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Full text of "The Canadian constitution, historically explained by annotated statutes, original documents and leading cases"

igARSWE L L Co. , i^imiteu 
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i 



THE 



Canadian Constitution 



Historically Explained 



BY ANNOTATED STATUTES. ORIGINAL 

DOCUMENTS AND LEADING 

CASES 



By 

WALTER S. SCOTT. LLD. (Dub.) : F.R.S.L. 

Of Liacoln'a inn. Lon<lon, anil the Bar oi Alb«rt« 




TORONTO : 

TMK 'AKwvvKLL COMPANY. I.IMITKh 
i/>«<ik>n: 

rtU lAXWKU. IJMITKU 

I '.MM 



Ck)PYRiQHT: Canada, 1918, by the Carswell Co., Limited. 



P R E F A C R 



This book is a complex of English and Canadian ('onstitu- 
tional History and Law and Legal History, and the making of 
it is due to an illusion which seems to beset that abstract per- 
son, the average student. 

There lies beneath his acquired knowledge to the contrary, 
a sub-conscious conviction that the Canadian Constitution began 
and ended with the passage of the British Xorth America Act. 

As a lecturer, the author found that his efforts to eradicate 
this illusion were hindered by the absence of any succinct and 
yet comprehensive outline of the evolution of our entire legisla- 
tive, executive and judicial systems. Of books on these subjects, 
there is*, of course, an abundance, but the study and co-ordina- 
tion of their contents is for the honour student; where disin- 
clination does not, the very abundance and bulk of such books 
will effectually exclude the ordinary student. 

The latter cannot, however, grasp the working c-onsutuii'ii 
of to-day without some knowledge of the origin of and chaivirr> 
in the powers of law-making bodies and courts. 

The aim of this book is to act as a commonplace book from 
which a student can extmct a modicum of knowledge without 
the expenditure of undue Inb^'n- on ,^.n.^;tiiti<>nn] nn*! l«Mr..il 
history. 

An endeavour is made in working out this aim to make the 
N-ubject " live," by. the u»e of actual statutes, caaes, and docu- 
ments. 

The author is bold enough to believe that even the student 
siKJcializing in Constitutional Law or TTistory may derive ^me 
l)enefit from the book as a ** kernel," round which hi» deeper 
studies may fashion the fruit of a more detailed and ripi»r 



\ 



IV PHEFACE 

It is, however, for " the nverage student " and '* the man in 
the street," or, perhaps, the very " general practitioner," that 
the author has written and })y them lie would he judged. 

Some of the hooks which have heen found of use in making 
tlie hooks are Anson's Law and Custom of tlie Constitution, 
Pollock and Maitland's History of Englisjh lyiiw, Holdsworth's 
History of English Law, Maitland's Constitutional History of 
England, Dicey's I^aw of the Constitution, Freeman's Growth 
of the English Constitution, Lewis' Government of Dependen- 
cies, Keith's Restponsible Government in the Dominions, Le- 
froy's Canada's Federal System, Clement's Canadian Constitu- 
tion, Bourinot's Constitution of Canada, Taswell-Langmead's 
English Constitutional History, Hodgins' Provincial Legisla- 
tion, Dicey's Privy Council, Low's Governance of England, 
Egerton and Grant's C^anadian Constitutional Development, 
Ilbert's Parliament, Bagehot's English Constitution, Houston's 
Constitutional Documents, Adams' and Stephens' Constitu- 
tional Documents, Kedlich's Procedure of the House of Com- 
mons, the Law Quarterly "Review, Provincial Tjegislation, Can- 
ada Sessional Pa/pers, etc. 

His conscious borrowings from these books, the author has 
taken pains to acknowledge ; many of them are now of the very 
warp of the subject, and any student thereof must needs often 
unconsciously borrow much. 

Walter S. Scott. 
Edmonton, 1918. 



CONTENTS 



CHAPTER I. 

PAGE 

Guiding Principles of the Study of Constitutional Law l 

CHAPTER II. 
Limitations upon Canadian Legislative Power 8 

CHAPTER III. 
Repugnancy to Imperial Law 15 

CHAPTER IV. 
Introduction of English Law into Canada . . 20 

CHAPTER V. 
Conflict between Dominion and Provincial Legislative Powers. 23 

CHAPTER VI. 
The Privy Council and Company Legislation 32 

CHAPTER VII. 
General Sketch of Early English Constitution fiO 

CHAPTER VIII. 
Rise of RMponsible Government in Canada . 7S 

CHAPTER IX. 

Doenmeiits Illustrative of Introduction of Responsible Oorem- 
ment t5 

CHAPTER X 
Parliament from the Earliest Timen lOS 

CHAPTER XI. 
The Privy Council and the Cabinet (HUtorlcal Sketch) 121 

CHAPTER XII. 
The Prerogative of the Crown . . . ItS 



VI CONTKNTS 

CHAPTER XIII. 

PAGE 

Governors and their Powers 140 

CHAPTER XIV. 
Commissions, etc., of Governors 152 

CHAPTER XV. 
Magna Charta 167 

CHAPTER XVI. 
Petition of Right 189 

CHAPTER XVII. 
The Bill of Rights and the Act of Settlement 196 

CHAPTER XVIII. 
The British North America Act 214 

CHAPTER XIX. 
Trial by Jury 272 

CHAPTER XX. 
Taxation and Expenditure 277 



The Canadian Constitution 

Historically Explained by Annotated Statutes. Original ' 
Documents and Leading Cases 



CHAPTER I. 

Guiding Principles of the Study of Constitutional Law. 

Material Sources of Canadian Constitutional Law. 

The Constitution of Canada is to be found in (1) the 
great charters of English liberties, e.g., Magna Charta, The 
Petition of Right, The Bill of Rights and The Act of Settle- 
ment; (2) the Conventions of the English Constitution; and 
(3) The British North America Act. 

Difference between English and Canadian Constitutions. 

Indeed the only vital differences between the English and 
the Canadian Constitution of to-day seems to lie in the fact 
that the English Parliament is a sovereign law-making body, 
whilst the Canadian Parliaments are non-sovereign, and that 
the government of England is a unitarian government, and the 
government of Canada is federal. 

Guiding Principles of Study of Constitutional Law. 

The guiding principle^ of the Study of Constitutional Law 
have been laid down in Professor Dicey's Law of the Consti- 
tution, which should be read by every student of the Canadian 
Constitution. The limits of this book only permit the following 
resume of portions of that invaluable work. 

Constitutional I^w is deiinod by Dicey at p. 22 as including 
"all rules which directly or indirectly affect the distribution 
or the exercise of the sovereign povi'er in the state." These rules 
include : 

1. The Law of the Constitution, constitutional law }>ropor, 
rules enforced by the Courts, whether written m un- 
written. I 

c.c. — 1 



Z GUIDING PRINCIPLES OF STUDY. 

2. Conventions of the Cons<ifw^io/2, constitutional morality, 
e.g., the rule that ministers resign office when they have 
ceased to command the confidence of the House of 
Commons. 

There are three guiding principles in the study of Consti- 
tutional Law, (a) the legislative sovereignty of parliament, (b) 
the universal rule or supremacy throughout the Constitution 
of ordinary law, (c) the dependence in the last resort of the 
conventions upon the law of the Constitution (Dicey, p. 34). 

Guiding Principle A — The Legislative Sovereignty of Farlia- 
m ent. 
The English parliament has the right to make or unmake 
any law whatever, and further, no person or body is recognised 
by the law of England as having the right to override or set 
aside the legislation of parliament; thus in 1716, parliament, 
although an Act, The Triennial Act, limiting the duration of 
parliament to three years, passed the Septennial, permitting a 
parliamentary life of seven years, not only to future parliaments 
but also to itself. It can by an Act of Indemnity make legal 
transactions which were illegal when they took place, and can 
dissolve a valid or validate an invalid marriage. Never since 
1766 has the Crown asserted any- right of legislating by 
proclamation or Order in Council (other than a delegated 
right), for England, though it can so legislate for conquered 
or ceded territory prior to the grant to such territory of 
representative institutions. Other possible competitors with 
parliament are one House alone, the electors and the Law 
Courts. The first mentioned has the rights in respect of its 
own privileges subsequently dealt with, the second has no right 
other than to elect Members of Parliament, while the third 
certainly do legislate, but such legislation is always liable to 
be upset by the Courts (Dicey, p. 38). 

Limits of Sovereign Power. 

There are, however, certain limits on the right of a sovereign 
power. The limits are external or internal. The external limit 
Is imposed by the fact that these certain laws which the subject 
from its nature will infallibly disobey, e.g., if Christianity were 
abolished by the sovereign, obedience would be refused; the 
internal limit is imposed by the nature of the sovereign itself, 
+hus no English parliament w<>nl(l wish to tax the Colonies. 



GUIDING PRINCIPLES OF/ STUDY. 3 

Dicey notices that the effect of representative government is 
to produce a coincidence between, these external and internal 
limits (Dicey, p. 82). 

Marl's of Parliamentary Sovereignty. 

The marks of parlianientarv sovereignt}' are three in 
number : 

1. There is no law which parliament cannot change. 

2. There is no distinction between fundamontal or consti- 

tutional laws and other laws. 

3. Xo judicial or other authority has any right to nullify 

an Act of Parliament or to treat it as void or uncon- 
stitutional. 

Canadian Parliament,^. I low Far Soverei<fn. 

The marks of non-sovereign law-making bodies are the 
negations of the marks of parliamentary sovereignty. Of the 
three guiding principles mentioned above, the first is not com- 
pletely applicable to Canada, inasmuch as Canadian parliaments 
or asseml)lies, though they have plenary authority within the 
areas assigned to them by the British. North America Act, yet 
that area is circumscribed. 

Federation, Meaning of. 

The Dominion of Canada is a federation, i.e., a union of 
component states, wherein there is a central legislature which 
has authority to pass laws directly obligatory upon the people, 
the component states also having legislative |K)wer. In con- 
fKlorations, on the other hand, the central l)ody has relations 
with the component states only, and not directly with in- 
dividuals, e.g.. Austria-Hungary (see address of J. S. Ewart 
at the first meeting of the Canadian Bar Association). 

Executive Oovernment of Canada. 

Though the government of the Dominion of Canada is 
federal, yet Canadian executive government is modelled on the 
.«iystem of parliamentary cabinet government as it exists in 
England, and does not >" nnvul^o iimfnto the pro-wl.'nt;,,] 
government of America 

Increase of Power of Cabinet. 

** The principal change," says Todd, "effected by the de- 
vc'lopmtnt of the English Constitution since the revolution of 



4 GUIDING PRINCIPLES OF STUDY. 

1688 has been the virtual transference of the centre and force 
of the State from the Crown to the House of Commone." *' One 
might add," says Low, " that the principal change effected since 
1832 has been the further tendency to shift this ' centre and 
force ' from Parliament to the Cabinet, and to render the latter 
amenable to the control of the constituent bodies themselves 
rather than to that of their elected representatives." In the 
language of Mr. Bernard Holland, quoted by Low, it does not 
seem that that day is far off when the House of Commons will 
become " a mere body for registering the decrees of a secret 
committee, largely consisting of men in the House of Lords who 
never come near it." 

Characteristics of Presidential Government of America. 

In the United States the distinction of powers, theoretical 
with us, or obsolete, is still alive and operative The Executive 
is kept apart from the Legislature. The members of the Cabi- 
net do not sit in Congress; they are merely heads of depart- 
ments, responsible to the President, who is the chief of the 
administration. Congress occupies itself in making laws and 
providing for the raising and disbursement of the Federal 
Revenues. There is no ministry directly responsible to the 
Legislature, unless it be the chairmen of the various commit- 
tees of the House of Representatives, whose ministerial func- 
tions are in many respects more important than those of the 
Cabinet officers. These latter are only highly-placed confiden- 
tial clerks, like our " permanent " under-secretaries, though 
without the element of permanence. The President is Premier 
for the purpose of diplomatic negotiations, naval and military 
administration, and foreign affairs; but for legislative pur- 
poses, the Prime Minister, if there be such a functionary, is 
the Speaker of the House of Representatives, who nominates the 
committees and takes care that the chairmen are members of 
the dominant party. The several sections of this ministry of 
committees act separately, without concurrence or true concert, 
with very little reference to the executive, and sometimes with 
scant regard to a common) policy. Finance is regulated under 
a method which has been described as that of spending accord- 
ing to the suggestions of one body and taxing in obedience to 
the suggestions of another. The Chairman of the House Com- 
mittee of Ways and Means has sometimes been called the 



GUIDING PRINCIPLES OF STUDY. 5 

American Chancellor of the Exchequer. But he is a Chancellor 
of the Exchequer who has only to look after the raising of 
revenue. The expenditure is under the control of another 
finance minister, the Chairman of the Committee of Appropria- 
tions ; while the Cabinet officer, actually at the head of the Trea- 
sury Department, is not responsible for either side of the Bud- 
get, and is indeed little more than an expert witness who is 
allowed to lay his suggestions before the Congress committees 
for acceptance or rejection. The American system divides re- 
sponsibility and makes it difficult to place it any^vhere. The 
Congress cannot control a President who has been elected, with- 
out reference to its feelings and sympathies, for a fixed term 
of years ; the President has no authority over a Congress which 
may happen to have a majority drawn from a party opposed to 
him, since he cannot dissolve from the representatives to the 
electorate; and the House of Representatives has little power 
even over its own business, which is really transacted by the 
heads of the "two-score little legislatures" that owe their 
boiiiL' to the Speaker." (Low, 49). 

