CO885-(11-13) — Page 293

11,380.

PUBLIC RECORD OFFICE

CO.

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885

12 PUBLIC RECORD OFFICE, LONDON

MY LORD,

No. 70.

(CANADA.)

LAW OFFICERS to COLONIAL OFFICE.

Lincoln's Inn, 15th October 1875. We are honoured with your Lordship's commands, signified in Mr. Malcolm's letter of the 25th September ultimo, stating that he was directed by your Lordship to forward to us the accompanying Act of the Canadian Legislature to establish a Supreme Court for the Dominion of Canada.

2. That that Act was assented to by the Governor-General, and when transmitted by him it was accompanied by a protest signed by 17 members of the Senate (of which he was to enclose a copy), dissenting from the measure on three grounds, the third of which was that the Bill was contrary to the "British North America Act, 1867.”

3. That by section 101 of the last-mentioned Act it was enacted that the Parliament of Canada might provide a General Court of Appeal for Canada, and any additional courts for the better administration of the laws of Canada.

4. That a report of the debates in the Canadian Parliament on that Act was sent therewith, and that he, Mr. Malcolm, was to refer us to the speeches of Sir John A. Macdonald, to show the main ground of objection which would have to be dealt with, namely, that it takes away the right of appeal to the Privy Council, though saving the prerogatives of the Crown. That the sections giving rise to the discussion were sections 17 and 47.

5. That section 17 created a new General Appeal Court for Canada, and section 47 provided that the judgments of the new Court of Appeal should be final. No further appeal to any Court of Appeal "established by the Parliament of Great Britain and Ireland, by which appeals or petitions to Her Majesty in Council may be ordered to "be heard," being permitted, saving, however, any right which Her Majesty might be pleased to exercise by virtue of Her royal prerogative.

6. That it appeared to your Lordship that whatever might have been the intention of the Imperial Act, the terms of section 101 of the Statute 30 Vict. c. 3. were not inconsistent with the continuance of the appellate jurisdiction of the Privy Council, and if so, the question would arise whether its abolition by the Canadian Act now under consideration was not “ ultra vires.”

7. That he, Mr. Malcolm, was also to send us a copy of a letter addressed by your Lordship's desire to the Registrar of the Privy Council on the 7th July, and of a memorandum received in reply from the Privy Council upon that matter, from which it would, amongst other things, appear that it might be contended that the expressions of the 47th section of the Canadian Act do not apply to the Privy Council, and were probably intended to apply to the contemplated Court to be established for the United Kingdom by the late Appellate Jurisdiction Bill, since the jurisdiction of the Queen in Council was not a matter of statute but of prerogative.

8. That assuming, however, that the appeal to Her Majesty in Council was taken away by the Canadian Act, another point suggested itself as deserving consideration, namely, whether the prerogatives of the Crown were sufficiently saved by the proviso in section 47.

9. That by 31 George 3. c. 31. the Legislature of Canada was empowered to make regulations as to appeals to the Privy Council. A Colonial Act was passed limiting the rights of appeal to causes where the sum in dispute was not less than 500l., but saving the rights and prerogatives of the Crown.

10. That a case arose in which the sum in dispute was below 500l., and a petition for leave to appeal was presented. The Privy Council held that the Crown had lost the right to give leave to appeal, in consequence of the delegation by Parliament to the Colonial Legislature of the duty of framing provisions on the subject of appeals, though the prerogative rights of the Crown were expressly reserved by the Colonial Act (Cuvillier v. Aylwin, 2 Knapp, 78).

11. That in another case where, by the Abolition of Slavery Act, Parliament empowered the Legislature of Grenada to make regulations for carrying into effect the

▲ 19916.-70. 25.-19/84.

30 Vict. c. 3.

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