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In obedience to your commands we have taken this matter into consideration, and have the honour to

Report

That we are of opinion that the regulation of the Government of Victoria fixing the pensions of the judges of the Supreme Court is not invalid.

The Constitution Act (18 & 19 Vict. o. 55.) did not fix the amount of these pensions or lay down any other rule concerning them than that expressed by the words "so "that the same shall, as far as may be, accord with the Act of the Imperial Parlia. "ment regulating the pensions of the judges of the United Kingdom." Subject to that rule, the power of making regulations "in accordance with 'which' all such pensions should be granted' was expressly conferred upon the Governor and Executive Council of the Colony. The Governor and Executive Council have, in the exercise of that power, made the regulations in question, and the burden of proving that they have not properly pursued the terms of the power lies upon those who impeach their validity.

66

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There is no difficulty in construing the singular word "Act" in the 49th section of 18 & 19 Vict. c. 55. as equivalent to the plural "Acts." But we do not think it possible to limit the words "the judges of the United Kingdom (as Sir W. A'Beckett does) to the puiane judges of the Superior Courts of Common Law at Westminster. These words in their natural sense include all the judges of the superior courts, both of law and of equity, in England, Scotland, and Ireland. There are several Imperial Acts relative to the pensions of all those judges, and, as to some matters (viz., the period of service or condition of permanent infirmity which is to entitle a judge to a pension), they all lay down one consistent rule, which, therefore, the Government of Victoria were bound to follow, and did follow, when regulating the pensions of the judges in that Colony. But with respect to the amount of the pension to be awarded, or the proportion which that pension is to bear to the salary of the judge, these statutes do not lay down any consistent or uniform rule, nor can such a rule, by any sound method of construction, be extracted from them. The proportion of one half adopted by the Government of Victoria is within the limits over which their variations are found to range, and, being so, we think it was perfectly competent to that Govern- ment to adopt it.

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

R. P. COLLIER.

The Right Hon Edward Cardwell, M.P.

11844.

No. 292.

(CANADA.)

LAW OFFICERS to FOREIGN OFFICE.

MY LORD,

Lincoln's Inn, December 22, 1864. We are honoured with your Lordship's commands signified in Mr. Hammond's letter of the 19th instant, stating that with reference to our Report of the 13th instant* he was directed by your Lordship to transmit to us therewith a letter from the Colonial Office, enclosing copies of the instructions which Mr. Secretary Cardwell has addressed to the Governor General of Canada respecting the prisoners charged with being concerned in what is commonly called "the St. Albans raid," whose extradition has been demanded by the Government of the United States.

Mr. Hammond was also pleased to transmit a letter from the Colonial Office con- taining a further report from the Governor General of Canada on the same subject on which as we should see Mr. Cardwell desires to be enabled to send instructions to Lord Monck by the mail of Saturday next, the 24th instant, and to request that we would take these papers into consideration, and furnish your Lordship with such observations and suggestions as may occur to us thereupon. The previous papers were also enclosed for convenience of reference.

In obedience to your Lordship's commands, we have taken these papers into con- sideration, and have the honour to

Report

That we are of opinion that the instructions of Mr. Secretary Cardwell to his Excellency the Governor of Canada were right and proper to be sent. With respect to the further reports from the Governor General of Canada upon the same subject, they do not appear to us to call for any further expression of opinion upon our part or to embrace any matter which is not within the scope of the aforesaid instructions of Mr. Secretary Cardwell.

We ought, however, to say that in our judgment the Governor General exercised a sound discretion in refusing the application of the prisoners for a special messenger to the Confederate States.

The proper course we think would be for the magistrate to grant such an enlarge- ment of time as would give the prisoners a reasonable opportunity of obtaining the required evidence through any means of communication which are practically open. The Canadian Government could not have acted in the matter without asking the permission of the United States Government to communicate with Richmond for the purpose, which request would certainly have been refused.

&c.

The Earl Russell, K.G.,

&c.

&c.

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

R. P. COLLIER. ROBERT PHILLIMORE.

o 16978.684. 25.-9/85.

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PUBLIC RECORD OFFICE

C.O.

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