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(8.) Joint Opinion of the Attorney and Solicitor General, Sir John Campbell and Sir R. M. Rolfe, as to power of Governor to suspend a Colonial Officer appointed by Order in Council.
Temple, August 6, 1838.
My Lord,—We have had the honour to receive your Lordship's letter of the 4th instant, asking our opinion on the question whether, under 4 & 5 Will. 4, c. 95, the Governor of South Australia has the power to suspend any colonial officer appointed hy an Order in Council, and whether notwithstanding an Act of Suspension any such officer would continue dejure to hold his appointment?
In answer, we beg to state that in our opinion the Governor has the power of suspension, and that an officer so suspended would from thenceforth cease to be entitled to exercise any of the functions or to derive any of the emoluments of his office till her Majesty's pleasure should be made known.
The officer must be considered holding during the pleasure of the Crown, and we think the Governor has the power of suspension under his commission and instructions from the Crown.
This power is not conferred upon him by 4 & 5 Will. 4, c. 95, but there is nothing in that Act by which the prerogative of the Crown in this respect is abridged.
The Lord Glenelg, J. Campbell.
&c. &c. &c. R. M. Rolfe.
(9.) Joint Opinion of the King's Advocate, Sir C. RobinSon, and the Attorney and Solicitor General, Sir R. Gifford and Sin J. Copley, on the notification of the Demise of the Crown in a Colony.
Doctors' Commons, May 21, 1821.
My Lord,—We are honoured with your Lordship's commands of the 14th instant, transmitting the copy of a despatch from the officer administering the civil government of the island of Ceylon, stating the circumstances under which the clergy and the Supreme Court of Ceylon had acted upon the information of his late Majesty's demise, although not conveyed to them through the channel of the Governor; and requesting instructions how far their
And your Lordship is pleased to desire that we would take the same into consideration, and report to your Lordship our opinion:
1. Whether a notification from the Bishop to his clergy is not a sufficient authority to them to change the Church Service of the colony according to the form prescribed by his Majesty's Order in Council even before any proclamation has been issued by the Governor?
2. Whether the courts of justice of the colony, after such change in the Church Service, can properly retain the form of process used by them, or whether they are at liberty to change such form upon what ^hey may consider satisfactory evidence of the demise of the Crown, even although that event may not have been officially notified in a proclamation by the Governor?
In obedience to your Lordship's commands, we have the honour to report that we are of opinion that the notification of the Governor is not absolutely necessary to establish legal evidence of the demise of the Crown.
We think the Bishop's directions to his clergy, founded on the Order in Council, might be sufficient authority to them to make the change prescribed, and that the Supreme Court of Justice might also make the necessary change in the forms of process, although no proclamation had been issued by the Governor. But we think such an act should be considered as an exception to the more regular mode of waiting for public instructions from the Governor, and to be justified only by peculiar circumstances, and on the ground of the inconvenience that might be likely to ensue from longer delay.
conduct in doing so was legal.
(10.) Joint Opinion of the Attorney and Solicitor General, Sm John Camphell and Sir R. M. Rolfe, as to effect of Demise of the Crown on the Commission of the Governor of a Colony.
Temple, March 12, 1839. My Lord,—We have to acknowledge the receipt of a letter from Lord Glenelg, dated the 18th ultimo, transmitting to us the copy of a despatch from the Governor of the Cape of Good Hope, with the reports therein enclosed of the proceedings which were had in October last, before the Commissioners for the trial of offences committed at sea, on the trial of the commander and first mate of the barque "Blake" for murder, and of another mate for cruelly ill-treating an apprentice. His Lordship requested us to report our opinion, whether on the ground stated by the prisoners' counsel, or on any other grounds, there is any sufficient reason for doubting the validity of the commission under which the prisoners were tried.
