CO885-(13-15) — Page 52

PUBLIC RECORD OFFICE

Reference :-

C.O.885

13 PUBLIC RECORD OFFICE, LONDON

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

C. 1,202.)

C. 1,248.1 [C. B001]

Conf. & Oct. Conf. 14 Oct

(ii.) Whether the resolution of 22nd December 1869, appended to the Chief Justice's letter of 28th February 1887, contained an accurate statement of that portion of the public law of Victoria, and that if not, in what particulars it was inaccurate.

That in deference to the position of the Chief Justice and to his opinion, which, however, it would be observed, was admittedly not accepted by any considerable class of the population, you had thought it desirable to refer those questions to us.

That you had stated them in general terms lest you should unintentionally fail to state any points involved in the correspondence, but that you would feel obliged if we would also favour you with our opinion upon any questions which Mr. Bramston's letter might not sufficiently bring out, but upon which such opinion might appear to us to be useful to you in connexion with the matter.

We were also honoured with Mr. Bramston's letter of the 26th November last, stating, in reply to a letter from this Department, dated 15th November, that he was directed by you to acquaint us that no previous opinions of the Law Officers upon the questions raised in articles 7, 8, and 11 of the Royal Instructions of 21st February 1879 could be traced in the Colonial Office, nor did it appear that the Letters Patent and Instructions were considered by any previous Law Officers.

That parliamentary papers upon the exercise of the prerogative of pardon, and containing copies of correspondence which passed on that subject with the Government of New South Wales in 1875, were transmitted for our assistance, as well as a report of the proceedings of the Colonial Conference, at pages 531-532, 545–552 of which would be found a discussion on the subject.

That Mr. Bramston was also to enclose printed correspondence which passed in connexion with the revision of the Canadian Instructions at the instance of Mr. Blake, who was Minister of Justice of the Dominion 1873-78, in which the clauses relating to the prerogative of pardon were the subject of discussion.

That copies of two further despatches from the Governor of Victoria bearing on the subject were also enclosed.

In compliance with the request contained in Mr. Bramston's letter of the 3rd November, we have the honour to

Report

That the objections and criticisms of the Chief Justice and Attorney-General of Victoria appear to us to raise very important points.

Many of the matters referred to in their letters are no doubt of minor importance, but others give rise to questions upon which objection having been raised, it is desirable that Her Majesty's Government should carefully consider to what extent they are well founded and in what way they should be met. We propose in this report to refer seriatim to such of the articles of the Letters Patent and Instructions as appear to require consideration having regard to the points raised.

As regards the Letters Patent we do not find that any specific objection is raised except the objection that clause II. purports to grant powers which in reality depend on the statutes creating the constitution of the Colony.

We are of opinion that this objection is founded on a misapprehension. The clause in question does not purport to create any powers, but only to authorise the person who may be designated as Governor to exercise whatever powers belong to his office, and we think that the concluding words of the clause preclude objections which might other- wise be made to the terms of clauses IX. and X.

It might be well in future Letters Patent to frame the preamble and clause II. some- what differently by inserting an express reference to the Constitution Act. See the Canadian Letters Patent of the 5th October 1878.

With this exception we see no reason to advise any modification in the Letters Patent, which we assume are in the usual and established form in cases of settled Colonies.

The Instructions appear to us to be open to more objections, and in many respects to require revision.

As to Clauses III. to V. they seem to be scarcely of sufficient importance to be included in the Instructions. See North American, No. 99, page 11.

Clause VI. We concur in the views expressed by the Governor, Sir H. B. Loch, as to the criticisms of the Chief Justice on this clause, which appears to us not to be open to any objection. We gather that the Executive Council in practice consists substantially of the ministers for the time being forming the Cabinet. Whether this body should

3

be referred to more specifically in the Instructions, as suggested by the Attorney- General, is a question rather of policy than law, but as to this clause we understand the principal objection to be that the duty of consulting with ministers, which in reality depends on the existence of parliamentary institutions, is, by the wording of the clause, apparently made to depend not on the constitutional practice, but on the Royal Instructions. This criticism seems to us to be merely verbal, but we agree with the Governor that the clause may be properly altered by limiting its operation to questions on which imperial interests are directly or indirectly affected.

Clause VII. This clauso involves a question of great constitutional importance. Having regard, however, to the consideration, first. that occasions may arise upon which the Governor may consider that imperial interests, or interesta which vitally affect the Colony, may render it imperative for him to act in opposition to the advice given by the Executive Council; and secondly, that the Governor has at once to consult the Home Government, we think that it would be unwise to omit the clause. It must, moreover, be remembered that the Executive Council includes among its members many who may not be members of the Cabinet.

Clause VIII. This clauso appears to us to be open to the objections made to it, and not to be worth preserving.

Clause X. The objections to this clause appear to us to be misconceived. This instruction refers only to the form in which the necessary information is to be furnished to the Secretary of State. But the instruction can equally well be given in a less formal manner, and we think that the clause should be omitted.

Clause XI. So far as this clause purports to be mandatory on the judges, we think that it is objectionable, and should be altered so as merely to require the Governor to request the report and assistance of the judge. So far as the clause empowers the Governor to grant or refuse a pardon contrary to the advice of the Executive Council, it is, no doubt, in accordance with sections 318 and 319 of the Colonial Criminal Law Act of 1864, but it is open to the same general observation as article VII.

We suggest for the consideration of the Secretary of State either that the form of instruction adopted in the case of Canada in 1878 should be followed, or (if the power of independent action is in all cases to be reserved to the Governor) that in cases where the Governor differs in opinion from his Council on a question of pardon or respite, he should be instructed to reserve the matter for Her Majesty's pleasure to be signified.

Clause XII. appears to us to be of no practical importance.

(ii.) We think it impossible to define the limits within which suggestions or advice relating to Colonial affairs can properly be given to the Governor by the Secretary of State, and instructions as to such affairs can seldom be in question.

We presume that the resolution of December 22nd, 1869, appended to the Chief Justice's letter of the 28th February 1887, is intended to refer to advice or suggestions so given as to substitute the opinion or discretion of the Secretary of State for that of the Governor, so that his failure to comply would be followed by recall. It

appears

to us that this would not be contrary to the Letters Patent, or to the Constitution Act of the Colony, or to any principle of law, and that the question is entirely one of policy.

The Right Hon.

Sir Henry Holland, Bart., M.P.,

&c., &c.

&c.,

We have, &c., (Signed)

RICHARD E. WEBSTER.

EDWARD CLARKE.

I