Leading Characteristics of Completely Developed Federalism. 

There are three leading characteristics of completely de- 
veloped federalism, the supremacy of the Constitution, the dis- 
tribution among bodies with limited and co-ordinate authority 
of the different powers of government, the authority of th« 
Courts to act as interpreters of the Constitution (Dicey, p. 140). 

Guiding Principle B- — The Rule of Law, 
The rule of law has three meanings: 

1. No man is punishable or can be lawfully made to suffer 

in body or goods except for a distinct breach of law 
established in the ordinary legal maimer before the 
ordinary Courts of the land (Dioey, p. 183). 

2. Every man, whatever be his rank or condition, is subject 

to the ordinary law of the realm and amenable to the 
jurisdiction of the ordinary tribunala (Dicey, p. 189). 

3. The general principles of the Constitution are the result 

of judicial decisions determining the rights of private 
persona in particular cases brought before the Courta; 



6 GUIDING PBINCIPI.es OF STUDY. 

whereas under many foreign constitutions the security 
(such as it is) given to the rights of individuals re- 
sults, or appears to result, from the general principles 
of the Constitution (Dicey, p. 191). 

Thus as an exemplification of the third meaning, it should 
be noticed that our much-vaunted right to personal liberty is 
nothing but a person's right not to be subjected to imprison- 
ment, arrest or other physical coercion in any manner that does 
not admit of legal justification. Upon infringement of the right 
there arises a right to an action for assault or for false im- 
prisonment or to the issue of a writ of Habeas corpus. 

So our right to freedom of discussion is but our right to 
say what we plea'se, provided we do not slander another or 
utter sedition. 

With regard to the right of public meeting: English law 
does not recognise any special right of public meeting. The 
right of assembling is nothing more than the result of the view 
taken by our Courts of individual liberty of person and indi- 
vidual liberty of speech. 

A. has a right to walk down a street; B. has the same right, 
C, D. and all their friends have the right to go there also. 

As an example of the second meaning it must be noticed 
that a soldier, though subject to military law, is also subject 
tc the ordinary law of the land. 

So also there is the same law for a state official as for a 
private Individual. There is no divit administratif. 

Droit Administratif. 

Droit administratif is that portion of French law which de- 
termines (1) the position and liabilities of all state officials, 

(2) the civil rights and liabilities of private individuals in 
their dealings with officials as representatives of the State, and 

(3) the procedure by which these rights and liabilities are en- 
forced. It depends on the theory that the government and 
its officials ought (whilst acting officially) to be independent 
of and to a great extent free from the jurisdiction of the or- 
dinary Courts, and that every servant of the government as a 
representative of the nation has privileges as against private 
citizens. The ordinary law Courts have no jurisdiction in 



GUIDING PRINCIPLES OF STUDY. 



matters concerning the state, such matters are decided by 
administrative Courts (Dicey, p. 329). 

Guiding Principle C — Dependence of Conventions upon Consti- 
tution. 

Conventions are mostly rules for determining the mode in 
which the discretionary powers of the Crown (or of the 
Ministers as servants of the Crown) ought to be exercised, i.e,/ 
how the prerogative ought to be exercised, or are rules for 
determining the mode in which the discretionary power of the 
Houses of Parliament (i.e., privileges) can be exercised. 

The breach of the conventions will bring the offenders almost 
immediately into conflict with the Courts and the law of the 
land. 



8 LIMITATIONS UPON" CANADIAN LEGISLATIVE POWER. 

CHAPTER II. 

Limitations Upon Canadian Legislative Power. 

The limitations upon the legislative power of a colony are 
of four sorts: 

1. Those arising from the essential character of a parlia- 

ment of a dependency as not sovereign in the full sense. 

2. The territorial limits of their authority. 

3. The rule of non-repugnancy to Imperial law. 

4. The limitations as to con^itutional change (see Keith, 

p. 361). 

The nature of the legislative powers of the provincial 
legislatures are laid down clearly in Hodge v. The Queen, 

9 A. C. 117 : " They are in no sense delegates of or acting under 
any mandate from the Imperial Parliament. Wlien the British 
North America Act enacted that there should be a Legislature 
for Ontario, and that its Legislative Assembly should have 
exclusive authority to make laws for the province and for pro- 
vincial purposes in relation to the matters enumerated in sec- 
tion 92, it conferred powers not in any sense to be exercised 
by delegation from or as agents of the Imperial Parliament, 
but authority as plenary and as ample within the limits pre- 
scribed by section 92 as the Imperial Parliament in the pleni- 
tude of its power possessed and could bestow. Within these 
limits of subjects and area the Local Legislature is supreme, 
and has the same authority as the Imperial Parliament or the 
Parliament of the Dominion would have had under like cir- 
cumstances to confide to a municipal institution or body of its 
own creation authority to make by-laws or resolutions as to 
subjects specified in the enactment, and with the object of 
carrying the enactment into operation and effect." 

ExtrorTerritorial LegislatioTi. 

In discussion of the question of how far the Dominion or 
the provinces can legislate as to acts done outside their respec- 
tive territories, several important principles have to be kept 
in mind. 

1. The Imperial Parliament can pass any legislation it 
pleases, and judges of the English Courts or any other 



LIMITATIONS UPON CANADIAN LEGISLATIVE POWER. 9 

Courts have never to think of whether the leg-islation 
is ultra vires or not. It cannot be ultra vires. 

2. There may, however, be a failure in executive power to 

enforce Imperial legislation. 

3. Imperial legislation may be disregarded in the Courts of 

other countries as opposed to the comity of nations, 
or, in other words, contrary to private international law. 

4. Prima fade Imperial legislation is only for those who 

owe obedience to such laws, though under principle 11 
it can expressly pass legislation to affect any person 
in respect of acts done anywhere, though restrained by 
the facts of principles 2 and 3 from doing so save in 
matters of grave importance. 

1. Dominion and provincial legislatures are legislatures 
restricted in the area of their powers, but within that area un- 
restricted, and not acting as agents or delegates of the Imperial 
legislature. 

2. Dominion and provincial judges liave the duty of decid- 
ing as to whether a statute is nlfra vires or not, but not as to 
its policy 

3. Donuinoii or provincial legislation, though intra vires, 
might, like Imperial legislation, be disregarded in other juris- 
dictions, as being contrary to the principks of private inter- 
national law. 

Forsyth tells us that the law officers of the Crown advised 
with respect to Briti.sh Guiana in February, 1855: *We con- 
ceive that a colonial legislature cannot legally exercise its 
jurisdiction beyond its territorial limits — three miles from the 
shore — or at the utmost can only do this over persons domiciled 
in the colony who may offend against its ordinances, even be- 
yond this limit, but not over other persona." 

In Macleod v. Attomey-Oeneral of New South Wales. 60 L. 
J. P. C. 65, this question was considered. A statute of Xew 
South Wales provided that " Whosoever being married marries 
another person during the life of the former hufiband or wife — 
wheresoever such second marriage takes place — shall be liable 
to penal servitude for seven years 

The Privy Council translated the words *' who^opvor l^oiii^:: 
married*' as meaning "whosoever being marriod, and who i< 
amenable at the time of the offence committed to the juris- 
diction of the colony of New South Wales *' and " wheresoever ** 



10 LIMITATIONS UPON CANADIAN LEGISLATIVE POWER. 

as equivalent to "wheresoever in this colony the offence is 
committed." Their lordships so translated tlie words because 
they did not desire " to attribute to the Colonial Legislature 
an effort to enlarge their jurisdiction to such an extent as 
would be inconsistent with the powers committed to a colony, 
and, indeed, inconsistent with the most familiar principles of 
international law." 

" Their lordships think it right to add that they are of 
opinion that, if the wijder construotion had been applied to 
.the statute, and it was supposed that it was intended thereby 
to comprehend cases so wide as those insisted on at the Bar, 
it would have been beyond the jurisdiction of the colony to 
enact such a law. Their jurisdiction is confined within their 
own territories, and the maxim which has been more than once 
quoted, * Extra territorium jus dicenti impune non paretur,' 
would be applicable to such a case. Lord Wensleydale, when 
Baron Parke, advising the House of Lords in Jefferys v. Boosey, 
expresses the f?ame proposition in very terse language. He says 
(p. 926) : ' The legislature has no powers over any persons 
except its own subjects — that is persons, natural-born subjects, 
or resident, or whilst they are within the limits of the kingdom. 
The legislature can impose no duties, except on them, and whien 
legislating for the benefit of persons must, prima facie, he con- 
sidered to mean the benefit of those who owe obedience to our 
lawg, and whose interest the legislature is under a correlative 
obligation to protect." All crime is local. The jurisdiction 
over the crime belongs to the country where the crime is com- 
mitted, and, except over her own subjects, her Majesty and 
the Imperial Legislature have no power whatever. It appears 
to their lordships that the effect of giving the wider intei-pre- 
tation to this statute necessary to sustain this indictment would 
be to comprehend a great deal more than her Majesty's subjects ; 
more than any persons who may be within the jurisdiction of 
the colony by any means whatsoever ; and that therefore if that 
construction were given to the statute, it would follow as a 
necessary result that the statute was ultra vires of the colonial 
legislature to pass. Their lordships are far from suggesting 
that the legislature of the colony did mean to give themselves 
so wide a jurisdiction. The more reasonable theory to adopt 
is that the language was used subject to the well known and 
well considered limitation that they were only legislating for 
those who were actually within tlieir jurisdiction and within 
the limits of the colon v. 



LIMITATIONS UPOJT CANADIAN LEGISLATIVE POWER. 11 

Tlie facts of the case were that Macleod married in Xew 
South Wales in 1872, and again in Missouri in 1889, and was 
convicted for bigamy in Xew South Wales. The indictment 
did not show the nationality or domicile or habitual residence 
of the accused. 

Judge Clement, at p. 104: of his Canadian Constitution, 
says that this decision must be taken as holding that a colonial 
legislature cannot affix criminal character to acts committed 
out of the colony by persons other than British subjects; and 
as a strong expression of opinion obiter against the validity of 
colonial legislation as to the acts abroad of any person. There 
is no suggestion, he says, of any such tiling as colonial citizen- 
ship short of national British allegiance. 

Mr. Lefroy, at p. 103 of his Federal System, says tliat it 
seems beyond question that they (Dominion and Provincial 
Legislatures) must have the same power to bind their own 
subjects everywhere, as the Imperial Parliament has to bind 
British subjects everywhere. The expression ' subject of a 
colony * has, he says, high judicial authority and may be taken 
to mean British subjects domiciled in the colony. 

This view is suggested as a possibility in the opinion c f the 
law officers, supra. 

Right of Extra-Territorial Restraint. 

Even if ther^ be a territorial limitation upon the legislative 
powers of the Dominion, Canadian courts, as Judge Clement 
remarks at p. 104, have treated the Macleod case as binding 
only to the extent of the actual decision, i.e., as limited to 
criminal law and to the case of foreigners without the colony, 
and as leaving o|K»n the question as to British subjects whether 
such by birth or naturalization; yet such limitation must not 
be insisted in such a manner as to render the grant of legisla- 
tive power ineffectual, thus power to expel aliens who have en- 
tered Canada agadnst the laws of the Dominion, brings with it 
the power to impose that extra-territorial constraint which is 
necessary to enable the government to expel those aliens from 
their borders to the same extent as the Imperial Government 
could itself have imposed the constraint for a similar purpose 
(Attorney-General v. Cain [1006] A. C. r>42). 

It seems clear also that there must be power to control the 
army and navy of Canada, when l)eyond the limits of the 
Dominion. 



