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PUBLIC RECORD OFFICE

Reference :-

C.O. 885

ALLY WITHOUT PERMISSION OF THE BE REPRODUCED PHOTOGRAPHIC-

COPYRIGHT PHOTOGRAPH—–NOT TO

14 PUBLIC RECORD OFFICE, LONDON

MY LORD,

No. 52.

(SOUTH AUSTRALIA.)

LAW OFFICERS to COLONIAL OFFICE.

Law Officers' Department, Royal Courts of Justice, February 14, 1894.

We were honoured with your Lordship's commands, signified in Mr. Bramston's letter of the 6th of December last, stating that he was directed by your Lordship to invite our attention to the accompanying papers, viz. :---

Despatch No. 54 (4th October 1893) from the Governor of South Australia, covering petitions of right addressed to Her Majesty by Mr. McFarlane and by Mr. Bowman, who were tenants of the Crown in that Colony.

Despatch No. 55 (10th October 1893) from the Governor, covering a memorandum by the Crown Solicitor of that Colony, and an opinion of counsel, Sir John Downer, Q.C., and Mr. Nesbitt, Q,C., and intimating that bis Ministers felt that consideration of the Crown Solicitor's memorandum would lead to the conclusion that the reference sought by the petitioners should not be ordered, but that, should any difficulty or hesitation occur on the point, the Government hoped they might be afforded an opportunity of removing it.

That in consequence of a public notice in the Government Gazette of South Australia, issued in November 1883, Mr. McFarlane in January 1884 bought at auction a lease for 21 years of 3,967 acres of Crown land; and Mr. Bowman a similar lease of 13,542 acres. That the leases were to contain certain advertised conditions, set out in the Gazette notice, including a right of resumption by the Crown at six months' notice "if required for any purpose of public utility." That the leases, as actually issued to those gentlemen by the Crown in 1884, purported to be made in pursuance of the conditions of the Gazette notice, but that the words "relating to public utility" were omitted, doubtless through its having been overlooked that the ordinary form of Crown leases did not contain them.

That the lessees entered into possession of the land in March 1884, had spent money in feucing and other improvements, had paid their rent regularly, and performed their obligations under the lease. That it appeared that the Government of the Colony now regard the leases as having been made improvidently, and in September 1892 gave notice of resumption of portions of both leases, with the object of leasing the resumed land to other persons. That the notice in Mr. McFarlane's case amounted to 1,881 acres; in Mr. Bowman's case to 4,500 acres.

That those gentlemen had taken proceedings in the Colonial Courts with a view to obtain a writ of prohibition to prevent the Land Board from issuing leases to other persons; but that the Government, it would bo seen, were advised by counsel that the proceedings must fail, and, further, that the leases were void ab initio, as not being authorised by the Act under which they purported to be issued.

That the request of the Colonial Government to be allowed to give further explana- tions before the petitions of right were submitted to Her Majesty placed your Lordship in a position of considerable difficulty. That you were necessarily unable to determine legal questions of the nicety involved in the present case, and to enforce your determi. nation by rejecting the petitions of right.

That, secondly, the right of presenting such petitions appeared to your Lordship to be the personal right of every British subject; and that your Lordship felt that you would not be justified in delaying a subject who desired to approach Her Majesty in the exercise of that right, when the petition was proper in form, and the subject- matter was such as might properly be included in a petition of right, and that those were questions for the consideration of the Law Officers of the Crown.

That, at the same time, your Lordship understood that the form of endorsement on a petition from South Australia, if in itself correct, would be "Let right be done in the Supreme Court of South Australia," and that in that case the Ministers would have full opportunity of presenting their case to the court.

That your Lordship had accordingly addressed the Governor in the terms of the preceding paragraph, and stated that you had felt it your duty to lay the papers at once

before us.

o 79871.-4. 25.-8,94.

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