the distinction between a public office or the Constitution of a Court, and the conferring of a title of honor giving rank and precedence; but the reasoning in that case is largely applicable to this.

It is worthy of note that not long after Confederation, the Legislature of New Brunswick, acting under Sub-Sections 14 and 16 of Section 92 B. N. A. Act, passed a Statute providing for the creation and appointment of Justices of the Peace, as did also the Legislature of Ontario in 1877, before the passage of which I am informed, the Government of the latter Province declined the responsibility of making such appointments.

Judgment below reversed with costs.

Appointment of Queen's Counsel.

Before the question concerning the appointment and precedence of Queen's Counsel was submitted to any Court, a correspondence in reference to the subject took place between the Minister of Justice and the Colonial Office.

No. 50, of the Dominion Sessional Papers of 1873 contains the following report (presenting the whole matter), submitted by the Minister of Justice, Sir John A. Macdonald, to the Governor General, and the answer of the Colonial Secretary, to whom the matter had been referred by His Excellency :-

OTTAWA, 3rd January, 1872.

The undersigned has the honor to report to Your Excellency that the question has been raised by the Government of the Province of Nova Scotia as to whether they have the power of appointing Queen's Counsel for the Province, their opinion being that they have no such power. The undersigned is of opinion that, as a matter of course, Her Majesty has directly as well as through her representative, the Governor General, the power of selecting from the bars of the several Provinces her own counsel, and, as fons honoris, of giving them such precedence and pre-audience in her Courts as she thinks proper.

It is held by some, that Lieutenant Governors of the Provinces, as they are now not appointed directly by Her Majesty, but by the Governor General, under "The British North America Act, 1867," clause 58, do not represent her sufficiently to exercise the Royal prerogative without positive statutory enactment.

This seems to have been the view of Her Majesty's Government in 1864, when they refused to confer the Pardoning power on the Lieutenant Governors.

(See despatch of Mr. Cardwell of 3rd December, 1864; also, Lord Grenville's despatch of 24th February, 1869.)

On the other hand, it is contended that the 64th and 65th clauses continue to the Lieutenant Governors the powers of appointing Queen's Counsel which they exercised while holding commissions under the great seal of England.

Reference is also made to the 63rd section, by which the Lieutenant Governors of Ontario and Quebec appoint Attorney Generals, and the Lieutenant Governor of Quebec also a Solicitor General. However this may be, it will be seen that, by the 92nd clause of the Act, it is provided that, "The Legislature of each Province may make laws in relation to the administration of justice in the Province, including the constitution, maintenance and organization of Provincial Courts, both of civil and criminal jurisdiction, and including procedure in civil matters in those Courts."

Under this power the undersigned is of opinion that the Legislature of a Province, being charged with the administration of justice and the organization of the Courts, may, by statute, provide for the general conduct of business before those Courts; and may make such provisions with respect to the bar, the management of criminal prosecutions by counsel, the selection of those counsel, and the right of pre-audience, as it sees fit. Such enactment must, however, in the opinion of the undersigned, be subject to the exercise of the Royal prerogative, which is paramount, and in no way diminished by the terms of the Act of Confederation.

As the matter affects Her Majesty's prerogative, the undersigned would respectfully recommend that it be submitted to the Right Honorable the Secretary of State for the Colonies, for the opinion of the Law Officers of the Crown and for Her Majesty's decision thereon. The questions for opinion would seem to be:

(1) Has the Governor General (since 1st July, 1867, when the Union came into effect) power, as Her Majesty's Representative, to appoint Queen's Counsel ?

(2) Has a Lieutenant Governor appointed since that date the power of appointment?

(3) Can the Legislature of a Province confer by statute on its Lieutenant Governor the power of appointing Queen's Counsel?

(4) If these questions are answered in the affirmative, how is the question of precedence or pre-audience to be settled?

All which is respectfully submitted,

On 1st February, 1872, The Earl of Kimberley, Colonial Secretary,

answers:

In compliance with the request contained in despatch of the 4th January, I have taken the opinion of the Law Officer's of the Crown on the questions raised therein, with regard to the power of appointing Queen's Counsel in the Provinces forming the Dominion.

I am advised that the Governor General has now, power, as Her Majesty's representative, to appoint Queen's Counsel, but that a Lieutenant Governor, appointed since the Union came into effect, has no such power of appointment.

I am further advised that the Legislature of a Province can confer by statute on its Lieutenant Governor the power of appointing Queen's Counsel; and, with respect to precedence or pre-audience in the Courts of the Province, the Legislature of the Province has power to decide as between Queen's Counsel appointed by the Governor General and the Lieutenant Governor as above explained. KIMBERLEY.

This opinion from the Colonial Office was concurred in by the Supreme Court of Nova Scotia in a Judgment rendered on the 26th March, 1877, in the case of P. H. Le Noir et al. & J. N. Ritchie, in the matter of the application of J. N. Ritchie for the recognition of his rank and precedence as Queen's Counsel granted to him on the 29th December, 1872, by the Governor General, by letters patent under the Great Seal of the Dominion of Canada. The Court held that the Provincial Acts of Nova Scotia, 37 Vict. c. 20, (1874,) affirming the right of the Lieutenant Governor by Letters Patent to appoint Queen's Counsel, and (c. 21) declaring the right of the Lieutenant Governor to decide with respect to precedence in the Courts of the Province as between Queen's Counsel-are not ultra vires, but that the two Acts. in question were not retrospective, and must be so construed as not to disturb or take away the precedence given to J. N. Ritchie by the Letters Patent already issued to him under the Seal of the Dominion of Canada (adopting the ruling in Moon v. Duddon, 22 Exch. 22.)

