698.
PUBLIC RECORD OFFICE
C.O. 885
Reference :-
ALLY WITHOUT PERMISSION OF THE BE REPRODUCED PHOTOGRAPHIC- COPYRIGHT PHOTOGRAPH-NOT TO
11 PUBLIC RECORD OFFICE, LONDON
No. 549.
(CANADA.)
LAW OFFICERS to COLONIAL OFFICE.
MY LORD,
Temple, January 21, 1869. We are honoured with your Lordship's commands, signified in Sir Frederic Rogers' letter of the 9th of January instant, stating that he was directed by your Lordship to transmit to us copies of an approved Minute of the Privy Council of Canada, and of a Report of Mr. Mitchell, the Canadian Minister of Marine and Fisheries, and of a letter from the Board of Trade, to whom those papers were referred.
2. Sir Frederic Rogers was further pleased to observe that of the three questions stated by the Board of Trade as arising out of Mr. Mitchell's report, the first might be laid out of consideration, and that the point upon which his Lordship desired to be advised arose upon the second and third questions.
3. From the report of the Canadian Minister it appeared that he entertained doubts whether the Dominion of Canada could legally be treated as one possession for the purposes of the 109th section of the Merchant Shipping Act (17 & 18 Vict. c. 104.) and for the purpose of the 163rd and 328th sections of the Customs Consolidation Act (16 & 17 Viot. c. 107 ), and he referred to a Despatch of the Duke of Buckingham of the 12th of March last. Copies of that Despatch and of the opinion of the late Law Officers which was embodied in it, were annexed for reference.
4. That opinion turned, as would be seen, upon the construction of the 2nd and 31st sections of the Merchant Shipping Act, 1854, and of the 3rd and 12th sections of the British North America Act, 1867 (30 Vict. c. 3.), and was to the effect that having reference to the definition of the words British possession" contained in the 2nd section of the Merchant Shipping Act of 1851 the Lieutenant-Governor of New Brunswick was the person who administered the Government of such possession within the meaning of the 31st clause of the same Act, each of the four provinces existed as a territory under the administration of a Lieutenant-Governor within the meaning of the Merchant Shipping Act of 1854.
5. Sir Frederic Rogers was also pleased to observe that on the other hand it is the habit of this Department in any case where a separate Colonial Legislature, exists, to consider so much of British territory as falls within the jurisdiction of that Legislature to be "a British possession," and that it is the custom of the Department to apply the term "Officer administering the Government" to the Officer who by Her Majesty's Letters Patent is invested with so much of the Royal prerogative in respect to the Colonial administration as Her Majesty has considered requisite for the government of the Colony, and that
"appeared not irre- 6. The above interpretation of the words "a British possession' concileable with the definition of the 357th clause of the Customs Consolidation Act, and to be invited by the 328th clause of the same Act, and the 15th section of the later Customs Act, 20 & 21 Vict. c. 62., which imply that a "territory or island" would not be a "British possession" unless it had a separate Legislature of its own. language of the definition clause, section 2 of the Merchant Shipping Act is less tractable. But it was submitted that that definition clause if strictly construed, would have the assured consequence of rendering every small British island a separate British possession. That this stringency of interpretation is inconsistent with the 31st clause, which implies that a British possession must at least have an Officer administering the Government, and that if any qualification whatever was admissible, the qualification suggested in respect to the "Customs Consolidation Act" would be the most reasonable and convenient.
The
7. And further that the 3rd section of the Act 30 Vict. c. 3. appeared intended to constitute the Dominion of Canada a separate possession of Her Majesty in the ordinary sense of the word, and that this construction of the section was supported by the nature of the powers given to the general and provincial Legislatures (sections 91 & 92) and by the nature of the office of Lieutenant-Governor, who was appointed not by the Queen but by the Governor-General of Canada, in whom, by the Royal Letters Patent Administering and by the 12th section of the Confederation Act, the real powers of “ the Government" were vested, and that,
8. Under these circumstances Sir Frederic Rogers was directed by your Lordship to request that we would favour you with our opinion upon the following question:-
Whether the Dominion of Canada was to be taken as one British possession or as
0 16978.--592.
#5.-5/86.