CO885-(10-11) — Page 695

504.

No. 552.

(CANADA.)

PUBLIC RECORD OFFICE

C.O. 885

Reference :--

11 PUBLIC RECORD OFFICE, LONDON

ALLY WITHOUT PERMISSION OF THE BE REPRODUCED PHOTOGRAPHIC- COPYRIGHT PHOTOGRAPH-NOT TO

MY LORD,

LAW OFFICERS to COLONIAL OFFICE.

Temple, February 8, 1869.

We are honoured with your Lordship's commands signified to us in Sir Frederic Rogers' letter of the 23rd January last, stating,

Ist. That he was desired by your Lordship to transmit to us copies of a Despatch which had been received from the Governor-General of Canada dated December 24th and of the enclosures thereto, in which the important question was raised whether the power of pardoning was still vested in the Lieutenant Governors of the diffrent Provinces forming the Dominion of Canada since the British North America Act of 1867 (30 Vict. c. 3.).

2nd. That Sir Frederic Rogers enclosed for our information copies of the commis sions and instructions which were issued to Lord Monck before the Union as Governur- General of all Her Majesty's Provinces in North America, and as Governor of the several Provinces of Canada. Nova Scotia, and New Brunswick, and also copies of the commissions and instructions which have been issued to Lord Monck and Sir John Young since the Union.

3rd. That it would be seen by the commissions issued before the Union that the Lieutenant-Governors of the respective Provinces were appointed by Her Majesty, and that the powers of pardon were granted to them in the absence of the Governor, but by section 58 of the British North America Act, 1867, the Lieutenant-Governors are now appointed by the Governor-General of Canada and not directly by Her Majesty, and that Mr. Cardwell in his Despatch of the 3rd December 1864 pointed out that the duty of granting pardons belonged to Her Majesty's representatives, and could not with propriety be devolved upon Lieutenant-Governors appointed not directly by the Crown, and it appeared that Her Majesty's Government adhered to this view, and that the resolution which at that time the Canadian Government considered necessary to vest this power of granting pardons in the Lieutenant-Governors, was not made law by the Imperial Act.

4th. That it was apprehended that little doubt could be entertained that the Lieu- tenant-Governor of Nova Scotia and New Brunswick had not the power to grant. pardons, that power having been exercised by the former Lieutenant-Governors under the Royal Commissions and Instructions only, and not under any Act of the Imperial or Colonial Legislatures, and that the only difficulty arose upon the effect of the Canadian Act quoted by Sir J. Macdonald.

5th. That copies of section 2 of c. 115, of the Consolidated Statutes for Upper Canada, and of the 3rd section of the earlier Act of 7 Will. 4. c. 6., upon which that section is founded, and also copies of sections 112 and 113. c. 99 of the Consolidated Statutes of Canada, and of section 61 of 4 and 5 Vict. c. 25. s. 61, and section 48 of 4 and 5 Vict. c. 24., upon which sections 112 and 113 of c. 99. were founded, were enclosed for reference.

Sir Frederic Rogers further stated that he was desired by your Lordship to request that we would take these papers into our consideration and favour your Lordship with our opinion whether the power of pardon can, since the passing of the British North America Act, 1867, be exercised by the Lieutenant-Governors of the respective Pro- vinces forming the Dominion of Canada, or whether such power is vested in the Governor-General only.

In obedience to your Lordship's commands we have taken these papers into our consideration, and have the honour to

Report

That we think that the prerogative of mercy is properly resident in the Governor- General of Canada in virtue of his Commission.

Canada is by section 3 of the British North America Act, 1867, to form one dominion with four Provinces; and by section 9 the executive government and authority is declared to continue and to be vested in the Queen; as the power of pardoning is by the law of England and Her Settlements part of the Royal Prerogative, the power of pardoning is at and after the time of passing the British North America Act to be

16278.-595.

£5.-5,86.