The doubts suggested as to the validity of the commission were founded on the circumstance that more than six calendar months had, at the date of the trial (October, 1838), elapsed since the demise of his late Majesty King William IV. But we are of opinion that these doubts are altogether unfounded. By the 1 Will. 4, c. 4, it was expressly enacted that no commission or warrant for the exercise of any office or employment, civil or military, within any of his Majesty's plantations or foreign possessions should, by reason of any future demise of the Crown, become void until the expiration of eighteen calendar months next after any such demise; all commissions, therefore, which were in force at the Cape of Good Hope on the day of the death of his late Majesty (June 20, 1837), continued in force until the 20th of December, 1838, which was long after the trial. The same statute continued in force all colonial commissions which existed at the demise of George IV. until they should be superseded by a new commission. And this explains the circumstance stated by the Commissioners, that their commission bears date the 10th of March, 1832, being nearly two years after the death of King George IV.
The Marquess of Normanby, J. Campbell.
&c. &c. &c. R. M. Rolfe.
(11.) Joint Opinion of the Attorney and Solicitor General, I Sir John Campbell and Sir Thomas Wilde, as to appointment of Members of the Legislative Council of Canada.
Temple, March 20, 1841.
My Lord,—With reference to Mr. Vernon Smith's letter of this day's date, respecting the mode of appointing the members of the first Legislative Council of the United Province of Canada, under 3 & 4 Vict. c. 35, s. 4, we have the honour to report to your Lordship that we are clearly of opinion they must all be appointed by one instrument under the royal sign-manual, authorizing the Governor of Canada in Her Majesty's name, by one instrument under the great seal of the province, to summon them.
The instrument under the royal sign-manual will follow the words of the Act of Parliament, and authorize the Governor by an instrument under the great seal to summon; but we humbly conceive that instructions should be given to the Governor to execute this authority by one instrument under the great seal of the province, naming all the members of the Legislative Council.
The Right Hon. Lord John Russell, J. Campbell.
&c. &c. &c. Thos. Wilde.
(12.) Joint Opinion of the Queens Advocate, Sir J. Dodson, and the Attorney and Solicitor General, Sir Frederick Pollock and Sir William Follett, as to Power of the Government of Canada to grant an exclusive Bight of Ferry between that Province and the United States.
Temple, March 12, 1842.
Sir,—We beg to acknowledge the receipt of your letter of the 24th ult., wherein you state you had been directed by Lord Stanley to transmit to us the enclosed copy of a despatch from the GovernorGeneral of Canada, submitting a question which has arisen respecting the power of the Provincial Government to grant an exclusive right of ferriage over rivers dividing the British territory from the adjoining States.
And you were pleased to request we would take this subject into our consideration, and report to his Lordship our opinion whether the Government of Canada possesses the exclusive right of regulating the ferries between that province and the United States.
In obedience to his Lordship's commands, we have taken this matter into our consideration, and beg to report that if we are to understand the question submitted to us to be, whether the Government of Canada has the power to grant to any individual the right of conveying passengers to and from the American shore to the exclusion of all other persons, English or American, we are of opinion that the Governor of Canada has no such legal power; and if it be desirable that any regulations should be adopted with respect to the intercourse between the two shores, we think that it should be made the subject of a treaty between the two governments, and be sanctioned by an Act of the Legislature.
G. W. Hope, Esq., Fred. Pollock.
&C. &C. &C. W. W. FOllEtt.
(13.) Extract from Joint Opinion of the Attorney and Solicitor General, Sir Frederick Pollock and Sir William Follett, on the necessity of the concurrence of the Council of a Colony in granting have of absence to Public Officers.
Temple, December 17, 1842.
In obedience to your Lordship's commands, we have taken this matter into our consideration, and have the honour to report, for your Lordship's information, that we are of opinion that neither on any of the grounds suggested, nor on any other grounds that occur to us, can the concurrence of the Council in St. Lucia, or in any other colony, be lawfully dispensed with in granting leave of absence to public officers generally, or to any particular class of public officers.
The first Act, 22 Geo. 3, c. 75, is expressly made to apply to any colony or plantation now or at any time thereafter belonging to the Crown of Great Britain ; there is, therefore, no foundation for the suggestion that the statute does not apply to colonies acquired since the passing of the statute.
The secoud statute, 54 Geo. 3, c. 61, extends the enactments of the first to all officers however appointed, if appointed by any in