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States-General have granted permission to the Directors of the colony of Berbice to open a free trade and navigation to the said colony for all the inhabitants of the United Netherlands; as also to deliver lands already cultivated or not on equitable terms.
And your Lordship is pleased to request that we would take the same into consideration, and report to your Lordship our opinion, whether his Royal Highness having found it necessary to dismiss the members of the present Council of Government, it is competent to his Royal Higbness to direct, by an Order in Council, the manner in which another Council of Government should be formed, or whether his Royal Highness is still bound to require the late members to furnish names of other persons from which to make an election of their successors; calling our attention to the circumstance that the Berbice Association (the former directors of the colony) having been abolished previous to the surrender of the colony to his Majesty's arms, and the whole power of the directors having been at that time vested in the Government of Holland, bis Royal Highness has since exercised in the colony authority both of the States-General and of the directors of the colony; and further calling our attention to the additional regulations laid down by the States-General in their resolve of the year 1780, altering in certain particulars the original charter under which the colony was established.
In obedience to your Lordship’s directions, we have considered the same, and, adverting to the charter and the capitulation, we are of opinion that the full powers of Government are vested in the Crown by the conquest, and that his Royal Highness the Prince Regent having found it necessary to dismiss the present Council, the members so discharged would not be entitled to nominate their successors, as the 21st Article of the Charter, if it is adopted as the rule of Government, would not be applicable to such a case.
The original mode of nomination might be used if it was deemed expedient, but we are of opinion that it would not be obligatory, and that his Royal Highness the Prince Regent might direct by Order in Council the manner in which another Council of Government should be formed.
C. ROBINSON. Doctors' Commons, April 22, 1817.
(7.) JOINT OPINION of the Attorney and Solicitor General, Sir JAMES SCARLETT and Sir N. C. TINDAL, on certain inquisitorial powers claimed by the House of Assembly in Antigua. 1828.
We presume we are not called upon to consider the abstract question how far a Legislative Assembly in the colonies, without any original power given to them by their charter, or any course of usage and practice to support it, can exercise such inquisitorial powers, and enforce them by such means as are within the undisputed privilege of the English House of Commons. But conceiving the fact to be, that some analogous powers have been recognised in practice in the island of Antigua, and may be in certain cases essential for the purposes of legislation, we think it would not be expedient, on an occasion like the present, to call them in question. And we see no reason why the Attorney General of the island should refuse his attendance at the bar of the House of Assembly, or should decline answering any questions put to him, excepting such as may occasion disclosures which it would be inconsistent with the duty of his office to make, or which may have a tendency to criminate himself. It appears, however, to be unnecessary to dwell more largely on these grounds of exception, as the House of Assembly have by their 5th and 6th Resolutions expressly disclaimed their intention of breaking in upon either.
In case it should be thought necessary, upon grounds which may have occurred in the island, but which we do not comprehend, to bring the question to a judicial determination, the proper course will be by an action of trespass against the party who makes the arrest under the Speaker's warrant; in which case the powers of the House, both in general and as applied to the particular instance, may be discussed and determined on an appeal to the King in Council, the facts of the case being set out either upon a special verdict or a Bill of Exceptions.
J. SCARLETT. Temple, January 21, 1828.
N. C. TINDAL.
(8.) JOINT OPINION of the Attorney and Solicitor General, SIR WILLIAM HORNE and Sir John CAMPBELL, as to provisions of Charter of Justice not being at variance with Terms of Capitulation in the Mauritius. 1833.
MY LORD,—We beg to acknowledge the receipt from your Lordship of the draft of an intended charter for the better administration of justice in the Mauritius, which you have been pleased to transmit to us for our revision, together with a letter stating the circumstances which have determined his Majesty's Government to the adoption of such a measure. In answer thereto, we have the honour to state that we have revised the draft according to your Lordship's desire, and that we do not see any reason for altering its form or the terms of its several provisions, which we presume to be in their scope and object conformable to the intention of Government, and not to be at variance with the capitulation or treaty by which his Majesty acquired the sovereignty of that island with reference to the power of altering its laws.
Lincoln's Inn, March 26, 1833.
