8274.
RECORD OFFICE
C.O
Reference :-
885
11 PUBLIC RECORD OFFICE, LONDON
It appeared further that when Mr. Douglas acted as Procureur General, in the absence of Mr. D'Epinay, he did exercise this right of private practice; that this right was formerly objected to in the Supreme Court in 1856, on the ground that Article 86 of the Code of Civil Procedure was in force, and that the Supreme Court overruled the objection.
That on the retirement of Mr. D'Epinay, in 1856, Mr. Dickson, the present Procureur General, was appointed, and the then Secretary of State, Mr. Labouchere, made it a term of his appointment that he should not exercise the right of private practice.
That Mr. Douglas, the present acting Procureur General, was appointed Substitute Procureur General some 14 years ago, and has always exercised the right of private practice.
Sir Frederic Rogers was pleased to inform us further, with respect to the Substitute Procureur General, that a proclamation so far back as 1828, by which a Mr. Fadhuite was appointed Substitute Procureur General, expressly gave him the power to practise privately, and that proclamation and the appointment of Mr. Fadhuite were duly recorded in the court, and that for the period of nearly 40 years the Substitute Pro- cureur General has, unchallenged, exercised the privilege of private practice.
That Mr. Dickson, the Procureur General, is now on leave of absence, and Mr. Douglas was, as above mentioned, appointed acting Procureur General, and a Mr. Colin was appointed acting Substitute, and the right of Mr. Douglas and Mr. Colin to private practice had recently been disputed in the Supreme Court, and after hearing the argu- ments on both sides, that court had decided that the Procureur General has not the right to private practice, and two out of the three judges had decided that the Substi- tute Procureur General is also debarred from that privilege.
Sir Frederic Rogers also stated that he was desired to observe that the Chief Justice, Mr. Shand, was absent on leave and not a party to the judgment, and that one of the three judges had been a party to the former judgment in 1856.
That the newspapers containing the arguments and copies of judgments were sent to us for reference, and that
Under these circumstances he was directed by your Grace to request that we would favour you with our opinion upon the following questions:-
1st. Whether the Procureur General has by law (irrespective of any regulation that may have been made by the Secretary of State upon his appointment) a right to prac- tise privately, and
2nd. Whether the Substitute Procureur General has the like right?
3rd. Whether the acting Procureur General and the acting Substitute Procureur General have respectively the like right?
In obedience to your Grace's commands we have taken the matter submitted to us into consideration, and have the honour to
Report
That we think that neither the Procureur General nor the Substitute Procureur General has a right to practise privately, and we think that the same law applies to the acting Procureur General and the acting Substitute Procureur General.
Upon the best consideration we can give the case, we think that the 86th section of the Code, which has not been expressly repealed, cannot be deemed to be repealed by necessary implication, and we think therefore that that section is a law still in force regulating the right of practice of Procureurs Generaux and their Substitutes.
We have, &c. (Signed) JOHN B. KARSLAKE.
His Grace the
Duke of Buckingham and Chandos.
C. J. SELWYN.
No. 477.
(CANADA.)
LAW OFFICERS to COLONIAL OFFICE.
MY LORD DUKE,
Temple, August 20, 1867. We are honoured with your Grace's commands, signified in Sir Frederic Rogers' letter of the 22nd of July ultimo, stating that he was directed by your Grace to request that we would peruse the accompanying papers and favour your Grace with our opinion Despatch on the following questions:-
from Gover
No. 34,
The British North American Act, 1867 empowered Her Majesty by proclamation to nor of New unite the then Provinces of Canada, Nova Scotia, and New Brunswick under the name Brunswick of Canada. It kept alive, however, the provincial Legislatures, declaring (§ 88) that 18 June the constitution of the Legislature of New Brunswick should continue (subject, of 1867. course, to the power of constitutional amendment) "as it exists at the time of the Ditto No. 88, union." But it provided that laws passed by that and the other provincial Legislatures 1867. should be subject to disallowance by the Governor General of Canada (§ 90).
29 June
Act of Par-
Sir Frederic Rogers was also pleased to state that the Legislature of New Bruns- liament, wick, it appears from the enclosed papers, have passed a law declaring that no person 30 Vict. c. 8. shall be at the same time member of the Provincial and Central Legislatures. That this Act was assented to by the Governor and took effect on the 17th of June.
That on the 1st of July the union was effected under a proclamation issued by Her Majesty in conformity with the Act of Parliament.
That the provincial Act is open to the serious objection that an expiring local Legis- lature, whose acts were intended so soon to become subject to central control, ought not to have availed itself of its short interval of absolute independence to enact a law which will affect, not only its own character, but that of the central Legislature.
Sir Frederic Rogers was pleased to add that, under these circumstances, he was to request our opinion-
1. Whether it is true, as contended in the accompanying paper, signed "Charles Fisher," that the Legislature of New Brunswick was by the Union Act disabled from passing this Act.
Sir Frederic Rogers further stated that in respect to this question we should doubt- less observe that in Mr. Fisher's citation of the 88th and 129th clauses the important words" at the union" (§§ 88, 129) are unnoticed.
2. Supposing the Legislature to have had the power of passing this law, and assuming, therefore, that the constitution "existed at the time of the union," as it is altered by this Act, does the 88th clause of the Act of Parliament which declares that it shall continue in that shape prevent Her Majesty from disallowing the law, and thus restoring the constitution to the shape in which it existed prior to the 17th of June.
29
3. If so, is the power of disallowance transferred by the 96th (90th ?) clause to the Governor General of Canada ?
*
In obedience to your Grace's commands we have taken this matter into our con- sideration, and have the honour to
Report
That we are of opinion that Mr. Fisher's view, as expressed in the paper bearing his signature, that the Legislature of New Brunswick was by the Union Act disabled from passing the Act in question is not correct.
We think that "the constitution" in the 88th section refers to the "composition " of the Legislature; but if this be not so, and assuming, as we are desired to do, that the constitution existed at the union as altered by the Act in question, we are of opinion that Her Majesty is not prevented from exercising any power which she may be entitled to exercise of disallowing the law and thus restoring the constitution to the shape in which it existed prior to 17th June.
We think that the power of disallowance is not transferred by § 90 to the Governor General of Canada.
We have, &o. (Signed) JOHN B. KARSLAKE.
C. J. SELWYN.
His Grace the Duke of Buckingham and Chandos.
&c.
&c.
&c.
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16278-450. 25.-5/86.
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