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PUBLIC RECORD OFFICE

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Reference -

humimmimC.O. 88

885

3 PUBLIC RECORD OFFICE, LONDON

Encl. in No. 3.

No. 4,

Legislative Council. Act to empower alteration of its constitution.

6

together with an opinion by the Solicitor-General for Scotland and myself, upon the points submitted to our consideration.

B. Hawes, &c., Esq., M.P.

&c. &c.

&c.

I have, &c.

(Signed)

AND. RUTHERFORD.

Enclosure in No. 3.

CANADA CLERGY RESERVE.

AFTER giving to the subject all attention, we concur in result with the Attorney- General. There can be no doubt that Section 5 of the statute admits of two constructions: the one, by reading parenthetically the whole words from "the share of the said Church of England," to the words, "in connection with the Church of Scotland," all inclusive, so as to bring the latter part of the clause into immediate bearing on the first; the other, and, in our opinion, the only other mode of reading, being that adopted by the Attorney-General, connecting the latter part of the clause with the words, "elected by the Synod or Synods,” &c. The clause is altogether so ill-framed, that we do not think either of these constructions much preferable to the other by greater simplicity of syntax or arrangement. But the following considerations are, in our opinion, conclusive:--

1. By the 6th Clause, the share of each Church is to be paid at once to the Treasurer of the Society and Treasurer of the Commissioners respectively, without any specification, but simply in reliance upon the general provision that the money should be applied for the maintenance of public worship, and propagation of religious knowledge.

2. We think the general provision sufficient to secure the due application of the funds, looking to the confidence placed, and very reasonably placed, in the Society and Commissioners.

3. The 7th Clause, providing for the application of the residue, is equally general as to purpose, though left to the Governor of Canada, with the advice of his Executive Council, as not necessarily destined for either of the Churches, and requiring specific appropriation.

4. It is remarkable that, in providing for a deficiency to be made good from the Conso- lidated Fund, no provision is made for applying the sum paid from that source under regulations by the Governor and Council,

And lastly. We think regulations would be necessary by the Governor and Council to clear the questions that must necessarily arise as to the election of Commissioners by the Synod or Synods. If there were more than two Synods, the matter could not be adjusted without some such regulation; and although one Synod of the Church of Scotland has very well-understood powers, yet there are many questions of importance which might reasonably be reserved for the direction of the Governor and Council-such as the qualification of the Commissioners; whether their term of office was to be during pleasure, for a year or years, or for life; how vacancies were to be supplied; and whether they were to be chosen from different parts of the provinces, so as to ensure on the part of the Commissioners to whom the expenditure was entrusted a fair consideration of the interests of different localities.

The difficulty in the view which we adopt arises less, we think, from leaving the fund without control beyond prescribing the general purposes of its application, than from the expressions ** under such regulations as shall from time to time, &c., being not such as would naturally suggest themselves with reference to the matter of election. On the other hand, if everything were left to be regulated by the order of the Governor in Council, the Society and Commissioners would become mere hands without any discretion, though we think it very clear that the statute did intend to vest then with large discretion in the

matter.

SIR.

February 25, 1848.

No. 4.

The opinion of

AND. RUTHERFORD,

THOMAS Maitland.

COPY of a LETTER from the ATTORNEY and SOLICITOR-GENERAL to Sir G. GREY.

Temple, June 15, 1854.

WE were honoured with his Grace the Duke of Newcastle's commands, contained in Mr. Merivale's letter of the 2nd instant, in which he stated that he was directed to transmit to us the inclosed draft of a Bill to empower the Legislature of Canada to alter the Constitution of the Legislative Council for that province, and to request that we would peruse the same, and favour his Grace with any suggestions which might occur to us for its amendment in point of law, or regarding its Constitutional operation.

Mr. Merivale also annexed a despatch from the Officer Administering the Government, inclosing a draft Bill for amending the Constitution of the Legis- lative Council, which, it was suggested, might form the basis of an enactment here.

Mr. Merivale concluded by stating, that although Her Majesty's Govern- ment had preferred giving the Legislature powers, instead of proposing them- selves such a Bill to Parliament, they assumed that it was probable the changes which it embodied would be brought forward in the Canadian Parliament, if such powers be given it, and wished to make those powers sufficiently large.

În obedience to the above commands we have perused and considered the draft Legislative Council (Canada) Bill, and also the draft of an Act to amend the Act re-uniting the Provinces of Upper and Lower Canada, and we collect that our opinion is chiefly desired on the question, whether the enactments of the latter Act will be warranted by the powers and authorities to be contained in the former.

Generally we think the powers given by the Bill proposed to be passed by the Imperial Legislature will fully warrant the proposed enactments of the Colonial Act; but as the Colonial Act contains a provision that the laws now in force, with reierence to the election of members of the Legislative Assembly, shall extend and apply to the election of members of the Legislative Council, we think that the wording of the first section of the draft Imperial Act should be somewhat extended, and that the words "and subject to such directions and regulations," inserted in the first line of the second page of that draft had better be inserted.

By another provision of the proposed Colonial Act, it is to be enacted that the Legislative Council shall have the exclusive power of trying impeachments against high public functionaries in the Province; but this is beyond the scope of the powers conferred by the draft Imperial Act, and if this be a new power proposed to be given to the Legislative Council, we do not think it is warranted by the authority of the draft Imperial Act.

In all other respects we think the draft Imperial Act is sufficient and proper for the intended purpose.

The Right Hon. Sir G. Grey, Bart,,

&c.

&c.

&c.

We have, &c. (Signed)

A. E. COCKBURN, RICHARD BETHELL.

No. 5.

Cory of a LETTER from the LAW OFFICERS of the CROWN to Mr. MERIVALE,

Doctors' Commons, August 21, 1855.

No. 5.

SIR,

WE were favoured with your letter of the 8th May last, in which you Synod. Clergy stated that you were directed by Lord John Russell to transmit to us copy of a may be empowered despatch from the Governor of Canada, inclosing an Address to Her Majesty for to meet by the the repeal of such English statutes as impede the meeting of the Clergy and and Laity only by

Crown; Clergy Laity of the Church of England in Synod, and that the choice of Bishops may be Act of Parliament. left to the Clergy and Laity of each diocese; and you were to request that we would take the same into our consideration, and report to his Lordship whether we considered that the prayer of the Address, or any part of it, notwithstanding the supposed statutable obstacles referred to, could be legally granted by the Crown, if Her Majesty should be advised so to do, or whether an Act of Parlia- ment would be necessary for the whole or any part of it, and if so, what should be the general force and scope of such Act.

In compliance with your request, we have considered the question submitted to us, and beg to report---

That the Address prays for the introduction and passing of an Imperial statute for the repeal of all such statutes as impede the inceting of the Clergy and Laity in Synod, for the purpose of framing rules and canons.

The propriety of introducing such a Bill into the Imperial P..rliament is a question not of law, but of policy. If such an Act should be passed, it is obvious that the Royal supremacy within the Colony would be the

thereby most

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