CO885-(10-11) — Page 375

PUBLIC RECORD OFFICE

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Reference :-

C.O. 885

10

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

PUBLIC RECORD OFFICE, LONDON

The general principle of law does not seem to us doubtful, but proof of the facts necessary for its application to the circumstances of this case is at present wanting.

We agree with the opinion of your Lordship, intimated in Mr. Hammond's letter (December 23, 1864) to Sir F. Rogers, that for this purpose everything depends on the precise facts. If (as alleged by the prisoners) the expedition was not organised in Canada, if Mr. Young acted under instructions received by him in August 1864 while at Chicago, and if it is not shown that the persons accused ever entered Canada before going to St. Albans, there can be no ground for imputing to them an offence against Canadian or Imperial law.

With reference to the grounds on which the prisoners were discharged by Judge We all agree that as the Coursal, we have not arrived at entirely the same conclusions. Canadian Extradition Acts were passed "in lieu of" and "in substitution for the Imperial statute” (under the provisions for that purpose made by the Imperial statute itself), they cannot properly be held to have a concurrent operation with the Imperial statute in Canada. The question, therefore, appears to us to be whether the suspension of the Imperial statute by the Order in Council made on the passing of the Canadian Act of 1849 is still in force, and this depends upon the further question whether the present Canadian Extradition Act ought to be regarded 'in law as identical with and a continuance of the Act of 1849, of which the three first clauses were repealed (and others, differing in substance, substituted for them) by later legislation. The Attorney General, after much consideration, thinks that Judge Coursal's decision upon this point was correct. The Solicitor General and Queen's Advocate incline to think that the contrary view, though not free from difficulty, may be maintained.

We have, &c.

The Earl Russell, K.G.

&c.

&c.

(Signed)

ROUNDELL PALMER.

R. P. COLLIER. ROBERT PHILLIMORE,

P.S. Since the above report was copied, we have received Mr. Hammond's further letter of this day's date, with its enclosures, which appear to show that Mr. Justice Smith has arrived in Canada at the conclusion to which two of us incline, but which do not require from us any other remark.

The Earl Russell, K.G.

&c.

&c.

(Signed)

R. P.

R. P. C. R. P.

1042.

SIR,

No. 305.

(SOUTH AUSTRALIA.)

LAW OFFICERS to COLONIAL OFFICE.

Lincoln's Inn, February 1, 1865. We are honoured with your commands, signified in Sir Frederic Rogers' letter of the 17th ultimo, stating that you had had under your consideration our report dated the 28th September, relating to the invalidity of certain Acts of the Legislature of South Australia, and recommending that an Act of Parliament should be passed for the purpose of establishing the South Australian laws and of defining the powers of Colonial Legislatures.

And that our opinion was communicated to the Governors of the Australian Colonies; and that a Draft Bill was prepared in conformity with our advice, which Sir Frederic Rogers enclosed, and of which a copy was transmitted confidentially to the Governor of South Australia by the mail of the 26th of November, authorising him to communicate it to his Ministry for any observations which they might think fit to make.

Sir Frederic Rogers was also pleased to state that the answers to these various references could not be received before the middle of March. But that you had received from the Governor of South Australia a Despatch (of which a copy was also enclosed) No. 53, transmitting, with other papers, addresses from the Legislative Council and Assembly, 25 Oct. 1864.

in which they request that an Imperial Act, of which they enclose a draft, may be passed

to establish the validity of their laws.

Sir Frederic Rogers was therefore to request that we would favour you with our opinion which of these two drafts is best calculated to effect the objects contemplated in our report, and with what modifications (if any) that draft could be properly submitted to Parliament.

Sir Frederic Rogers was further pleased to state that he was directed to observe, that it is generally desirable that Imperial legislation, while defining in the clearest and most convenient way the limits and mode of contact of Imperial and Colonial authority, should leave matters of purely Colonial organisation or procedure to be dealt with by the local legislature. And that on this ground the 4th clause of the Colonial draft appears in some degree improper to be enacted by the Imperial Parliament.

In obedience to your commands we have taken these papers into our consideration, and have the honour to

Report

That we are of opinion that the Draft Bill, prepared by the direction of the Colonial Office, is the better calculated to promote the objects in view; and we have gone through it with Sir Frederic Rogers, making such emendations as we thought desirable. It occurs to us further to suggest that a clause similar in substance to clause 8 of the Draft Bill received from the Colony, might be added with advantage, if, for “absolute proof," 'prima facie evidence were substituted, and the words "that the Act was

within the powers of the Legislature were omitted.

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

R. P. COLLIER.

The Right Hon. Edward Cardwell, M.P.

&c.

&c.

&c.

• No. 275.

16278.-657.

95.-9/86.