CO885-(10-11) — Page 771

13580.

PUBLIC RECORD OFFICE

Reference :-

EPELC.O. 885

11 PUBLIC RECORD OFFICE, LONDON

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

surrender from and give a certificate to the Hudson's Bay Company, should that company demand such acceptance and certificate?

4. If the surrender is accepted by Her Majesty, can the transfer of Rupert's Land to the Dominion of Canada be effectually made by the proposed Order in Council against the will of the Canadian Government!

5. It is apprehended that a surrender by the Hudson's Bay Company and accept- ance by Her Majesty would, by the Rupert's Land Act, 1868, be void, unless the Order in Council admitting Rupert's Land into the Dominion be made within a month after such acceptance. But, assuming such avoidance to take place, could a second surrender be made by the Company and accepted by Her Majesty under that Act, and, if it could, would another address from the Parliament of Canada be required embody- ing the terms and conditions of transfer, or would another formal approval by Her Majesty of the terms and conditions embodied in the present address be required.

And that as this matter might at any moment become pressing, our immediate attention was requested to those questions.

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

Report

That we shall explain our views more clearly by grouping together the first three questions. The Houses of Parliament of Canada, whereby alone the national will can be expressed under the "British North America Act. 1867," and the “ "Rupert's Land Act, 1868," have exercised the power conferred upon them by these Acts to address the Crown for the union of Rupert's Land and the North-West Territory to the Dominion of Canada. The terms and conditions under which that union is prayed for have been approved by Her Majesty, and assented to by the Hudson's Bay Com- pany, who have executed a deed of surrender to the Crown in pursuance of the above. mentioned Acts.

We are of opinion that if the surrender is accepted by the Crown and the proposed Order in Council is passed within a month of that acceptance, Canada is bound to accept the territory, to pay the price of it as specified in the second address, and tr provide for its government.

We come to this conclusion quite independently of the letter of the Messrs. Baring of the 17th November. If we are to understand the first question as asking whether that letter constitutes a legal obligation enforceable in a court of law in this country, we answer that it does not, because the Messrs. Baring manifestly acted only in the capacity of agents, and could not be sued on a personal liability, nor could our courts enforce an obligation against the Canadian Government. The obligation of the Canadian Government is to the Imperial Government.

4. Our answer to the first three questions will have indicated our answer to this. We are of opinion that the transfer will be efectual.

The Executive Government of Canada have, in our view, no power to invalidato a proceeding of the Canadian Legislature which has been acted upon by the Hudson's Bay Company and by the Crown in pursuance of powers conferred by the Imperial Legislature.

5. We are of opinion that under the circumstances assumed the power given by the Act would be exhausted, and that no second surrender could be made and accepted by Her Majesty under it.

The Right Hon. the Earl Granville, K.G.

&c.

&c.

&c.

No. 617.

(NEW SOUTH WALES.)

LAW OFFICERS to COLONIAL OFFICE.

N. 8. Wales.

6 Geo. IV., No. 31

IV No. 2

(1884). * Vict., No. 33

MY LORD,

Temple, December 10, 1869. We are honoured with your Lordship's commands signified to us in Sir Frederic Rogers' letter of the 29th November last, stating that with reference to our report of the 20th November* relative to the custody of the registers belonging to the Settlement of the Norfolk Island, and in which it was stated that in the absence of informa

any tion as to the laws or regulations of the Colonies on this subject, we were unable to render a complete answer to the questions in the case, he was directed by your Lord- ship to inform us that a search had been made through the Acts of New South Wales up to the date of September 1844 when Norfolk Island was transferred to Tasmania, (10)

V. D. Land. and through the Acts of Tasmania from the year 1826 to the year 1856, when Norfolk vict, No Island was made into a separate Settlement, and he was now to transmit to us copies of vict, No. 1. the Acts noted in the margin, which, as far as could be ascertained were the only Acts, No. 1 relating to registers in those Colonies during the above mentioned periods.

Sir F. Rogers was pleased to add that the clergyman in Norfolk Island had not, like an English clergyman, any corporate character, but was a mere stipendiary chaplain.

Sir F. Rogers was further pleased to request that we would advise upon the case submitted to us by letter of 15th November upon the supposition, which is believed to be correct, that there are no laws affecting ecclesiastical registers. In obedience to your Lordship's commands we have the honour

Report

That we have examined the several Colonial Acts transmitted to us, but we are still unable to arrive at any confident conclusion as to the property of the Norfolk Island register of births and marriages.

We are disposed to believe that the right of possession in the register vested in the Episcopal Registrar of Tasmania; and we, at any rate, feel little doubt but that Mr. James had no right as regards the possession thereof which he could lawfully transfer to his creditors.

The person at present entitled would, we think, be such person as in the natural course has succeeded to the lawful custody of the other registers kept by Mr. James.

The whole question, however, depends on facts and circumstances which would be better judged of by lawyers at Sydney. We should advise your Lordship to lay the case before some competent colonial lawyer at Sydney to obtain his view; but we entertain little doubt that the colonial courts at Sydney would compel Mr. James or his creditors on application to transfer the register to the person who succeeded him in the lawful custody of the other registers under charge of Mr. James.

The Right Hon. Earl Granville, K.G.

&c.

&c.

We have, &c. (Signed)

R. P. COLLIER. J. D. COLERIDGE.

016278.--439.

25.--5/86.

&c.

• No. 614.

R

We have, &c. (Signed)

R. P. COLLIER.

J. D. COLERIDGE.

(1888).

20 Vict., No. (1887).