CO885-(10-11) — Page 97

6217.

No. 72.

(CANADA.) (GENERAL.)

PUBLIC RECORD OFFICE

༴། །「 ་། ། །

C.O. 885

Reference :-

10

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

PUBLIC RECORD OFFICE, LONDON

2

LAW OFFICERS to COLONIAL OFFICE.

MY LORD DUKE.

Lincoln's Inn, June 25, 1861. We were honoured with your Grace's commands signified in Sir Frederic Rogers' letter of the 24th April last stating that he was directed by your Grace to transmit to us the copy of a Despatch which had been received from the Governor of Canada, enclosing the copy of a minute from his Executive Council expressive of their desire that an Act of Parliament should be passed during the present session in order to abrogate the right of courts of law and judges in England to issue the writ of Habeas Corpus or any other writ or process running in that Colony, save such as might be connected with the right of appeal to Her Majesty in Council.

That Her Majesty's Government were of opinion that the request of the Colonial Government was reasonable. But as the question was one of high importance and as any general abrogation of the rights of the Imperial Courts might have consequences beyond those which were immediately contemplated, he was to request that we would take the subject into our consideration and submit to your Grace the heads of such an Act as might appear to us proper to effect the object desired by the Colonial Govern-

ment.

That as it was plain that the jurisdiction abrogated in Canada could not properly be allowed to subsist in other Colonies similarly situated Sir Frederic Rogers requested that we would inform your Grace to what classes of Colonies the enactment should extend.

In obedience to your Grace's command we have considered the above-mentioned questions, together with the papers submitted for our perusal, and have the honour to

Report

That this is, in our opinion, a very serious and difficult subject.

The true principle we conceive to be, that so soon as the Crown has established a Court of Queen's Bench in any foreign colony or possession with the same jurisdiction and authority as are possessed by the Court of Queen's Bench at Westminster it ought to be considered that the jurisdiction of the latter court (if any) within such colony or possession is at an end.

But no doubt it is a principle of law that if the jurisdiction of a court has once at- tached, it will not be taken away simply by the establishment of a new court in the same place and with the same jurisdiction. Both courts become co-ordinate and although in ordinary cases the wiser rule would seem to be that when one of the two co-ordinate courts has pronounced a decision the other court ought to be governed by it, cases of Habeas Corpus are deemed an exception to this rule. It seems necessary, however, that some legislative interference should take place, and we do not see any very material objection to a short Act founded on the principle we have stated. It would run in some such form as this:

Whereas the Court of Queen's Bench at Westminster has lately decided that it had jurisdiction to issue, and it accordingly did issue, a writ of Habeas Corpus, &c. directed to, &c. in our Colony of Upper Canada commanding, &c. : And whereas there were and are lawfully established courts of justice within the said province of Upper Canada with full powers

for the administration of justice throughout the said province, including the power of issuing the said writ of Habeas Corpus in all cases arising within the said province as fully as the same power is possessed and exercised by Her Majesty's Superior Courts of Law at Westminster within England and Wales:

And whereas it is not expedient that writs of Habeas Corpus cum, &c. should issue out of England into any Colony or foreign dominion of the Crown where Her Majesty has a lawfully established court of justice having authority to grant and issue the said writ and to ensure the due execution thereof throughout such Colony or foreign dominion, but it is expedient that any refusal to grant or issue the said writ shou'd be the subject of an immediate appeal to Her Majesty in Council. Now therefore, &c.

16878.-17. 95.---9/85.