CO885-(15-16) — Page 540

ཀཱ ?། ༄།:། །

PUBLIC RECORD OFFICE

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Reference :-

C.O.885

16 PUBLIC RECORD OFFICE, LONDON

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

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Colony, or other competent authority, shall continue to subsist in the same form and with the same effect as if this Act had not been made."

It has never been questioned that before the passing of the Constitution Act the Sovereign had the power to repeal the third clause of the Charter regulating the precedence of the Chief Justice of New South Wales, but in view of a decision given by the Law Officers in 1863* with regard to a proposed revocation of the parts of the Cape of Good Hope Charter of Justice which relate to precedence, doubts were entertained whether the Crown had, as it had before the grant of self- government to New South Wales, the right to regulate the precedence of the Chief Justice of New South Wales.

It was accordingly suggested to the New South Wales Government that legis- lation should be introduced into the local Parliament altering the Charter from the date of the next vacancy in the Chief Justiceship. This suggestion was not, how- ever, adopted by the New South Wales Government.

The Premier, in July, 1906, forwarded, through the Governor, a memorandum by Sir F. Darley, the Chief Justice, in which he concurred. In this memorandum

Sir F. Darley, while not questioning the power of the State Legislature, to alter the Charter by repealing its third clause, wrote as follows:-

"I think the power vested in His Majesty by the twenty-fourth clause of the Charter would be the most convenient course to pursue. I see grave objections in attempting to make these alterations by Act of l'arliament and do not envy the Ministry who bring such a matter under the cognisance of the Legislature. The precedence in question not being by Act of Parlia ment but existing under an express grant from the Crown and the Crown having reserved to itself the right to repeal this grant it appears obvious to me that it is still within the power of the Crown to deal with the matter as may appear to be most desirable and convenient. I accordingly see no difficulty in His Majesty being advised to alter the precedence accorded to

the Chief Justice under the Charter of Justice."

On receipt of this expression of opinion on the part of the New South Wales Government the Law Officers of the Crown were on the 4th August, 1906, asked to advise the Secretary of State on the subject, and on the 24th November, 1805,† they furnished a report of which a copy is enclosed.

The substance of that report was duly communicated to the New South Wales Government; but on 7th February, 1907, the Governor informed the Secretary of State that his Ministers saw grave difficulty in the way of introducing such a measure to the Parliament of New South Wales, which is impatient of questions of this character being elevated into the arena of legislation; and that they strongly urged that for this reason the matter be dealt with by the Imperial Parliament of its own accord and that the consent or concurrence of the State be sought.

The Governor added that he had spoken to many of the leading men in the State and that they were all of the same opinion, viz., that the alteration coming from home being a Royal grant of precedence would never be questioned, but that if brought forward by the Ministry in the House, the labour members would make it an opportunity of attack on them.

On the 24th July, 1907, the Secretary of State informed the New South Wales Government that His Majesty's Government regretted that they could not see their way to invite the Imperial Parliament to legislate on the subject.

A despatch has now been received from the Governor stating that his Ministers stili adhere to the view that the most convenient method and that least open to criticism is for His Majesty to exercise the power of revoking the grant of pre- cedence made by the Charter and asking that the decision of the Imperial Govern- mont might be reconsidered. The Governor at the same time drew attention to the opinion expressed by Sir F. Darley, the Chief Justice, in 1906, and quoted above, that the precedence in question not being by Act of Parliament but existing under an express grant from the Crown and the Crown having reserved to itself the right to repeal this grant, it appeared obvious that it was still within the power of the Crown to deal with the matter.

The divergence in the view taken by the New South Wales Government with that expressed by the Law Officers of the Crown places Lord Crewe in a position

† No. 52.

• No. 166 in Vol. I.

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of some difficulty. Lord Crewe is very anxious to meet the wishes of the New South Wales Government, but at the same time wishes to avoid recourse to Imperial legislation. In these circumstances he feels that the opinion of such an eminent authority as Sir F. Darley that the Crown is competent to deal with the matter ought not to be set aside without the fullest consideration, and he would, therefore, be glad, before coming to any final decision, to be favoured with an expression of the views of the Lord Chancellor on the subject.

Lord Crewe has nothing to add to the case which his precedessor submitted to the Law Officers of the Crown on the subject, except to remark that it would have been an advantage if the attention of the Law Officers had been drawn to the distinction between the present question and that which arose in the case of the Cape of Good Hope in 1863.

The New South Wales Charter was not a legislative Act in the sense that the Cape of Good Hope Charter was. The King could legislate for the Cape of Good Hope as a conquered country and granted the Cape of Good Hope Charter in his capacity as legislator for the Colony. The King has no right of legislating for New South Wales which was settled, not conquered.

Colonial Office,

38205

15th October, 1908.

OPINION.

There is room for much subtlety and for protracted argument on the question how far a Charter revocable in its terms is rendered wholly irrevocable by reason of its being a legislative Act. I believe that in the end C.J. Darley's view would, in this particular case, and having regard to the various Acts, prevail. But I will not pursue the legal question, unless it is desired that I should do so.

I think C.J. Darley's view may be acted on with propriety. Probably it would suffice to let things rest as they are till a new appointment is made and then to require the previous consent of the new Chief Justice to such a regulation of his precedence as may be thought advisable. A declaration of that precedence might be embodied in the instrument appointing him. I cannot see how the point could then be raised.

House of Lorde, S.W.,

17th of October, 1908.

LOREBURN.

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