858.
PUBLIC RECORD OFFICE
། ། ། ། །།།
Reference :--
C.O. 885
MY LORD DUKE,
No. 99. (QUEENBLAND.)
LAW OFFICERS to COLONIAL OFFICE.
Temple, January 10, 1862. WE were honoured with your Grace's commands, signified in Sir Frederic Rogers' letter of the 6th instant, stating that he was directed by you to request that we would favour you with our opinion on two questions raised in the accompanying Despatch from the Governor of Queensland, enclosing with other papers a case which had been framed by the Attorney General of that Colony.
Sir Frederic Rogers was pleased to state that Sir G. Bowen's Despatch and its enclosures would make us acquainted with the circumstances under which those ques- tions and arisen. They were--
1st. Whether a Colonial Legislature formed part of the Government of the Colony?
2nd. Whether a seditious libel could be published of and concerning the Legislature of Queensland?
In obedience to your Grace's commands we have considered the accompanying papers, and have the honour to
Report
That, first, in our opinion the Colonial Legislature of Queensland does not in strict- ness of interpretation form part of the "Government" of the Colony, the Government being the officers of State by whom the Queen's authority is exercised therein, whereas the Legislature there, as in the mother country, is separate and distinct from the Sovereign. The difference is that which exists between the executive and the Legis lature. The term "Government" is, indeed, frequently used in a larger sense by political writers as including all the departments of public authority, whether legis- lative or executive, in a State, but we do not conceive this to be its proper legal signi- fication. Although, however, this is our opinion, the question appears to us to be merely one of words, and we do not agree in the deduction which Mr. Justice Lutwyche appears to have (in part at least) founded on a similar view of the character of the council. For
2nd. We are clearly of opinion that a seditious libel may be published of and con- cerning the Legislature of Queensland as such, and without reference to the considera- tion of whether the Legislature does or does not constitute, in legal language, a part of the "Government." The rule in England is that a seditious libel may be published either concerning the Government or the Legislature, that is, either House of Parlia- ment, and that upon plain reason and principle, and not as Mr. Justice Lutwyche suggests, by virtue of the statutes 60 Geo. 3. and 1. Geo. 4. c. 8. That Act (s. 1) not only does not enact that libels on either House of Parliament shall be "seditious" libels, but in its language evidently assumes that already such libels may be seditious, and that they may be so is not open to any doubt as it seems to us.
of
In the same way and for the like reasons we are of opinion that in point of law a seditious libel may be published "of and concerning the Legislative Council Queensland. We also think that the language of the libel in question is such as might properly have been left to the jury, in support of the charge of a seditious libel, and ought to have been so left unaccompanied by the ruling of Mr. Justice Lutwyche in point of law to which our attention has been called, and which ruling we think
We have, &c.
erroneous.
His Grace the Duke of Newcastle, K.G.,
&c.
&c.
&c.
(Signed)
·
WM. ATHERTON. ROUNDELL PALMER.
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