12 LIMITATIONS UPON CANADIAN LEGISLATIVE POWER. 

Section 275 of the Criminal Code (Bigamy is the act of 
a person who, being married, goes through a form of marriage 
with any other person in any part of the world . . . but 
no person shall be liable to be convicted of bigamy in respect 
of having gone through a form of marriage in a place not in 
Canada, unless such a person, being a British subject resident 
in Canada, leaves Canada with intent to go through sruch form 
of marriage) was held to be intra vires of the Dominion Par- 
liament, and would be intra vires on the principle of the 
Macleod case taken in its widest extent, as the offence apparently 
might be held to be the leaving of Canada, which might well be 
held to be an aot within Canada, but in R. v. Brierly, 14 0. R. 
525, and in Re Criminal Code Sections Relating to Bigamy, 27 
S. C. R. 461, that is not the ground of the decisions in favour of 
the validity of the section, while in the latter case the Chief Jus- 
tice expressly says that the criminal offence is the marriage. 
" To transpose or invert the plain words of the enactment so as 
to make the substantive and principal act the leaving the Do- 
minion with the intent, coupled with the condition that such 
intent shall be subsequently effectuated, is to make that a 
crime which the legislature has not contemplated." 

Gwynne, J., bases his decision on the manifest intention 
of the framers of the Canadian Constitution to give to the 
people of Canada a political status infinitely superior to, that of 
a colony — a national existence in fact as an integral portion of 
the British Empire — having a Constitution similar in principle 
to that of the United Kingdom and a parliament with sovereign 
jurisdiction over all matters placed by the Constitution under 
their control, and therefore' over " Commercial Law" and 
" Marriage and Divorce," whilst Girouard, J., thought that the 
Dominion Parliament was only subordinate to the Imperial 
Parliament in so far as it must not contravene the positive 
prohibition of repugnancy enacted by the Colonial Laws 
Validity Act, whilst King, J., with whom Sedgewick, J., 
agreed, thought that the Act being restricted to Canadian resi- 
dents distinguished the case from the Macleod case. 

Australian View of Extra-Territorial Legislation. 

In Australia, the principle that the jurisdiction of a Com- 
monwealth Court must be confined within the territorial limits 
over which the laws of the Commonwealth extend, i.e., within 
the Commonwealth and the three mile limit, seems to be 



LIMITATIONS UPON CANADIAN LEGISLATIVE POWEB 13 

accepted (The Merchant Service GuUd of Australasia v. Archi- 
bald Currie & Company Proprietary, Limited, 5 C. L. K. 737). 

Judge Clement, at p. 114 of his Canadian Constitution, 
holds that there is no constitutional limitation upon the power 
of a Canadian legislature to make laws as to the results which 
are to follow in Canada (on proceedings either civil or crim- 
inal in the Canadian courts) from acts done abroad, or as to the 
effect to be given in Canadian Courts to Canadian legislation 
in regard to persons and property without the Dominion or 
province, as the case may be, or to rights of action accrued 
abroad. 

Distinction between Validity of Law in Colony and its Outside 
Effect. 
"The Court carefully distinguished in Ashbury v. Ellis, 
1893, A. C. 339, between the validity of the law in the colony 
and its effect outside in other Courts, which of course is quite a 
different thing, and depends on the doctrines of private inter- 
national law. Thus the cases which treat of the effect in 
England of judgments obtained in colonial Courts are not 
directed to the effect of colonial laws outside the territory, but 
to the principles of law which apply if a Court proceeds with 
a case in the absence of the defendant, or where the cause of 
action has nothing to do with the colony. To put an extreme 
case, if a colony should allow cases to be brought in its Courts 
against persons in England in respect of causes of action 
arising in England under English law, the judgments of the 
Courts would probably be invalid in any other Court of the 
world by private international law, but they would not be 
invalid on the more restricted ground that a colony cannot 
legislate for more than its territorial limits. But if it subjecta 
persons resident in England to actions in its Courts for matters 
affecting the colony, as, for instance, a contract to be performed 
therein, it certainly does not exceed the boundaries of its valid 
jurisdiction, though the amount of consideration to be paid 
to its judgments will depend on private international law." 
(Keith, p. 381). 

View of J, W, Salmond. 

It is suggested that notwithstanding Macleod's case, there 
is no genuine rule of substantive congtitutional law which 
prevents a colonial legislature from enacting such extra- 



14 LIMITATIONS UPON CANAWAN LEGISLATIVE TOWEH. 

territorial prohibitions or authorizations as may be required 
for the peace, order and good government of the colony, and 
as are not repugnant to the enactments of the Imperial Parlia- 
ment. The true restriction is one imposed by rules of interpre- 
tation which by reference to the presumed intention of the 
legislature will, notwithstanding the use of general words 
capable of extra-territorial application, cut out all such appli- 
cations except where necessitated by the express words of the 
legislature or by necessary implication, and which even where 
extra-territorial application is clearly intended, will restrict 
that application to its appropriate subject-matter (for example, 
to British subjects or to British or colonial ships) in such 
manner as to harmonize colonial legislation with the principles 
of international law and with the requirements of an orderly 
division of jurisdiction and authority between the competent 
self-governing portions of the Empire. There is, it is submitted, 
nothing in the decision in Macleod's case which precludes the 
adoption of this principle. That decision may stand upon the 
reasons given in the earlier part of the judgment — reasons 
based solely on the considerations of restrictive interpretation; 
and the latter or supplementary portion of the judgment, so 
far as it appears to lay down a rule of constitutional limitation, 
may legitimately be disregarded as unnecessary for the deter- _ 
mination of the case, and as being in reality inconsistent with 
the more liberal principles subsequently adopted by the Privy 
Council itself in The Attorney-General for Canada v. Cain. 
(The Solicitor-General for New Zealand in 33 L. Q. E. at 
p. 130). 

In Delaney v. Great Western Milling Co., 22 C. L. R. 150, 
D., a Victorian resident bought through his N. S. W. agent 
wheat to be delivered in X. S. W. D. assigned the benefit of 
the contract to the defendant company, and received in part 
payment £150. The Wheat Acquisition Act, 1914, of N. S. W., 
annulled both contracts and made all moneys paid in respect 
of them repayable. The company sued for the return of the 
£150. The majority of the High Court held that Macleod's 
case did not apply, while Griffin, C. J., and Barton, J., held 
that the statute was ultra vires in so far as it affected to compel 
return of moneys by a non-resident paid under a contract, 
though apparently it was good in so far as it required its own 
citizens to perform existing contracts with non-residents. 



RBITGNANIY TO IMPERIAL LAW. 15 



rttAPTFK \\\. 

Limitation' Upox Canadian Lkuislative Power. Rkpuo- 
NAXCY to Imperial Law. 

Colonial Laws Validity Act. 1865. .4m Act to Remove Doubts 
as to the Validity of Colonial Laws. 

29th June, 1865. 
Whereas Doubts liave been entertained respecting the Vali- 
dity of divers Laws enacted, or piirportinor to l)e enacted by 
the Legislatures of certain of Her Majesty's Colonies, and 
respecting the Powers of such IjCgislatures ; 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 thiis 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 Possessions abroad, in which there shall exist a 
legislature as hereinafter 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 liegislatun* 
shall severally signify the Authority (other than the Im]>erial 
Parliament of Her Majef?ty in Council), competent to make 
T^ws for any Colony ; 

The term " Representative legislature " shall signify any 
C'olonial legislature which shall comprise a legislative body 
of which One-Half are electetl ])y Inhabitants of the Colony; 

The term " Colonial I^aw '* shall include liaws made for 
any Colony, either by such legislature as aforesaid or by Her 
^fajesty in Council ; 

An Act of Parliament, or any Provision thereof, shall, in 
construing this Act, be said to extend to any Colony when it 
is made ;n '" ' !.• to such Colony by the express Words or 
necessary 1 ,.nt of any Act of Parliament; 

The term "Governor" shall mean the Officer lawfully 
administering the Government of any Colony ; 



16 REPUGNANCY TO IMPERIAL LAW. 

The term " Letters Patent " shall mean letters patent under 
the great seal of the United Kingdom of Great Britain and 
Ireland. 

(An Act applies to a colony, by necessary intendment, if a 
consideration of the scope and object thereof leads to the con- 
clusion that the legislature intended to affect a colony, and 
the words used are calculated to have that effect {Callender 
V. Colonial Secretarij Lagos [1891] A. C. 460). 

2. Any Colonial Law, which is or shall be repugnant to the 
provisions of any Act of Parliament extending to the colony 
to which such laws 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. 

(There are two senses in which an Act of Parliament miglit 
be said to extend to a colony, e.g., it might extend to a colony 
because it was introduced into colony either specially or as a 
member of class of legislation, e.g., English legislation before 
a certain date by the colony; or by virtue of an Imperial Act. 
It is, of course, only an Act of the second class which cannot 
be repealed by Dominion or Provincial legislation, as is clear 
by the definition of the words "extend to any colony" given 
in Section 1. 

Prior to the Act, the doctrine that there could be legislation 
by a colony, which was repugnant to the general principles of 
English law, had frequently been advanced. This hazy prin- 
ciple seems to have been laid to rest by the definite words of 
the Act. 

It has been suggested that the Parliament of the Dominion 
of Canada could repeal any Imperial Act, passed before 1867, 
on the grounds that the word * exclusive' in Sec. 91 of the 
B. N. A. Act — " the ' exclusive legislative authority ' of the 
Parliament of Canada extends to all matters coming within 
the classes of subjects next hereinafter enumerated " ; or, at 
any rate, any Imperial Act on the subjects enumerated in that 
section. 

This doctrine has not been accepted, and it seems that the 
opinion expressed in Tai Sing v. Maguire, 1 B. C. R. (Irving) 
107, .that the word "exclusive'' is clearly a word dividing 



REPUGNANCY TO IMPERIAL LAW. 17 

power between the Dominion and the Provinces, is the correct 
one. This is borne out by the opinion of the law officers of/ 
the Crown in 1871, who said : " It is abundantly clear that the 
provision in the Act of the Imperial Legislature, 30 Vict. c. 3, 
by which the Dominion of Canada was constituted, declaring 
that the exclusive legislative authority of the Dominion Parlia- 
ment extends (amongst other things) to copyrights, has re- 
ference only to the exclusive jurisdiction in Canada of the 
Dominion Legislature, as distinguished from the Legislatures 
of the Provinces of which it is composed. 

It should be noticed that in 1889 Sir John Thompson drew 
up a memorandum to the effect that Section 91 of the B. N. A, 
Act conferred upon the Dominion Parliament the right to 
legislate as to copyright without regard to any previous legis- 
lation whatsoever, whether passed by the Provincial or Im- 
perial Parliaments, subject only to the Imperial right of dis- 
allowance, and also to the control by Imperial legislation sub- 
sequent to the B. N. A. Act and applicable to Canada. This 
memorandum was forwarded to the Privy Council, but ap- 
parently the argument contained therein has never been 
answered by the Imperial government. 

It is difficult, however, to see how this position and the 
Colonial Laws Validity Act can stand together. 

For the interpretation of the word 'exclusive' as meaning 
exclusive of Imperial control, see Regina v. Taylor, 36 U. C. Q 
B. 183). 

3. No Colonial I^w 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 Pro- 
visions of some such Act of Parliament, Order, or Regulation, 
as aforesaid. 

4. No Colonial Law, passed with the Concurrence of or 
assented to by the Governor of any Colony, or to be hereafter 
so passed or assented to, shall be, or 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 
an Instrument other than the Letters Patent or Instrument 
authorizing such Governor to concur in passing or to assent to 
I^ws for the Peace, Order, and good Government of such 

C.C.— 2 



18 REPUGNANCY TO IMTERIAL LAW. 

Colony, even though such Instructions may be referred to in 
such Letters Patent, or last-mentioned Instrument. 

5. Every Colonial Legislature shall have, and be deemed 
at all times to have had full Power within its jurisdiction to 
establish Courts of Judicature 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 of such Legislature; provided that such laws 
shall have been passed in such Manner and Form as may from 
time to time be required, by any Act of Parliament, Letters 
Patent, Order in Council, or Colonial Law for the time being 
in force in the said Colony. 

(** Though in some cases no form was necessary to be ob- 
served in altering the Constitution, it was always necessary that a 
Colonial Constitution should be altered expressly : it would never 
have been possible to alter such a Constitution merely by an 
ordinary Act, which incidentally enacted provisions which were 
in conflict with the Constitution: the Constitution was and is 
a formal matter requiring formal change. This was laid down 
in detail in the case of Cooper v. Commissioners of Income 
Tax for the State of Queensland (Keith, p. 425 (1907), 4 
C. L. E. 1304). It sliould be noted that this decision applies 
generally to all cases of change of Constitution, and would cover 
such cases as, e.g., formerly Cape and Natal and now the Can- 
adian Provinces, where there are special conditions laid down 
regarding constitutional changes. These, it holds, and I think 
rightly, must still be enacted as such " (K. 426) ; (see Re 
Initiative and Referendum Act, [1917] 1 W. W. R. 1012). 

