request that we would favour your Lordship with any observations that might occur to us generally on the subject, and as it was important to settle the constitution of those islands before the new Governor assumed

▲ 19916.-220. 25.--12/84.

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