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election of a Speaker' of the said Council; and for this purpose to vary and repeal, in such manner as to them may seem fit, so much of the hereinbefore recited sections of the said Acts of Parliament, and of the provisions of the said recited or any other Acts of Parliament as relates to the appointment of such Speaker.
COLONIAL HABEAS CORPUS ACT, 1862
(25 & 26 Victoria, c. 20.)
An Act respecting the issue of Writs of Habeas Corpus out of England into Her Majesty's Possessions abroad.
16th May, 1862.
Whereas it is expedient that writs of Habeas Corpus should not issue out of England into any colony or foreign dominion of the Crown, where Her Majesty has a lawfully established court or courts of justice having authority to grant and issue the said writ, and to ensure the due execution thereof throughout such colony or foreign dominion:
Be it therefore enacted by the Queen's Most Excellent Majesty, by and with the advice and consent of the Lords Spiritual and Temporal, and Commons, in this present Parliament assembled, and by the authority of the same, as follows:
1. No writ of Habeas Corpus shall issue out of England, by authority Writ not to issue into of any judge or court of justice therein, into any colony or foreign do- Colony, etc., minion of the Crown, where Her Majesty has a lawfully established court having Court or courts of justice having authority to grant and issue the said writ, and authorized to to ensure the due execution thereof throughout such colony or dominion. grant same. 2. Provided, that nothing in this Act contained shall affect or interfere Not to affect with any right of appeal to Her Majesty in Council now by law existing. right of appeal.
COLONIAL LAWS VALIDITY ACT, 1865
(28 & 29 Victoria, c. 63.)
An Act to remove Doubts as to the Validity of Colonial Laws.
29th June, 1865.
Whereas doubts have been entertained respecting the validity of divers iaws enacted, or purporting to be enacted by the Legislatures of certain of Her Majesty's Colonies, and respecting the powers of such Legislatures; and it is expedient that such doubts should be removed:
Be it hereby enacted by the Queen's Most Excellent Majesty, by and with the advice and consent of the Lords Spiritual and Temporal, and Commons, in this present Parliament assembled, and by the authority of the same, as follows:
1. The term "colony" shall in this Act include all of Her Majesty's Definitions: Possessions abroad, in which there shall exist a legislature as hereinafter "Colony." defined, except the Channel Islands, the Isle of Man, and such territories as may for the time being be vested in Her Majesty, under or by virtue of any Act of Parliament for the government of India:
The terms "Legislature" and "Colonial Legislature" shall severally "Legislature," signify the authority (other than the Imperial Parliament or Her Majesty "Colonial in Council), competent to make laws for any colony; The term "Representative Legislature" shall signify any Colonial "Representa
1 In 1860 the Canadian Legislature passed an Act to provide for the election of a ture." Speaker by the Legislative Council,
Act of Par
Legislature which shall comprise a legislative body of which one-half are elected by inhabitants of the colony;
The term "Colonial Law" shall include laws made for any colony, either by such Legislature as aforesaid or by Her Majesty in Council;
An Act of Parliament, or any provision thereof, shall, in construing liament, etc., this Act, be said to extend to any colony when it is made applicable to such colony by the express words or necessary intendment of any Act of Parliament;
The term "Governor" shall mean the officer lawfully administering the Government of any colony;
The term "Letters Patent" shall mean letters patent under the great seal of the United Kingdom of Great Britain and Ireland.
2. Any colonial law, which is or shall be repugnant to the provisions when void for of any Act of Parliament extending to the colony to which such law may relate, or repugnant to any order or regulation made under authority of such Act of Parliament, or having in the colony the force or effect of such Act, shall be read subject to such Act, order, or regulation, and shall, to the extent of such repugnancy, but not otherwise, be and remain absolutely void and inoperative.
Colonial Law when not void for repugnancy.