6. The Certificate of the Clerk or other proper Officer of 
a Legislative Body in any Colony to the Effect that the Docu- 
ment 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 Docu- 
ment 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 such. Bill has been duly and 
properly passed and presented to the Governor; and any Pro- 



BEPUGXANCY TO IMPERIAL LAW. 19 

clamation, purporting to be published by Authority of the 
Governor, in any Newspaper in the Colony, to which such Law 
or Bill shall relate, and signifying Her Majesty's Disallowance 
of Colonial Law, or Her Majesty's assent to any such reserved 
Bill as aforesaid, shall be prima facie Evidence of such Dja- 
allownnco or Assent. 



7. All Laws or reputed T^ws 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 Goyernor 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 
Aj^sent 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. 



20 INTRODUCTION OF ENGLISH LAW INTO CANADA. 

CHAPTER IV. 

Introduction op English Law Into Canada. 

In Nova Scotia, New Brunswick and Prince Edward Island 
(colonies acquired by settlement) there is no law expressly 
introducing English laws. In Quebec (a ceded colony), English 
criminal law was introduced by proclamation after the Treaty 
of Paris in 1763, while by virtue of the Quebec Act, 1774, the 
law which governs civil rights in Quebec is in the main the 
French law as it existed at the time of the cession of Canada. 
In Ontario it was enacted in 1791 that in all matters of con- 
troversy relative tu property and civil rights resort should be 
had to the laws of England as the rule for the decision of the 
same. It would seem that this includes all English law in force 
at the passing of this Act which is of general application as 
distinct from local law, i.e., law confined to some particular 
locality or local institution in England (see Keewatin Power 
Co. V. Kenora, 16 0. L. R. 184). In Alberta and Saskatchewan 
it is provided that the laws of England relating to civil and 
criminal matters as the same existed on the 15th day of July, 
1870, shall be in force in the Territories, in so far as the same 
are applicable to the Territories, and in so far as the same 
have not been or are not hereafter repealed, altered, varied, 
modified or affected by any Act of the Parliament of the United 
Kingdom applicable to the Territories or of the Parliament of 
Canada (The North-West Territories Act, 1886). Up to 1887 
the English law in force in the North-West Territories was 
probably the law of England as existent in 1670, the date of 
the granting of its charter to the Hudson's Bay Co. The 
Alberta Act, 1905, which established the Province of Alberta, 
provides by sec. 16 that all laws and all orders and regulations 
made thereunder, so far as they are not inconsistent with any- 
thing contained in this Act or as to which this Act contains 
no provision intended as a substitute therefor, and all Courts 
of civil and criminal jurisdiction, and all commissions, powers, 
authorities and functions and all officers and functionaries, 
judicial, administrative and ministerial, existing immediately 
before the coming into force of this Act, in the territory hereby 



INTRODUCTION OF ENGLISH LAW INTO CANADA. 21 

ej-tablished as the Province of Alberta, shall continue in the said 
province as if this Act and The Saskatchewan Act had not been 
passed, subject nevertheless except with respect to such as are 
enacted by or existing under Acts of the Parliament of Great 
Britain or of the Parliament of the United Kingdom of Great 
Britain and Ireland, to be repealed, abolished or altered by the 
Parliament of Canada or by the Legislature of the said pro- 
vince. Saskatchewan has precisely similar provisions. In 
Manitoba it is provided by an Act of 1888 that ' The laws of 
England relating to matters within the jurisdiction of ihe Par- 
liament of Canada, as the same existed on the 18th July, 1870, 
were from the said day and are in force in the province of 
Manitoba, in so far as the same are applicable to the said pro- 
vince, and in so far as the same have not been and are not 
hereafter repealed, altered, varied, modified or affected by any 
Act of the Parliament of the United Kingdom applicable to 
the said Province, or of the Parliament of Canada. Up to this 
time the law in force in Manitoba with respect to matters 
within the sphere of the Dominion Government, but not legis- 
lated upon by it, was the law of England as existent in 1670, 
the date of the granting of its charter to the Hudson's Bay 
Company. By a Manitoba Act of 1874 it was provided that the 
Court of Queen's Bench shall decide and determine all matters 
of controversy relative to property and civil rights according 
to the laws existing or established and being in England, as 
such were, existed and stood on the 15th day of July, 1870, so 
far as the same can be made applicable to matters relating to 
property and civil rights in this province. 

By proclamation 19th November, 1858, Governor Douglas 
introduced into the mainland of British Columbia the civil and 
criminal laws of England, as the same existed on the 19th day 
of November, 1858, and so far as the same are not from local 
circumstances inapplicable, and this provision was extended 
by an Act of British Columbia to the whole colony in 1871. 
Shortly after the passage of the last mentioned Act British 
Columbia was admitted into the Dominion. 

In Nova Scotia, the exclusion of any of the common law 
is the exception, but it must te quite dear that an English 
statute is applicable and necessary before it will he decided that 
it is in force in the colony (see Uniacke y. Dickson, James 287). 
Every year should render the Courts more cautious in the 



22 INTRODUCTION OF ENGLISH LAW INTO CANADA. 

adoption of laws that have never been previously introduced 
into the colony, especially where the legislature of the colony 
has passed statutes on the subject (see Uniacke v. Dicl'son, 
James 28T). In Manitoba, Alberta and Saskatchewan the same 
requirement of necessary applicability as a condition of bring- 
ing into force an English statute seems to exist, while in Xew 
Brunswick and British Columbia the burden of showing that 
an English statute, possibly applicable, is not applicable, falls 
upon the person asserting the inapplicability (see Wait v. ^yatt, 
13 B. C. 281). 



CONFLICT DOMINION AND PROVINCIAL POWERS. 23 



CHAPTEH V. 

Conflict Between Dominion and I'rovincial Legislative 

Powers. 

The power given to the Dominion by sec. 91 of the B. X. A. 
Act is to make laws for the peace, order, and good government 
of Canada in relation to all matters not coining within the 
classes of subjects by this Act assigned exclusively to the legis- 
latures of the Provinces; and for greater certainty, but not 
80 as to restrict the generality of the foregoing terms of this 
section, it is hereby declared that (notwithstanding anything in 
this Act) the exclusive legislative authority of the Parliament 
of Canada is to extend to all matters coming within the classes 
of subjects next hereinafter enumerated. 

It .should first be noticed that the power to make laws for 
the peace, order and good government of Canada is not in terms 
an exclusive power; secondly, that the whole section should be 
read as if it gave authority to legislate on the enumerated sub- 
jects and, moreover, upon all matters unquestionably of 
Canadian interest and importance, even though not amongst 
the enumerated subjects, but not to make laws applicable to 
the whole Dominion in relation to matters which in each pro- 
vince are substantially of local or private interest (see City of 
^fontreal v. Monfreal Sireet Railway [1912] A. C. at 343). 

After the enumeration of subjects under the exclusive 
legislative authority of the Dominion, there follows a provision 
that any matter coming within any of the classes of subjects 
enumerated in the section are not to be deeme<l to como within 
the class of matters of a local or private nature comprised in 
the enumeration of the powers of the Provinces by soction 98. 

This provision enables the Dominion Parliament to over- 
ride the provincial assemblies, where, but only where, legislation 
on what might be called statutory provincial subjects is neces- 
sarily incidental to the exercise of the |)owers conferred upon 
the Dominion Parliament by the enumerated heads of clause 
91 (see Citizens Insurance Co. v. Parsons, 7 A. C. at 108), but 
where no Dominion legislation exists upon subjects which 
might bo treated as necessarily incidental to the exercise of 
Dominion enumerated powers, or ar»^ amilbirv f<» n law «i(»]«'lv 



24 CONFLICT DOMINION AND PROVINCIAL POWERS. 

within the legislative authority of the Dominion. A province 
can legislate thereon (if within the enumerated powers 
assigned to them, and, it should be noticed, the power to legis- 
late on matters of a merely local or private nature is an 
enumerated power of the provinces), until the Dominion does 
so legislate, whereupon the provincial legislation is over-ridden 
but not repealed, though the abstinence of the Dominion from 
legislation on any subject could not transfer the right to legis- 
late on that subject to a province, if not already within its 
powers. Thus, 'Bankruptcy and Insolvency' is a subject ex- 
clusively assigned to the Dominion, " Property and Civil Rights 
in the Province'' is exclusively assigned to the provinces. A 
Jr^ general bankruptcy law must necessarily interfere with property 
and civil rights in the province and the predominance of Do- 
minion legislation would over-ride provincial legislation on the 
subject. On the other hand it might be necessary for the 
Dominion, in framing a bankruptcy Act, to deal with the effect 
of executions in a way not consistent with existent provincial 
legislation on that subject. In that event, the. Dominion logi di- 
lation on the subject of executions, being incidental to its legis- 
lation on bankruptcy, would over-ride provincial legislation, 
but until such Dominion legislation is passed, the provinces 
can legislate as to the effect of executions, but could not legis- 
late as to bankruptcy proper, i.e., apparently, as to the rateable 
distribution of. a man's property amongst his creditors, whether 
he is willing that it shall be so distributed or not (see Ontario 
(A. G.) Y. Canada (A. G.) [1894] A. C. 19, and the 
Fisheries Ca^e [1898] A. C. 700). On the other hand, there 
being no Dominion bankruptcy law, and therefore no legisla- 
tion incident to such law, room is left in what might be called 
the 'incidental area" for provincial legislation, e.g., legisla- 
tion as to an assignment for benefit of creditors. 

With regard then to legislation directly upon Dominion 
enumerated subjects, or legislation necessarily incidental thereto, 
the Dominion may encroach upon the provincial legislative 
sphere, so far as to enable the former to fully exercise its enu- 
merated powers. 

The Dominion has power to legislate upon subjects not 
specifically enumerated by virtue of its general power for peace, 
order and good government of Canada, which may be termed 
the Dominion residuary power. In legislating under its resi- 
duary power the Dominion parliament has no authority to 



CONFLICT DOMINION AND PROVINCIAL POWERS. 25 

encroach upon any class of subjects which is exclusively assigned 
to provincial legislatures by section 92 of The B. N. A. Act 
(see the Liquor Prohibition Appeal [1896] A. C. at 359). 

It follows therefore that Dominion legislation cannot legis- 
late upon matters of a merely local or private nature in the 
province, that class of matters being a class enumerated as 
No. 16 amongst the provincial enumerated powers. There isr 
a considerable difficult}', however, in drawing the line between 
a matter which is of unquestionable Dominion-wide import- 
ance and one of a private or local nature. In deciding this 
question, it is necessary to get to the pith and substance of 
the legislation, and to remember that what may be of Domin- 
ion-wide importance from one point of view, may be of merely 
provincial importance from another, and, further, to remember 
that what may be of provincial importance only to-day, may 
be of Dominion-wide importance to-morrow. 

Thus, there may be legislation on the drink question in a 
Dominion aspect, or in a provincial. It was held that the 
Canada Temperance Act of 1878 was within the legislative 
powers of the Dominion parliament, as being for the promo- 
tion of public order and morals, and so within the general 
authoritj' of parliament to make laws for the order and good 
government of Canada, and as having direct relation to crim- 
inal law. There may be provincial legislation for the suppres- 
sion of the liquor traffic with the object of the abatement of a 
local evil, when jnich legislation is guarded so as not to encroach 
on subjects reserved to the Dominion (see Manitoha (A.-O.) ▼. 
Manitoba License Holders' Aswciaiion [1902] A. C. 78), 
though some recent provincial legislation on this mibject is of 
doubtful validity. 

** Great caution," says the Privy Council in th^ Liquor 
Prohibition appeal, "must be observed in distinguishing be- 
tween that which is local and provincial and therefore within 
the jurisdiction of the provincial legislatures, and that which 
has ceased to be merely local or provincial, and has become a 
matter of national concern in such sense aa to bring it within 
the jurisdiction of the parliament of Canada. An Act re- 
stricting the right to carry weapons of offence, or their wle to 
young persons, within the province, would be within the au- 
thority of the provincial legislature. But traffic in arms or 
the poMeirion of them under such circumstances aa to raise a 



26 CONFLICT DOMINION AND PROVINCIAL POWERS. 

suspicion that they were to be used for seditious purposes, or 
against a foreign state, are matters which their lordsliips con- 
ceive might be competently dealt with bv the pnrlinmont of the 
Dominion." 

