CO885-(2-3) — Page 173

Appendix No. 9.

PUBLIC RECORD OFFICE

Reference —

TLC.O. 885

3 PUBLIC RECORD OFFICE, LONDON ALLY WITHOUT PERMISSION OF THE BE REPRODUCED PHOTOGRAPHIC- COPYRIGHT PHOTOGRAPH-NOT TO

all witnesses.

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same shall be deemed an act of justifiable homicide; and every such warder, officer, police- man, constable, or sentry, shall be, and is hereby, indemnified and discharged from any indictment, penalty, action, or other proceeding for so doing.

shall or

VII. That all Her Majesty's subjects, and others resident within the said Colony, being males, above the age of eighteen years, and below the age of sixty years, and being free persons, or convicts holding tickets of leave, and not being aborigines, may lawfully be called upon to aid and assist any Justice of the Peace, constable, or police officer, in the pursuit and Aid to constable by capture of any convict illegally at large; and every person who shall be so called upon to aid and assist, and shall refuse or neglect so to do, without just and reasonable excuse shown to the satisfaction of any Justice or Justices of the Peace, before whom such

person may be charged with such refusal or neglect, shall forfeit and pay (over and above any other punishment, to which such person shall be liable by law) any sum of money not exceeding ten pounds, to be awarded, recovered, or enforced in a summary manner, within one calendar month after the commission of such offence, before any one or more Justice or Justices of the Peace, according to the provisions of the Ordinance No. 5 of 1850; and every such fine, when recovered, shall be paid into the hands of the Colonial Treasurer, to the use of Her Majesty, her heirs and successors, for the public uses of the said Colony, and the support of the Government thereof,

Terms used.

Evidence.

Death recorded.

Transported.

Appendix No. 8.

Who are to be dermed offenders ifis gally at large.

Royal prerogative

of mercy saved.

VIII. That, throughout this Ordinance, the word "convict" shall be deemed and construed to mean any offender being in the said Colony under an unexpired or unremitted sentence of transportation, whether such sentence shall have been passed in the said Colony or elsewhere; and also any offender, being in the said Colony, whose sentence shall have been commuted to transportation for a term still unexpired or unremitted; and that the words convict illegally at large" shall be deemed and construed to mean a convict (whether holding a ticket-of-leave or otherwise), escaped from any prison, depôt, or station of convicts employed in the service of Government, on any road or public work, or from any place appointed by the said Governor, or used with his knowledge and sanction for the confine- ment or detention of convicts, or from the custody of any warder, policeman, or constable.

IX. That on the trial, and on any previous examination before a Justice or Justices of the Peace, of any person charged with any offence against this Ordinance, the fact of such offender being a convict shall or may be proved primâ facie, in like manner as is provided by the section 7 of the Ordinance No. 18 of 1853; and that evidence of any person having acted as a warder or other officer of the Convict Department, or as a sentry over a convict or convicts, at any particular time or place, shall be sufficient evidence of such person being a duly appointed warder, officer or sentry, at such time or place, unless sufficient proof shall be given to the contrary.

X. That judgment of death for any offence against this Ordinance may, instead of being pronounced, be recorded in like manner as is provided by section 1 of an Act of Parlia ment passed in the fourth year of the reign of His late Majesty King George IV, intituled "An Act for enabling Courts to abstain from pronouncing sentence of death in certain capital

offences."

XI. That in all cases in which sentence of death is recorded as aforesaid, it shall be lawful for his Excellency the Governor to commute such sentence to transportation for life of for any term not less than seven years, or to hard labour, in or without irons, on any of the roads or public works of the Colony for any term not exceeding seven years, and in addition to either of the aforesaid punishments, to award punishment by whipping not exceeding 100

lashes.

XII. That this Ordinance shall cominence and take effect from and immediately after the publication in the Government "Gazette" of the said Colony, of a Proclamation notify. ing Her Majesty's assent thereto.

CHARLES FITZGERALD,

Governor and Commander-in-chief.

Passed the Legislative Council, the 17th day of May, 1854.

A. O'GRADY LEFROY, Clerk of the Council.

Appendix No. 8.

EXTRACT from BILL. " to Amend the Law Relating to Offenders Illegally at Large."

XV. EVERY person who has been, or shall be, transported for any offence against the laws to any British Colony or Possession other than the Colony of Victoria or of New South Wales, or who has been convicted of any capital or transportable offence in ahy British Colony or Possession other than the said Colony of Victoria or of New South Wales, and who shall be found in the said Colony, not having served the full term for which he or she was transported, or the full period of his sentence, or not having received from Her Majesty a free pardon or remission of his or her sentence, shall, for the purposes and in the construc- tion of this Act, be deemed to be an offender illegally at large; and the expression" illegally at large," wherever it occurs in this Act, shall be taken to signify and denote such person so transported or convicted, and who has not served such term or period, ur received such pardon or remission as aforesaid.

XVI. Nothing in this Act contained shall be taken to interfere with Her Majesty's royal prerogative of mercy. ·

(No. 14.) SIK,

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Appendix No. 9.

COPY of a DESPATCH from Lord STANLEY to Governor Sir H. BARKLY.

Downing Street, April 17, 1858. I HAVE to neknowledge your despatch No. 121 of the 7th December last, transmitting a petition from the Synod of the United Church of England and Ireland in Victoria, addressed to yourself, and praying that proceedings may be taken for instituting a Commis- sion of Enquiry into the expediency of enacting a law of divorce.

I am not aware on what ground it has been supposed that Her Majesty's late Govern ment had the intention to extend the provisions of the English Divorce Act of last Session to the Colonies; and can only state that no such measure is in contemplation.

Her Majesty's Government regard this subject as within the general class of internal affairs, which the duty and right of regulating belong to the Colonial Legislatures under free institutions.

But they are at the same time fully sensible of the great importance of uniformity of legislation on this head, so far as it can be attained without injury to these principles of Colonial Government; and the danger, as well to public morality as to family interests, which might arise from the law of the Colonies on the subject of marriage and divorce, differing materially from that of the mother country and of each other.

It is, therefore, the wish of Her Majesty's Government that you should consult your responsible advisers as to the expediency of at once introducing a measure which shall incor- porate, as nearly as the circumstances of the Colony will admit, the provisions of the Act recently passed in England.

Some of the minor provisions of the Act may, probably, prove incompatible with the requirements of the Colony, nor is it my wish to prescribe uniformity in such unessential particulars. But the serious questions which might arise from difference of legislation on that portion of the subject which relates to dissolution of marriage or divorce a vinculo- questions possibly affecting the validity of marriages contracted in one part of the Empire after divorce in another, and consequent legitimacy of offspring-render it advisable that if the Legislature of Victoria should pass any Act varying to an important degree from the present law of England in this particular, you should reserve it for the consideration of Her Majesty.

The clause in most Governors Instructions relating to Divorce Acts has been usually held to apply only to special Bills for the divorce of named persons; and you need not consider yourself in any way fettered by its provisions.

ix No. 9.