Federal Parliament has the right to create a Court of Appeal from the Courts of last resort in each Province. In this way the words of this clause and each of them have their effect; whilst by giving to the Dominion Parliament the right to interfere with the degrees of jurisdiction of the established Courts of the Provinces, the administration of justice. in the Province, and the constitution, maintenance and organization of Provincial Courts are left to the Provinces, as the British North America Act enacts that they should be left. I hold therefore that section 6 of 42 V. Can. c. 39, is unconstitutional, and the application is refused.

The Judicial Committee of the Privy Council.

The Sovereign, by virtue of the Royal Prerogative alone, has the right and authority to revise the decisions of the Colonial Courts and grant leave to Appeal. (1 Bl. Com. 108 and 109, Chalm. Opinions 490, Cowp. 169.)

The Parliament of Canada was empowered by this section to provide for the maintenance and organization of a General Court of Appeal for Canada, and in the Act (38 Vic. c. 2) constituting and organizing the Supreme Court of Canada, the Dominion Parliament sought to constitute such Court of last resort and of final Appeal, and it was provided by section 47 of that Act, that the judgment of the Supreme Court shall in all cases be final and conclusive, and no Appeal shall be brought from any judgment or order of the Supreme Court 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; saving any right which Her Majesty may be graciously pleased to exercise by virtue of Her Royal prerogative.

Duff, J., in Dow v. Black (3 Pugs. 439), remarked, that:

As the fountain of justice, but not as a court of justice, an Appeal has always lain to the Sovereign from the Colonial Courts; a privilege which the colonists have never been slow to avail themselves of. And this, like almost every other prerogative right exercised by the Sovereign in person, in modern times, has been exercised under the advice of the Privy Council. As the Colonial Empire extended and increased in population and in wealth, and came to embrace, as it did, a great variety of systems of jurisprudence, Appeals not only multiplied, but they assumed such a character as to require for their decision great learning and special legal attainments. To provide additional facilities for disposing of the increased amount of business, and to secure, as advisers of the Sovereign in the disposal of it, the services of men so

eminent alike in personal character, in learning and in legal acquirements, as to command the confidence and respect of the various races and peoples composing the Colonial Empire of Great Britain, the aid of Parliament was invoked; and by the 3 & 4 W. 4 c. 41, the Judicial Committee of the Privy Council was established.

By 34 and 35 Vict. c. 91, 1871, entitled An Act to make further provision for the despatch of business by the Judicial Committee of the Privy Council, it was enacted:

That Her Majesty might, "by warrant, under Her Sign Manual, appoint four additional persons to act as members of the Judicial Committee of the Privy Council," who must be specially qualified as follows, that is to say, must at the date of their appointment be, or have been judges of one of Her Majesty's Superior Courts at Westminster, or a Chief Justice of the High Court of Judicature at Fort William, in Bengal, or Madras, or Bombay, or of the late Supreme Court of Judicature at Fort William, in Bengal,-to act as members of the Judicial Committee; the Judges so appointed to hold office during good behaviour, and notwithstanding the demise of the Crown (though removable upon the joint action of both Houses of Parliament), and each to be paid a salary of £5,000 a year.

By the "Supreme Court of Judicature Act, 1873," (36 and 37 Vict. c. 66) provision was made by the Imperial Parliament for the transfer by Her Majesty, by an Order in Council, to the Court created by that Act, of the Jurisdiction of the Judicial Committee of the Privy Council.

In Johnston v. Minister and Trustees of St. Andrew's Church, Montreal (L. R. 3 App. P. C. 159; 26 W. R. 359; 1 L. N. 13), their Lordships held:

That Her Majesty's prerogative to allow an Appeal if so advised to do, is left untouched by section 47 of the Canada Act (38 Vict. c. 11), establishing the Supreme Court of the Dominion. The Lord Chancellor, who delivered the judgment of their Lordships, said:

As to that part of section 47 of the Supreme Court Act which reads, "No Appeal shall be brought from any judgment or order of the Supreme Court 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," these words refer to what may be called the hypothetical establishment of a Court, by the Parliament of Great Britain and Ireland, by which Court, Appeals from the Colonies are supposed to be ordered to be heard, and, inasmuch as, no Court of that kind has been established, that part of the section may be omitted from our consideration.

It is enacted by 31 Vict. Imp. c. 1, s. 7, ss. 33, that " no provision or enactment in any Act shall affect in any manner or way whatsoever the rights of Her Majesty, Her heirs or successors, unless it be expressly stated that Her Majesty shall be bound thereby." See in re Henley & Co. (26 W. R. 885; 39 L. T. N. S. 53), noted under sec. 91, ss. 21

-p.

181.

In the case of Lawless and Sullivan [noted ante at p. 225] special leave to appeal from a judgment of the Supreme Court of Canada was granted by the Privy Council in November 1879.

In Théberge et al. v. Landry (L. R. 2 P. C. 102), which was a case of a controverted election, it was held by their Lordships:

That the Act of the Dominion Parliament taking away in express terms, the right of Appeal from the Judgment of the Superior Court for the Province of Quebec, was a legitimate exercise of the powers of the Dominion Parliament; that the Imperial Act constituting the Dominion Parliament (being assented to on the part of the Crown) excluded the Prerogative right of Appeal to the Crown in matters of controverted elections.

