2559.
PUBLIC RECORD OFFICE
Reference :-
TPELLIC.O.
885
PUBLIC RECORD OFFICE, LONDON
ALLY WITHOUT PERMISSION OF THE BE REPRODUCED PHOTOGRAPHIC- COPYRIGHT PHOTOGRAPH-NOT TO
:.
MY LORD DUke,
No. 166.
(CAPE OF GOOD HOPE.)
LAW OFFICERS to COLONIAL OFFICE.
Temple, March 14, 1863.
We are honoured with your Grace's commands, signified in Mr. Elliot's letter of the 4th February ultimo, stating that he was directed by your Grace to request that we would favour you with our opinion on the following case.
Patent, 23
Two Con-
June 1858.
The Royal Letters Patent of 4th May 1832, commonly called the Charter of Justice Sa. 3, 4, and of the Cape of Good Hope, provide for the constitution of a Supreme Court, and, inter 5 of Letters alia, confer a certain precedence upon the Chief Justice and Puisne Judges of the Cape
May 1850. of Good Hope (Clarke's Colonial Law, pp. 466, 467).
That by further Letters Patent dated 23rd May 1850, Her Majesty declared that stitutional there should be within the Cape of Good Hope a Parliament to consist of a Governor, Orders P.P., Legislative Council, and House of Assembly, with power to make laws for the peace, L welfare, and good government of the Colony. The Council and Assembly being Opinion, 28 constituted as general as might be appointed by Ordinance of the Legislative Council. July 1854.
That the Parliament was thus constituted, and in a report dated 28th July 1854, and signed by the then Law Officers of the Crown (Sir A. Cockburn and Sir R. Bethell), it was stated in accordance with well-known principles of Colonial Law that after the constitution of this Parliament Her Majesty no longer possessed the power of altering or regulating the constitution or functions of the Supreme Court.
That the question has been raised, however, whether Her Majesty in abandoning the power of general legislation, and thus of altering those provisions of the charter which affect the substantial rights of the community, abandoned also the right to repeal or alter those parts of the charter which relate to precedence, the determination of which is generally conceived to be part of Her Majesty's prerogative, and not naturally to fall within the functions of a legislature.
Mr. Elliot was, therefore, pleased to ask whether, in our opinion, it is competent to Her Majesty by Letters Patent to revoke so much of the Charter of Justice of the, Cape of Good Hope as relates to precedence, and to make fresh provision in that respect.
In obedience to your Grace's commands, we have taken this matter into consideration, and have the honour to
Report
That we think that if the general power of repeal or revocation contained in the Charter of Justice of the 4th May 1832, is incapable of being now exercised by the Crown without the concurrence of the Colonial Parliament, it is a necessary conse- quence that no part of that charter (whether relating to precedence or to any other subject) can be revoked without the same concurrence. Our predecessors who formerly advised on this subject did not expressly say that the reserved power of revocation might not be exercised by the Crown alone, but only that the Crown, after the estab- lishment of parliamentary government in the Colony, would not have "a concurrent "and co-ordinate authority with the Colonial Parliament" to alter the charter" by "instruments having legislative force." We think, however, that they rightly regarded the Charter of Justice as being itself a Legislative Act of the Crown and the power of repeal and alteration therein reserved as being a legislative power; and, if so, it is a just inference from the principle on which their opinion proceeded (and in which we ourselves agree) that, after the establishment of the Colonial Parliament, this charter could not be repealed or altered, either wholly or in part, without the concurrence of that assembly.
We, therefore, answer your Grace's question in the negative.
+
&c.
His Grace the Duke of Newcastle, K.G., &c.
&c.
We have, &c. (Signed) W. ATHERTON.
ROUNDELL PALMER.
Q 16278.--43.
23.-2/86
Page 210Page 211
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PUBLIC RECORD OFFICE
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19
C.O. 885
Reference :-
منون من
MY LORD DUKE,
No. 167.
(SOUTH AUSTRALIA.)
LAW OFFICERS to COLONIAL OFFICE.
Temple, March 13, 1863. We are honoured with your Grace's commands, signified in Sir Frederic Rogers' letter of the 4th ultimo, stating that he was directed by your Grace to request that we would favour your Grace with our opinion on a proposed alteration in the Letters Patent of the Bishop of Adelaide.
Bishop of Ade
1HOU.
21 May 1881.
Gor., No.6, Gor, No. 43,
Gov., In dept.
8. of B, Nu. 17,
Giov., No. +1.
Sir Frederic Rogers was also pleased to state that among the papers forwarded heide, 19 June was to direct our particular attention to the following, which as it appeared to your Duke of N., to Grace would sufficiently inform us of the matter upon which your Grace desired to obtain 15 Jan. 101. our opinion.
1. Paper No. 48, printed by order of the Legislative Council of South Australia, I containing a memorial from the synod of Adelaide, requesting an alteration in the 36 Dec. 1362. Royal Letters Patent (enclosed in the bishop's letter of 19th June 1860), and your 25 Bept, 1862 Grace's observations on that memorial contained in your Grace's Despatch of the 2 Glor., No. 6. 15th January 1861.
2. The bishop's letter of the 23rd September 1862, enclosed in Sir D. Daley's Despatch of the 25th September 1862.
3. The bishop's lotter (with an enclosure), dated 24th November 1862, and enclosed in Sir D. Daly's Despatch of the 25th November 1862.
Sir Frederic Rogers was also pleased to state that your Grace, however, thought it best to furnish us with other papers which, though not necessary in order to explain the immediate question, appeared requisite, or might be serviceable for its full consideration.
Sir Frederic Rogers was also pleased to state that it will be seen that the members of the Church of England in Adelaide, or a large portion of them, have organised themselves under a species of voluntary agreement called a consensual compact, under which they have constituted a synod and passed a variety of regulations for the government of the Church; that the members of this synod are apprehensive that a future bishop may refuse to be bound by the existing rules of the Church, and thus break up their organisation, and are anxious that this danger should be obviated by an alteration in the Royal Letters Patent; that your Grace was of opinion that this object had better be effected by legislation. but the local legislature is unwilling to pass any laws on the subject, and therefore that the bishop recurs to his original request for an alteration in his Letters Patent.
That your Grace, as would be seen by a perusal of your Grace's Despatches of which copies were enclosed, considers it very advisable that the Church of England in South Australia should be invested with the power of effectual self-government, and that your Grace desires to be informed--
Whether Her Majesty can properly be advised to issue Letters Patent in the form proposed by the Bishop of Adelaide ?
Whether any other alteration of the Letters Patent would be in our opinion preferable to that suggested by his Lordship either as being more effectual for the purpose or as being more certainly free from any legal objection?
In obedience to your Grace's commands we have taken these papers into con- sideration, and have the honour to
Report
That we see considerable difficulty in the course proposed, and having regard to the nature and importance of the questions raised before the Judicial Committee of the Privy Council in the appeal, yet undecided, of Long . the Bishop of Cape Town, as to the status and jurisdiction of the Colonial bishops appointed and consecrated under Her Majesty's Letters Patent, and the laws applicable to those bishops and the clergy and laity of their communion, we think it would be inexpedient to take any action in this matter until the judgment of Her Majesty in Council shall have been pronounced on that appeal.
His Grace the Duke of Newcastle, K G.
We have, &c. (Signed)
WM ATHERTON. ROUNDELL PALMER. ROBERT PHILLIMORE.
Guy., No. M
23 Nov. 152. Huhop of Ad
Patout.
mide, Letters
&c.
&o.
0 16978.-624.
25.-2/86.