CO885(2-3) — Page 162

No. 72.

Act guthorizing subjects to try the validity of their

laims against the Local Government, how objectionable as affecting pre- rogative

78

we would report to you our joint opinion whether this enactment might properly be submitted to the Queen for Her Majesty's confirmation.

In obedience to such request we have the honour to report that the Act in question does not provide a sufficient security against interference with the rights and prerogatives of the Crown, nor do we think that it would be constitu- tionally right to entrust the Judges of the Supreme Court with the decision of such a question as whether the subject-matter of a petition does or does not affect the Royal Prerogative; and that, therefore, in our opinion, the proposed enactment cannot properly be submitted to the Queen for Her Majesty's confirmation.

Wo have, &c. (Signed) FRED. THESIGER. FITZROY KELLY.

The Right Hon. Sir J. Pakington, Bart.,

&c.

&c.

&c.

♥

No. 72.

Copy of a LETTER from the ATTORNEY and SOLICITOR-GENERAL to the Duke of NEWCASTLE.

MY LORD DUKE,

Temple, May 3, 1854. (Received May 4, 1854.)

WE were favoured with your Gruce's commands, contained in Mr. Meri- vale's letter of the 6th ultimo, in which he stated that with reference to his letter of the 13th, and to the reply of the then Law Officers of the Crown of the 25th August, 1852, he was directed by your Grace to transmit to us, together with a copy of the Lieutenant-Governor's despatch (which accompanied it), the transcript of an Act passed by the Legislature of South Australia in November last, No. 6, entitled "An Act to give relief to persons having claims against the Local Government of South Australia, by authorizing them to try the validity of such claims in a Court of Law or Equity."

That it would be seen that the present Act differed from the one to which the above-mentioned correspondence referred, inasmuch as the matters in differ- ence, which before extended to all cases in dispute between the subject and the Local Government, must now relate to some pecuniary claim; and that the certi- ficate of the Governor, instead of a Judge, was sufficient to reserve a case for the Secretary of State's decision.

That on the former occasion the Law Officers considered that constitu- tionally it would not be right to entrust the Judges of the Supreme Court with the decision of such a question as to whether the subject-matter of a petition did or did not affect the Royal prerogative; and on that account the Act was disallowed.

That the same objection would not apply to the present Act; but Mr. Merivale further stated that he was to request that we would report to your Grace our joint opinion whether it might properly be submitted to the Queen, for Her Majesty's confirmation.

That for the sake of reference, if it should be desired, he also transmitted a copy

of the case which was submitted to the late Attorney and Solicitor-General, and of their Report.

In obedience to your Grace's commands, we have considered the said Act and the several documents referred to us, and have the honour to report-

That we are of opinion that the Act may properly be submitted to the Queen, for Her Majesty's confirmation.

Ilis Grace the Duke of Newcastle,

We have, &c.

(Signed)

A. E. COCKBURN, RICHARD BETHELL.

SIR,

79

Western Australia.

No. 73.

Copy of a LETTER from the ATTORNEY and Solicitor-Genbual to Mr. SIDNEY Herbert.

No. 73.

Act imposing greater penalties for the same offence when committed by "convicts' illegally

accordance with the

Temple, February 24, 1855. WE are favoured with Mr. Merivale's letter of the 30th ultimo, in which he at large,' not in stated that he was directed by Sir George Grey to transmit to us copy of an spirit of British Ordinance* passed by the Legislature of Western Australia, entitled “An Ordi- Jurisprudence. nance for the suppression of violent crimes committed by convicts illegally at

→ Vide Appendix large," together with an extract of the covering despatch of the Governor

No. 7. relating to it; and to request that we would favour Sir George Grey with our opinion whether the Ordinauce might properly receive the confirmation of Her Majesty.

Mr. Merivale referred us to the Act 10 Geo. IV, cap. 22, continued by subsequent Acts which constituted the Legislative Council of Western Australia, and its authority.

gave

That assuming, however, that we should be of opinion that there is nothing strictly illegal or repugnant to the law of England in such an enactment, the doubt felt by Sir George Grey was, whether a law affixing different penalties to the same offence when committed by a particular class of Her Majesty's subjects (convicts illegally at large), and especially capital punishment, is sufficiently within the general spirit of British jurisprudence to render it fitting that Her Majesty should be advised to assent to it.

That the principle of affixing peculiar penalties to offences when committed by convicts illegally at large had been adopted in the jurisprudence of New South Wales, but not so extensively, or in cases of so serious a kind.

It appeared also from the annexed return to a motion made by Mr. Ewart, that in Van Diemen's Land the use of fire-arms, under certain circumstances, by offenders illegally at large, was rendered capital by a local statute of the 2nd Vict., No. 38, but which had been since repealed.

In obedience to Sir George Grey's request, we have perused and considered the Ordinance transmitted to us, and have the honour to report-

That although there is nothing strictly illegal or repugnant to the law of England in such an enactment, yet there can be no doubt that a law affixing different penaltics, and especially capital punishment, to the same offence when committed by a particular class of Her Majesty's subjects, is not within the general spirit of British jurisprudence.

At the same time it may be difficult to say that the special circumstances of a country in which so peculiar a class of persons as convicted criminals are kept in great numbers, and frequently escape in such numbers as to endanger the public safety and that of individuals, may not justify special legislation with regard to this particular class, whose peculiar position, as having before been guilty and convicted of atrocious crimes, may fairly be considered as indicating a more hardened state of character, and a necessity for their being repressed by a more rigorous and energetic legislation.

The question is one of policy rather than of law, and must of course mate- rially depend on the consideration of whether the peculiar circumstances call for what undoubtedly would be an exceptional course of legislation,

The Right Hon. Sidney Herbert,

&c. &c.

&c.

We have, &c.

(Signed) A. E. COCK BURN.

RICHARD BETHELL.

&c.

&c.

&c.

X

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