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PUBLIC RECORD OFFICE
Reference :-
LITICO.
885
12 PUBLIC RECORD OFFICE, LONDON
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No opinion was expressed as to their propriety, but it was held that the Dominion Parliament was the only Legislature having power to modify or repeal the provisions of the Act of 1858.
On the hearing before the Privy Council it was contended, on the one hand, that by the action of the majority of the Synod of the Presbyterian Church of Canada in connection with the Church of Scotland in uniting with other bodies to form the new Presbyterian Church in Canada, this latter Church now comprehended and was the true successor of the former. On the other hand, it was contended that the majority who had voted for the union with other Presbyterian Churches were really seceders from the Presbyterian Church of Canada in connection with the Church of Scotland, and that the minority that remained still constituted the old Church with all its rights and privileges. On these rival contentions the Privy Council pronounced no opinion, on the ground that the two Churches which appeared from the record to have rival claims, to be or represent the Presbyterian Church of Canada in connection with the Church of Scotland, within the meaning of the Act 22 Viot. c. 66., were not represented in the
Botion.
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But in order to the settlement of these disputes they rather invited the interposition of the Dominion Parliament, using the following language: "The question between the Churches must be determined somehow before a constitutional Board can be elected, " and unless the Dominion Parliament intervenes there will be an ample opportunity " for new and protracted litigation."
The intervention of the Dominion Parliament having accordingly been invoked, the Act now before us, 45 Vict. c. 124., was the result.
It appears then that the whole matter having been considered first by the Provincial Legislatures of Ontario and Quebec, and then by the Dominion Parliament, all these Legislatures have come to the conclusion that the enactments substituted for the provisions of the Act of 1858 are just and equitable.
There can be no doubt of the competency of the Legislature to deal with the trusts of funds already regulated by statute. If every member of the old Church excepting one had agreed to the union, and become members of the Presbyterian Church in Canada, it could hardly have been seriously contended that it would have been a violation of sound principle for the Legislature to have interfered in the way it has done. It becomes then a question of degree and policy. And seeing that the matter is one strictly Canadian, that the interposition of the Dominion Parliament was invited by the Privy Council, and that it has taken the same view as the Parliament of the two Provinces, we do not think that there is any ground upon which Her Majesty could properly be advised to disallow the Act.
Our opinion is the same with regard to the second Act before us, 45 Viot. c. 125., between which and the Act already considered we see no distinction in principle as regards the points submitted to us.
Two additional objections are taken to the third Act before us, the 45 Vict. c. 123., relating to Queen's College at Kingston.
The first objection is that it was not within the power of the Dominion Parliament to deal with the matter, it being one of the subjects of legislation assigned to the Provincial Legislatures. The point does not seem very material, inasmuch as the Act only purports to be passed by reason of the doubts which had arisen whether the Act 38 Vict. c. 76. of the Province of Ontario, of which it is practically a re-enactment, was valid.
Under these circumstances, and bearing in mind the doubt which exists on the point, we do not think Her Majesty should be advised to disallow the Act.
If it be invalid, its validity is open to question in a court of law, and the point is not one which, in our judgment, ought to be decided by a disallowance of the Act.
The remaining objection is that neither the Dominion nor Provincial Legislature is competent to vary the powers conferred or duties imposed upon a body incorporated by Royal Charter. We are not disposed to think this contention well founded. But even if we were, we should not advise that such a question, which would be open to determination in a court of justice, should be determined without argument and without appeal by the disallowance of the Act.
The Right Hon. the Earl of Derby,
&c.
&c.
&c.
We have, &c.,
(Signed)
HENRY JAMES. FARRER HERSCHELL.
1685.
No. 287.
(GENERAL.)
LAW OFFICERS to COLONIAL OFFICE.
MY LORD,
We were honoured with your Lordship's commands signified in Mr. Bramston's
Temple, 29th January 1883. letter of the 20th instant, stating that he was directed by your Lordship to transmit to us a copy of a letter from Mr. W. Acton Adams, suggesting an amendment of the Colonial Attornies Relief Act, and that Mr. Bramston was to request that we would inform your Lordship whether we saw any objection to extending the principle of the Colonial Attornies Relief Act so as to allow attornies to be enrolled in England who had been admitted in the Colonies after service, under articles of clerkship, to an attorney-at-law for the space of five years at the least, and had passed an examination previously to their admission as attorney and solicitor in a Colony in which the system of jurisprudence was founded on or assimilated to that administered in England, but to which, from the fact that certain persons were admitted without the prescribed examination and articles, the Colonial Attornies Relief Act could not now be extended.
In obedience to your Lordship's commands we have the honour to
Report
That we see no objection to the extension of the principle of the Colonial Attornies Relief Act, within the limits mentioned in Mr. Bramston's letter.
The Right Hon. the Earl of Derby,
&c.
&c.
&c.
Wo have, &c., (Signed) HENRY JAMES.
FARRER HERSCHELL.
▲ 19916.-967. 15.-12/e4.
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