Colonial Law not void for
3. No colonial law shall be or be deemed to have been, void or inoperative on the ground of repugnancy to the law of England, unless the same shall be repugnant to the provisions of some such Act of Parliament, order, or regulation, as aforesaid.
4. No colonial law, passed with the concurrence of or assented to by inconsistency the Governor of any colony, or to be hereafter so passed or assented to, with instruc shall be, or be deemed to have been, void or inoperative by reason only of any instructions with reference to such law, or the subject thereof, which may have been given to such Governor, by or on behalf of Her Majesty, by any instrument other than the letters patent or instrument authorizing such Governor to concur in passing or to assent to laws for the peace, order, and good government of such colony, even though such instructions may be referred to in such letters patent, or last-mentioned instrument.
Colonial Leg. 5. Every colonial Legislature shall have, and be deemed at all times islatures may establish, etc., to have had, full power within its jurisdiction to establish courts of judiCourts of cature, and to abolish and reconstitute the same, and to alter the constitution thereof, and to make provision for the administration of justice therein; and every representative Legislature shall, in respect to the colony under its jurisdiction, have, and be deemed at all times to have had, full power to make laws respecting the constitution, powers, and procedure Representative of such Legislature; provided that such laws shall have been passed in Legislature such manner and form as may from time to time be required, by any Act may alter Constitution. of Parliament, letters patent, Order in Council, or colonial law for the time being in force in the colony.
to be evidence that they are
6. The certificate of the clerk or other proper officer of a legislative copies of laws body in any colony to the effect that the document to which it is attached is a true copy of any colonial law assented to by the Governor of such colony, or of any bill reserved for the signification of Her Majesty's pleasure by the said Governor, shall be prima facie evidence that the document so certified is a true copy of such law or bill, and, as the case may be, that such law has been duly and properly passed and assented to, or that Proclamation such bill has been duly and properly passed and presented to the Governor; to be evidence of assent and and any proclamation, purporting to be published by authority of the disallowance. Governor, in any newspaper in the colony to which such law or bill shall relate, and signifying Her Majesty's disallowance of any such colonial law, or Her Majesty's assent to any such reserved bill as aforesaid, shall be prima facie evidence of such disallowance or assent.
And whereas doubts are entertained respecting the validity of certain Certain Acts Acts enacted, or reputed to be enacted, by the Legislature of South Ausof Legislature tralia: be it further enacted as follows:
of South Australia
7. All laws or reputed laws enacted or purporting to have been enacted by the said Legislature, or by persons or bodies of persons for
the time being acting as such Legislature, which have received the assent of Her Majesty in Council, or which have received the assent of the Governor of the said Colony in the name and on behalf of Her Majesty, shall be and be deemed to have been valid and effectual from the date of such assent for all purposes whatever; provided that nothing herein contained shall be deemed to give effect to any law or reputed law which has been disallowed by Her Majesty, or has expired, or has been lawfully repealed, or to prevent the lawful disallowance or repeal of any law.
DEBATES IN THE CANADIAN PARLIAMENT ON CONFEDERATION, 1865
[Trans. Parliamentary Debates on the Subject of the Confederation of the British North American Provinces (Quebec, 1865).]
Monday, February 6, 1865.
Attorney General Macdonald moved, "That an humble Address be presented to Her Majesty, praying that She may be graciously pleased to cause a measure to be submitted to the Imperial Parliament, for the purpose of uniting the Colonies of Canada, Nova Scotia, New Brunswick, Newfoundland, and Prince Edward Island, in one Government, with provisions based on certain Resolutions', which were adopted at a Conference of Delegates from the said Colonies, held at the city of Quebec, on the 10th October, 1864." He said:-Mr. Speaker, in fulfilment of the promise made by the Government to Parliament at its last session, I have moved this resolution. I have had the honor of being charged, on behalf of the Government, to submit a scheme for the Confederation of all the British North American Provinces-a scheme which has been received, I am glad to say, with general, if not universal, approbation in Canada. The scheme, as propounded through the press, has received almost no opposition. While there may be occasionally, here and there, expressions of dissent from some of the details, yet the scheme as a whole has met with almost universal approval, and the Government has the greatest satisfaction in presenting it to this House. This subject, which now absorbs the attention of the people of Canada, and of the whole of British North America, is not a new one. For years it has more or less attracted the attention of every statesman and politician in these provinces, and has been looked upon by many far-seeing politicians as being eventually the means of deciding and settling very many of the vexed questions which have retarded the prosperity of the colonies as a whole, and particularly the prosperity of Canada. The subject was pressed upon the public attention by a great many writers and politicians; but I believe the attention of the Legislature was first formally called to it by my honorable friend the Minister of Finance. Some years ago, in an elaborate speech, my hon. friend, while an independent member of Parliament, before being connected with any Government, pressed his views on the Legislature at great length and with his usual force. But the subject was not taken up by any party as a branch of their policy, until the formation of the Cartier-Macdonald administration in 1858, when the Confederation of the colonies was announced as one of the measures which they pledged themselves to attempt, if possible, to bring to a satisfactory conclusion. In pursuance of that promise, the letter or despatch, which has been so much and so freely commented upon in the press and in this House, was addressed by three of the members of that Administration to the Colonial Office. The subject, however, though looked upon with favor by the country, and though there were no distinct expressions of opposition to it from any party, did not begin to assume its
1 Printed in Pope, Confederation Documents, pp. 38 ff. (Toronto, 1895). 2 Hon. A. T. Galt.
present proportions until last session. Then, men of all parties and all shades of politics became alarmed at the aspect of affairs. They found that such was the opposition between the two sections of the province, such was the danger of impending anarchy, in consequence of the irresconcilable differences of opinion, with respect to representation by population, between Upper and Lower Canada, that unless some solution of the difficulty was arrived at, we would suffer under a succession of weak governments, weak in numerical support, weak in force, and weak in power of doing good. All were alarmed at this state of affairs. We had election after election, we had ministry after ministry, with the same result. Parties were so equally balanced, that the vote of one member might decide the fate of the Administration, and the course of legislation for a year or a series of years. This condition of things was well calculated to arouse the earnest consideration of every lover of his country, and I am happy to say it had that effect. None were more impressed by this momentous state of affairs, and the grave apprehensions that existed of a state of anarchy destroying our credit, destroying our prosperity, destroying our progress, than were the members of this present House; and the leading statesmen on both sides seemed to have come to the common conclusion, that some step must be taken to relieve the country from the dead-lock and impending anarchy that hung over us. With that view my colleague, the President of the Council', made a motion founded on the despatch addressed to the Colonial Minister, to which I have referred, and a committee was struck, composed of gentlemen of both sides of the House, of all shades of political opinion, without any reference to whether they were supporters of the Administration of the day or belonged to the Opposition, for the purpose of taking into calm and full deliberation the evils which threatened the future of Canada. That motion of my honorable friend resulted most happily. The committee, by a wise provision,-and in order that each Imember of the committee might have an opportunity of expressing his opinions without being in any way compromised before the public, or with his party, in regard either to his political friends or to his political foes,agreed that the discussion should be freely entered upon without reference to the political antecedents of any of them, and that they should sit with closed doors, so that they might be able to approach the subject frankly and in a spirit of compromise. The committee included most of the leading members of the House,-I had the honor myself to be one of the number, and the result was that there was found an ardent desire—a creditable desire, I must say,-displayed by all the members of the committee to approach the subject honestly, and to attempt to work out some solution which might relieve Canada from the evils under which she labored. The report of that committee was laid before the House, and then came the political action of the leading men of the two parties in this House, which ended in the formation of the present Government. The principle upon which that Government was formed has been announced, and is known to all. It was formed for the very purpose of carrying out the object which has now received to a certain degree its completion, by the resolutions I have had the honor to place in your hands. As has been stated, it was not without a great deal of difficulty and reluctance that that Government was formed. The gentlemen who compose this Government had for many years been engaged in political hostilities to such an extent that it affected even their social relations. But the crisis was great, the danger was imminent, and the gentlemen who now form the present Administration found it to be their duty to lay aside all personal feelings, to sacrifice in some degree their position, and even to run the risk of having their motives impugned, for the sake of arriving at some conclusion that would be satisfactory to the country in general. The present resolutions were the result. And, as I said before, I am proud to believe that the country has sanctioned, as I trust that the representatives of the people in this House will sanction, the scheme which is now submitted for the future government of British North America. Everything seemed to favor 1 Hon. George Brown.
