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That the Governor having reported in a despatch that, being about to absent himself, and the Colonial Secretary being actually absent, he had appointed the Senior Justice to administer the government during his absence; and to request that I would favour you with my opinion, whether the Governor's appointment of the Senior Justice to administer the government was legally consistent with the terms of the original (as amended by the supplementary) charter, and, if not, what steps should be taken to repair the error which may have been committed?
In compliance with your request, I have taken the subject into consideration, and have the honour to report—
That I am of opinion that the Governor's appointment of the Senior Justice to administer the government was not legally consistent with or warranted by the terms of the original (as amended by the supplementary) charter. The error committed should be repaired either by the Governor or Colonial Secretary resuming the government, or by a Koyal Warrant confirming the appoint ment of the Senior Justice pro luxe vice; and, in either case, if any act of importance has been done in the meantime by the Senior Justice, it should be legalized by a Bill of Indemnity.
The Right Hon. Sir E. B. Lytton, Bart., H. McC. Cairns. &c. &c. &c.
NOTES TO CHAPTER III.
Governor of '^le Governor of a colony has not a delegation of the whole royal Colony. power, as between him and a subject, which is not expressly given by his commission ; nor does any commission to Colonial Governors convey such an extensive authority. They have merely a limited authority from the Crown, and their assumption of an act of sovereign power out of the limits of the authority so given to them is purely void: Cameron v. Kyle, 3 Knapp, P. C. 332. "If it bo said that the Governor of a colony is quasi Sovereign, the answer is that he does not even represent the Sovereign generally, having only the functions delegated to him by the terms of his commission, and being only the officer to execute the specific powers with which that commission clothes him:" per cur. Hill v. Bigge, 3 Moore, P. C. 476. The civil superintendent of a colony who was an officer in a regiment, and who was appointed military commandant there, was held to continuo in command of the troops, notwithstanding that his own regiment was disbanded, and he was put on half-pay: Bradley v. Arthur, 4 B. & C. 292. There Bayley, J., said: "The Crown exercises its judgment, and the persons who from time to time shall have the command in particular places, and the person under the Crown entrusted with the care of a whole district, must from time to time say who shall be the person exercising the military command within particular parts of that district;" and per Ilolroyd, J.: "By looking into the Articles of War, particularly sections 18 & 22, it appears to be taken for grunted that it is within the prerogative of the Crown, that not only the Crown itself, but also, under certain circumstances, a Governor, may grant commissions and make appointments."
The question of whether the Governor of a colony has, by virtue of his authority as representing the Crown, power to make grants of waste lands, was raised, but not decided, in The Queen v. Clarke, 7 Moore, P. C. 77: see Robertson v. Dumaresq, 2 Moore, P. C. (N.S.) 66.
It was held in The Queen v. Huglies, L. li. 1 P. C. 81, that leases granted by the Governor of South Australia under powers conferred upon hitn by a Colonial Act, and sealed with the public seal of the province, but not enrolled or recorded in any court, are not in themselves records, and cannot bo annulled or quashed by a writ of scire facias. The case of The Queen v. Clarice, 7 Moore, P. C. 77, was there commented upon, and shown to be no authority for a contrary doctrine. The proper mode of proceeding in such a case is by writof intrusion, which lies in every case in which a trespass is committed on the lands of the Crown, or a person enters on the same without title; or by information in Chancery, which may be used to speak the right of the Crown to property, as in The Attorney General v. Chambers, 4 D. M. & G. 206.
In a recent case, where the question was whether the Governor of a colony, who was absent at the time of the seizure of some slaves, or the acting Governor, was entitled to the bounties payable under statute 5 Geo. 4, c. 113, It Geo. 4, & 1 Wm. 4, c. 55, Dr. Lushington held the Governor was entitled: Be Sierra Leone, Br. & Lush, Adm. 148.
By several statutes it is provided that the word "Governor" in the particular statute shall mean the officer for the time being administering the government of any colony: e.g. see 12 & 13 Vict. c. 96, s. 5.
Under the statute 22 Geo. 3, c. 75, s. 2, the Governor and Council of a colony have the power to remove a judge from his office for misbehaviour: Willis v. Gipps, 5 Moore, P. C. 379; Montagu v. Lieu'enaidGovernor of Van Diemen's Land, 6 Moore, P. C. 489.
