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13721.

PUBLIC RECORD OFFICE

Reference :-

mmmmm.C.O. 885

11 PUBLIC RECORD OFFICE, LONDON

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

c. 118.

with greater definiteness (page 20, paragraph 15), the ground being that the service of Sir B. Maxwell had been wholly local. Sir Hercules Robinson's report was laid before Parliament on the 6th of June 1866; but the Act of Parliament passed on the 10th 29 & 30 Vict. of August in that year did not contain the clause suggested, and, as has already been stated, Her Majesty did not in her Order in Council of December 1866 transfer, as Her Majesty might have done, the obligation from India to the Straits Settlements. Your Lordship was disposed to agree in the view taken by the Duke of Argyll, and Mr. Herbert was requested to be informed whether we concur with your Lordship and the Secretary of State for India in the opinion that the annual sum in question, 8001., being a part of Sir B. Maxwell's pension, was properly a charge on the revenues of the Straits Settlements.

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

Report

That we are of opinion that whatever considerations might recommend the transfer of the pension of Sir Benson Maxwell from the Indian revenue to that of the Strait Settlements, the legal power to make such transfer is wanting. By virtue of the Acts 6 Geo. IV. c. 85. and 18 & 19 Vict. o. 93., this pension was already chargeable on the Indian revenue. When the Act 29 & 30 Victs c. 115. was passed authorising the sepa- ration of the Government of the Straits Settlements from the Indian Government, which was carried into operation in April 1867, it was expressly provided by section 4 of that Act, "That all laws then in force in the Settlements," should continue to be in force "until otherwise provided by Order in Council."

An Order in Council was made under the authority of this Act December 28, 1866. That Order did not, however, make any other provision in respect of the matter in question, which, therefore, in our opinion, remains in the same position as it did before the passing of the Act of 1868.

The report of Sir Hercules Robinson (printed correspondence, page 15), expressly directed the attention both of the Government and of the Legislature to the necessity of further provision if it was intended to transfer the charge. That further provision was not made either in the Act of Parliament or in the Order in Council, and therefore, in our opinion, the charge cannot now be legally transferred to the Straits Settlements.

We have, &c. (Signed) HENRY JAMES,

W. V. HARCOURT.

The Right Hon. the Earl of Kimberley,

&c. &c.

&c.

No. 878.

(CANADA.)

LAW OFFICERS to COLONIAL OFFICE. MY LORD,

Temple, December 24, 1873. We were honoured with your Lordship's commands signified in Sir H. T. Holland's letter of the 17th instant, stating that with reference to our opinion of the 13th November* upon the power of the Parliament of Canada to appoint a committee or commission to examine upon oath into what had been called the Pacific Railway Scandal he was directed by your Lordship to transmit to us a copy of an extract from a letter from Lord Dufferin, seeking for further information upon certain points, and 23 Nov. that he was also to transmit to us a copy of your Lordship's public Despatch of the 1878. 13th November, and of the Memorandum of Sir J. Macdonald of the 3rd October referred to in the extract from Lord Dufferin's letter, and that he was also to request that we would favour your Lordship with our opinion as to what answer should be returned to Lord Dufferin's inquiry,

2. Sir H. T. Holland further said, that he was to take the opportunity of stating that your Lordship would be glad to know if we are of opinion that it would be beyond the powers of the Dominion Parliament to pass an Act appointing a commission to examine into the railway matter, and giving the members of such commission power to administer oaths to witnesses.

3. That your Lordship was aware that, as reported by the Law Officers on May 13th and 29th of this year,† the Canadian Parliament are prevented by the provisions of section 18 of the British North America Act, 1867, from vesting in themselves or their committees, except committees on Private Bills, the power to administer oaths, as such power did not exist in the House of Commons in 1867, but that your Lord- ship submitted for our consideration that a commission, which might or might not consist wholly or partly of members of parliament might be considered to stand on a different footing to a parliamentary committee, and if members of the parliament were appointed upon it, such members would, your Lordship apprehended, administer oaths, not as members of Parliament, but as members of a commission appointed no doubt by Act of Parliament, but not being a parliamentary committee.

4. That your Lordship requested therefore to be further favoured with our opinion upon the following questions:-

1. Whether the Parliament of Canada might legally pass an Act appointing a com- mission to examine into a particular case, such as the Pacific Railway Scandal, and vest in such commission power to examine on oath.

2. Whether assuming the legality of such a commission, members of the Dominion Parliament might be legally nominated to act on such commission, either with or with- out other commissioners.

3. Whether there would be any legal objection to the commissioners being named in the Act itself,

In obedience to your Lordship's commands we have the honour to

Report

That we understand that the question now submitted to us is whether the Parliament of Canada has power to pass an Act appointing a commission with power to take evidence on oath.

The solution of this question depends upon the construction to be put upon the 30 Vict. c. 3. s. 17, 18, and 91, and upon careful consideration of the provisions therein contained we are inclined to think the Canadian Parliament have such power.

Section 17 defines the Parliament for Canada as consisting of the Queen, the Senate, and the House of Commons.

The powers of the Parliament so constituted are not restrained by section 18, which refers only to the powers and privileges of the Senate and House of Commons as separato bodies distinct from the parliament as a whole.

:

0

16278.-870.

• No. 873. 25.-5/86.

†Nos. 816 and 823.

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