CO885-(11-13) — Page 294

PUBLIC RECORD OFFICE

Reference :-

TREECO. 885

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12 PUBLIC RECORD OFFICE, LONDON

ALLY WITHOUT PERMISSION OF THE |BE REPRODUCED PHOTOGRAPHIC-

COPYRIGHT PHOTOGRAPH-NOT TO

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provisions of the Act, and a Colonial Act was passed conferring jurisdiction in the matter of registration of negroes on the Chief Justice, whose decision should be

final and conclusive," the Privy Council held that a petition for leave to appeal could not be

entertained.

12. That section 47 of the Canada Act provides that the decisions of the Appeal Court shall be final and conclusive"; and it was assumed by Sir John A. Macdonald and others that the concluding words saving the prerogatives of the Crown were effectual for that purpose. That your Lordship would wish to be advised whether, having regard to the case cited above, they were 80.

13. That your Lordship therefore desired him, Mr. Malcolm, to request that we would advise you-

(1.) Whether section 101 of the British North America Act, 1867 (30 Vict. c. 3.). authorised the establishment of a Court of Appeal in Canada which should oust the jurisdiction of the Privy Council.

(2.) Whether, assuming the Canadian Parliament to be competent to pass such a measure, the Act sent herewith does oust the appeal to the Queen in Council, or only an appeal to some court not hitherto in existence, to be constituted by the Imperial Parliament.

(3.) Whether, assuming that the appeal to Her Majesty in Council is taken away, the prerogatives of the Crown are sufficiently saved by the proviso in section 47, so as to make it competent to Her Majesty to allow an appeal. (4.) Whether under this Act there might be a double or alternative right to appeal

as suggested in the memorandum from the Privy Council.

14. That your Lordship desired him, Mr. Malcolm, to add that a decision of those questions was most urgently needed, as the Canadian Ministry were pressing strongly to bring the Act into operation at once, and the action of Her Majesty's Government was suspended until a decision was arrived at, and that he was therefore to express your Lordship's hope that it might be in our power to take the matter into our consideration at once.

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

That we are of opinion-

Report

1. That section 101 of the British North American Act of 1867 (30 Vict. c. 3.) does not authorise the establishment of a Court of Appeal in Canada which should oust the jurisdiction of the Privy Council.

2. The language of the 47th section of the Colonial Act is not happily chosen, for it appears to us that the framers of the section have proceeded upon the impression that ordinary appeals, or as they are called "appeals as of right," were dealt with by one tribunal, and appeals depending upon the prerogative and which are granted" by special leave," by another. We think, however, that the effect of the section in question is to provide that there shall be no appeal as of right" from any decision of the newly-constituted Court of Appeal, but that appeals by special leave" are in conse- quence of the proviso at the end of the section left untouched.

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We state this view, however, with some hesitation, in consequence of the conflicting decisions in Cuvillier r. Aylwin, 2 Knapp, 78, and Re Marios, 15 Moore, Privy Council Cases, 159.

3. We think that the prerogatives of the Crown are sufficiently saved, and that Her Majesty would still have power to allow an appeal.

4. We incline to think that the Colonial Act does not affect any right of direct appeal to Her Majesty in Council from the provincial courts which existed before it was passed, and we are, therefore, of opinion that, if the Act remains in force, there will be an alternative appeal "as of right," either to the Supreme Court of the Dominion or to the Privy Council, but not a double appeal. Upon this question, however, we can hardly give a positive opinion without having before us the Charters of Justice, Orders in Council, and other instruments by which the Supreme Courts of New Brunswick and Nova Scotia are constituted, and the Colonial Act (34 George 3. c. 6.) by which the right of appeal in Canada proper is regulated.

The Right Hon the Earl of Carnarvon,

&c.

&c.

&c.

We have, &c..

(Signed) RICHARD BAGGALLAY.

JOHN HOLKER.

+

12,211.

MY LORD,

No. 71.

(NEW SOUTH Wales.)

LAW OFFICERS to FOREIGN OFFICE.

Lincoln's Inn, 19th October 1875. We are honoured with your Lordship's commands, signified in Mr. Lister's letter of the 28th September, stating that he was directed by your Lordship to transmit to us the accompanying letter from the Colonial Office enclosing a transcript of a Bill passed by the Legislative Council and Assembly of New South Wales, and reserved by the Governor of that Colony for the signification of Her Majesty's pleasure, entitled "An Act to amend the Law relating to Aliens," together with a copy of the report of the local Attorney-General thereupon, and that he, Mr. Lister, was to request that we would take that Bill into our consideration and favour your Lordship with our opinion whether it may properly be submitted to Her Majesty's

assent.

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

Report

That, in our opinion, the Bill may properly be submitted to Her Majesty's assent.

We have, &c.,

The Earl of Derby, &c. &c.

▲ 12916,–71. 25.—12/84.

(Signed)

RICHARD BAGGALLAY. JOHN HOLKER.

J. PARKER DEANE.

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11,683.