the project, and everything seemed to shew that the present was the time, if ever, when this great union between all Her Majesty's subjects dwelling in British North America, should be carried out. When the Government was formed, it was felt that the difficulties in the way of effecting a union between all the British North American Colonies were great-so great as almost, in the opinion of many, to make it hopeless. And with that view it was the policy of the Government, if they could not succeed in procuring a union between all the British North American Colonies, to attempt to free the country from the dead-lock in which we were placed in Upper and Lower Canada, in consequence of the difference of opinion between the two sections, by having a severance to a certain extent of the present union between the two provinces of Upper and Lower Canada, and the substitution of a Federal Union between them. Most of us, however, I may say, all of us, were agreed-and I believe every thinking man will agreeas to the expediency of effecting a union between all the provinces, and the superiority of such a design, if it were only practicable, over the smaller scheme of having a Federal union between Upper and Lower Canada alone. By a happy concurrence of events, the time came when that proposition could be made with a hope of success. By a fortunate coincidence the desire for union existed in the Lower Provinces, and a feeling of the necessity of strengthening themselves by collecting together the scattered colonies on the sea-board, had induced them to form a convention of their own for the purpose of effecting a union of the Maritime Provinces of Nova Scotia, New Brunswick, and Prince Edward Island, the legislatures of those colonies having formally authorized their respective governments to send a delegation to Prince Edward Island for the purpose of attempting to form a union of some kind. Whether the union should be federal or legislative was not then indicated, but a union of some kind was sought for the purpose of making of themselves one people instead of three. We, ascertaining that they were about to take such a step, and knowing that if we allowed the occasion to pass, if they did indeed break up all their present political organizations and form a new one, it could not be expected that they would again readily destroy the new organization which they had formed,-the union of the three provinces on the seaboard, and form another with Canada. Knowing this, we availed ourselves of the opportunity, and asked if they would receive a deputation from Canada, who would go to meet them at Charlottetown, for the purpose of laying before them the advantages of a larger and more extensive union, by the junction of all the provinces in one great government under our common Sovereign. They at once kindly consented to receive and hear us. They did receive us cordially and generously, and asked us to lay our views before them. We did so at some length, and so satisfactory to them were the reasons we gave; so clearly, in their opinion, did we shew the advantages of the greater union over the lesser, that they at once set aside their own project, and joined heart and hand with us in entering into the larger scheme, and trying to form as far as they and we could, a great nation and a strong government. Encouraged by this arrangement, which, however, was altogether unofficial and unauthorized, we returned to Quebec, and then the Government of Canada invited the several governments of the sister colonies to send a deputation here from each of them for the purpose of considering the question, with something like authority from their respective governments. The result was, that when we met here on the 10th of October, on the first day on which we assembled, after the full and free discussions which had taken place at Charlottetown, the first resolution now before this House was passed unanimously, being received with acclamation as, in the opinion of every one who heard it, a proposition which ought to receive, and would receive, the sanction of each government and each people. The resolution is, "That the best interests and present and future prosperity of British North America will be promoted by a Federal Union under the Crown of Great Britain, provided such union can be effected on principles just to the several provinces." It seemed to all the statesmen assembled-and there are great statesmen