In Union CoUUry Co. v. Bn/den, 68 L. J. V. C. lis, it 
was held that an enactment by the British Columbia legisla- 
ture that no Chinaman should be employed in mines was be- 
yond its competence, inasmuch as the matter fell within legis- 
lation as to "naturalization and aliens," a Dominion enumer- 
ated power. Lord Watson, in delivering the judgment of the 
Pri\T Council, said the provisions of the Act " may be regarded 
as merely establishing a regulation applicable to the working 
of underground coal mines; and if that were an exhaustive 
description of the substance of the enactments, it would be 
difficult to dispute that they were within the competency of 
the provincial legislature, by virtue either of section 92, snib- 
sections 10 or 13. . . . *^ They are also of opinion that the 
whole pith and substance of the enactments of section 4 of the 
Coal Mines Regulation Act, in so far as objected to by the ap- 
pellant company, consists in establishing a statutory prohibition 
whjich affects aliens or naturalized subjects, and therefore 
trenches upon the exclusive authority of the parliament of 
Canada. 

Though it is true that whenever a matter is within one of 
enumerated Dominion classes, legislation in relation to it by a 
provincial legislature is incompetent, yet it does not follow that 
the legislation of provincial legislatures is not competent merely 
because it may have relation to one of the enumerated Domin- 
ion classes (see The Fisheries Case, 894 A. C. 700). "For 
example, provisions prescribing the mode in which a private 
fishery is to be conveyed or otherwise disposed of, and the rights 
of succession in re&pect of it, would be properly treated as fall- 
ing under the heading 'property and civil rights' within sec- 
tion 92, and not as in the class * fisheries ' within the meaning 
of sec. 91. 

It has been laid down supra, that Dominion legislation 
under its residuary power cannot encroach upon provincial 
legislation upon enumerated subjects, but this must not be 
taken to mean that Dominion legislation for the peace, order 
and good government of Canada is incompetent, where such 
legislation incidentally affects a provincial enumerated subject, 
without being actual legislation thereon, e.g., the Dominion 



CONFLICT DOMINION AND PROVINCIAL POWERS. 27 

might enact a general prohibition law, though such legislation 
would necessarily affect * property and civil rights ' within the 
provinces." Few, if any, laws could be made by parliament 
for the peace, order and good government of Canada, which 
did not in some incidental way affect property and civil rights; 
and it could not have been intended, when assigning to the 
provinces exclusive legislative authority on the subjects of pro- 
perty and civil rights, to exclude the parliament from the 
exercise of this general power whenever any such incidental 
interference would result from it." {Russell v. The Queen, 
51 L. J, P. C. 77). 

" The scTiieme of this legislation, as expressed in the firsH; 
branch of section 91, is to give to the Dominion parliament 
authority to make laws for the good government of Canada in 
all matters not coming within the classes of subjects assigned 
exclusively to the provincial legislature. If the 91st section had 
srtopped here, and if the classes of subjects enumerated in sec. 
92 had been altogether distinct and different from those in sec. 
91, no conflict of legislative authority could have arisen. The 
provincial legislatures would have had exclusive legislative power 
over the sixteen classes of subjects assigned to them, and the 
Dominion parliament exclusive power over all other matters 
relating to the good government of Canada. But it must have 
been foreseen that this sharp and definite distinction had not 
been and could not be attained, and that some of the classes 
of subjects assigned to the provincial legislature^ unavoidably 
ran into, and were embraced by some of the enumerated classes 
of subjects in .section 91 ; hience an endeavour appears to have 
been made to provide for cases of apparent conflict; and it 
would seem" that with this object it was declared in the second 
branch of the 91st section 'for greater certainty, but not so as 
to restrict the generality of the foregoing terms of this sec- 
tion/ that (notwithstanding anything in the Act) the exclusive 
legislative authority of the parliament of Canada should extend 
to all matters coming within the classes of subjects enumerated 
in that section ; with the same objet't, apparently, the para- 
graph at the end of .section 91 was introduced, though it may 
be observed that this paragraph applies in its grammatical con- 
struction only to No. 16 of section 92" (N.B. — This view was 
disapproved of and the paragraph in question was not adopted 
in the later case: The Loc/il Prohibition Case, 65 L. J. P, C 
26). "Notwithstanding this endeavour to give pre-eminence 



28 CONFLICT DOMINION AND PROVINCIAL POWERS. 

to the Dominion parliament in eases of a conflict of powers, it 
is obvious that in some cases where this apparent con- 
flict exists, the legislaiture could not have intended that the 
powers exclusively assigned to the provincial legislature should 
be absorbed in those given to the Dominion parliament. Take 
as one instance, the subject ' marriage and divorce ' contained 
in the enumeration of subjects in section 91 ; it is evident that 
solemnization of marriage would come within this general de- 
scription, yet * solemnization of marriage in the province ' is 
enumerated among the classes of subjects in sec. 92, and no 
one can doubt that notwithstandinor the general language of 
sec. 91, that this subject is still within the exclusive authority 
of the legislatures of (the provinces. So ^ the raising of money 
by any mode or system of taxation' is enumerated among the 
classes of subjects in sec. 91, but though the description is suffi- 
ciently large and general to include ' direct taxation within the 
province in order to the raising of a revenue for provincial 
purposes ' assigned to the provincial legislatures by sec. 92, 
it obviously could not have been intended that in this instance 
also ^he general power should override the particular one. With 
regard to certain classes of subjects, therefore, generally de- 
scribed in section 91, legislative power may reside as to some 
matters falling within the general descriptions of these sub- 
jects in the legislatures of tlife provinces. In these cases, it is 
the duty of the Courts, however difficult it may be, to ascertain 
in what degree, and to what extent, authority to deal with 
matters falling within these classes of subjects exists in each 
legislature, and to defi'ne in the particular case before them 
the limits of their respective powers. It could not have been 
the intention that a conflict should exfst; and in order to pre- 
vent such a result, the two sections must be read together, and 
the language of one interpreted and, where necessary, modi- 
fied by that of the other. In this way it may, in most cases, 
be found possible to arrive at a reasonable and practical con- 
struction of the language of the sections, so as to reconcile 
the respective powers they contain, and give effect to all of 
them. In performing this difficult duty, it will be a wise 
course for those on whom it is thrown, to decide each case which 
arises as best they can, without entering more largely upon an 
interpretation of the statute than is necessary for a decision of 
the particular question in hand. 



CONFLICT — DOMINION AND PROVINCIAL POWKBS. 29 

" The first question to be decided is, whether the Act im- 
peached in the present appeal falls within any of the classet 
of subjects enumerated in sec. 92, and assigned exclusively to 
the legislatures of the provinces; for if it does not, it can be 
of no validit}% and as other questions would then arise. It is 
only when an Act of the provincial legislature primd facie falls 
within one of these classes of subjects, that the further ques- 
tions arise, viz., whether notwithstanding this is so, the sub- 
ject of the Act does not also fall within one of the enumerated 
classes of subjects in sec. 91, and whether the power of the pro- 
vincial legislature is, or is not, thereby overborne. (Citizens 
Insurance Co. v. Parsons, 51 L. J. P. C. 11). 

"It has, no doubt, been many times decided by this Board 
that thje two sections 91 and 92 are not mutually exclusive, 
that their provisions may overlap, and that where the legisla- 
tion of the Dominion parliament d)mes into conflict with that 
of a provincial legislature over a field of jurisdiction common 
to both, the former must prevail; but, on the other hand, it 
was laid down in Att.-Oen. for Ontario v. Att.-Oen, for Canada 
— first, that the exception contained in sec. 91 near its end, 
was not meant to derogate from the legislative authority given 
to provincial legislatures by sec. 02 sub-sec. 16, save to the 
extent of enabling the parliament of Canada to deal with mat- 
ters local or private, in those cases where such legislation is 
necessarily incidental to the exercise of the power conferred upon 
that parliament under the heads enumerated in sec. 91 ; sec- 
ondly, that to those matters which are not specified amongst 
the enumerated subjects of legislation in sec. 91, the exception 
at its end has no application, and that in legislating with re- 
spect to matters not so enumerated the Dominion parliament 
has no authority to encroach upon any class of subjects which 
is exclusively assigned to the provincial legislature by sec. 92; 
thirdly, thiat these enactments — sects. 91 and 92 — indicate that 
the exercise of legislative power by the parliament of Cansda 
in regard to all matters not enumerated in sec. 91 ought to be 
strictly confined to such matters as are unquestionably of Can- 
adian interest and importance, and ought not to trench upon 
provincial legislation with respect to any class of subject enu- 
merated in sec. 92; fourthly, that to attach any other con- 
struction to tl>e general powers which, in supplement of its 
enumerated powers, are conferred upon the parliament of Can- 
ada by sec. 91, would not only be contrary to the intendment 



30 CONFLICT DOMINION AND PROVINCIAL POWKKS. 

of the Act, but would practically destroy the autonomy of the 
provinces; and, la3tly, that if the parliament of Canada had 
authority to make laws applicable to the whole Dominion in 
relation to matters which in each province are substantially of 
local or private interest, upon the assumption that these mat- 
ters also concern the peace, order and good government of the 
Dominion, there is hardly a subject upon which it might not 
legislate to "the exclusion of provincial legislation. The same 
considerations appear to their lordships to apply to two of tlie 
matters enumerated in sec. 91, namely, the regulation of 
trade and commerce. Taken in their widest sense, these words 
would authorize legislation by the parliament of Canada in 
respect of several of the matters specifically enumerated in sec. 
92, and would seriously encroach upon the local autonomy of 
the province." (Montreal v. Montreal Street Railway, 81 L. J. 
P. C. 145). 

Procedure must necessarily form an essential part of any 
law dealing with insolvency. It is therefore to be presumed, 
indeed it is a necessary implication, that the Imperial statute, 
in assigning to the Dominion parliament the subjects of bank- 
ruptcy and insolvency, intended to confer on it legislative power 
to interfere with property, civil rigihts, and procedure within 
the provinces, so far as a general law relating to these subjects 
might affect them. {Cushimg v. Dupuy, 5 A. C. 409). 

The Federation Act exhausts the whole range of legisla- 
tive power, and whatever is not thereby given to the provincial 
legislatures rests with the parliament. {Banlc of Toronto v. 
Lamhe, 12 A. C. 175). 

The power to legislate conferred by that clause (91) may 
be fully exercised, although with the effect of modifying civil 
rights in the province. (Tennant v. Union Banlc [1894] A. C. 
31). 

It does not follow that such subjects as might properly be 
treated as ancillary to a law solely witftiiin the legislative com- 
petency of parliament are excluded from the legislative author- 
ity of the provincial legislature, if no such Dominion law ex- 
ists. (Attomey-Oen. (Ont.) v. Attomey-Oen. (Can.), [1894] 
A. C. 189). 

The abstinence of the Dominion parliament from legislat- 
ing to the full limits of its powers could not have the effect of 
transferring to any provincial legislature the legislative power 



CONFLICT DOMINION AND PROVINCIAL POWERS. 31 

wliich had been assigned to the Dominion bv sec. 91 of the 
Act of 1867 {Union Colliery Co, v. Bryden, [1899] A. C. 58t)). 

There can l>e a domain in which provincial and Domin- 
ion legislation may overlap, in which case neither legis- " 
lation will be ultra vires, if the field is clear, and secondly, that 
a the field is not clear and in such a domain the two legisla- 
tions meet, then the Dominion legislation must prevail (Grand 
Trunlc Buy. Co. v. Attorney-Gen. (Can.), 1007, A. C. 65). 

The form in which provisions in terms overlapping each 
other have been placed side by side, shews that those who 
passed the Confederation Act in-tended to leave the working 
out and interpretation of tliese provisions to practice and to 
judicial decision. (John Deere Plow Co. v. Wharton, [1915] 
A. C. 330). 

The general power conferred on the Dominion by sec. 91 of 
the. B. X. A. Act to make laws for the peace, order and good 
government of Canada, extends in terms only to matters not 
coming within the classes of subjects assigned by the Act ex- 
clusively to the legislatures of the provinces by sec. 92. But 
if the subject-matter falls within any of the heads of sec. 92, 
ft l)ecome8 necessary to see whether it also falls within any of 
tlie enumerated heads of sec. 91, for if so, by the concluding 
words of that section it is excluded from the powers conferred 
by sec. 92 (John Deere Plow Co. Ltd, v. WhaHon, [1915] 
A. C. 3S0). 

