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12 PUBLIC RECORD OFFICE, LONDON

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

empowered to act within their respective Colonies in all respects as the Sovereign might act if present, subject only to such restrictions as might be contained in the Commission or Letters Patent, and to such instructions as should from time to time be given to them either under the Royal Sign Manual or through the Secretary of State, that suggestion being founded on the assumption that under such a Commission the Governor would be clothed in the Colony with the character of a Viceroy or Delegate of the power of the Sovereign, and that thereby the ground of the decision against his immunity from civil action in the Colonial Courts in respect of acts purport- ing to be done by him as Governor would be removed. (2.) That Colonial Governors should be exempted either by Imperial or Colonial legislation from liability during their government to civil action in the Colonial courts, either absolutely or in respect of acts purporting to be done by them in their official capacity, as, by the Acts 21 Geo. 3. c. 70. s. 1. and 37 Geo. 3. c. 142. s. 11. the Governor General and Council of India, and the Governors and Councils of Madras and Bombay respectively, were jointly and severally exempted from the jurisdiction of the High Courts of Fort William, Madras, and Bombay in respect of acts ordered or done by them in their public capacity. (3.) That the Colonial Courts should have jurisdiction to entertain actions arising out of acts by the Governor, but that the Governor should not be made a party to such actions, and the procedure therein should be analagous to that upon petitions of right under the Petitions of Right Act, 1860, the consent of the Secretary of State being substituted for the fiat of Her Majesty; or, if it be thought preferable to assimilate the proceedings in such actions to those in other actions, some officer of the Colonial Government, either specified by statute or to be appointed in each case by that Government, should be made the nominal defendant, and that judgments in favour of the plaintiffs or suppliants in such proceedings should be satisfied in the first instance out of the Colonial Treasury, but that the Secretary of State should be empowered to require the Governor to recoup the amount paid by the Treasury on any such judgment should be consider that the nature of the transaction in respect of which the claim arose was such as to make it just that its consequences should fall upon the Governor personally. That the statute law of many of the Colonies provided for the institution, with the consent of the Governor, of actions on claims against "the Government" of the Colony, the Attorney-General or some other public officer being made the nominal defendant.

7. That your Lordship was of opinion that the representations and suggestions above set forth were entitled to attentive consideration, and you desired for your guidance in the matter to be advised as to the feasibility of securing to Colonial Governors immunity, during their term of office, from being personally sued in the courts of the Colonies under their Government, without depriving persons who might be justly aggrieved by the acts of a Governor, in either his private or his official capacity, of a due remedy for the wrongs suffered by them, and also as to the means by which that object could be most conveniently effected.

8. That Mr. Wingfield was, therefore, to request that we would favour your Lordship with our opinion on the following questions:-

1. Whether by the issue of a Commission or Letters Patent purporting to delegate to the Governor of a Colony within the Colony the powers of the Sovereign, subject only to such restrictions as might be contained in the Commission or Letters Patent, and such instructions as might be given to him by Her Majesty under her Sign Manual and Signet or through a Secretary of State or any other form of Commission, a Governor could be exempted during the period of his government from the civil jurisdiction of the Courts of the Colony;

2. Whether there was any constitutional objection to the issue of a Commission or

Letters Patent to the above purport or having the above effect;

3. Whether there was any constitutional objection to legislation, either Imperial or Colonial, for the purpose of exempting Colonial Governors during their govern- ment from the civil jurisdiction of the Courts of their respective Colonies, either (1) absolutely, or (2) in respect of causes of action arising out of acts purporting to be done by them in their capacity of Governors; and,

4. If not, whether such legislation would more properly emanate from the Imperial

Legislature or from the Legislatures of the several Colonies.

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5. Whether any proceeding analogous to a petition of right or any other form of procedure could be properly and constitutionally substituted for the remedy by personal action against Colonial Governors, during their government, in respect of (1) acts purporting to be done by them officially, (2) acts done by them in a private capacity; and

6. If so, what should be the nature of such procedure, and by what means it should be constituted ; and generally with any observations which it might occur to us to make for your Lordship's guidance in considering the actual position of Colonial Governors in respect of their liability to personal action in the Colonial Courts, and the expediency of affecting any alteration in such position by legislation or otherwise.

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

Report

That before answering the questions submitted to us we think it right to point out that the judgment of the Privy Council in the case of Pulido v. Musgrave does not extend the liability of Governors of Colonies to be sued in the Colonial court, or in any way alter the rule of law established in the case of Hill v. Bigge. The decision in Pulido v. Musgrave was mainly directed to the insufficiency or form of the defendant's plea, and fully maintained protection to Colonial Governors for all acts of State done by them as such within the term of their commission.

1 and 2. We submit that, although this question is pointed at securing immunity to the Governor from being sued in the court of the Colony, a broader principle must be in- volved; for if a Governor were, when acting under a delegated Sovereign power, to be protected from being sued in the Colonial court, he would equally be protected from being sued in any court, and would thus practically be above the law. If such general protection were by patent conferred upon Colonial Governors it would be difficult by limitation or express instructions to control the power of a Governor over the life, liberty, and property of all within the Colony; and we submit that such a power might, in cases where but little check exists either from constitutional control or public opinion be arbitrarily and injuriously exercised; and that the proposal to confer such powers would meet with much opposition both at home and in the Colonies. A grave question would also remain whether the Crown could by patent confer such sovereign powers and grant such immunity to Colonial Governors.

3. If Colonial Governors were to be exempted absolutely from the civil jurisdiction of the court of their respective Colonies, they would be enabled to contract debts, or as individuals inflict a wrong, without any practical means of remedy existing against them; and it appears to us that the existence of such an immunity would be a greater evil than that which would result from a suit being instituted against a Governor in the Colonial court.

In respect of causes of action arising out of acts done by a Governor in such capacity, and which are acts of State, protection already exists; and we doubt the desirability of extending it to acts which, although done in the capacity of Governor, are not within his power so as to render them acts of State.

4. If the views we have thus expressed be dissented from, and legislation be thought necessary and advisable, we think that the responsibility of so greatly extending pro- tection to Colonial Governors should be borne by the Imperial Legislature.

5. It is difficult to suggest a satisfactory procedure in substitution of a personal action against Colonial Governors.

If the cause of complaint be one founded on contract or have relation to land, a petition of right will now lie against the Crown for such acts of the Governor as are acts of State.

If the cause of action be founded on a wrong, no proceeding of any kind can be in- stituted when the act of the Governor has been one of State-for the Crown can do no wrong. If the Governor has not acted officially, or if the act done has not been one of State, we think that the transference of liability, for purposes of procedure, to some body representing the Crown, would raise grave objection on the ground of policy and expediency.

We have, &c.,

The Right Hon. the Earl of Kimberley,

&c.

&c.

&c.

(Signed)

HENRY JAMES. FARRER HERSCHELL.