In Ex parte Bobertson, in re The Governor-General of New South Wales, 11 Moore, P. C. 288, where the appellant, a commissioner of Crown lands "in the colony of New South Wales created under a Colonial Act, and holding the office during the pleasure of the Governor," had been dismissed by the Governor, the Court held that it was not a matter of great importance whether the office might be said to be held by patent or not. They said: "Their Lordships are all of opinion that the practice of this Court is not to enter into the consideration of such a dismissal unless by the express command of Her Majesty. They do not enter into the consideration of such acts as are done by the Governor and Council of a colony in the exercise of the power and authority committed to them, whereby they dismiss persons from holding situations in that colony, they holding them not by any patent right, but simply and only during the pleasure of the Governor himself. Therefore, upon that grouud we are of opinion that the original petition cannot be sustained."
Lord Stowell held that the notification of a blockade by ajiaval commander on a foreign station, although done without authgntyjfrom the Government at home, was legal: In re Holla, 6 liob. Adm., 364. But with respect to his dictum in that case that a naval commander on a distant station may be reasonably supposed to carry with him such a portion of the sovereign authority delegated to him as may be necessary for tho exigencies of the service, the Judicial Committee, in Cameron v. Kyle, ubi sup., observed that it was clear that he was speaking of such an authority being from the very nature of the case necessarily incident to the functions of a commander carrying on war in a distant part of the globe; "but no such necessity exists in the case of a Governor of a colony for the exercise of powers of sovereignty out of the ordinary and usual course:" see Northtoie v. Douglas, 10 Moore, P. C. 37.
In Bryan v. Arthur, 11 Ad. & Ell. 108, it was held that under statute 3 Geo. 4, c. 83, s. 9, the Governor of New South Wales and Van Diemon's Land had power to revoke assignments of convicts without any remission of their sentences.
In 1842 an Order in Council was made for a commission under the Great Seal, empowering the Governor of New South W ales to exercise the royal prerogative of pardon, in the case of criminals convicted of treason and murder in that colony : MS. Council Register, 1842, p. 386.
Effect of Hallam says (Const. Hist. iii. 262, 3rd edit.) that we owe the..pro
demise of the vision which makes the commissions of the judges run quamdiu se bene Governor's gesserint, instead of durante bene placito, to the Act of Settlement, "not, commission, as ignorance and adulation have perpetually asserted, to his late Majesty George III." But this is a mistake. The statute which first altered the form of the commissions was 12 & 13 Will. 3, c. 2, s.JJjbut as it was decided at the accession of Anne that the patents of the judges terminated by the demise of the Crown, this was remedied by the Act of Settlement (6 Anne, c. 7, s. 8), which enacts that all officers, including the judges, shall act upon their former patents for the space of six months after any demise of the Crown, unless sooner removed by the next succession. And by statute 1 Geo. 3, c. 23, the commissions of the judges are to remain in full force during their good behaviour, notwithstanding the demise of the Crown, without any limitation of time. It was this Act which gave rise to the mistake which Hallam ascribes to "ignorance and adulation:" see Detrine v. Holloway, 14 Moore, P. C. 290.
A power of attorney is revoked by the death of the person who granted it, and a contract afterwards made under the authority given by it, though without notice of the death, is void: Watson v. King, 4 Camp. 272; and see the note to Smart v. Sanders, 5 C. B. 917. And so, although the act was appointed to be done after the death of the principal, "A letter of attorney to deliver livery of seisin after the decease of the feoffor is void:" Co. Litt. 52 b. In the note there it is said, "by devise or by special custom authority may be created executory after the party's death." By the civil law a sale by an agent after the death of the principal, but before notice, binds the property: Dig. lib 17, tit. 1, 1. 26.
In general, a ministerial officer can appoint a deputy unless the office Appointment is to be exercised by the ministerial officer in person. But where the ot dePutyoffice partakes of a judicial and ministerial character, although a deputy may be made for the performance of ministerial acts, one cannot be made for the performance of a judicial act. A sheriff, therefore, cannot make a deputy to hold an inquisition under a writ of inquiry, although he may appoint a deputy to serve a writ: Com. Dig., Officer, D.
In Lane v. Cotton, 1 Salk. 18, Holt, C.J., said: " W hat is done by the deputy is done by the principal, and it is the act of the principal, who may displace hitn at pleasure, even though he were constituted for life, vide Hob. 13, 1 Mod. 85; and the act of the deputy may forfeit the office of the principal: 39 Hen. 6, c. 34."—See Campbell v. Hewlitt, 16 Q. B. 258.
