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PUBLIC RECORD OFFICE
Reference -
C.O.885
3 PUBLIC RECORD OFFICE, LONDON
ALLY WITHOUT PERMISSION OF THE BE REPRODUCED PHOTOGRAPHIC-
COPYRIGHT PHOTOGRAPH—NOT TO
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2. That in these Colonies the silver coins of the United Kingdom shall not be a legal tender in payment of sums exceeding 408.
Mr. Merivale stated that as doubts have occurred respecting the application of this Order in Council and Proclamation to the Australian Colonies, he was directed by you to request our opinion on the following case :-
By the Act 4 Geo. IV, cap. 96, 24th and following sections, the Governor of New South Wales was empowered, with the advice of the Council thereby constituted of persons appointed by the Crown, to make laws for the peace, welfare, and good government of the Colony, under the restrictions specified in the same section.
On the 23rd March, 1825, and while the Legislature created by this Act was in operation, an Order in Council was issued regulating the value of the Spanish dollar, to which our attention was called in the case previously submitted to us by the Lords Commissioners of the Treasury.
On the receipt of this Order in New South Wales, the Colonial Act, 7 Geo. IV, No. 3, was passed, enacting, with some difference of language (by Sections 2 and 3), the provisions of the Order in Council, copy of which Act Mr. Merivale was pleased to forward, and was pleased to remark that you were not aware that any other Order in Council regulating the currency of New South Wales had been made prior to that now in question, which (as is stated in the case referred to) was repealed in 1838, or that any other Acts affecting the subject have been passed by its Legislature, except a former and repealed Act of the New South Wales Legislature, 5 Geo. ÏV, No. 1, which was also annexed for reference.
That British silver coin appears to be admitted at present by usage in New South Wales as a legal tender to an unlimited amount, although you are not aware that this usage is continued by any
law.
By the Imperial Act 9 Geo. IV, cap. 83, 20th and following sections, the power of legislation for New South Wales was vested in a Legislative Council differently constituted, although still of members appointed by the Crown, but with similar words as to their power of making laws and ordinances, that the provisions of this Act were continued by divers subsequent Acts which are referred to in 5 & 6 Vict., cap. 76, sec. 3.
That by the last-mentioned Act (5 and 6 Vict., cap. 76) a Legislative Council, with one-third of its members nominated by the Crown, and two-thirds elected by the people, was created, with powers (by section 29) to make laws for the peace, welfare, and good government of the Colony.
And, lastly, by 83 and 14 Vict., cap. 59, the separation of Victoria from New South Wales was effected, and a new Legislative Council constituted for the latter Province, but without any alteration as to its general powers of legisla-
tion.
Mr. Merivale was also pleased to say he was directed by you to request that, with reference to the second head of our answer to the case stated on behalf of the Lords Commissioners of the Treasury, and to the provisions of the above- mentioned Acts of Parliament, we would report our opinion-
Whether the Order in Council and Proclamation in question will have the force of law in New South Wales without any enactment of their provisions by the Legislative Council, either wholly, or as to either of those provisions sepa- rately, viz., that declaring that the coins of the United Kingdom shall pass current in the Colonies referred to in the manner directed by the several Acts of Parliament which regulate the currency of the same, and that limiting the amount of silver coins of the United Kingdom consituting a legal tender.
And if we should be of opinion that the Order in Council and Proclamation would, on general grounds, have of themselves such effect, then, with reference to the fourth head of our answer, whether we consider that the Colonial Ats referred to would, to any and what extent, interfere with their legal operation.
In obedience to your commands we have taken the ease into consideration, and have the honour to report that the power to regulate the currency of these Kingdoms and of the Colonies is part of the prerogative of the Crown, and cannot be taken away or impaired except by Act of Parliament.
We have considered the Acts establishing Legislative Councils in Australia, and the Colonial Acts referred to which they have passed, and we find nothing in either affecting the prerogative of the Crown, as to the currency, or the validity of the Proclamation of October; but it might, however, be desirable to
follow up these Proclamations by Acts of the Legislative Council for carrying them into effect.
The Right Hon. Sir J. Pakington, Bart.,
&c.
&c.
&c.i
We have, &c. (Signed)
FRED. THESIGER. FITZROY KELLY.
No. 68.
COPY of a LETTER from the ATTORNEY and SOLICITOR-GENERAL to Sir Gr GREY.
Temple, December 5, 1854.
No. 68.
SIR,
WE were honoured with your commands, contained in Mr. Merivale's Act 16 & 17 Vict., letter of the 15th ultimo, in which he stated that he was directed by you to c. 99, abolishing transmit to us the accompanying despatch from the Governor of New South transportation in
certain cases, how Wales, with its enclosures, and to request that we would favour you with our far in force in advice on the following point :—
That, referring to the letter of the 20th February last, from the Horse Guards to the General Officer commanding at New South Wales, and to our own opinion, as stated in that letter, as to sentences of transportation passed on military offenders; were we of opinion that the same principle applies to sentences of transportation passed by the ordinary Courts in the Colonies on the other offenders, insomuch that all such sentences, passed since the Act 16 and 17 Vict., cap. 99, came into operation, and which, if passed in England, would have been invalid by reason of that Act, were invalid and could not be enforced.
In obedience to your request we have taken the subject into our considera tion, and have the honour to report—
;
That, in our opinion, the question whether the principle embodied in our opinion as to sentences of transportation passed on military offenders applies to sentences of transportation passed by the ordinary Courts in the Colonies; and whether, consequently, such sentences passed since 16 and 17 Vict., cap. 99, which, if passed in England, would have been invalid under that Act, are invalid and cannot be enforced, must depend materially on the constitution of the particular Colony, and whether the law is administered in such Colony under the authority of the British Crown, or under the laws passed by the Local Legislature. Generally speaking, Acts of Parliament do not apply to the Colonies, unless the latter are expressly specified therein; but some classes of statutes, which appear to be of Imperial concern, and to affect the whole of the dominions of the Crown, have been held to be excepted from this rule.
In the case of military offences, the trial takes place under the martial law, as established by the Mutiny Acts. In such a case there is no doubt that the 16 and 17 Vict., cap. 99, applies, though the trial takes place in a Colony. We are disposed to think, looking to the general scope and purport of the Act in question, that it would apply generally to sentences passed in the ordinary Colonial Courts also; but, as we have just pointed out, there may be circum- stances of local legislation or law, which may make the local application of this statute, in which no reference is made to the Colonies, very questionable.
We goncur with the Law Officers of New South Wales in thinking that legislative provision should be made that statutes passed in this country, unless expressly declared to take effect from a particular period, should not take effect in a colony till promulgated there.
We have, &c.
The Right Hon. Sir G. Grey, Bart.,
&c.
&c.
&c.
(Signed)
A. E. COCKBURN, RICHARD BETHELL.
U
Colonies.
Page 160Page 161
No. 69.
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No. 69.
COPY of a LETTER from the ATTORNEY and SOLICITOR-GENERAL to
Mr. LABOUCHERE.