CO885-(15-16) — Page 180

8441.

PUBLIC RECORD OFFICE

Reference :-

C.O. 885

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

15 PUBLIC RECORD OFFICE, LONDON

SIR,

:

No. 130

(QUEENSLAND.)

LAW OFFICERS TO COLONIAL OFFICE.

[Validity of certain Acts of Parliament.]

Royal Courts of Justice, We were honoured with your commands, signified in Mr. H. Bertram Cox's letter

February 27, 1902. of the 12th inst., stating that he was directed by you to lay before us a despatch, No. 138, of the 20th December last, from the Officer Administering the Government of Queensland, together with a memorandum by the Attorney-General of that Colony, and to request the favour of our report upon the question therein raised as to the validity of two Acts of the Parliament of Queensland passed respectively in the years 1897 and 1898. That Mr. Bertram Cox was to point out that the Act 64 Vict. No. 25, to which reference was made in the papers, was laid before Parliament, assented to by Order in Council and validated by the Colonial Acts Confirmation Act, 1901. That that course was taken as the Act referred to was thought to fall, by parity of reasoning, within the terms of our Report of the 20th February, 1901, as to two Acts passed by the Legisla ture of New South Wales.

#

That it would, however, appear to be possible that validation by an Imperial Act, was unnecessary in the case of the above mentioned Act 64 Vict. No. 25, and would, Consequently, be unnecessary in the case of the two Acts 61 Vict. No. 26, and 62 Vict. No. 14, to which the Attorney-General of Queensland had called attention.

That such a contention might be supported by the following considerations :- That section of the New South Wales Constitution Act (18 and 19 Vict. c. 54) which empowered the Crown by Letters l'atent to erect into a separate Colony or Colonies any territories to be separated from New South Wales did not expressly require that the provisions of 5 and 6 Vict. c. 76 and 13 and 14 Vict. c. 59 as to the allowance, lisallowance and reservation of Bills-which provisions were expressly applied to the Legislature of New South Wales by section. 3 of 18 and 19 Vict. c. 54-should be ex- truded to the Legislature of any colony so erected in any such territory separated from New South Wales.

That when, therefore, Queensland was erected into such a colony and the restrictions of the above-mentioned Acts (5 and 6 Vict. c. 76, and 13 and 14 Vict. c. 59) were incorporated in the Letters Patent and Order in Council of the 6th June, 1859, constitut- ing that colony, those restrictions acquired the force not of an Imperial Act of Parlia- ment but only of the instruments incorporating them, the result being that a Bill assented. to in contravention of those restrictions was not invalid and did not require validating.

That, on the other hand, it might be argued that Queensland having been constituted out of New South Wales territory, the Legislature of Queensland came within the ex- pression "any other legislative body or bodies which may at any time hereafter be sub- stituted for the present Legislative Council and Assembly," in section 3 of 18 and 19 Vict. c. 54, so that the restrictions of 5 and 6 Vict. c. 76 and 13 and 14 Vict. c. 59 had applied to the Legislature of Queensland ever since the creation of that colony by virtue of section 307 of 18 and 19 Vict. c. 54.

That if that view were incorrect, it might be urged that, even assuming that the love-mentioned restrictions had originally in Queensland only the force of the Letters Patent and Order in Council in which they were incorporated, the provisions of section 3 24 and 25 Vict. c. 44 invested them from the date of the passing of that Act (22nd July, 1861), with the full force of an Imperial Act of Parliament, and did not merely remove doubts as to their validity as Letters Patent and Order in Council.

That Mr. Cox was to refer us to the Reports of our predecessors in office of the 23rd February and 9th March, 1861, the 12th April, 1862, the 28th September, 1864, and the 3rd November, 1899, and to our Report of 20th February, 1901,† as bearing upon the various questions raised in his letter.

• No. 74.

11191-25-3-1902

† Nos, 55, 57, 110 und 275 in Vol. I., 239 in Vol. V., and No. 74 in this vol. Wt 952 D & S &

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PUBLIC RECORD OFFICE

Reference :-

C.O. 885

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

15 PUBLIC RECORD OFFICE, LONDON

2

That Mr. Cox was to ask us to be good enough to take the papers and Acts into our consideration and to report :-

1. Whether the provisions of 5 and 6 Vict. c. 76 and 13 and 14 Vict. c. 59 as to the allowance, disallowance and reservation of Bills had, as applied to the Legislature of Queensland, the force of the Letters Patent and Order in Council in which they were originally incorporated, or of an Imperial Act of Parliament.

