CO885-(11-13) — Page 348

2

e churches and the rectory kept in repair at the public expense is a matter of vested right preserved by the Disestablishment No..7 of 1873, he having been rector of the parish previous to

umstances Mr. Malcolm was to request that we would favour opinion---

been customary to keep the rectories in repair as a parochial rge, as well as the churches, under the provisions of sec. 22 of 31, whether that clause conferred upon incumbents a vested beir churches and rectories kept in repair for them.

; and ninth sections of the Act 7 of 1878 can. in any way be eserving such right.

ht, if it ever existed, was or was not taken away by the Act which the Aet No. 161 was repealed.

it be inferred from the accompanying four Acts, was the

may provided by law of the Ecclesiastical establishment of this plated in sec. 2 of Act 12 of 1873, and lastly, whether in our Fernor or the Attorney-General and Chief Justice are correct

the claim advanced by the rector of the parish of St. Mary, ordship's commands we have the honour to

Report

been customary to keep the rectories in repair as a parochial 1 as churches, under the provisions of the statute referred to, hall be lawful for the vestry, or the major part of them, of tax upon property within the parish for the maintenance of recting convenient churches and chapels, and the repairing le, and the making seats and pews in them, and the defraying ent charges" did not confer upon incumbents a vested right 1 rectories kept in repair for them.

e first and ninth sections of the Act cannot in any way be ich right.

11 (1873), by which the Act No. 161 was repealed, rendered for the repair of the churches.

at the "annual cost provided by law of the Ecclesiastical nd" means the payment of the salaries to those clergymen ed by the first section of the Disestablishing Act No. 7, and overnor is right in the view he takes of the claim advanced

of St. Mary.

*

the rights of existing rectors and existing ministers to their

· rights.

d upon as preserving the "interest " of the clergy in their and so forth, is a section providing for the vesting of the fabrics in the new corporation to be formed under section 6, eaning of subject to the interest therein of any existing ply relates to the legal estate which such persons may have rectories, churches, &c., but in no respect contemplates the I rights or interests in the sense in which the Attorney- of the island have construed the word.

(Signed)

1 of Carnarvon,

&c.

We have, &c.,

JOHN HOLKER. HARDINGE S. GIFFARD.

15,251.

No. 120.

(QUEENSLAND.)

LAW OFFICERS to FOREIGN OFFICE.

MY LORD,

We are honoured with your Lordship's commands, signified in Lord Tenterden's

Temple, 18th December 1876. letter of the 5th instant, stating that he was directed by your Lordship to transmit to us for our consideration the accompanying correspondence, relating to the powers of Governors of British Colonies under the Extradition Act of 1870, and that he was to request that we would favour your Lordship with our opinion whether the Governors of British Colonies were bound to discharge, with regard to extradition from the Colonies under that Act, all the duties discharged by a police magistrate in cases of extradition from the United Kingdom, or whether such Governors might, in accordance with the views expressed by the Home Office, depute Colonial magistrates to discharge those duties.

That the interpretation clause of the Act assigns to the expression "police magis- trate" the special meaning therein mentioned, "unless the context otherwise requires ;" but, having regard to the modifications introduced by section 17 for the purpose of applying the Act to Colonies, it might be questionable whether a departure from the special interpretation assigned was required within the intent and meaning of those words.

That Lord Tenterden was to observe, however, that if such departure be admissible in applying the Act to Colonial extradition, no special deputation from the Governor to a police magistrate would appear necessary, as the latter could act under the order issued by the Governor, in lieu of the Secretary of State, under sections 7 and 17 (2).

That another consequence would flow from that construction of the Act, that police magistrates and justices of the peace in Colonies might initiate extradition proceedings under section 8, as it was provided by section 17 that the Act for the purpose of Colonial extradition should be read as if the British Possessions were substituted for the United Kingdom or England.

That if we should be of opinion that police magistrates in Colonies were competent under the Act to execute and perform the powers and duties in relation to extradition which were vested in police magistrates in England, your Lordship would be glad to be informed whether we considered that in Colonies the expression "police magistrate" must be limited to "stipendiary magistrates," or may include unpaid justices of the peace, who in some Colonies deal with police cases.

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

Report

That the terms " Secretary of State" and "police magistrate" are defined in section 26 of the Extradition Act, 1870.

And the duties of the police magistrate are set out in the 8th and following sections of the Act.

were substituted in the Act-

Section 17 extends the Act as if "British Possession" for the United Kingdom or England.

The Governor would not apart from the Act have the power of extradition. powers, therefore, are limited by the words of the Act.

His

Section 17, sub-section 2, provides that all powers vested in or acts authorised or required to be done by the police magistrate and the Secretary of State, or either of them, may, in relation to the surrender of a fugitive criminal, be done by the Governor of the British Possession alone.

We find in the Act no grounds which would authorise either the Secretary of State or the police magistrate to depute any persons to discharge their several duties in relation to the surrender of a fugitive criminal. The context does not seem to require

any change in the meaning of the words "police magistrate" given in the interpre- tation clause, for the Governor can do the acts which the statute requires the police magistrate to do.

▲ 12916.-119. 25.-12/84.

PUBLIC RECORD OFFICE

CO.

Reference -

885

12 PUBLIC RECORD OFFICE, LONDON

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

1

1

!