PUBLIC RECORD OFFICE
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19
Reference :-
C.O.
conditional power, are observed.
which is not duly exercised unless the qualifications and conditions
The condition is that the form of Government and Legislature to be established in the new Colony shall resemble, as nearly as the circumstances of the new Colony will allow, the form of Government and Legislature established in New South Wales at the time of the separation of such Colony.
These words, "the form of Government and Legislature," must, in our opinion, be taken to include the laws by which the House of Assembly (a branch of the Legisla- ture) is elected and constituted.
We think, therefore, that there is an obligation on the Crown, unless it can be shown that the oircumstances of Queensland will not admit of its being done, to establish in Queensland the same law of electoral franchise as existed in New South Wales at the time of the separation.
That such a law is not, in the opinion of the advisers of the Crown, expedient for Queensland is not sufficient. If it be practicable, it must be done.
At the time of the separation all the adult males who were living in what is now the Colony of Queensland possessed the electoral franchise in New South Wales, and if a similar right were not permitted to exist in Queensland such as have no property franchise would be disfranchised by the effect of the separation.
We are of opinion that the former Order in Council was not a due execution of the statutory power contained in the 7th section, and that it was, therefore, invalid, and consequently that a new Order in Corcoil should be passed revoking the 8th section of the former Order and introducing a new section in lieu thereof, or an Act of Par- liament obtained giving validity to the former Order, if it be desired not to follow in Queensland the electoral law of New South Wales.
His Grace the Duke of Newcastle,
&c.
&c.
&c.
We have, &c. (Signed)
RICHARD BETHELL. WILLIAM ATHERTON.
1975.
MY LORD DUKE,
No. 56.
(BRITISH GUIANA.)
QUEEN'S ADVOCATE to COLONIAL OFFICE.
Doctors' Commons, March 4, 1861.
I AM honoured with your Grace's commands, signified in Sir Frederic Rogers' letter of the 12th February ultimo, stating that he was directed to transmit to me for my Report the copy of a Despatch from the Governor of British Guiana, submitting an No. 138. Ordinance "for better enforcing church discipline among the clergy of the United No. 32 of "Church of England and Ireland within this Colony," together with the Attorney 1860. General's Report thereon.
Sir Frederic Rogers was also pleased to state that your Grace has referred these papers for the consideration of the Archbishop of Canterbury.
In obedience to your Grace's commands, I have taken this Ordinance into considera- tion, and have the honour to
Report
885
10 PUBLIC RECORD OFFICE, LONDON
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your
That the Ordinance in question, and the Report thereon of the Colonial Attorney Grace General, gives rise to several important questions upon which I observe that bas communicated to the Archbishop of Canterbury, from whom as yet there has apparently been no reply.
am without any information whatever of the ecclesiastical, legal, or social condition and circumstances of the Colony, the number and position of the clergy and laity of the Established Church, therein the ecclesiastical power and jurisdiction over the clergy actually exercised by, or which may be competent to, the Bishop, the nature and condition of the court of policy, and so forth. There is more especially a recent Colonial Ordinance (No. 10 of 1859) vesting certain powers over the salaries of the clergy in the Government and court of policy of which I have no copy.
The Attorney General states that several of the West Indian Colonies have already passed Church Discipline Bills, but of these, whatever they may be, I have no copies and I am ignorant of their contents.
I am only aware of the case of the St. Vincent's Act, No. 653, as to which in my Report of January 29th 1856, I recommended that Her Majesty's assent should not be given; the Attorney General does not refer by name or date to any of these Bills (or Acts), nor does he state or imply that he took any of these Bills as a precedent for this Ordinance.
There is no statement of the reasons why the Ordinance No. 10 of 1859, and the jurisdiction and powers vested in the bishop by his patent have been found insufficient for the particular objects and results which the framers of the present Ordinance desire especially to secure in Guiana; nor is there any explicit statement of those objects. There is no suggestion that the offences or irregularities of the Colonial clergy have become so numerous and scandalous as urgently to require special legislation. Above all there is no explanation of the apparent absence of any official or confidential pom- munication with the Colonial Office on the subject before this Ordinance was actually framed and passed.
I proceed, however, in conformity with your Grace's desire, to offer the following observations on the Ordinance in question :-
First, as to the question of appeal. The practical result and effect of the Ordinance (valeat quantum), especially of section 13, seems to be (notwithstanding the 30th section) to empower the bishop in person with two assessors (the one clerical, and the other legal, of his own selection) to inflict any ecclesiastical punishment upon a cler man up to and including deprivation finally and without any appeal or revision.
The concurrence of the assessors, in the judgment of the bishop, is not necessary, nor will their formal dissent therefrom affect the result, for "upon the hearing of such " and I do not observe any sufficient Cause the bishop shall determine the same;
"
security against even the most serious infractions by the bishop of the general principles of English law and justice; such, for instance, as the admission or rejection of evidence
16978-955. 25.-9/E6.