2. If they had the force of an Imperial Act of Parliament, whether they had that force by virtue of sections 3 and 7 of 18 and 19 Vict. c. 54, or of section 3 of 24 and 25 Vict. c. 44, or how otherwise?

3. Whether the Queensland Acts, 61 Vict. No. 26 and 62 Vict. No. 14 required validating?

4. If so, whether it would not be expedient that the validating legislation should take place in Queensland, being duly reserved, rather than in the Imperial Parliament ?

We have taken the papers into our consideration, and, in obedience to your commands, have the honour to

Report-

1 and 2. That we are of opinion that the provisions of the 5th and 6th Victoria chapter 76 and 13th and 14th Victoria chapter 59, as to the allowance, disallowance and reservation of Bills as applied to the legislation of Queensland, have the force of Letters Patent and Orders in Council issued by the authority of an Act of Parliament.

3. Yes.

4. The Acts may be validated in either way, but, as they are purely local, we think that local legislation is preferable.

The Right Honourable J. Chamberlain, M.P., &c.,

&c.,

&c

We have, &c.,

R. B. FINLAY. EDWARD CARSON.

8442

SIR,

No. 131.

(TRANSVAAL.)

LAW OFFICERS to COLONIAL OFFICE.

[Selati-Railway,}

Royal Courts of Justice,

February 27, 1902. WE were honoured with your commands signified to us in Mr. Bertram Cox's letter of the 17th instant, stating that he was directed by you to request that we would advise you with regard to the case of the Selati Railway. That this railway formed the subject of investigation by the Transvaal Concessions Commission, whose report with evidence and documents was enclosed. That we would observe that the Commission in view of the history of the Company, and especially of the repudi- ation by the late Government of its liability towards the shareholders arrived at the conclusion that there was "no good reason why the change (of Government) which has taken place should give a value to shares which before it had none or resuscitate claims against the new Government which their predecessors had on good grounds refused to acknowledge."

That with regard, however, to the debentures the Commission found that "the bondholders hold duly acquired and valid obligations of the Government of the late South African Republic," and subject to the conditions that the bondholders should not be placed in a better position than they were before the war, and that they should help His Majesty's Government to obtain possession of a sum of £350,000, the proceeds of some of the debentures issued, the Commission recommended them to the favourable consideration of His Majesty's Government.

That it should be observed with regard to the debentures that Mr. Van Blokland, representing the Government of the late Republic, wrote a letter at the time that the loan was being floated in the London market, notifying that principal and interest were guaranteed by his Government "independent of any default of the Company in performing the terms of the Concession" (see [Cd. 625], p. 77).

That on the 25th January, Messrs. Barclay and Company communicated to the Colonial Office in the circumstances stated in the enclosed Memorandum written by Mr. Cox, an order by Mr. Justice Jelf, dated 20th January, 1902, appointing a Receiver to receive certain moneys lying at Barclay's Bank and at Lloyd's Bank, together with certain other papers, all of which were enclosed in Mr. Bertram Cox's letter.

That it would appear from Messrs. Maples Teesdale and Company's letter, of the 4th February, that a further order had since been obtained against the fund.

That the moneys in question were the proceeds of the debenture issue referred to. That they were deposited in the names of trustees, one of whom, Mr. Oyens. was the nominee of the late Government, on the conditions stated in the case of the Company printed at page 72 of [Cd. 625.] That the question therefore at once arose whether if His Majesty's Government were responsible in any degree for the payment of the interest and capital on the debentures they should permit the fund to be diminished for the payment of debts to other persons. That, on the other hand, an application on the part of His Majesty's Government to set aside the Order might be held to be an admission that His Majesty's Government had accepted the whole of the rights and responsibilities of the late Government, and His Majesty's Government might find themselves involved in the same difficulties with regard to the Company as were the late Government, and face to face with very heavy claims.

That in this connexion, Mr. Bertram Cox was to draw our attention to our Report* on the Pretoria-Pietersburg Railway, the effect of which was that His

* No. 115.

Wt 2645 8/03 D & S 5 21436