CO885(2-3) — Page 98

PUBLIC RECORD OFFICE

C.O.

Reference :-

·885

2

PUBLIC RECORD OFFICE, LONDON ALLY WITHOUT PERMISSION OF THE BE REPRODUCED PHOTOGRAPHIC-

COPYRIGHT PHOTOGRAPH-NOT TO

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of the ecclesiastical supremacy inherent in the Crown, without the assent of the Imperial Parliament.

Applying these remarks to the Act of the Canadian Legislature, we find that its provisions would give authority to subvert entirely the ecclesiastical constitution of the Church as legally existing in Canada, and to annul, with respect to Canada, all the principles of the laws of England in matters ecclesi- astical, and which are embodied in the Oath of Şupremacy.

Our opinion therefore is, that the assent of the Crown cannot be legally given to the Act in question.

Whether the Canadian Parliament should or should not have power and authority to do what they propose by the Act before us, is a question of policy and not of law. But if it be deemed expedient that they should possess full legislative powers over their own local affairs, both ecclesiastical and civil, and be enabled to pass such laws as they deem right, although repugnant to the laws of the United Kingdom, an Act of Parliament must be obtained giving power to the Legislature to pass such Acts, and to the Crown to assent to them.

(Signed)

The Right Hon. Mr. Secretary Labouchere, M.P..

&c.

Mr. Labouchere,

&c.

&c.

No. 2.

Memorandum by MR. MERIVALE.

J. D. HARDING.

A. E. COCKBURN. R. BETHELL.

Is compliance with your wish subjoin a few observations, not in the slightest degree to dispute the authority of the positions laid down by persons of such eminence in the profession, but merely to invite attention to certain corollaries and consequences which, if not properly guarded against, would be inconsistent with the general rules hitherto acted on in colonial legislation.

1. That the Canadian Legislature has no power (notwithstanding the Queen's assent) to alter the written law of England, in force within the Province, is undoubted.

But when it is said that the same Legislature has no power to alter the unwritten law in force there, I cannot but doubt whether some closer definition is not required.

The law advisers have not said whether they regard Canada as a conquered country (with French law), or a settled country (with British law). If the former, it may be that some portions of unwritten British law attach there nevertheless, but they must be extremely few; that English law ecclesiastical is part of them; would require, I should think, some explanation to show. If the latter, then, no doubt, unwritten British law in general attaches there (so far as applicable); but I apprehend it is equally clear that the Legis- lature has power in general to alter it. For instance; in an English_colony the English law of inheritance by the eldest son attaches without a doubt; wut I have not yet heard it questioned that the Legislature of the Colony could alter this law, and substitute partibility of real property if it pleased. The Legislature of South Australia has just done so, we are informed.

H

What, then, is that unwritten British law in force within a colony," which the Colonial Legislature cannot alter, and which this opinion calls the Imperial law?" That there is some such law I know that high authorities have said. The English law ecclesiastical, or some portion of it, may be law of this class, but I have never yet seen it stated what portion, or why.

2. The law advisers also say that the prerogative of the Crown is part of the common law, and the Colonial Legislature ought not to be invested with any portion of it."

It is not for me to contend whether this ought or ought not to be so; but, practically, this doctrine has been neglected for many years. Colonial Legis- latures have dealt and do deal habitually with portions of the prerogative : and

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this, I apprehend, on the principle that as the Crown is a portion of every Colonial Legislature. (assenting to its acts either in person or through the Governor, and disallowing them all, ad libitum), so the Crown can, if it pleases, exercise its prerogative by and with the advice of the Colonial Assemblies.

For instance: the disposal of waste land in the Colonies is the Crown's prerogative; nevertheless, when a Legislature is constituted, it is held that such Legislature has a right to pass laws respecting the waste lands unless the Crown chooses to restrain it from doing so; and in most of the Colonies the disposal of public land is inatter of Colonial law.

Again the currency and legal tender are settled, or may be, by prerogative; nevertheless, in most Colonies, they are legislated about continually by the Assemblies, the Crown either waiving its prerogative, or acting through the Assemblies, whichever be the proper phrase.

Again to grant patents is a prerogative of the Crown (whether by virtue of the statute of James I or by antecedent right), yet the common way, in almost all Colonies, of granting patent rights is by Act of the Legislature. assented to by the Crown.

If the Crown, then, can act through the Legislature, or can waive its prerogative in favour of the Legislature (whichever be the proper phrase), in such matters as the disposal of waste lands, currency, and patents (many more might be added if necessary), why can it not equally act through the Legislature, or waive its prerogative in favour of the Legislature, in matters ecclesiastical!

I am by no means contending that there may not. The some distinction, but only that some explicit distinction is required. We ought to know, what are those higher branches of prerogative in which the Crown is incapacitated, by reason of the very excellence and high quality of its own rights, from using those rights in the usual manner. Otherwise, Colonial Legislatures, accus- tomed to think little of the mere legal obstacle of prerogative, because accus- tomed to see it waived every day by the assent of the Crown, will find themselves continually at fault before some undefined barrier, where the ordinary rules which guide them seem to fail, without any distinct reason being alleged for the failure.

August 7, 1856.

H. M.

P.S. The Acts of Parliament constituting the Canadian Legislature and creating its powers are 3 & 4 Vict., c. 35 (see sec. 3), and 31 Geo. ÏIl, c. 31.