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that

power although recommended to do so by his Ministers; whereas, in a similar case, the Governor of Natal would appear to have the latter power but not the former.

That he was further to point out that in the case of the Dominion of Canada, the Commonwealth of Australia and all the States of Australia, and also in, the case of New Zealand, the provisions of the Royal Instructions with regard to the Governor taking the advice of His Ministers with reference to the grant of pardons were more explicit than those of Cape Colony and Natal,

That he was to refer us to the despatches and precedents quoted in Chapter XI, of Todd's Parliamentary Government in the British Colonies.”

That he was to state that, in your opinion, it might in certain circumstances be extremely undesirable that the Governor of a Colony should exercise the power of pardon, whether the advice of his Ministers or otherwise, in any case of treason, whatever the sentence might be, without taking His Majesty's Commands.

upon

That he was to request us to take these matters and the Letters Patent and Royal Instructions which accompanied his letter to our consideration, and to report—

(1) Whether the Governor can exercise the power of pardon without consulting his Ministers in the case of a person convicted of treason and not sentenced to death—

(4) in Natal ?

(b) in Cape Colony ?

(2) Whether the Governor can refuse to exercise the power of pardon, although recommended by his Ministers to exercise it, in a similar case—–

(a) in Natal ?

(b) in Cape Colony?

(3) Whether the meaning of the Natal Royal Instructions, Clause LX., and the Cape Colony Royal Instructions, Clause XIV., is that in the case of a person convicted of treason and sentenced to death the Governor cannot exercise the powers of pardon without consulting his Ministers, but may refuse to exercise it although they recommend such a course, or how otherwise?

(4) Whether the Governor (either with or without the advice of his Ministers, as the case may be) has, upon the true construction of the Natal and Cape Colony Letters Patent, full powers thereunder to pardon any person convicted of treason without further instructions from the Crown?

mercy in Natal

(5) Generally as to the administration of the Crown's prerogative of and Cape Colony.

We have taken the matter into our consideration, and in obedience to your com- mands, have the honour to

Report-

That (1) having regard to the practice which has prevailed in Colonies enjoying Constitutional Government, we think that the Governor ought first to consult his Ministers

in such cases.

Having regard to the special instructions in capital cases, it is open to argument whether Clause 7 of the Natal Instructions of 20th July, 1893, und Changes 7 and 8 of the Cape Instructions of 26th February, 1877, apply to the exercise of the prerogative of pardon, but we think they do, and in any case it appears to us that in a case of treason, the Governor should consult the Executive Council.

(2) We answer this question both as regards Natal and Cape Colony in the affirmative.

(3) Yes. (4) Yes.

(5) Having regard to the Imperial interests involved, the Governor must in such cases act on his responsibility, giving to the advice of his Ministers such weight as he

consider proper.

may

The Right Honourable Joseph Chamberlain, M.P.,

&c.,

&tion

&c.

We are, &c.,

R. B. FINLAY.. EDWARD CARSON.

43074

SIR,

No. 167.

(TRANSVAAL: ORANGE RIVER COLONY.)

LAW OFFICERS to COLONIAL OFFICE.

[Draft Ordinance for dealing with Undesirables.]

Royal Courts of Justice, October 16, 1902. WE were honoured with your commands signified to us by Mr. Graham in his letter of the 23rd September last, stating that he was directed by you to lay before us a copy of a confidential despatch addressed by you on the 12th of July, 1902, to the High' Commissioner of South Africa, covering a memorandum in regard to proposed legislation for excluding undesirables and for expelling them from the new Colonies, and also copies of telegraphic correspondence on the subject with Lord Milner, and to request the favour of our report upon the proposals contained in those telegrams and the draft Ordinance

submitted for our consideration.

That before the present permit system in the Transvaal and Orange River Colony came to an end with the cessation of martial law in those Colonies it was considered desirable to legislate for the purposes above referred to.

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That with regard to the draft Ordinance outlined in the telegram of the 1st September, he was to observe that it would appear to be desirable to omit the latter part of Clause III. from the words "or to any person not being in South Africa .. to the end. That the omission of these words would, in your opinion, relieve the British authorities in this country, in His Majesty's Colonies and in Foreign Countries, from an onerous duty which it would be impossible to discharge without much friction and occasional injustice, whilst it would leave the exclusion of undesirables to be effected entirely by action taken within the two Colonies.

That it would further appear to be desirable to provide for the exclusion and removal from both Colonies of persons who would be excluded from Natal by the provisions of the Natal Act 1 of 1897.

That with regard to the last two paragraphs of the telegram of the 1st September, he was to suggest for our consideration that the Ordinance if enacted as a permanent measure could at any time be modified or repealed, whereas re-enactment at the end of three years might be attended with difficulty.

That it was therefore suggested that the temporary nature of the measure should be recited in the Preamble and that the body of the Ordinance should contain a clause not limiting the duration of the Ordinance, but empowering the Governor to suspend its operation in whole or in part at any time and in any district at and in which the suspended provisions were no longer necessary for the public safety.

That he was to forward a copy of a draft Ordinance which had been prepared in your Department to carry out the Governor's proposals subject to the amendments suggested in the foregoing observations, and that he was to request us to take this draft Ordinance and the accompanying papers into our consideration and to report

(1) Whether the provisions of the draft Ordinance can be justified by legal precedent, and, if not, whether in our opinion they can be sufficiently defended on the ground of political necessity?

(2) Whether any of them are undesirable, and, if so, upon what grounds?

(3) Whether the draft Ordinance is sufficient and proper for its purpose, and if not what alterations in or additions to its provisions are in our opinion necessary?

(4) Generally.

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

Report-

That (1) in our opinion the provisions of the proposed draft Ordinance can be justified. Every country has a right to decide whether certain classes of foreigners are dangerous to its tranquillity, or are inconvenient to it socially or economically or morally, and to forbid access to such persons (Hall, 223). This is more especially the case where

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