In the matter of the Petition of Thomas K. Ramsay (L. R. 3 P. C. 427-7 Moore's P. C., N. S., 273) for leave to Appeal from the Court of Q. B., Lower Canada, to the Privy Council from an order of a Judge inflicting upon him a fine of $40 for alleged Contempt of Court, no appearance having been entered on the part of the Judge, their Lordships intimated that the right of Appeal was doubtful, but that the matter might come before them on a reference from the Crown, when it would necessarily be considered without regard to the question of the right of Appeal. This was accomplished upon the recommendation of the Colonial Secretary.

Their Lordships were thus relieved from considering the question of the right of Appeal by the withdrawal of the petition for special leave to Appeal and the substitution of a petition, which, after detailing the circumstances of the case, prayed Her Majesty to refer the same to Her Judicial Committee for hearing under the Provisions of the 3rd and 4th Will. 4, c. 41, s. 4. By an Order in Council the petition was so referred. On the merits of the case it was,

Held, by their Lordships that a Judge of the Court of Queen's Bench (Lower Canada), whilst sitting alone in the exercise of the Criminal jurisdiction conferred upon the Judges of that Court by the 77th ch. of the Con. Stat. of L. C., had no authority to issue a rule calling upon the petitioner to show cause why he should not be punished for an alleged Contempt of Court in publishing letters reflecting on the conduct of the Judge whilst acting as a Judge of the Court of Q. B., under

95th c. of Con. Stat. of L. C. Such proceedings could only legally and properly be taken before the full Court of Q. B.

Herbert v. Purchas (L. R. 3 P. C. 664).

- A petition addressed to the Queen in Council for the re-hearing of an Appeal, decided-but decision not yet reported to Her Majesty,—by the Judicial Committee of the Privy Council, must be referred by Her Majesty to their Lordships of the Judicial Committee by a special Order in Council in accordance with the provisions of 3 and 4 Will. 4 c. 41, sec. 4, in order to give the Judicial Committee jurisdiction to consider and report upon the prayer of the petition.

In Cuvillier v. Aylwin (2 Knapp's P. C. 72-Stuart's Rep. 527), Held: That the Sovereign has no power to deprive the subject of any of his rights; but that the Sovereign acting with the other branches of the Legislature has the power of depriving any of his subjects in any of the Countries under his dominion of any of his rights, and among other rights, of the right of Appeal to the Sovereign in Council.

In Cushing v. Dupuy (42 L. T., N. S., 445):

An application to the Court of Queen's Bench for the Province of Quebec for leave to Appeal to Her Majesty in Council was refused, on the ground that under the provisions of the Insolvency Act its judgment was final.

On a petition presented by the appellant to Her Majesty in Council for special leave to Appeal, their Lordships decided that the Judges below were right in holding that they had no power to grant leave to Appeal, for the Parliament of Canada had the power to exclude the right of Appeal to the Crown, and intended so to do by the enactment of the Insolvency Act. But that the Insolvency Act contains no words which purport to derogate from the Prerogative of the Queen to allow, as an act of grace, Appeals from the Court of Queen's Bench in matters of Insolvency, and their Lordships consequently decided that the Order for leave to Appeal, granted in the case, should stand.

The case of Cuvillier v. Aylwin (2 Knapp P. C. 72)—in which an application for special leave to Appeal was refused-commented on, and qualified, and the principle that the right of the Crown to grant leave to Appeal can only be taken away by express words, re-affirmed. But the decision in Cuvillier v. Aylwin, that the right of the subject to Appeal to the Crown may be taken away by Parliament, was not disapproved.

In George v. The Queen (L. R. 1 P. C. 390),

Leave to Appeal, in forma pauperis, from a decree of the Vice

Admiralty Court of Sierra Leone was given, by the Judicial Committee, notwithstanding the usual security for costs had not been given, and leave to Appeal had been refused in the Court below.

In Credit Foncier of England v. Elec. Amy (L. R. 6 P. C. p. 146),

An Appeal was allowed by the Privy Council from an order of the Royal Court of Jersey confirming and registering a composition deed between a bank and its creditors, although it was provided by the Jersey Act of 1867, that the decision of the Royal Court in such cases should be final.

Webster v. Power (L. R. 1 P. C. 150):

After the confirmation of a decree by the Superior Court of Victoria in its appellate jurisdiction, leave to Appeal to the Privy Council was granted, but the Supreme Court subsequently made an order revoking the leave given; their Lordships thereupon, upon petition, gave special leave to Appeal.

In Riney v. The Trustees of Sierra Leone (8 Moore's P. C. 47), the Judicial Committee held:

That they have no jurisdiction to entertain an appeal from orders made by a Court of Record imposing fines for Contempt of Court; that the orders made by the Court in the exercise of its discretion, imposing these fines for contempt, are conclusive, and cannot be questioned by another Court, and there is no remedy by petition to the Judicial Committee to review the propriety of such orders.

But upon a reference by Her Majesty to the Judicial Committee (the appellant having presented a petition to Her Majesty through the Colonial office), the Judicial Committee advised the Crown to remit part of the fines, which, by an Order in Council, was directed.

Ex parte Robertson (1 Moore's P. C. 288), Held by their Lordships: That the Judicial Committee have no jurisdiction (unless the matter is expressly referred to them by the Crown) to take into consideration the propriety of the dismissal of a public servant by a Governor-General of a Colony from an office created by the Act of a Colonial Legislature, and held during his pleasure.

Such an office is not a patent office within the meaning of the Imperial Statute 22 Geo. 3, c. 75, and consequently does not come within the provisions of that Statute allowing an Appeal to Her Majesty in Council by any person aggrieved in cases of amotion from such offices.

In The Falkland Islands Company v. The Queen (1 Moore's P. C., N. S., 299), held by their Lordships: