PUBLIC RECORD OFFICE
Reference :-
C.O-885
PUBLIC RECORD OFFICE, LONDON
ALLY WITHOUT PERMISSION OF THE BE REPRODUCED PHOTOGRAPHIC- COPYRIGHT PHOTOGRAPH-NOT TO
settlement. It is not stated what was the law of divorce in the Colony when this Aot was passed, what particular object this proviso was intended to secure, or what pressing evil it was intended to remedy.
No explanation is given either of the argumente adduced in its favour, nor of the answers to the objections which were urged against it by the minority in both Houses of the Legislature.
There is nothing forthcoming from the Colonial Law Officers of the Crown, or from the judicial authorities. The Governor disapproves of it. The three principal ecclesiastical bodies in the Colony-the United Church of England and Ireland, the Established Church of Scotland, and the Roman Catholic Church-have separately and formally objected to it, although the objection of the Roman Catholjo bishop is weakened by the fact, relied on in his letter, that by the Roman Catholic Church marriage is regarded as indissoluble on religious grounds.
As regards the only ground suggested by the Governor for the introduction of this particular provision, namely, the local influence of the (so called) "Scotch element" and the apparent desire to assimilate the Colonial law to that of Scotland rather than that of England, this is not in my opinion a ground which can properly be admitted as sufficient to justify this particular provision.
The first settlers carried with them into the Colony the law of England, and not that of Scotland, and in legislating, as it were, for the first time in the history of the Colony, upon such a matter as divorce, the principles of the English law, and not those peculiar to Scotland, should be as far as practicable adhered to and followed out.
I need scarcely observe that by the common law of England (which was in force on this subject at the settlement of the Colony) marriage was indissoluble; marriages were in a few instances dissolved under private Acts of Parliament, passed separately in each case; the recent Imperial statute, which was enacted after much consideration and discussion, has introduced most important alterations, and whilst there is nothing unreasonable in the Colonial Legislatures following separately the example set by the mother country, and even introducing for themselves such alterations in matters of can see no sufficient reason for detail as their peculiar condition may require, encouraging, or even for permitting, them to deviate entirely from the English model on a subject of such serious social importance as the present.
In conclusion, I would venture to suggest that even if the principle of this parti- cular enactment should be conceded, some verbal amendment of the 13th section qualifying the words "desertion without reasonable cause,” and not leaving their construction entirely open, may be advisable.
without
The Scotch Statute of 1573 not only introduces the qualification reasonable cause," but also provides for "admonitions," and requires proof of wilful and malicious desertion; and the laws of many of the States of the United States of North America (as Mississipi, Florida. Connecticut, Ohio, Pennsylvania, and Massa- chusetts) introduce similar qualifications.
The general intercourse between the Colony and other countries, especially England, and its peculiar social circumstances and condition, appear to me to render some such qualifications very desirable. The serious question of principle involved is, however, far more important than that of any verbal amendment, and as at present advised I cannot advise your Grace to allow this Act to be confirmed.
The Right Hon. the Duke of Newcastle,
&c.
&c,
&c.
I have, &c. (Signed) J. D. HARDING.
12003.
No. 46.
(AUSTRALIA.)
LAW OFFICERS to ADMIRALTY.
OPINION upon
the subject of the Authorities of the Colonies of Australia arming and. employing vessels for the service of Her Majesty's Local Government in that Colony.
We are of opinion that the consent of the Crown to the Act of the Colony of Victoria, without an Aot of Parliament authorising that consent, would confer upon vessels equipped under the Colonial Act the legal character of British vessels of war only within the limits of the territorial jurisdiction of the Colony, .8., within three miles of the shores, but that beyond these limits such vessels would not be entitled to this character. Inasmuch as the Colonial Act clearly contemplates a naval force to be employed beyond the territorial waters of the Colony, we are of opinion that such an Act is " ultra vires" of the Colonial Legislature, both because it trenches upon the prerogative of the Crown, and because the vessels of foreign states would not be bound to respect its provisions.
The present anomalous character of the sloop " Victoria" furnishes an illustration of this view, to which we think it right to call the attention of the Government.
The "Victoria is now employed as a vessel of war without the territorial waters, of the Colony, but in the event of her being brought into conflict with the vessel of any foreign state conveying stores or ammunition to the rebels in New Zealand, for instance, we think it very doubtful whether she could claim to be recognised as a British man-of-war, and to possess the privileges incident to international law to such. a vessel, as, for instance, whether captures made by her would be liable to be condemned. as prizes.
Serious inconveniences may arise from the sanction of the Crown' being given to the Colonial Act, the legal effect of which will be no more than to sanotion the establish- ment of a force in the nature of a local naval militia, but which Act was passed with the intention and for the purpose of establishing a regular naval force to be used on the high seas.
2. We think that all vessels of war in the Colonies intended to navigate beyond. these territorial limits should be commanded by officers holding commissions from, the Crown, and be essentially part of the Royal Navy of England. There can be no serious difficulties in the way of an arrangement between the Crown and the Colony upon this important subject.
It would not seem unreasonable that in consideration of the Colonies supplying or contributing to the expenses of certain vessels of war, those vessels should be stationed on their coasts, and charged with the especial duty of protecting them.
And it appears to us that by some arrangement of this kind, into the details of which we do not enter, the wishes both of the Colonists and of the Home Government would be best carried into effect.
We think it right also to point out another mode by which the same object might be perhaps more advantageously effected, viz., by the passing an Imperial statute so framed as to confer on the Crown large discretionary powers of entering into such arrangements with the various Colonies as may in each particular case conduce to the end proposed, viz., the maintenance in each Colony requiring it of a naval force especially appropriated to the defence of that Colony, but forming part of the Imperial navy of the Crown.
Doctors' Commons,
(Signed)
J. D. HARDING. RICHARD BETHELL.
W. ATHERTON. ROBERT PHILLIMORE. R. P. COLLIER.
December 21, 1860.
o 16978.-771.
25-9/86.