CO885-(10-11) — Page 270

12135.

PUBLIC RECORD OFFICE

Reference :-

C.O. 885

MY LORD DUKE,

No. 222.

(QUEENSLAND.)

LAW OFFICERS & COLONIAL OFFICE.

Lincoln's Inn, December 15, 1863. We are honoured with your Grace's commands, signified in Sir Frederio Rogers' letter of the 3rd December instant, stating that be was directed by your Grace to transmit to us a copy of a Despatch from the Governor of Queensland, enclosing a case which the local Attorney General was desirous should be submitted for the opinion of the Law Officers of the Crown, upon a question which had arisen respecting the power of the Legislature to alter the constitution of that Colony.

Sir Frederic Rogers was also pleased to state that he was at the same time to annex

a copy of the Act of the Government of New South Wales, No. 10, of the 20 Vict. to which reference is made, and that your Grace would be glad to be favoured with our report upon the subject.

In obedience to your Grace's commands we have taken this matter into our con- sideration and have the honour to

CK

Report

That we are of opinion that the New South Wales Act, 20 Vict., No. 10, is not now in force in the Colony of Queensland. It is clear that the 8th section of the Order in Council of the 6th June 1859 incorporates by reference into the constitution of the Legislative Council and Legislative Assembly of Queensland "all the provisions" (not excepting the 15th section, or any other part which, by legislation subsequent to the 17 Vict., might have ceased to be in force in New South Wales) of the New South Wales Constitution Act, 17 Vict., No. 41, with reference (inter alia) to "the constitution, "functions, and mode of proceeding of the Legislative Council and of the Assembly respectively", and it does not expressly or by reference incorporate the New South Wales Act, 20 Vict., No. 20. The argument, therefore, that the latter Act is applicable to Queensland must be founded (if it is maintained at all) not on anything which is expressed in the Order in Council, but on the terms of the 7th section of the Imperial Statute 18 & 19 Vict. c. 54, which provides that on the formation of a separate Colony out of the northern portion of New South Wales, under the power thereby reserved to Her Majesty, provision shall be made, by Order in Council, "for the establishment of a "Legislature therein, in manner as nearly resembling the form of Government and "Legislature which shall be at such time established in New South Wales, as the "circumstances of such Colony will allow." But whatever opinion might have been formed on this point, if no subsequent Imperial Legislation affecting it had taken place, there is no longer any foundation for such an argument since the passing of the Queensland Government Act, 22 & 23 Viot. c. 44. (s. 3 and 4).

His Grace the Duke of Newcastle, K.G.

&c.

&c.

&c.

We have, &c. (Signed) ROUNDELL PALMER.

R. P. COLLIER.

Q 16278.-515.

25.-2/66.

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PUBLIC RECORD OFFICE, LONDON

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12395.

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PUBLIC RECORD OFFICE

19

Reference :-

C.O. 885

ALLY WITHOUT PERMISSION OF THE BE REPRODUCED PHOTOGRAPHIC- COPYRIGHT PHOTOGRAPH-NOT TO

10

PUBLIC RECORD OFFICE, LONDON

MY LORD Doxe,

No. 223.

(NATAL.)

QUEEN'S ADVOCATE to COLONIAL OFFICE.

Doctors' Commons, December 23, 1863.

1883.

I AM honoured with your Grace's commands, signified in Mr. Elliot's letter of the 5th instant, stating that he was directed by your Grace to transmit to me for my consideration a Despatch from the Lieutenant-Governor of Natal, together with a No. 106, Draft Law, the object of which is to legalize and regulate the marriages of certain 26 Sept natives which are to be solemnised according to Christian rites, while it also enacts that former marriages between natives performed by clergymen shall, except where such marriages would be polygamic, be valid and legal from the date of such mar- riages, and Mr. Elliot was to request that, having regard to the annexed copy of the 28th clause of the Royal instructions for the maintenance and amendment of the native laws, I would furnish your Grace with a report on the subject of this

enactment.

In obedience to your Grace's commands I have taken this case into consideration, and have the honour to

Report

That the questions raised by the proposed legislative measure of the Governor of Natal involve considerations not only of grave importance and great difficulty, but also of especial novelty, because they have neither the aid of direct precedents nor of any very certain principles by which they may be guided.

The marriage of uncivilized heathens, retaining their own habits and usages of life, by Christian ministers. presents a religious problem by no means easy of solution; but it may be reasonably doubted whether it is one in which the State is, in this instance, called upon to intermeddle, or which it can now practically solve by direct legislation; whether the question is not, in fact, one which may be for the present, at least, more wisely left to the moulding influences of time, of growing Christianity and increasing civilization, aided, perhaps, by judicial exposition.

The Lieutenant-Governor looks upon himself as representing two characters, that of a Christian Governor and that of the Chief of a native heathen tribe. The pro- posed measure is founded, rightly or wrongly, upon this paramount idea. This positive and direct legislation is considered necessary by the Lieutenant-Governor, on account of the disrespect into which the Christian rite is otherwise likely to fall. This would not seem to me, in the peculiar circumstances of this Colony, good ground for the Government to stand upon, and it is surely probable that legislation which is admitted to be at variance with the strong religious convictions, whether right or wrong, of the ministers of Christianity in the Colony will be practically disregarded in spite of all pains and penalties affixed to the forbidden exercise of their office.

8

This is, indeed, acknowledged by the remarks of the Lieutenant Governor on section 9 of the measure, which provides that, in addition to the punishment, the Christian marriage shall be null, because inconsistent with or unknown to particular heathen usages which the Lieutenant-Governor in his capacity of Chief of the tribe is bound, as he conceives, to uphold.

I think this provision as to rendering the marriage absolutely null very objectionable, and the averinent that it is necessary for the working of the measure seems to me a considerable argument against the measure itself.

It is further apparent (see remarks of Lieutenant-Governor on clause 12) that the principal difficulty, namely, the legalising past Christian marriages is so ethrrassing that it can only be partially dealt with at present, and that it is intended" sooner or later" to legalise all such marriages, though, at present, it is only to legalise native marriages into which the question of polygamy (the pinching difficulty of the whole case) does not enter.

This confession again seems to me to point out that the matter is not yet ripe for legislation, that there is danger on the one hand of forcing by legislation Christian laws of marriage too early upon the native, and on the other hand of giving a more positive and direct sanction of Her Majesty's representative, than now exista, to hert n and polygamic marriages.

16278.-58. 25.-1'66.