Sir William Young, C. J., in delivering the judgment of the Court said: "The Crown through its Secretary of State having authorized such enactments, the contention that the Acts are ultra vires is quite untenable."

An appeal was taken to the Supreme Court of Canada from the judgment of the Supreme Court of Nova Scotia, of the 26th March, 1877, making a rule nisi absolute, and granting rank and precedence to Joseph N. Ritchie over all Queen's Counsel appointed in and for the Province of Nova Scotia since the

26th day of December, 1872, and ignoring letters patent dated the 27th May, 1876, regulating the precedence of certain Queen's Counsel, including the appellants, under the provisions of Sec. 2 of c. 21 of the Act of 1874, of the Province of Nova Scotia.

A judgment, dismissing this appeal, was rendered on the 4th November, 1879 (2 L. N. 373), by the Supreme Court of Canada, composed of Strong, Fournier, Henry, Taschereau and Gwynne, J. J.-the Chief Justice taking no part in the judgment, being related to one of the parties-a majority of the Court, Strong, Fournier and Taschereau, J.J., deciding in concurrence with the Supreme Court of Nova Scotia :

That the Acts of the Legislature of Nova Scotia were not retrospective, and must be so construed as not to disturb or take away the precedence given by the Patent issued to the respondent; and that the Letters Patent issued under the authority of those Acts were void in so far as they attempt to interfere with the privilege of the respondent.

The question of precedence and pre-audience between Mr. Ritchie and the Queen's Counsel appointed by the Lieutenant Governor of Nova Scotia being the only question submitted to the Court, the decision just given would contain the whole judgment of the Court which is authoritative in the case.

A majority of the Court, differently composed, expressed other opinions suggested by the subject discussed before them, but not submitted to them.

Thus Henry, Taschereau and Gwynne, J.J., appear to have agreed in the following opinions:

That the Acts of the Legislature of Nova Scotia in question are ultra vires and void, in so far as they invest the Lieutenant Governor with the authority of appointing to the rank or dignity of Queen's Counsel, which Her Majesty by herself, or through her representative, His Excellency the Governor General, alone has the right to confer.

That Her Majesty forms no integral part of the Legislature of the Provinces as she does of the Dominion Parliament, and is no party to the laws made by the Local Legislatures, and that no Act of any such Legislatures can in any manner impair or affect Her Majesty's right to the exclusive exercise of all her prerogative powers.

That the British North America Act, 1867, does not, either expressly, or by inference, divest Her Majesty of this branch of her prerogative, and confer it upon the Provincial Legislatures, or the Lieutenant Governors of the Provinces.

These opinions, being concurred in by a majority of the Court would have become precedents if submitted to them.

Having entered into the course of expressing opinions, the Judges by two and by one, gave their individual views on the following collateral questions,

which aimed at covering the grounds of the consultation between the Canadian Minister of Justice and the Earl of Kimberley, and also, of the opinion of Sir Wm. Young, C.J., that the contention that the Acts are ultra vires was untenable, the Crown, through the Secretary of State, having authorized such enactments.

Per Henry and Gwynne, J.J.-That the said Acts do profess to invest the Lieutenant Governor with such authority, and are, therefore, ultra vires and void.

Per Strong and Fournier, J. J.-That it is unnecessary to consider the question of the constitutionality of the Acts in question; that the presumption is so much in favor of the validity of the Acts that the Court ought not to deal with the question of their constitutionality, unless the subject matter under consideration imperatively requires it.

Per Taschereau, J.-That the Act of the Legislature of Nova Scotia, 37 Vic., c. 20, simply authorizes the Lieutenant Governor to appoint Provincial officers connected with the administration of justice to be known under the name of "Her Majesty's Counsel learned in the law," but that does not make them of the rank and dignity of that name granted by Her Majesty. It is a mere Provincial office under that name, which the Provincial Legislature had the right to create, and the appellants are not Queen's Counsel at all, in the sense attached to the name in the respondent's commission.

The only effect of the decision of the Court is to declare that the rank claimed by Mr. Ritchie must be maintained, and the contrary claim set up by the Queen's Counsel of Nova Scotia, be disallowed; but the Queen's Counsel appointed by the several Provincial Parliaments are undisturbed by this decision and retain their rank among themselves.

The validity of their appointment may be judicially presented on some future occasion, but it has not thus far been submitted or pronounced upon with judicial authority.

Pardoning Power.

In papers, enclosed by the Earl of Carnarvon in a despatch to the Earl of Dufferin, an Australian case concerning the exercise of the Prerogative of Pardon was referred to, with the following explanations of the Royal Instructions on the subject given by the Earl of Carnarvon to Governor Sir H. Robinson.

5. It should, therefore, be understood that no capital sentence may be either carried out, commuted, or remitted, without a consideration of the case by the Governor and his Ministers assembled in Executive Council. A minor sentence may be commuted