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C.O. 885

11

PUBLIC RECORD OFFICE, LONDON

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

6. It remains to consider what step your Grace should be advised to take in this state of things. Three courses may be suggested:

First. The decision of the court must be considered, till it be reversed or corrected in some further proceedings, as law. The question might be put in a shape which would admit of an appeal to the Privy Council in this country.

Secondly. I observe that, as under the Bermuda statute of 1820 (p. 158), Hamilton and Smith are made one living, I should have thought, induction of the incumbent into one church might have been sufficient to give possession of both, were it not stated by the Attorney General that according to custom there must be a separate induction into each; and I presume that if in the present state of feeling the incum- bent attempted to perform Divine Service without induction in Smith parish, that he would be equally provented from doing so by physical force, and that the court which refused to interfere in the matter of the induction would equally decline to uphold the proper peace officer in maintaining order in the church by removing the offenders; but it might be expedient that the Governor should inquire whether in this way a remedy would be found.

Thirdly.-Recourse might be had to an Act of the Bermuda Legislature; and this appears to be the simplest way of removing the obstacle which this judgment has set up; and though, on the one hand, it is for many reasons not desirable that Her Majesty's Government should, generally speaking, advise any Colonial Governor to obtain an Act of Legislature in favour of any one religious community, on the other hand the case of Bermuda is very peculiar. Many statutes affecting the Church of England have been from time to time passed by the Legislature of these islands; and I am, on the whole, of opinion that if the Governor be satisfied that the Legislature would pass a very short Act to the effect about to be stated, it would be expedient to have recourse to this mode of extrication from the difficulty which has arisen.

The Act should be to this effect:-

"Whereas doubts have arisen as to the proper mode of inducting clerks into parish churches; be it enacted that the mandate issued by the bishop of the diocese or his commissary for this purpose shall be deemed valid in law, and induction shall be made in compliance with the directions contained in the said mandate.”

But care must be taken that no mention of, or reference to, Letters Patent from the Crown be made in this statute, in order that the future policy of Her Majesty's Government as to this point may not be still further hampered than it is at present.

I have, &c.

(Signed)

His Grace the Duke of Buckingham and Chandos.

ROBERT PHILLIMORE.

No. 465.

(NEW ZEALAND.)

LAW OFFICERS to COLONIAL OFFICE.

MY LORD DUKE,

Lincoln's Inn, April 30, 1867. We are honoured with your Grace's commands, signified in Sir Frederic Rogers* letter of the 20th April instant, stating that he was directed by your Grace to transmit to us a copy of an Act passed in the last session of the General Assembly of New Zealand, intituled "An Act for indemnifying persons acting in the suppression of the No. 11 of Native Insurrection," and to request that we would inform you whether we are of 1866. opinion that it is an Act which may properly be submitted to the Queen for Her Majesty's confirmation.

Sir Frederic Rogers was pleased to say that he was directed to call our attention to

the fact:

1. That the Act indemnifies not only civil and military authorities, and those acting under them, but "every other person or persons whosoever" who shall have done or ordered any Act to be done in or about suppressing the insurrection, &c., and that the Act, therefore, in its present shape appeared to cover Acts done or ordered to be done by any private individual mero motil, and not under the orders or approval of any responsible civil or military authority.

2. That owing to the disjunctive form of the second and third sections it does not seem clear that the destruction of property of a person suspected to be concerned in the insurrection would not be included in the indemnity given by the Act though such destruction may have been wanton, and not inflicted or ordered in or about the suppressing or quelling of the insurrection, and that, taking the Act altogether, it would seem that if a private individual, acting under no authority, had wantonly and recklessly destroyed the property of a person suspected to be concerned in the insurrection he would be protected by the terms of the Act, though such destruction in no way, directly or indirectly, tended to quell the insurrection, and there were obvious reasons for doubting whether a jury would readily find such express personal malice as might take the case out of the protection given by the Act.

Sir Frederic Rogers was pleased also to say that as bearing upon this question, and for the sake of reference, he was directed to furnish us with copies of the New Zealand Indemnity Act of 1865, which your Grace is prepared to advise Her Majesty to sanction, though such advice had been delayed, and of the Jamaica Indemnity Act, 29 Vict. c. 1., which Act, as we are aware, had received Her Majesty's sanction.

Sir Frederic Rogers also added that he was desired to point out, however, that the language of both these Acts appeared to be far more limited than the language of the Act upon which our opinion was now requested.

In obedience to your Grace's commands we have the honour to

Report

That we do not think that the Act is objectionable on the ground that it extends the indemnity to persons who acted mero motu, if they acted really and bona fide for the purpose of suppressing or quelling the insurrection, but we think that the Act is too wide in its terms in indemnifying persons who may have destroyed or damaged property of a rebel or suspected rebel for reasons adverted to in Sir Frederic Rogers' letter.

We think that if at the commencement of Section II., after the word "Act," where it first occurs, the words "with the view and for the purpose of suppressing or quelling the said insurrections or some similar words were interposed, so as to override the whole section, the Act would be reduced to its proper proportions and objects.

""

We have, &c. (Signed) JOHN ROLT.

His Grace the Duke of Buckingham and Chandos,

&c.

&c.

&c.

JOHN B. KARSLAKE.

0 16978.-640. 25.-3/86.