13,688.
PUBLIC RECORD OFFICE
Reference :--
CO.
885
12 PUBLIC RECORD OFFICE, LONDON
ALLY WITHOUT PERMISSION OF THE COPYRIGHT PHOTOGRAPH-NOT TO BE REPRODUCED PHOTOGRAPHIC-
MY LORD,
No. 300.
(NEW SOUTH WALES.)
LAW OFFICERS to COLONIAL OFFICE.
Royal Courts of Justice, 8th August 1883. We were honoured with your Lordship's commands, signified in Mr. Bramston's letter of the 20th ultimo, stating that he was directed by your Lordship to invite our attention to sections 10 and 54 of an Act passed by the Legislature of New South Wales, entitled "An Act to consolidate and amend in certain respects the Criminal Law."
2. That by section 10 it was enacted that where in any case of homicide the cause of death happened on the sea or elsewhere out of the Colony, but where the death was in the Colony, or the cause of death happened in the Colony, but where the death was on the sea or elsewhere out of the Colony, the offence might be dealt with in all respects as if the same had been wholly committed within the Colony.
3. That by the Acts, 23 & 24 Vict. cap. 122. the Legislatures of Her Majesty's possessions abroad were empowered to enact laws to provide for the cases of homicide when the cause of death happened in the possession, and the death occurred at sea or any place out of the possession, and that the second alternative of section 10 appeared therefore to be proper.
4. That there did not, however, seem to be any statute empowering a Colonial Legislature to enact laws providing for the trial of cases of homicide where the death occurred in the Colony and the cause of death happened out of the Colony, although by the Imperial Act, 12 & 13 Vict. cap. 96. sec. 3., Colonial Courts were empowered to try persons charged with homicide when the death occurred in the Colony, and the cause of death happened at sea or elsewhere within the jurisdiction of the Admiralty.
That Mr. Bramston was accordingly to request to be favoured with our opinion as to whether that section 10, so far as it related to cases where the cause of death happened on the sea or elsewhere out of the Colony, but the death was in the Colony, was within the legislative powers conferred upon a Colonial Legislature.
5. That Mr. Bramston was secondly to request to be informed whether in our opinion the provision in section 54, by which (as in England is provided by the Act 24 & 25 Vict. cap. 110. sec. 57.) the penalties of bigamy were attached to any second marriage, wheresoever it took place, was properly within the powers of a Colonial Legislature.
In obedience to your Lordship's commands we have the honour to
Report
That we think that section 10 is within the legislative power conferred upon a Colonial Legislature.
That there appears to be some misapprehension as to the effect of the Imperial Act 12 & 13 Vict. cap. 96. sec. 3. It not only empowers Colonial Courts to try persons charged with homicide when the death occurs in the Colony, and the cause of death happens at sea or elsewhere within the jurisdiction of the Admiralty, but also where the cause of death happens "at any place out of such Colony."
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We think that the provisions of section 54 are not properly within the limits of a Colonial Legislature. The Imperial statute 24 & 25 Vict. cap. 100. s. 57., which creates the offence of bigamy whether the second marriage is contracted within the United Kingdom or elsewhere," limits the offence where the second marriage is contracted "elsewhere" to the case of British subjects. Such an enactment is by the legislative authority which is vested in the Imperial Parliament over all persons who owe allegiance to Her Majesty wherever they may be. No such power, however, is vested in the Colonial Legislatures.
The Right Hon. the Earl of Derby,
&c. &c:
&c.
▲ 1916-275. 25.-19/84.
We have, &c.,
(Signed)
HENRY JAMES. FARRER HERSCHELL.
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