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4th September 1866*), and, we think, of Sir John Holker and Sir Hardinge Giffard (Report of 28 May 1878+), whilst Sir Robert Collier and Sir John Coleridge (Report, 4 May 1871) say that it is very doubtful whether the Crown could by prerogative annex territory to such a Colony as the Cape of Good Hope, and they fall back upon the effect of Colonial legislation, which is strictly limited to the existing territory of the Colony.

Cases where the constitution is given by Letters Patent appear scarcely to be in point, as the Colony may be treated as capable of accepting variations of its charter.

See, with reference to the Cape Colony, the express enactment contained in 40 & 41 Vict. c. 47. 8. 58, authorising annexations, which woulda ppear to have been superfluous on the assumption that the prerogative and Colonial legislation alone would have been sufficient. The British North America Act, 1871, and the Statute 28 Vict. c. 5, uniting British Kaffraria to the Cape, are instances of similar Imperial legislation.

On the whole, we are of opinion, though not without feeling that there is a good deal in the Reports submitted to us pointing in a contrary direction, that no annexation by Letters Patent to a Colony having a legislature under Imperial Act fixing the boundaries of the Colony can effect a complete fusion or incorporation, and that the annexation to New Zealand of the Kermadeo Islands, has not, to all intents and purposes, been legally effected.

We are unable to say, without knowing more as to the circumstances of the annexation to Her Majesty's Dominions of the Kermadec Group, what the law governing the Islands is.

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The Most Hon. The Marquess of Ripon, K.G.,

&c.

&c.

&c.

We have, &c. (Signed) JOHN RIGBY.

R. T. REID.

No. 426. Vol. II.

No. 171. Vol. III.

No. 706. Vol. II.

18681.

MY LORD,

No. 77.

(CANADA.)

LAW OFFICERS to COLONIAL OFFICE.

We were honoured with your Lordship's commands, signified in Mr. Bramston's

Royal Courts of Justice, October 23, 1894. letter of the 5th instant, stating that he was directed by your Lordship to transmit, for our consideration, a despatch and its enclosures from the Governor-General of Canada, on the subject of an Act passed during the last session of the Dominion Legislature, entitled "An Act respecting the Speaker of the Senate," which was intended to make provision for the occupation of the chair of that body in the absence of the Speaker.

That the power of the Dominion Parliament controverted by Dr. Bourinot, Clerk of the House of Commons in Canada, in the to pass the Act was strongly memorandum annexed to Lord Aberdeen's Despatch, on the grounds (1) that the Parliament of Canada was limited and restrained by the Constitution Act to the exercise of such powers as were given it in express terms, or by necessary and indubitable implication: (2) that there was not within the four corners of the Constitution Act any express or implied power conferring on the Parliament of Canada the right to repeal, amend, or impair that provision of the constitution which gave the appointment of the Speaker of the Senate to the Governor-General: (3) that the Senate could only be legally constituted with a Speaker so appointed in the chair, and that its legislative acts might be called into question if it were at any time differently constituted.

That, with reference to the first two points, your Lordship presumed that there could be no question that the Dominion Legislature could not repeal, or amend, section 34 of the British North America Act, which conferred on the Governor-General the appointment of the Speaker of the Senate: while that, with respect to the third point viz. that the Senate could only be legally constituted with a Speaker so appointed in the chair, it had been suggested to your Lordship that the words "including the Speaker," in section 35, were facultative rather than mandatory, and that, as in the case of the similar section 48, which fixed the quorum of the House of Commons, the object of the Section was rather to enable the Speaker to be counted for the purpose of making a House than to make his presence essential to the proper constitution of the House.

That, in any case, power was distinctly given to the Dominion Parliament to amend section 35, and that in so far as the Act under consideration repealed by implication the requirement that the Speaker's presence was necessary to the proper constitution of the Senate it would not appear to be ultra vires.

That the 18th section of the British North America Act, as amended by the Act 38 & 39 Vict. cap. 38, empowered the Dominion Parliament to confer by Act on the Senate or House of Commons "any privileges, immunities, or powerą "those at the passing of such Act held, enjoyed, and exercised by the Commons House not exceeding "of Parliament of the United Kingdom of Great Britain and Ireland, and by the

members thereof."

"

That the power of providing for the discharge of the Speaker's functions during his temporary absence was now enjoyed by the British House of Commons by virtue of 18 & 19 Vict. cap. 84.

That Mr. Bramston was to enclose a copy of the Report of our predecessors, dated 13th May 1873,* with reference to the Canadian Act empowering the Senate and House of Commons to administer oaths to witnesses, which was referred to by Dr. Bourinot in support of his contention that the Act in question was ultra vires, but of the purport of which his information appeared to be inaccurate.

That your Lordship would be glad to be furnished, for the information of the Dominion Government, with our opinion:-

(1.) Whether the British North America Act, and especially section 18, as amended by 38 & 39 Vict. cap. 38, together with section 35, enabled the Dominion Parliament to provide by legislation for the Senate being duly constituted in the absence of the Speaker, and for the discharge of the powers and duties attaching to the Speaker's office, during such absence?

• No. 816, Volume II

O 79871-46. 85,-11/94.

14 PUBLIC RECORD OFFICE, LONDON

ALLY WITHOUT PERMISSION OF THE BE KEPROduled frISTOMIMA FIN