It was said by Lord Abinger, C.B., in Jewison v. Dyson, 9 M. & W, 585, that many officers may be called judicial to a certain extent who are not judicial within the general meaning of the law, which says that the Crown cannot delegate to another its right to appoint judicial officers. That rule is confined to judicial officers who determine causes inter partes. In that case the question was, whether the Crown, in right of the Duchy of Lancaster, had the exclusive right, under a charter of Edward III., of appointing a coroner within the province of Pontefract. The Crown may, by charter in express words, grant to a commonalty or corporation the power to make another commonalty or corporation: Bro. Abr. Prerog. 53; and see The Queen v. Dulieich College, 21 L. J. (N.S.) (Q.B.) 36, where, per Lord Campbell, C.J., "The Crown could not delegate the appointment of magistrates." A deputy cannot make a deputy, on the piinciple that delegatus non potest delegare: Com. Dig., Viscount B. 7 Vin. Abr. 550.
The statute 22 Geo. 3, c. 75, enacts that no office to be exercised in any colony shall be granted by patent for any longer term than while the grantee shall discharge the duty thereof in person and behave well therein. This statute was passed to put an end to the practice of exercising offices in the colonies by deputy while the holders were resident in this country: see Montagu v. Lieutenant-Governor of Van Diem en's Land, 6 Moore, P. C. 489. Where the Judge of a Vice-Admiralty Court (at Sierra Leone), who was also Chief Justice, with the concurrence of the Governor, appointed a Deputy Judge of the court, and left for England, and the Deputy Judge died soon afterwards, and then the acting Chief Justice, with the concurrence of the Governor, appointed another Deputy Judge of the Vice-Admiralty Court, it was contended that such deputy was illegally appointed, and had no jurisdiction; but the Judicial Committee said that they had no doubt whatever that he was duly appointed, and had full jurisdiction: Bolet v. The Queen, L. E. 1 P. C. 198; see 26 Vict. o. 24, s. 4. Civil liability W ith respect to the civil liability of the Governor of a colony to an of Governor, action brought against him in this country for a wrong committed by him while holding the office of Governor, the leading cases are— Mostyn v. Fabrigas, Cowp. 161; Campbell v. Hall, Cowp. 204: and see also Wall v. Nacnamara, 1 T. E. 536; Wilkms v. Bespard, 5 T. R. 112; Wytham v. Button, 3 Mod. 160; Way v. Yally, 6 Mod. 195; Bafael v. Vereht, 2 WT. Bl. 982, 1055; Glynn v. Houston, 2 M. & G. 337; Basham v. Lumley, 3 C. & P. 489; Phillips v. Eyre, L. R. 4 Q. B. 225, which clearly establish the principle that a Governor is liable to an action in this country for a wrong done by him during his government. In Lord Bellamonfs Case, 2 Salk. 625, the Attorney General moved for a trial at bar in an action against the Govornor of New York for matter done by him as governor, and it was granted "because the King defended it."
In Phillips v. Eyre, ubi sup., it was decided that a Colonial Act of Indemnity, by which the right of action in respect of an act otherwise lawfully done by the Governor of the colony, is taken away before -an action has been brought in this country, is a good defence to such action (i). In Button v. Howell, Show. Pari. Ca. 24, it was held that the Governor of a colony could not be sued in this country for imprisoning a person guilty of official delinquency under his government; but this proceeded on the ground that the Governor and his Council had acted judicially: see Hill v. Bigge, 3 Moore, P. C. 482; and as to the non-liability of a judicial officer, Kemp v. Neville, 10 C. B. (N.S.) 523. The Governor of a colony may be sued in an action of debt in one of the Courts of the colony, but it seems that ho would not be liable while resident in his government to bo taken in execution upon judgment recovered: Hill v. Bigge, ubi sup., 465. In that case the Court commented upon the dictum of Lord Mansfield, in Fabrigas v. Mostyn, that "the Governor is in the nature of a viceroy, and that, therefore, locally during his government no civil or criminal action will lie against
(i) Two of the earliest instances of Acts of Indemnity in this country are the statutes passed 7 Edw. 2: (1) Ne quit occimonetur pro reditu Petri de Gaveston; (2) Ne quit oec.amonetur pro captione ct morte Petri de Gaveston. But these are said to have been repealed within a year after they were passed. By statute 15 Edw. 2, an indemnity was granted to all persons for felonies and transgressions done in the case of the two Lo Despencers; but this indemnity was afterwards revoked.