CO885-(15-16) — Page 92

PUBLIC RECORD OFFICE

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Reference :-

C.O. 885

15 PUBLIC RECORD OFFICE, LONDON

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themselves did not confer authority on a Governor for the exercise of his office, but merely provided that there should be a Governor, who obtained authority to exercise the But that in certain cases, as, for functions of a Colonial Governor from his Commission. instance, in the case of Cape Colony, under Letters Patent dated 26th February, 1877, und of Newfoundland, under Letters Patent dated 28th March, 1876, in the absence of a Governor and in the event of there being no Lieutenant-Governor, the administration of the Government devolved upon certain other officers named in the Letters Patent, and that, therefore, the Letters Patent, in those cases, and in similar cases, might be said to be Letters Patent for the exercise of an office.

That in the case of Protectorates such as Northern and Southern Nigeria, Southern Rhodesia, Barotsiland, North-Western Rhodesia, &c., Letters Patent were not issued, but that a Constitution was established by Order in Council, under the provisions of the Foreign Jurisdiction Act. That reference to such Orders in Council would show that, with the exception that the instrument was an Order in Council and not Letters Patent, substantially the same provisions were made as in the case of a Crown Colony. That it would, therefore, be a question for my consideration whether, in the event of Letters Patent having to be renewed owing to the demise of the Crown, Orders in Council of the kind specified were, or were not, preserved in torce by the Statute of William IV., and might not also have to be renewed. That it was desired, if possible, to avoid the inconvenience of issuing fresh Letters Patent, Instructions, Commissions, Warrants and Orders in Council in every Colony and Protectorate. That it would be necessary to consolidate many of them before re-issuing them, and that the consolidation might in some cases, such as that of Malta and Mauritius, involve the raising of political questions, which it was desired, if possible, to avoid. It had, therefore, been suggested that a short instrument might be drawn up, either in the form of Letters Patent or Order in Council for Colonies and Protectorates respectively, which might provide that all existing Letters Patent, Instructions, Commissions, Warrants and other documents, which were in force during the reign of Her late Majesty Queen Victoria, and which would at the expiration of eighteen months from the demise of the Crown become void, should be continued and remain in operation in all respects as though no demise of the Crown had taken place : and that you would be glad to be advised whether I thought that that course could be adopted.

That Sir M. Ommanney was to request me to take the above matters into my consider- ation and to advise you-

(1.) Whether the Orders in Council or Commissions relating to the government of Proctectorates lapsed on the demise of the Crown, and, if so, whether the Royal Procla mation of the 23rd ultimo renewed their operation?

(2.) Whether any, and if so, which of the above-mentioned Letters Patent, Instruc- tions, Commissions, and Warrants had, notwithstanding the Act of William IV., become void owing to the demise of the Crown?

(3.) If not whether any, and if so, which of the said instruments would become void at the expiration of eighteen months after the demise of the Crown?

(4.) Whether the Royal Proclamation of the 23rd ultimo would of itself be sufficient to preserve the operation of any, or all of the said instruments, and if not, what means should be adopted to continue the said instruments in operation. Could their operation be preserved-

(a) by legislation in Colonies or Protectorates?

(b) by Letters Patent in the case of Colonies, and Orders in Council in the case of Protectorates providing that notwithstanding the demise of the Crown those instruments should continue in operation?

(5.) Whether Letters Patent could be issued providing generally that in all Colonies and Protectorates that result should follow, or

(6.) Whether such a general provision could only be effected by an act of the Imperial Parliament ?

(7.) Whether it was desirable that such an Act of Parliament should be passed? (8.) Generally.

have taken the matters into my consideration and, in obedience to your commands, have the honour to

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Report.

THAT (1.) The Orders in Council relating to Protectorates did not lapse on the proper demise of the Crown. These Orders in Council are legislative acts by the authority providing for the government of Protectorates, and do not fall within the principle by which offices were vacated on the demise of the Crown.

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Commissions relating to Protectorates did lapse on the demise of the Crown; they fall within the general principle as to offices, and are not covered by either the Statute of Anne or the 1st William IV. Of course Military Commissions are continued by the 7th William IV. and 1st Victoria, cap. 31.

2. Letters Patent providing for the Constitution of a Colony and giving power to appoint a Governor by Commission, as also the Instructions issued generally to any person holding office, do not become void owing to the demise of the Crown even in cases in which the Letters Patent may provide for the devolution, in the absence of the Governor, of the administration upon the holders of other offices named in the Letters Patent. Such Letters Patent and instructions are in the nature of general provisions for the government of the Colony by the competent authority.

Appointments under Commissions and Warrants would have become void owing to the demise of the Crown where they relate to the Government of Colonies, were it not for the provisions of the Statute of Anne and 1 William IV. cap. 4. Such Commissions appoint a person named to an office, the Warrants authorise the appointment by some other form, such as Letters Patent under the seal of the Colony, or simple notification by the Governor. It appears to me that all such appointments, whether made directly by the Commission or by some other instrument under the authority of the Warrant, would determine on the demise of the Crown but for the statutes above referred to. The officials hold office under the Crown and the general principle applies.

3. Offices held in the Colonies under Commissions, or the authority of Warrants, will become void at the expiration of eighteen months after the demise of the Crown and must be renewed.

4. The Royal Proclamation of the 23rd ultimo has no effect in preserving the operation of any of these instruments. It relates merely to the period during which offices continue to be held by virtue of the 6th Anne and the 1st William IV., and directs the officials to discharge their duties during such periods unless the Crown sooner determine their offices.

Protectorates.

(a.) Their operation could not be properly preserved by legislation in Colonies or The Governor would be a party to such legislation, and, in Protectorates, must derive his authority from the Crown, while in the case of Colonies it would be a grave departure from constitutional usage to allow a local Act of Parliament passed during the eighteen months continuance in office to affect the tenure of the Governor.

(b.) For the reasons given in answering questions 1 and 2, this course appears to me to be unnecessary.

It would be almost

5. I do not think that such Letters Patent should be issued. impossible in such Letters Patent to enumerate the names of all the officials and a mere general provision would not, in my opinion, be expedient.

6. Such a general provision, could only be effected by an Act of the Imperial Parliament.

7. It appears to me desirable that such an Act, of Parliament should be passed unless there are considerations of policy which render this inexpedient.

For the case of Protectorates legislation is necessary unless an Order in Council providing specially for each Protectorate should be passed.

In the case of Colonies and the United Kingdom, it may be desirable to provide that the demise of the Crown shall not affect the tenure of offices. Such legislation might be confined to the present reign, or might be general, as may be deemed most expedient.

I have, &c.,

R. B. FINLAY.