CO885-(15-16) — Page 257

PUBLIC RECORD OFFICE

Reference :-

TPLEICO.

885

15 PUBLIC RECORD OFFICE, LONDON ALLY WITHOUT PERMISSION OF THE BE REPRODUCED PHOTOGRAPHIC- COPYRIGHT PHOTOGRAPH-NOT TO

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That under the joint provisions of 6 and 7 Vict. c. 13 Section 2 and 24 Viet. c. 121 Section 1, which were in force when the Letters Patent of 1st February, 1886. were made, such delegation of powers was required to be made to any three or more persons within the settlement, and that this requirement was now continued by Section 3 of the British Settlements Act, 1887, by which the above-mentioned Acts were repealed.

That if, therefore, the Letters Patent of 1st February, 1886, were, so far as their provisions related to matters provided for by 6 and 7 Vict. c. 13 and 23 and 24 Vict. c. 121, necessarily governed by those Acts, the language of which was permissive, Article IV. providing for the delegation of the Crown's power to make regulations to the. Governor of the Straits Settlements was ultra vires, and that, further, if (as appeared to be the case) the Letters Patent were never laid before both Houses of Parliament, the Article would have been void on that ground, even if it had provided for such delegation to any three or more persons within the settlement.

That the conclusion would appear to be that the decision arrived at by the Chief Justice was correct, though the grounds upon which it was based, as reported in the telegram of the 20th December, were not the true ones.

That this case had exposed the probable necessity of amending the Letters Patent of 1st February, 1886, and the desirability of making further provision for the government of the Cocos Islands and of considering, generally, the extent of the opera- tion of the British Settlements Act, 1887.

That that Act was in its terms permissive, as also were the older Acts which it repealed, and it was not clear that the prerogative power of the Crown with which it dealt must necessarily be exercised in the manner provided by the Act and in no other manner. But that even if this were the case, it would seem clear that the exercise of other prerogative powers of the Crown not mentioned in the Act, e.g., the power to appoint a Governor (Art. II. of the Letters Patent of 1st February, 1886) and to make land grants (Art. `V.) was not affected by the provisions of the Act.

That with regard to Art, VI., providing for the future annexation of the Cocos Islands to the Straits Settlements, he was to refer us to the report of our predecessors in office of the 8th of April, 1878,* in which they approved the draft of the Letters Patent of 10th September, 1878, Article V. of which was reproduced, mutatis mutandis, in Article VI. of the Letters Patent of 1st February, 1886. That in this connection he was further to refer us to the report of our predecessors in office of the 29th December, 1899,† dealing with the analogous case of the proposed annexation of Christmas Island to the Straits Settlements; and to the reports of the 25th of August, 1894, and the 27th of February, 1895 (2), from which it was apprehended that the boundaries of the Straits Settlements not being fixed by Imperial Statute, the Cocos İslands could be annexed to the Colony by Letters Patent followed by suitable legis- lation by the Colonial Legislature.

That he was to request us to take these papers and matters into our consideration and to

Report-

(1) Whether the ruling of the Chief Justice of the Straits Settlements that the regulations of 11th November made by the Governor were invalid is correct?

(2) If so, whether the grounds of that decision specified in the telegram of 20th December, or the grounds suggested in his letter, viz., improper exercise of the Crown's power of delegating its powers, were the proper grounds of the decision?

(3) Whether the Acts 6 and 7 Vict. c. 13 and 23 and 24 Vict. c. 121 were formerly, and the British Settlements Act, 1887, is now, permissive in its terms, so as not to affect the provisions of the Letters Patent of 1st February, 1886?

(4) If not, whether Article 4, or any other and what Article, of those Letters Patent is ultra vires.

(5) Whether, in view of the practical impossibility of delegating the powers of the Crown to any three or more persons in the Cocos Islands under Section 3 of the Act (if it applies) the preferable course would be to provide for the laws and courts of the Cocos Islands by Order in Council under Section 2 of the Act, merely amending the Letters Patent by the omission of Article IV., or to annex those Islands to the Straits Settlements, leaving the Colonial Legislature to make suitable provision for the laws of the Islands after annexation?

• No. 166 in Volume I11.

† No. 244 in Volume V.

Nos. 76 and 30 in Volume V.

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(6) Whether, in the event of annexation being considered the preferable course, this should be effected by Order in Council or Letters Patent, under the Colonial Boundaries Act, 1895, or how otherwise?

(7) Generally.

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

Report-

That (1) The ruling of the Chief Justice is, in our opinion, correct.

(2) The ground on which the decision of the Chief Justice seems to us to be correct is that Article IV. of the Letters Patent of 1st February, 1886, did not confer upon the Governor any power to give jurisdiction in respect of crimes in the Cocos Islands to the Courts in the Straits Settlements.

(3) These Acts appear to us to have been intended to remove the difficulty which existed at common law as to legislation in settled Colonies. As regards such Colonies it is more than doubtful whether at common law the King could legislate for them by Order in Council (see "British Rule and Jurisdiction beyond the Seas," by Sir H. Jenkyns, pages 4 and 5, and cases there cited).

These Acts were passed to provide for cases of British Settlements to which ordinary representative institutions were unsuited.

It appears to us on the facts of this case that the Cocos Islands can not be treated as a settled Colony within the meaning of Section 6 of the Act of 1887. They became British territory by annexation (see the Proclamation by Captain Fremantle on 31st March, 1857, in Appendix V. to Mr. Birch's report, page 18), and this annex- ation was confirmed by the Letters Patent of 10th September, 1878. These Letters Patent and the Letters Patent of 1st February, 1886, appear to treat the Islands as having been acquired "by conquest," in virtue of the annexation effected in 1857. On this view of the facts the Letters Patent of 1886 are valid, and their provisions are not touched by the Acts referred to, and

4. No part of these Letters Patent is ultra vires.

(5) We think that the preferable course would be to annex these Islands to the Straits Settlements, leaving the Colonial Legislature to make suitable provision for the laws of the Islands after annexation.

(6) We think that the annexation had better be by Order in Council. (7) We have nothing to add.

The Right Honourable

Joseph Chamberlain, M.P..

&c., &c., +&c.

We have, &c..

R. B. FINLAY.

EDWARD CARSON.