CO885-(2-3) — Page 163

No. 74.

Persons holding conditional pardous

are "offenders illegally at large" within the Victoria

Statute, 6 Vict. cap. 7.

1

• Vide Appendix No. 8.

80

Victoria.

No. 74.

COPY of a LETTER from the ATTORNEY and SOLICITOR-GENERAL to the Duke of NEWCASTLE.

MY LORD DUKE,

Temple, March 28, 1854.

WE were favoured with your Grace's commands, contained in Mr. Meri- vale's letter of the 2nd instant, in which he stated that he was directed to transmit to us the enclosed Act of the Legislature of Victoria, forwarded to the Secretary of State for Her Majesty's assent, and to request that we would favour your Grace with our opinion on the following point.

Instruments termed "Conditional Pardons" are issued to offenders sen- tenced to transportation in the United Kingdom, and being under that sentence in Van Diemen's Land, by the Lieutenant-Governor of the Colony, under the provisions of the Statute 6 Vict., cap. 7. sec. 2. Such instruments are granted by the Lieutenant-Governor on the receipt of instructions from the Secretary of State, of which a copy was annexed. And it was presumed that the conditional pardon followed the form of the instructions.

Mr. Merivale then stated that the question on which he was directed to request our opinion was, whether a person holding such a conditional pardon, being in the Colony of Victoria, would be liable to be dealt with as an offender "illegally at farge" within the 'meaning of the Act now transmitted to us, should it receive Her Majesty's assent.

Our attention was particularly directed to sections 15 and 16 of the Act.* In obedience to your Grace's commands we have taken the question submitted to us into our consideration, and have the honour to report that we are of opinion that a person holding such a conditional pardon as is referred to in Mr. Merivale's letter, and being at large in the Colony of Victoria, will, if the Act of the Victoria Legislature shall receive the assent of Her Majesty, be liable to be dealt with as an offender "illegally at large" within the meaning of the Act in question.

His Grace the Duke of Newcastle,

&c.

&c.

&c.

*

8)

Ecclesiastical supremacy of the Crown in the Colony of Victoria will be thereby most seriously affected, if indeed it should continue to have any legal existence.

The Bill proposes to constitute an Elective General Assembly of clerical and lay deputies or representatives, invested with general authority over all the affairs of the Church," which Assembly is to provide for the calling of future Assemblies (section 13), and is to establish an Ecclesiastical Commission Court for the trial of ecclesiastical offences (section 3).

The propriety of erecting such a body and investing it with a permanent and independent legal existence, and with such large and peculiar legal authority and power in derogation of the Royal supremacy, is a question of policy for the consideration of Her Majesty's Government.

We observe that by section 18 it is enacted that “nothing contained in the Bill shall affect the right to nominate or appoint any Metropolitan or Bishop of the said United Church in Victoria, or any other rights or prerogatives of Her Majesty" (save as to patronage); but we are of opinion that the "other rights or prerogatives of Her Majesty" (thereby saved) must be limited by legal con- struction to other rights ejusdem generis as those enumerated, and that the important prerogative right incidental to the Royal supremacy of preventing or of constituting, and from time to time convoking and dissolving, Ecclesiastical Legislative Assemblies. will be abrogated by the Royal assent being given to this Bill. So far as regards the meeting of a Legislative Assembly of the clergy exclusively, such a meeting might be rendered legal by Royal license; but the objections to the empowering the laity to elect representatives to sit with the clergy, and to legislate with them upon the affairs of the Church " (although such objections are rather of a constitutional than of a strictly legal character), could not be removed by the Royal license, and would require legislative enact- ment on the part of the Imperial Parliament.

We have, &c. (Signed)

The Right Hon. Sir W. Molesworth, Bart.,

&c.

&c.

&c.

We have, &c.

(Signed)

A. E. COCKBURN, RICHARD BETHELL.

SIR,

No. 76.

J. D. HARDING. A. E. COCKBURN. RICHARD BETHELL.

No. 76.

PUBLIC RECORD OFFICE

Reference -

C.O.885

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

PUBLIC RECORD OFFICE, LONDON

No. 75.

Synod. A Colonial Law constituting an

Elective General Assembly of lay

and clerical mem- hers for the ma- aagement of the Affairs of the

Church of England may be lawfully assented to by the Crown, the objec- tions to it being of policy only.

SIR,

No. 75.

COPY of a LETTER from the LAW OFFICERS of the CROWN to Sir W. MOLESWORTH.

Doctors' Commons, August 17, 1855. WE are honoured with Lord John Russell's commands signified in Mr. Merivale's letter of the 24th May last, stating that he was directed to send us a copy of a Bill passed by the Legislature of Victoria, entitled "An Act to enable the Bishops, Clergy, and Laity of the United Church of England and Ireland in Victoria, to provide for the Regulation of the Affairs of the said Church," and of the despatch transmitting it; and to request that we would inform his Lordship whether we consider Her Majesty can be advised to assent to it consistently with existing laws.

If we should be of opinion that any statutable objection exists to the meeting of the clergy and laity under the provisions of this Bill, Mr. Merivale was pleased to request that we would state whether we thought it could be removed by Royal license.

In obedience to your Lordship's commands we have the honour to report- That we are of opinion that if Her Majesty should consent to this Bill, the

COPY of & LETTER from the LAW OFFICERS of the CROWN to Mr. Secretary LABOUCHERE.

Doctors' Commons, February 28, 1856.

and clerical mem-

WE are honoured with Mr. Merivale's letter of the 17th January ultimo, Synod. A Colonial stating that he was directed to refer us to the letter which we addressed to Sir law constituting an William Molesworth on the 17th August last, respecting the Act of the Legis- Elective General lature of Victoria, "to enable the Bishops, Clergy, and Laity of the United Assembly of lay Church of England and Ireland in Victoria to provide for the regulation of the bers for the ma affairs of the said Church," and to request that we would report our further ungement of the opinion on certain questions connected with the subject. That in our former affairs of the

Church of England letter serious objections were stated to Her Majesty being advised to assent to may be lawfully the Act in question; but it was stated at the same time that "such objections assented to by the were rather of a Constitutional than a legal character."

Crown, the objec. tions to it being of policy only.

Mr. Merivale also states that he was directed to ask whether, in our opinion, the provisions of the Act in question would acquire legal validity if the assent of the Crown was given thereto; and in particular whether members of the licensed Clergy and Laity, meeting in Assembly in the manner provided by Section 1 of the Act, or the Bishop presiding thereat, would be liable to any legal penalty. Also, whether, if any Commission established under Section 3 of the Act were to impose the penalty of suspension from a benetice under Section 3, the Clergyman so suspended would have any remedy against the members of the Commission or the Bishop. on account of the invalidity of the Act.

Mr. Merivale was also pleased to annex the Act of the Legislature of New South Wales, 8 Wm. IV, No. 5 (of which Victoria at that time formed purt), "to

*