CO885-(2-3) — Page 28

PUBLIC RECORD OFFICE

Reference -

TILITICO.

• 885

PUBLIC RECORD OFFICE, LONDON

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

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supremacy must either have been imported into the Colonies whole and entire, or not at all; that the latter was the case; and that, consequently, the Colonies were not within the mischief guarded against by acts intended to protect and affirm that prerogative.

But if the Colonies are within the Act, it is only as part of the Law of England which settlers bring with them as their birthright, and not as a Statute which they cannot alter. To hold otherwise, would be to shake to its foundations the whole fabric of Colonial legislation. Almost every Act that is passed assumes the power to repeal English statutes which otherwise would be in force in the Colony; nobody ever doubted the power of a Colonial Legis- lature to make laws at variance with the statutes of frauds, of uses, or of limitations, “ * Optimus legum interpres usus," is a favourite maxim in ascertaining what law is in force in the Colony, and use and custom are altogether against the attempt now first made to foist these ancient Acts into the Colonial Code. But if these Acts be in force, and the Colonial Assembly, as well as the Imperial Parliament, have power to deal with them, I apprehend, upon the clearest principles of local self-government, that they ought to be repealed by Her Majesty, by the advice of her local, rather than her Imperial, Parliament. My opinion therefore is, that Her Majesty should be advised to assent to the Victoria Bill as it stands, and that the Canadian Legislature should be in- formed that the Home Government will be ready to consider favourably any Bill which they may choose to pass, for carrying out the objects of their address, but that no Bill will be introduced into Parliament on the subject.

I have been arguing on the supposition that these Acts do not apply to the Colonies, but if I am over- ruled in this view by high legal authority, my opinion as to the inexpediency of Imperial legis- lation remains unaltered. These Acts are a mere brutum fulmen unless put in force by the Crown, and the apprehension of any prejudice to the bishop or the clergy from attending a meeting of clergy and laity, is chimerical if not hypocritical. The clergy and laity do already meet at stated periods in the year in Australia; speeches are made, reso-

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lutions are moved, questions discussed. The meeting begins with prayer, and terminates with the blessing of the bishop. I never heard of any doubt as to the legality of such proceedings till a Synod of Bishops met in Sydney in 1850, delivered a judg- ment on the case between the Bishop of Exeter and Mr. Gorham, and after having done this strange act with total impunity, commenced an agitation against a law whose utter inefficiency they had thus

so signally demonstrated. I should therefore be disposed, even if the opinion of the Law Officers were against me, not to interfere by Act of Parlia- ment. The worst that could happen would be a recourse to the Colonial Court, a nominal sentence,

an appeal to the Privy Council, and an affirmation of that sentence. Then, and not till then, as it seems to me, ought we to appeal to Parliament to relieve the Colonial Church from fetters which will have then been conclusively shown to exist. I object to declaring that these Acts do not apply to the Colonies, because, as I have shown before, it would shake the founda- tions of Colonial legislation, and raise questions extremely intricate and troublesome, and I object to a Bill, stating that nothing shall prevent the Bishops, Clergy, and Laity from meeting, because such a Bill has already been introduced into Par- liament, and encountered the most strenuous oppo- sition, so that it was not thought expedient to persevere with it,

The sum of my opinion therefore is, that we ought in no case to legislate here, but to leave the Colonial authorities to settle the matter their own way, reserving to ourselves the right of legislation if the Privy Council shall decide, as I do not believe they will, that these Acts really interfere with the self-government of the Colonial Church.

Believe me, &c.

(Signed)

ROBERT LOWE.

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