There is only one case, outside the heads enumerated 
in sec. 91, in which the Dominion parliament can legislate 
effectively as regards a province, and that is where the subject- 
matter lies outside all of the subject-matters enumeratively 
entrusted to the province under sec. 92 (Reference Re In/tur- 
ance Companies) . 

A provincial legislature can appoint polio© magistrates and 
justices of the p(^ace (/?. v. Bennett, 1 0. R. 445), and regulate 
their districts and jurisdiction (fn re County Courts of Brifith 
Cohmhia, 21 S. C. R. 446). and create and maintain minor 
courts of justice, e.g.. Courts of Commission in New Bruns- 
wick, Division Courts in Ontario, Small DeU Courts in Allierta 
(see In re Small Debts Recovery Act. [1917] 3 W. W. R. 698). 

It has been held in Manitoba that provincial legislatures 
have no jwwer to impose indirect taxation under heading 14 of 
section 92 of the B. N. A. Act. See Dulmage v. DougUui, 4 
Mnn. L. R. 495, sed (juare. 



32 THE PBIVT COUNOII. AND COMPANY LEGISLATION. 



CHAPTER VI. 

Views of Privy Council as to Canadian Company Legis- 
ijLTioN. — Three Important Cases. 

Case I. 

John Deere Plow Co. v. Wharton and Buck. 

The real question in both cases is one of importance. It 
concerns the distribution between the Dominion and the pro- 
vincial legislature of powers as regards incorporated companies. 

The appellant is a company incorporated in 1907 by letters 
patent issued by the Secretary of State of Canada under the 
Companies Act of the Dominion. The letters patent pur- 
ported to authorize it to carry on througfhout Canada the busi- 
ness of a dealer in agricultural implements. It has been held 
.by the Court below that certain provisions of the British Co- 
lumbia Companies Act have been validly enacted by the pro- 
vincial legislature. These provisions prohibit companies which 
have not l)een incorporated under the law of the province 
from taking proceedings in the courts of the province in re- 
spect of contracts made within the province in the course of 
their business unless licensed under the Provincial Companies 
Act. They also impose penalties on a company and its agents 
if, not having obtained a license, it or they carry on the com- 
pany's business in the province. The appellant was refused 
a license by the registrar. It was said thiat there was already 
a company registered in the province under the same name, 
and sec. 16 of The Provmcial Statute prohibits the grant of a 
license in such a case. The question which has to be deter- 
mined is whether the legislation of the province which imposed 
these prohibitions was valid under The British North Amerira 
Act. 

The Companies Act of the Dominion provides by sec. 5, 
that the Secretary of State may, by letters patent, grant a 
charter to any number of persons not less than five, consti- 
tuting them and others who have become subscribers to a 
memorandum of agreement a body corporate and politic for 
any of the purposes or objects to which the legislative author- 
ity of the parliament of Canada extends, with certain excep- 



THE PRIVY COUNCIL AND COMPANY LEGISLATION. 33 

lions which do not affect the present case. The Interpretation 
Act of 1906, hy sec. 30, provides among other things that words 
making any association or number of persons a corporation, 
shall vest in such corporation power to sue and be sued, to 
contract by their corporate name, and to, acquire and hold per- 
gonal property for the purposes for which the corporation is 
created, and shall exempt individual members of the corpora- 
tion from personal liability for its debts, obligations, or acta, 
if they do not violate the provisions of the Act Incorporating 
them. 

Section 10 of The Companies Act makesMt a condition of 
the issue of the letters patent that the applicants shall satisfy 
the Secretary of State that the proposed name of the company 
is not the name of another known incorporated or unincor- 
porated company or one likely to be confounded with any sucli 
name, and sec. 12 gives him large powers of interference as 
regards the corporate name. Sec. 29 provides that on incor- 
poration the company is to be vested with, among other things, 
all the powers, privileges, and immunities requisite or inci- 
dental to the carrying on of its undertaking, as if it were 
incorporated by Act of Parliament. Sec. 30 enacts that the 
company shall have an office in the city or town in which its 
chief place of business in Canada is situate, which shall be the 
legal domicile of the company in Canada, and that the com- 
pany may establish such other offices and agencies elsewhere as 
it deems expedient. By sec. 32, it is provided that the contract 
of an agent of the company made within his authority is to be 
binding on the company, and that no |K»rson acting as such 
agent be thereby subjected to individual liability. 

Turning to the relevant provisions of the British Columbia 
Companies Act, these may be summarized as follows: An extra- 
provincial company means any duly incorporated company 
other than a company incorporated tinder the laws of the pro- 
vince or the former colonies of British Columbia and Vancou- 
ver Island (sec. 2). Every such extra-provincial company hav- 
ing gain for its object must be licensed or registered under the 
law of the province, and no agent is to carry on its business 
until it has been done (sec. 139). Such license or registration 
enables it to sue and to hold land in the province (sec. Ml). 
An extra-provincial company, if duly incorporated by the laws 
of, among other authorities, the Dominion, and if duly author- 

C.C.— 8 



34 THE PRIVY COUNCIL AND COMPANY LEGISLATION. 

ized by its cliarter and regulations to carry out or effect any of 
the purposes or objects to which the legislative authority of the 
provincial legislature extends, may obtain from the registrar 
a license to carry on business within the province on complying 
with the provisions of the Act and paying the proper fees (sec. 
153). If such a company carried on business. without a license 
it is liable to penalties (sec. 167), and the agents who act for it 
are similarly made liable, and the company cannot sue in the 
court? of the province in respect of contracts made within the 
province (sec. 168). The registrar may refuse a license when 
the name of the company is identical with of resembling that 
by which a company, society, or firm in existence is carrying on 
business, or has been incorporated, licensed, or registered, or 
when the registrar is of opinion that the name is calculated to 
deceive, or disapproves of it for any other reason (sec. 18). 

The cliarter of the appellant company' was granted under 
the seal of the Secretary of State of the Dominion in 1907. 
It purported, as already stated, to confer power to carry on 
throughout the Dominion of Canada and elsewhiere, the busi- 
ness of a dealer in agricultural implements and cognate busi- 
nes?, and to acquire real and personal property. It is not in 
dispute that it was an extra-provincial company having gain 
for its object. The chief place of business was to be Winnipeg. 
The registrar refused, as has been mentioned, to grant a license 
under the Provincial Act to the appellant company. The power 
of the registrar is not challenged, if the sections of the pro- 
vincial statute under which he proceeded were validly enacted. 

What their lordships have to decide is whether it was com- 
petent to the province to legislate so as to interfere with the 
carrying on of the business in the province of a Dominion com- 
pany under the circumstances stated. 

The distribution of powers under the British North America 
Act, the interpretation of which is raised by this appeal, has 
often been discussed before the Judicial Committee and the 
tribunals of Canada, and certain principles are now well set- 
tled. The general power on the Dominion by sec. 91 to make 
laws for the peace, order and good government of Canada ex- 
tends in terms only to matters not coming within the classes 
of subjects assigned by the Act exclusively to tlie legislatures of 
the provinces. But if the subject matter falls within any of 
the heads of sec. 92, it becomes necessary to see whether it 
also falls within any of the enumerated heads of sec. 91, for 



THE PRIVY COUNCIL AND COMPANY LEGISLATION. 35 

if SO, by the concluding words of that section it is oxohided 
from the powers conferred by sec. 98. 

Before proceeding to consider the question whether the pro- 
visions already referred to of the British Columbia Companies 
Act, imposing restrictions on the operations of a Dominion 
company which has failed to obtain a provincial license, are 
valid, it is necessary to realize tlic relation to each other of 
sees. 91 and 92, and the character of the expressions used in 
them. The language of these sections and of the vario\is heads 
which they contain obviously cannot be construed as having 
Ijeen intended to embody the e^act disjunctions of a perfectly 
logical sdieme. The draftsman had to work on the terms of 
a political agreement, terms which were mainly to be sought 
for in the resx)Iutions passed at Quebec in October, 1864. To 
these resolutions and the sections founded on them, the remark 
applies which was made by this board about the Australian 
Commonwealth Act in a recent case (Attomey-Oeneral for the 
Commonwealth v. Colonial Sugar Refining Company, 1914, 
A. C. 237, at p. 254), that if there is at points obscurity in 
language, that may be taken to be due, not to uncertainty about 
general principle, but to that difficulty in obtaining ready agree- 
ment about phrases which attends the drafting of legislative 
measures by large assemblages. It may be added that the form 
in whidi provisions in terms overlapping each other have been 
placed side by side, shows that those who passed the Confed- 
eration Act intended to leave the working out and interpreta- 
tion of these provisions to practice and to judicial decision. 

The structure of sees. 91 and 92, and the degree to which 
the connotation of the expressions used overlap render it, in 
their lordships' opinion, unwise on this or any other occasion 
to attempt exhaustive definitions of the meaning and sx'ope of 
these expressions. Such definitions, in the case of language 
used under the conditions in which a constitution such as that 
under consideration wax framed, must almost certainly mia- 
carr)'. It is in many cases only by confining decisions to con- 
crete questions which have actually arisen in circumstanoet 
lie whole of whiolk are before the tribunal that injustice to 
iiture suitors can l)e avoided. Their lordships adhere to what 
was said by Sir Montague Smith in doliverinir tho judgment of 
the Judicial Committee in Citizens Insurance Company v. Par- 
sons. 7 App. Cas. 96 at p. 109, 51 L. J. P. C. 11. to the effect 
that in discharging the diflRcult duty of arriving at a reamnabU* 



36 THD PRIVY COUNCIL AND COMPANY LEGISLATION. 

and practicable construction of the language of the sections, so 
as to reconcile the respective powers they contain and give effect 
to them all, it is the wise course to decide each case which 
arises without entering more largely upon an interpreta- 
tion of the statute than is necessary for the decision of the 
particular question in hand. The wisdom of adhering to this 
rule appears to their lordships to, be of especial importance 
when putting a construction on the scope of the words "civil 
rights" in particular cases. An abstract logical definition of 
their scope is not only, having regard to the context of the 91st 
and 92nd sections of the Act, impracticable, but is certain, if 
attempted, to cause embarrassment and possible injustice in 
future cases. It must be borne in mind in construing the two 
sections, that matters which in a special aspect and for a par- 
ticular purpoi?e may fall witliin one of them, may in a different 
aspect and for a different purpose fall within the other. In 
such cases, the nature and scope of the legislative attempt of 
the Dominion or the province, as the case may be, have to be 
examined with reference to the actual facts if it is to be possible 
to determine under which set of powers it falls in substance and 
in reality. This may not be difficult to determine in actual and 
concrete cases. But it may well be impossible to give abstract 
answers to general questions as to the meaning of the words, 
or to lay down any interpretation based on th©ir literal scope 
apart from their context. 

Turning to the appeal before them, the first observation 
which their lordships desire to make is^ that the power of the 
provincial legislature to make laws in relation to matters com- 
ing within the class of subjects forming No. 11 of sec. 92, the 
incorporation of companies with provincial objects, cannot 
extend to a company such as the appellant company, the objects 
of which are not provincial. Nor is this defect of power aided 
by the power given by No. 13, Property and Civil Eights. Un- 
less these two heads are read disjunctively, the limitation in 
No. 1 1 would be nugatory. The expression " civil rights in 
the province" is a very wide one, extending if interpreted 
literally, to much of the fi'eld of the other, heads of sec. 92, and 
also to much of the field of sec. 91. But the expression can- 
not be so interpreted, and it must be regarded as excluding 
cases expressly dealt with elsewhere in the two sections, not- 
withstanding the generality of the words. If this be so, then 
the power of legislating with reference to the incorporation of 



THE PRIVY COUNCIL AND COMPANY LBOISLAJION. 37 

companies with other than provincial objects must belong ex- 
clusively to the Dominion parliament, for the matter is one 
'* not coming " within the classes of subjects " assigned exclu- 
^vely to the legislatures of the provinces " within the meaning 
of the initial words of sec. 91, and may be properly regarded as 
a matter affecting the Dominion generally and covered by the 
expression *' the peace, order, and good government of Canada." 