(9.) JOINT OPINION of the Attorney and Solicitor General, SIR JOHN CAMPBELL and Sir R. M. ROLFE, as to sealing of writs issued for election of House of Assembly in Newfoundland. | 1837.
MY LORD,—We have to acknowledge the receipt of your Lordship’s letter of the 14th instant, together with a case prepared by the Attorney General of the island of Newfoundland for the purpose of obtaining our opinion on the following points :1st. In case it shall be found that all the writs issued in 1832,
under which the members of the House of Assembly in the island were elected and sate during all the sessions of the first General Assembly, were issued without seals, whether the Acts of the Legislature are to be
deemed consequently void ? 2nd. In case it should be found that two only of the fifteen
members of Assembly were elected under writs issued without seals, whether such defect renders the legis
lative Acts of the Governor and Assembly invalid ? We beg leave to state to your Lordship that we have fully considered the case submitted to us, together with the accompanying papers, and we are clearly of opinion that no informality in the issuing of the writs can affect the validity of the acts done by the legislative body.
The absence of the seal might perhaps have justified the Sheriff or other officers to whom it was directed in treating the instrument as a nullity, and consequently refusing to proceed to an election. But the elections were, in fact, made, and we are of opinion that no objection could afterwards be raised to the form of the instruments under which the returning officers acted so as to affect the legislative power of the persons returned. Being of opinion that the legislative competency of the Assembly would not be affected by the circumstance of all the writs having been unsealed, we feel it hardly necessary to add, that it could not be affected by the fact that two of the writs issued without a seal supposing the rest to have been duly sealed.
We beg leave to add that it will be expedient for the future that all writs for the election of members of Assembly should issue under the seal of the colony, all writs being in strictness instruments under seal.
J. CAMPBELL. Temple, October 17, 1837.
R. M. ROLFE.
(10.) JOINT OPINION of the Attorney and Solicitor General, SIR JOHN CAMPBELL and Sir R. M. ROLFE, as to power of the Queen in Council to make lau's for South Australia. 1838.
MY LORD,— We have to acknowledge the receipt of a letter from your Lordship, of yesterday's date, transmitting to us the copy of a letter received at the Colonial Office, from the Chairman of the Colonization Commissioners for South Australia, calling your Lordship's attention to the effect which the statute of the late Session, cap. 60, may be supposed to have on the laws previously enacted in that province, and requesting us to report our opinion on the following questions :—First, whether under the statute 1 & 2 Vict. c. 60, s. 1, Her Majesty in Council has the power both to make laws and to delegate a concurrent power of legislature to persons resident and being within the province? Secondly, whether the laws made by the local legislature, appointed under 4 Will. 4, c. 95 (1), are repealed or have lost their authority by virtue of the 1 & 2 Vict. c. 60 (2)? And if so, then, Thirdly, whether it is competent to the Queen in Council to revive the authority of such repealed or abrogated laws ?
We have now the honour to report to your Lordship, in answer to the first question, that, in our opinion, the Queen has the power, by Order in Council, to make laws for the Government of the province; and that she has, concurrently with that power, the power of appointing, by warrant under the sign-manual, any three or more persons resident and being in the province, who will have the power of making laws for the colony, subject to any restrictions wbich Her Majesty may think fit to impose.
In answer to the second and third questions, we are clearly of opinion that all laws made under the authority of the Act 4 Will. 4, c. 95, will remain in force notwithstanding the Act of 1 Vict. c. 60.
J. CAMPBELL. Temple, August 22, 1838.
R. M. ROLFE.
(11.) JOINT OPINION of the Attorney and Solicitor General, SIR JOHN CAMPBELL and Sir R. M. ROLFE, as to question of disqualification to sit in the House of Assembly in Newfound
land. 1837. My LORD,—We have had the bonour to receive your Lordship’s letter of the 16th inst., transmitting to us certain papers respecting the ejectment from the House of Assembly of Newfoundland of Mr. Power, one of the members for Conception Bay, and requesting our opinion whether the proceedings of the Assembly in this matter were according to law, and whether the seat of Mr. Power was legally vacated by his acceptance of the office of stipendiary magistrate ?
(1) & (2) Both these Acts are repealed by 5 & 6 Vict. c. 61.