CO885-(11-13) — Page 521

PUBLIC RECORD OFFICE

Reference :-

PENCO. 885

12 PUBLIC RECORD OFFICE, LONDON

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

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7. That with regard to the proportion in which the funds of the trust had for some years past been distributed, your Lordship was informed that after the corporation which was originally established in the manner explained in the Law Officers' Report was dissolved, that Her Majesty directed the proceeds of the lands to be annually divided, as to five sevenths among the four principal religious denominations, the remaining two sevenths going to the purpose of education. That this direction was conveyed in the usual way by instruction from the Secretary of State to the Governor, and from that time to the present, a period of thirty-five years or more, the proceeds had been thus disposed of in the proportion of the numbers existing at a certain date of the four denominations.

8. That the money had been yearly handed over to the heads or authorised represen- tatives of those bodies, and distributed at their discretion in the first instance, but invariably approved of or confirmed by the Government.

9. That in the Church of England it was devoted to the support of clergymen or missionaries in poor or sparsely populated districts-not as a stipend given to an individual for life—but rather for the general purposes referred to, and for no definite period. That in the Church of Rome it was devoted to the building of churches. That in the Presbyterian and Wesleyan Churches it went to a general fund from which those churches were maintained.

10. That having regard to the present constitution of the Colony of New South Wales, your Lordship was disposed to think that the reply to the petitioners should be to the effect that in a question such as this, relating to the management or disposal of lands within the Colony held in trust for religious and educational objects, the Crown was bound to have regard to the opinions, advice, and legislation of the Colonial Government and Legislature, and that the circumstances as placed before Her Majesty's Government were not such as would justify them in advising the Queen to review or reverse the action of the Colonial Legislature in that case; that the Bill would therefore be allowed, and if when it had come into operation it should appear to the petitioners or others that any act had been done by virtue of it inconsistent with their legal rights they should institute such proceedings as they might be advised to take in support of those rights before the Courts of the Colony.

11. That your Lordship desired Mr. Herbert to request that we would favour your Lordship by taking the papers into our consideration, and informing your Lordship,- (1.) Whether in our opinion they afforded any ground for advising Her Majesty not

to confirm the Bill in the usual way by Order in Council,

(2.) Whether if the Bill was ultra vires as affecting the trust, the passages in the school books transmitted could be considered sufficiently to comply with the trust for religious purposes.

(3.) Whether with reference to the fourth ground of complaint before set forth, the mode of distribution of the funds as stated above had created any vested interests of such a nature as to require that Her Majesty should interpose by refusing to confirm the Bill unless amended for the protection of those having such interests.

(4.) Whether with reference to the request made by the solicitors appointed by the petitioners to watch their case in this country for a hearing before the Judicial Committee of the Privy Council, those solicitors might properly be informed that it was not the constitutional practice to consult the Judicial Committee as to the confirmation or disallowance of a reserved Bill, because in such cases the Queen was advised by Her Ministers, after reference when necessary to the Law Officers, and that therefore only written statements could be received; but that no arguments would be taken into consideration except such as were addressed to the question of the competency of the local Parliament to legislate in the manner proposed in that Bill.

(5.) Whether the answer to the petitioners suggested above would be right and proper. 12. That Mr. Herbert was also to request us to be good enough to favour your Lordship with any observations that might occur to us generally upon the subject.

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

Report

That in our opinion lands and moneys vested in Her Majesty for public local pur- poses in New South Wales must, unless so vested for purposes defined by some statute of the Parliament of the United Kingdom and affecting that Colony, be considered as

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subject to the legislation of the Colony, and we see no sufficient reason in the present instance for withholding the Royal assent to the Colonial Act in question.

We think it right to point out that no argument in favour of interference with the Colonial legislation can in the present case be founded on the intended departure from the original purposes of the trust. fund, which was originally created for the benefit of the Church of England, has for As we understand the facts of the case, the trust many years been applied not only in support of other religious denominations which were not included in the original trust, and which the founders of that trust would probably have regarded with the greatest disfavour, but also, as regards two sevenths of the annual income, to the same educational purposes to which it is now proposed to apply the whole income.

We concur with your Lordship that there is no question which can properly be sub- mitted to the Privy Council as a judicial body, or to the Judicial Committee.

We have, &c.,

The Right Hon. the Earl of Kimberley,

&c.

&c.

&c.

HENRY JAMES. FARRER HERSCHELL.

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