CO885-(11-13) — Page 630

5594.

PUBLIC RECORD OFFICE

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Reference :-

C.O.885

13 PUBLIC RECORD OFFICE, LONDON

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

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MY LORD,

No. 9.

(MAURITIUS.)

LAW OFFICERS to COLONIAL OFFICE.

We were honoured with your Lordship's commands, signified in Mr. Bramston's

Royal Courts of Justice, 4th April 1884. letter of the 22nd ultimo, stating that he was directed by your Lordship to request that we would advise you as to your power to validate certain payments of salary from the public funds of Mauritius, irregularly authorised by Governors of that Colony.

That by a Colonial Ordinance, No. 5 of 1873, a copy of which was enclosed, it was provided (section 5) that "an officer provisionally administering the Government of "Mauritius during the absence or incapacity of the Governor, or during a vacancy of "the office, shall receive one half the salary of the Governor, and if he be the holder "of any other office, one half the salary of such office."

That the salary of the Governor of Mauritius was provided by a permanent law, Ordinance 16 of 1857, a copy of which was enclosed.

That before the passing of Ordinance 5 of 1873 the emoluments of the office of Governor in Mauritius, as in other Crown Colonies, during the absence or incapacity of the Governor, or during a vacancy, were distributed in accordance with the directions of the Secretary of State; and that in the absence of special instructions, such distribution was regulated by the general instructions, a copy of which was enclosed, being rule 113 of the Colonial Regulations; but that the Secretary of State was not bound to adhere to the rules so laid down, and when the circum- stances had appeared to require it, he had departed from them, e.g., by directing the payment of the full salary of the Governor to the officer administering the Government during a vacancy.

That it would be observed that the preamble of Ordinance 5 of 1873 recognised the competence of the Secretary of State to regulate the distribution of the emoluments of office; and that the Ordinance did not dispose of half of the salary during the period between the occurrence of a vacancy and the embarkation of the new Governor.

That in 1874 and 1879 changes in the office of Governor of Mauritius occurred, and that on each of these occasions the new Governor, on his arrival, without the sanction or knowledge of the Secretary of State, authorised the payment to the officer who had administered the Government during the vacancy of the full salary of the office for the period between the occurrence of the vacancy and the embarkation of the Governor.

your

That there were special circumstances in each of the two cases which, in Lordship's opinion, gave the acting Governors a claim to liberal treatment, and that your Lordship did not think it desirable that those gentlemen should be required to refund the amounts received by them in excess of the half salary payable under the 5th section of the Ordinance of 1873.

That Mr. Bramston was to request that we would favour your Lordship with our opinion upon the following questions:-

(1.) Would the payment of the full salary of Governor to an officer administering the Government of Mauritius during a vacancy in the office be lawful if made with the sanction of the Secretary of State?

(2.) Could such payment, made without such sanction, be validated by the subsequent

sanction of the Secretary of State? Or,

(3.) Was a Resolution or Ordinance of the Colonial Legislature necessary to validate

such payment?

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

That-

Report

(1.) We think the payment of the full salary of Governor.to an officer administering the Government of Mauritius during a vacancy in the office would not be lawful, even if made with the sanction of the Secretary of State.

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5595.

The Ordinance No. 5 of 1873 appears to us to substitute, for the power of regulation exercised by the Secretary of State, the regulation by law which is effected by that

enactment.

(2.) We think such payment cannot be validated by the subsequent sanction of the Secretary of State.

(3.) We think it can only be validated by a Resolution or Ordinance of the Colonial Legislature.

The Right Hon. the Earl of Derby,

&c. &c. &c.

We have, &c.,

HENRY JAMES. FARRER HERSCHELL.

>

No. 10.

(NEWFOUNDLAND.)

LAW OFFICERS to COLONIAL OFFICE. MY LORD,

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

Royal Courts of Justice, 4th April 1884. Herbert's letter of the 1st instant, stating that with reference to our reports of the 3rd and 7th of March last* relating to a scheme which had been proposed for a settle- ment of the Newfoundland Fishery question, he was directed by your Lordship to transmit to us a copy, together with a translation, of a Project of Arrangement which had been drawn up at Paris by the British and French Commissioners, and which had then been submitted for the consideration of Her Majesty's Government.

2. That it would be observed that Article 19, which was inserted at the instance of the French Commissioners, contemplated that that arrangement, if agreed to, should come immediately into force with the exception of certain Articles, the application of. which would be dependent upon the adoption by the Legislature of Newfoundland of the Acts requisite for the carrying of them into effect.

3. That Her Majesty's Government entertained doubts as to whether it would be advisable that such a course should in any case be adopted, and that it seemed probable that other Articles would require legislation to bring them into operation besides those numbered 4, 5, and 14, which were referred to the above-mentioned 19th Article.

That, on the other hand, until the provisions contained in Articles 4, 5, and 14 were brought into operation, the French Government would be unwilling that the first part of Article 2 should take effect.

4. That your Lordship would be obliged if we would inform you which of the Articles would, in our opinion, require legislative action on the part of the Legislature of Newfoundland to bring them into operation, and which of them might take effect immediately without such legislation, should Her Majesty's Government think it desirable that such a course should be taken.

5. That your Lordship would also be obliged if we would favour you with any observations which might occur to us on the wording of the Articles generally. That your Lordship desired Sir Robert Herbert to request that we would be so good as to give the matter our earliest possible attention, and favour you with our opinion, if practicable, in the course of the present week, as one of the French Commissioners was obliged to leave Paris very shortly to take up his naval command on the New- foundland Fishery Station, and that Her Majesty's Government were most desirous that the British Commissioners who were then in London should return to Paris with- out delay.

In obedience to your Lordship's commands wa hiva the honour to

Report

That in our opinion legislative action would certainly be required to bring into operation Articles 4, 7, 9, 11, 14, and 15.

We think legislation would probably be requisite to give effect to other Articles; but this depends upon matters as to which we have no information. attention to the questions which arise upon these Articles in submitting, as requested, We will call the following criticisms upon the wording of the draft of arrangement.

Article 1, paragraph 3.-We do not altogether understand what" establishments" are referred to, whether fishing establishments or others; nor what is the meaning of the coast between Cape St. John and Cape Ray" passing by the north." It may be, however, that to those possessing local knowledge there would be no obscurity.

Article 8.--We do not understand whether the last paragraph of this Article bas reference to "magisterial functions" already possessed, or proposes that such functions shall be conferred. If the latter, legislation would, of course, be necessary; and in any case, legislation would seem to be required to make the report admissible in evidence.

* Nos. 5 and 6.

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