Their lordships find themselves in agreement with the inter- 
pretation put by the Judicial Committee in Citizens Insurance 
Company v. Parsons, 7 App. Cas. at pp. 112, 113, on head 2 
of sec. 91, which confers exclusive power on the Dominion par- 
liament to make laws regulating trade. This head must, like 
the expression "Property and Civil Rights in the Province," 
in sec. 92, receive a limited interpretation. But they think that 
the power to regulate trade and commerce at all events enables 
the parliament of Canada to prescribe to what extent the pow- 
ers of companies the objects of which extend to the entire Dom- 
inion should be exercisable, and what limitations should be 
placed on such powers. For if it be established that the Do- 
minion parliament can create such companies, then it becomes 
a question of general interest throughout the Dominion in what 
fashion they should be permitted to trade. Their lordships are 
therefore of opinion that the parliament of Canada had power 
to enact the section relied on in this case in the Dominion Com- 
panies Act and the Interpretation Act. They do not desire to 
be understood as suggesting that because the status of a Domin- 
ion company enables it to trade in a province and thereby con- 
fers on it civil rights to some extent, the power to regulate trade 
and commerce can be exercised in such a way as to trench, in 
the case of such companies, on the exclusive jurisdiction of the 
provincial legifrlatures over civil rights in general. No doubt 
this jurisdiction would conflict with that of the province if civil 
rights were to be read as an expression of unlimited scope. But, 
as has already been pointed out, the expression must be con- 
strued consistently with various powers conferred by sees. 91 
and 92, which restrict its literal scope. It is enough for 
present purposes to say that the province cannot legislate so as 
to deprive a Dominion company of its status and powers. This 
does not mean that these powers can be exercised in contraven- 
tion of the laws of the province restricting the rights of th« 
public in the province generally. What it does mean is that 
the status and powers of a Dominion company at such cannot 



38 THE PRIVY COUNCIL AND COMPANY LEGISLATION. 

be destroyed by provincial legislation. This conclusion appears 
to their lordships to be in full harmony with what was laid 
down by the Board in Citizens Insurance Company v. Parsons, 
7 App. Cas. 96; Colonial Building Association v. The Attorney- 
General for Quebec, 9 App. Cas. 157, 53 L. J. P. C. 27, and 
Bank of Toronto v. Lambe, 12 App. Cas. 575, 56 L. J. P. C. 87. 

It follows from these premises that these provisions of the 
Companies Act of British Columbia, which are relied on in the 
present case as compelling the appellant company to obtain 
a provincial license of the kind about which the controversy 
has arisen, or to be registered in the province as a condition of 
exercising its powers or of suing in the courts, are inoperative 
for these purposes. The question is not one of enactment of 
laws affecting the general public in the province and relating 
to civil rights, or taxation, or the administration of justice. 
It is in reality whether the province can interfere with the 
status and corporate capacity of a Dominion company in so far 
as that status and capacity carries with it powers conferred by 
the parliament of Canada to carry on business in every par;t of 
the Dominion. Their lordships are of opinion that this ques- 
tion must be answered in the negative. 

In the course of the argument their lordships gave con- 
sideration to the opinions delivered in 1913 by the Judges of 
the Supreme Court of Canada in response to certain abstract 
que&tions on the extent of the powers which exist under the 
Confederation Act for the incorporation of companies in Can- 
ada. Two of these questions bear directly on the topics now 
under discussion. The sixth question was whether the legisla- 
ture of a province has power to prohibit companies incorpor- 
ated by the parliament of Canada from carrying on business 
within the province in the absence of a license from its govern- 
ment, if fees are required to be paid upon the issue of such a 
license. The seventh question was whether the provincial legis- 
lature could restrict a company so incorporated for the purpose 
of trading throughout the whole Dominion in the exercise of 
the special trading powers so conferred, or could limit such 
exercise within the province. This question further raised the 
point whether a Dominion trading company was subject to pro- 
vincial legislation limiting the business which corporations not 
incorporated under the legislation of the province could carry 
on, in their powers, or imposing conditions on the engaging in 
business by such corporations, or restricting a Dominion com- 



THE PRIVY COUNCIt, AXD COMPANY LEGISLATION. 39 

pany otherwise in the exercise of its corporate powers or capa- 
city. Their lordships have read with care the opinions deliv- 
ered by the members of the Supreme Court, and are impressed 
by the attention and research which the learned judsres brought 
to bear, in the elaborate judgments given, on the difficult taak 
imposed on them. But the task imposed was, in their lord- 
ships' opinion, an impossible one, owing to. the abstract char- 
acter of the question put. For the reasons already indicated, 
it is impracticable to attempt with safety definitions marking 
out logical disjunctions between the various powers conferred by 
the 91st and 92nd sections and between their various sub-heads 
inter se. Lines of demarcation have to be drawn in construing 
the application of the sections to actual concrete cases, as to 
each of which individually the Courts have to determine on 
which side of a particular line the facts place them. But while 
in some cases it has proved, and may hereafter prove, possible 
to go further and to lay down a principle of general applica- 
tion, it results from what has been said about the language of 
the Confederation Act that this cannot be satisfactorily accom- 
plished in the case of general questions such as these referred 
to. It is true that even when a company has been incorporated 
by the Dominion Government with powers to trade, it is not 
the less subject to provincial laws of general application on- 
acted under the powers conferred by sec. 92. Thus, notwith- 
standing that a Dominion company has capacity to hold land, 
it cannot refuse to obey the Statutes of the Province as to 
Mortmain {Colonial Building Association v. Attomey-Oenrral 
of Quebec, 9 App. Cas. 157, at p. Ifil) ; or escape the payment 
of taxes, even though these may assume the forms of requiring, 
as the method of raising a revenue, a license to trade which 
aflects a Dominion company in common with otlier companies 
(Bank of Toronto v. Lamhe, 12 App. Cas. 575). Again, such 
a company is subject to the powers of the province relating to 
property and civil rights under sec. 92 for the regulation of 
contracts generally (Citizens Insurance Company v. Parsons, 
7 App. Cas. 96). 

To attempt to define a priori the full extent to whicli the 
Dominion companies may be restrained in the exerciw of their 
powers by the operation of this principle is a task which their 
lordships do not attempt. The duty which thoy have to dis- 
charge is to determine whether the provisions of the /'ronnriVi/ 
Companies Aci already referred to --.n lw> r,A\oA on ns ju^tifv- 



40 THE PRIVY COUNCIL AND COMPANY LEGISLATION. 

ing the ju/dgments in the Court below. In the opinion of their 
lordships, it was not within the power of the provincial legis- 
lature to enact these provisions in their present form. It might 
have been competent to that legislature to pass laws applying 
to companies without distinction, and requiring those that were 
not incorporated within tlie province to register for certain lim- 
ited purposes, such as the furnishing of information. It might 
also have been competent to enact that any company which had 
not an office and assets within the province should, under a 
statute of general application regulating procedure, give secur- 
ity for costs. . But their lordships think that the provisions in 
question must be taken to be of quite a different character, and 
to have been directed to interfering with the status of Domin- 
ion companies, and to preventing them from exercising the 
powers conferred on them by the parliament of Canada, dealing 
with a matter which was not entru^ed under sec. 92 to the 
provincial legislature. The analogy of the decision of this 
board in Union Colliery Company v. Bryden (1899) A. C. 580, 
68 L. J. P. C. 118, therefore applies. They are unable to place 
the limited construction upon the word " incorporation '* occur- 
ring in that section which was contended for by the respondents 
and by the learned counsel who argued the case for the pro- 
vince. They think that the legislation in question really strikes 
at capacities which! are the natural and logical consequences 
of the incorporation by the Dominion Grovernment of com- 
panies with other than provincial objects. 

They will, therefore, humbly advise His Majesty that these 
appeals sliould be allowed, and that judgment should be entered 
for the appellant company in the action of Wharton v. The 
John Deere Plow Company, with co^s. The action by the 
company against the respondent Duck must, unless the parties 
come to an agreement, be remitted to the Court below to be 
disposed of in accordance with the result of this appeal. As 
to the interveners, the Attorney-General of the Dominion and 
the Attorney-General of the province, there will be no order 
as regards costs. • The respondents, Wharton and Duck, must 
pay the costs of the appellant company of this appeal, excepting 
so far as these have been increased l)v the intervention. 



THE PRIVY COUNCIL AND COMPANY LEGISLATION. 41 

Case II. 
The Bonanza Creeh Oolci Mining Company, Lid, v. The King. 

The appellants were incorporated in Ontario bv letters pat- 
ent, dated December 23, 100 1, and issued under the authority 
of the Ontario Companies Act and bv virtue of any other auth- 
ority or power then existiii^, in the name of the Sovereign and 
under the Great Seal of the province, by itf? Lieutenant-Gover- 
nor. The letters patent recite that this Act authorizes the 
Lieutenant-Governor-in-Council by letters patent under the 
Great Seal to create and constitute bodies corporate and politic 
for any of the purposes or objects to which the legislative 
authority of the province extends. They go on to incorporate 
the company to carry on the businesses of mining and explora- 
tion in all their branches, and to acquire real and personal 
property, including mining claims, with incidental powers. 
There are no words which limit the area of operation or pro- 
hibit the company from carrying out its objects beyond the 
provincial boundaries. 

In the years 1899 and 1900 the Crown, through the Minister 
of the Interior of the Dominion, had granted to predecessors 
in title of the appellants leases of certain tracts of land, in 
what is now the Yukon district, for the purposes of hydraulic 
mining. Two of these leases contained exclusions of so much 
of the tracts as had been taken up and entered for placer min- 
ing claims. In the year 1900 the Crown entered into agree- 
ments with these predecessors in title to the effect that, if any 
of the placer mining claims within the tracts should be for- 
feited or surrendered, the Crown would inclnde them in the 
tracts by supplementary leases. The original leases having 
subsequently been assigned to the appellants, and certain of 
the placer mining claims having reverted, the Crown purported 
in 1907 to demise to the appellants these claims, and to agree 
to demise to them such other of the claims as might thereafter 
revert, for the same terms of years as those for which the 
original leases were granted. 

In 1906 the Minister of the Interior of the Dominion had 
purported to issue to the appellants a free miners* certificate. 
This certificate was issued in conformity with certain regula- 
tions under an Order in Council made under the provisions of 



42 THE PRIVY COUNCIL AND COMPANY LEGISLATION. 

The Dominion Lands Act, which gives the right to a free 
miner's certificate to persons of over 18 and to joint-stock 
companies, the latter being defined to include any company 
incorporated " for mining purposes under a Canadian charter 
or licensed by the Government of Canada." 

When the Yukon district was, by the Statute passed by 
the Dominion Parliament in 1899, made a separate territory, 
power to make ordinances was conferred on the Commissioner 
of the territory. Under this power The Foreign Companies 
Ordinance was passed, under which any 'company, incorporated 
otherwise than by or under the authority of an ordinance 
of the territory or an Act of the Parliament of Canada, was 
required to obtain a license under the ordinance to carry on its 
business in the Yukon territory. Such a license when issued 
was made sufficient evidence in the courts of the territory of 
the due licensing of the company. In September, 1905, the 
appellants obtained such a license. 

In 1908 the appellants presented a petition of right in the 
Exchequer Court of Canada, alleging that, in breach of the 
agreement entered into by the Crown, placer mining claims 
which had reverted to the Crown and should have been leased 
to the appellants had been wrongfully withheld from the ap- 
pellants, and that by reason of this and of other breaches of 
the agreement the appellants had suffered heavy damage, for 
which they as suppliants prayed compensation. The respon- 
dent delivered an answer to the petition of right, the first two 
paragraphs of !?uch answer being as follows: 

''1. The respondent denies that the suppliant has now or 
ever has had the power, either under letters patent, license, free 
miner's certificate, or otherwise, to carry on the business of min- 
ing in the district of the Yukon or to acquire any mines, min- 
ing claims, or mining locations therein, or any estate or inter- 
est by way of lease or otherwise in any such mines, mining 
claims or locations. 

" 2. Should a free miner's certificate have been issued to the 
fmppliant, the respondent claims that the same is and always 
has been invalid and of no force or effect, that there was no 
power to issue a free miner's certificate to the suppliant, a com- 
pany incorporated under provincial letters patent, and that 
there was no powor vested in the suppliant to accept such a 
certificate.'' 



THE PRIVY COUNCIL AND COMPANY LEGISLATION. 43 

Cassels, J., the Judge of the Exchequer Court, ordered the 
questions of law raised by these paragraphs of the answer to 
be disposed of, and pending this stayed all other proceedings. 
He subsequently heard arguments upon the questions thus 
raised. As the result he decided (6 W. W. R. 1056) that he 
ought to follow what he conceived to be the opinions given by 
the majority of the judges of the Supreme Court of Canada in 
a general reference, which are now before this Board for con- 
sideration in the appeal which was argued immediately after 
the present one. He thought that the majority in the Supreme 
Court had decided that a provincial company was confined in 
the exercise of its functions to the province where it was in- 
corporated. He therefore dismissed the petition of right, but 
without costs, on the ground taken in the fiVst of the above- 
quoted paragraphs of the answer. On the narrower ground 
taken in the second paragraph he did not enter. 

There was an appeal to the Supreme Court, and the learned 
judges were divided in their views. The Chief Justice, Davies, 
J., and DujBf, J., were of opinion that it was ultra vires of 
the appellants to exercise powers or to acquire rights outside 
the boundaries of the province of Ontario. Tdington, J., and 
Anglin, J., were of a different opinion. They held that while 
a provincial company could exercise its powers as of right only 
within the province where it was incorporated, it was elsewhere 
in Canada like a foreign company, and had capacity to accept 
rights and powers conferred on it by comitv by another gov- 
ernment. 

The majority in the Supreme Court were therefore advorsv 
to the appellants on the first question raised, that as to general 
capacity. On the question raised by the second paragraph of 
the answer, Duff, J., expressed an opinion in favor of the ap- 
pellants. On the question, which was one of construction and 
arose only if he was wrong in his answer to the wider quea- 
tion, he thought that the condition of acquiring, under the 
Dominion Regulations approved by the Order in Council al- 
ready referred to, the right to a mining location to be worked 
by a hydraulic process, was the obtaining a free miner's cer- 
tificate iinder the Dominion Regulations governing placer min- 
ing. Under these regulations a joint-stock company might re- 
ceive such a certificate, if it came within the definition of lacing 
incorporated for mining purpoees under a Canadian Charter, 
or licensed by the Government of CaDada." 



44 THE PRIVY COUNCIL AND COMPANY LEGISLATION. 

Differing from the Chief Justice, who bad been adverse to 
the appellants on this point also, Duff, J., was of opinion that 
the expression " Canadian Charter," meant, not a charter 
granted under Dominion authority, but one emanating from 
any lawful authority in Canada. Otherwise, as he pointed out, 
a company incorporated by Yukon authority, or by the Council 
of the North-West Territories before Yukon became a sepa- 
rate territory, would be excluded, along with companies incor- 
porated by the province before Confederation. 

Their lordships have come to the same conclusion on this 
point as Duff, J. They think that the appellants, if they pos- 
sessed legal capacity to receive such a Dominion certificate, 
had it validly bestowed on them, and that, if so, they subse- 
quently obtained a good title to the mining locations, and also 
to the Yukon license to carry on business which was granted 
to them. This subordinate question ought therefore to be an- 
swered in favour of the appellants. 

Their lordships accordingly turn to the larger question 
raised by the first of the two paragraphs, a question which 
is of far-reaching importance. It is whether a company in- 
corporated by provincial letters patent, issued in conformity 
with legislation under sec. 92 of The British North America 
Act, can have capacity to acquire and exercise powers and 
rights outside the territorial boundaries of the province. In 
the absence of such capacity the certifi'cates, licenses, and leases 
already referred to were wholly inoperative, for if the com- 
pany had no legal existence or capacity for purposes outside 
the boundaries of the province conferred on it by the Govern- 
ment of Ontario, by whose grant exclusively it came into being, 
it is not apparent how any other Government could bestow 
on it rights and powers which enlarged that existence and 
capacity. The answer to this question must depend on the 
construction to be placed on sec. 92 of The British North 
America Act and on The Ontario Companies Act. 

. Section 92 confers exclusive power upon the provincial legis- 
lature to make laws in relation to the incorporation of com- 
panies with provincial objects. The interpretation of this pro- 
vision, which has been adopted by the majority of the judges in 
the Supreme Court is that the introduction of the words "with 
provincial objects " imposes a territorial limit on legislation 
conferring the power of incorporation so completely that by or 
under provincial legislation no company can be incorporated 



THE PRIVY COUNCII. AND COMPANY LEGISLATION. 45 

with an existence in law that extends beyond the boundaries of 
the province. Neither directly by the language of a special 
Act, nor indirectly by bestowal through executive power, do 
they think that capacity can be given to operate outride the 
province, or to accept from an outside authority the power of 
so operating. For the company, it is said, is a pure creature 
of statute, cxistinor only for objects prescribed by the legisla- 
ture within the area of its authority, and is therefore restricted, 
so far as legal capacity is concerned, on the principle laid down 
in Ashbury Carriage Company v. Riche, L. R. 7 H. L. 653, 
44 L. J. Ex. 185. 

Their lordships, however, take the view that this principle 
amounts to no more than that the words employed to which a 
corporation owes its legal existence must have their natural 
meaning, whatever that may be. The words of the British 
Companies Act were cons»trued as importing that a company 
incorporated by the statutory memorandum of association 
which the Act prescribes could have no legal existence beyond 
such as was required for the particular objects of incorpora- 
tion to which that memorandum limited it. A similar rule 
has been laid down as regards companies created by special 
Act. The doctrine means simply that it is wrong, in answer- 
ing the question what powers the corporation possesses when 
incorporated exclusively by statute, to start by assuming that 
the legislature meant to create a company with a capacity re- 
sembling that of a natural person, such as a corporation created 
l)y charter would have at common law, and then ask whether 
there are words in the statute wliich take away the incidents 
of such a corporation. This was held by the House of Ix)rd8 
to be the error into which Blackburn, J., and the judges who 
agreed with him had fallen when they decided in Richf v. Ash- 
bury Carriage Company, L. R. 9 Ex. 224 at p. 230, in the Court 
below, that the analogy of the status and powers of a corpora- 
tion created by charter, as expounded in the Suiton's Hospital 
Case, 10 Coke, 1, should in the first instance be looked to. For 
to look to that analogy is to assume that the legislature haj» had 
a common law corporation in view, whereas the wording may 
not warrant the inference tliat it has done more than conoem 
itself with its own creature. Such a creature, where its entire 
existence is derived from the statute, will have the incidents 
which the common law would attach if, but only if, the statute 
has by H9 language gone on to attach them. In the abtenoe 



46 THE rUIVY COUNCIL AND COMPANY LEGISLATION. 

of such language they are excluded, and, if the corporation 
attempts to act as though they were not, it is doing what is 
ultra vires and so prohibited as lying outside its existence in 
contemplation of law. The question is simply one of inter- 
pretation of the words used. For the statute may be so framed 
that executive power to incorporaite by charter, independently 
of the statute itself, which some authority, sucli as a Lieuten- 
ant-Governor possessed before it came into operation, has been 
left intact. Or the statute may be in such a form that a new 
power to incorporate by charter has been created, directed to 
be exercised with a view to thie attainment of, for example, 
merely territorial objects, but not directed in terms which con- 
fine the legal personality which the charter creates to existence 
for the purpose of these objects and within territorial limits. 
The language may be such as to show an intention to confer 
on the corporation the general capacity which the common 
law ordinarily attaches to corporations created by charter. In 
such a case a construction like that adopted by Blackburn, J., 
will be the true one. 

Applying the principle so understood to the interpretation 
of sec. 92 and of the Ontario Companies Act passed by virtue of 
it, the conclusion which results is different from that reached 
by the Court below. For the words of sec. 92 are, in their lord- 
ships' opinion, wide enough to enable the legislature of the 
province to keep the power alive, if there existed in the execu- 
tive at the time of confederation a power to incorporate com- 
panies with provincial objects, but with an ambit of vitality 
wider than that of the geographical limits of the province. 
Such provincial objects would be of course the only objects in 
respect of which the province could confer actual rights. 
Rights outside the province would have to be derived from 
autliorities outside the province. It is therefore important to 
ascertain what were the powers in this regard of a Lieutenant- 
Governor before The British North America Act passed, and 
in the second place what the Ontario Companies Act has really 
done. 

The Act which was passed by the Imperial Parliament in 
18'40, in consequence of the Report on the State of Affairs in 
Canada made by Lord Durham, united the provinces of Upper 
and Lower Canada under a Governor-General, who had power 
to appoint deputies to whom he could delegate his authority. 
This Act established a single legislature for the new United 



THE PRIVY COUNCIL AND COMPANY LEGISLATION. 47 

Province of Canada, and shortly after it had passed responsible 
government was there set up. In 1867 The British North 
America Act modified the constitution so established. This 
Act contained a preamble statinof that the provinces of Canada, 
I^ova Scotia, and New Brunswick, had expressed their desire 
to be federally united into one dominion under the Crown, 
with a constitution similar in principle to that of the United 
Kingdom. In the case of the A Homey-General for the Com- 
monwealth of Australia v. Colonial Sugar Refining Company 
Limited [1914] A. C. 247, 83 L. J. P. C. 154, this Board had 
occasion to comment on the contrast between the principles 
which underlie the distribution of powers in the constitutions 
of Canada and Australia respectively. They drew attention 
to the fact that the expression " federal " in the preamble of 
The British North Ameri^xi Act had been u.sed in a somewhat 
loose fasliion, and that the principle actually adopted was not 
that of federation in the strict sense, but one under which the 
constitutions of the provinces had been surrendered to the Im- 
perial Parliament for the purpose of Ix^in^r fashioned. The 
result had been to establish wholly new dominion and provin- 
cial Governments with defined powers and duties, both derived 
from the statute which was thoir lo.?a1 source, tho residual 
powers and duties l)eing taken away from the old provinces 
and given to the Dominion. It is to be observed that The 
British North America Act has made a distribution between 
the Dominion and the provinces which extends not only to 
legislative but to executive authority. The Executive Govern- 
ment and authority over Canada are primarily vested in the 
Sovereign. But the statute proceeds to enact, by sec. 12, that 
all powers, authorities, and functions, which by any Imperial 
statute or by any statute of the provinces of Fpper Canada, 
Lower Canada, Canada, Nova Scotia, or New Brunswick, are 
at the Union vested in or exercisable by the respective Gover- 
nors or Lieutenant-Governors of these provinces shall ** as far 
ns the same continue in existence and capable of being exercised 
after the Union in relation to the Government of Canada, " Ihj 
vested in and exercisable by the Governor-General. Section 6ft, 
on the other hand, provides that all such powers, authorities and 
functions shall "as far as the same are capable of being exer- 
rised after the Union in relation to the government of Ontario 
and Quebec respectively, l>e vested in and exercisable by the 
Lieutenant-Governor of Ontario and Quebec respectively." 



48 THE PRIVY COUNCIL AND COMPANY LEGISLATION. 

By sec. 64, the constitution of the executive authority in 
Nova Scotia and I^ew Brunswick was to continue as it existed 
at the Union until altered under the authority of the Act. 

The effect of these sections of The British North America 
Act is that, subject to certain express provisions in that Act 
and to the supreme authority of the Sovereign, who delegates 
to the Governor-General and through his instrumentality to 
the Lieutenant-Governors the exercise of the prerogative on 
terms defined in their Commissions, the distribution under the 
new grant of executive authority in substance follows the dis- 
tribution under the new grant of legislative powers. In rela- 
tion, for example, to the incorporation of companies in On- 
tario with nrovincial obiect? the nowers of incornora,''"i^^T wliich 
the Governor-General or Lieutenant-Governor possessed before 
the Union must be taken to have passed to the Lieutenant- 
Governor of Ontario so far as concerns companies with this 
class of objects. Under both sec. 12 and sec. 65, the continu- 
ance of the powers thus delegated is made by implication to 
depend on the appropriate legislature not interfering. 

There can be no doubt that prior to 1867 the Governor- 
General was for many purposes entrusted with the exercise 
of the prerogative power of the Sovereign to incorporate com- 
panies throughout Canada, and such prerogative power to that 
extent became after Confederation, and so far as provincial 
objects required its exercise, vested in the Lieutenant-Gover- 
nors, to whom provincial Great Seals were assigned as evi- 
dence of their authority. Whatever obscurity may at one 
time have prevailed as to the position of a Lieutenant-Governor 
appointed on behalf of the Crown by the Governor-General has 
been dispelled by the decision of this Board in Liquidators of 
the Maritime Bank of Canada v. Receiver-General of New 
Brunswick [1892] A. C. 437, 61 L. J. P. C. 75. It was there 
laid down that "the act of the Governor-General and his 
Council in making the appointment is, within the meaning of 
the statute, the act of the Crown ; and a Lieutenant-Governor, 
when appointed, is as much the representative of her Majesty 
for all purposes of provincial Government, as the Governor- 
General himself is for all purposes of Dominion Government.'* 

The form of the commission by which the Governor-General 
appoints a Lieutenant-Governor to be Lieutenant-Governor of 
Ontario bears this out. For it runs in the name of the Sover- 
eign, and 19 : "to do and execute all things that shall belong to 



THE PRIVY COUNCIL AND COMPANY LEGISLATION. 49 

your said command and the tnigt we have reposed in you, ac- 
cording to the several provision? and directions granted or ap- 
pointed you by virtue of the Act of the United Kingdom of Great 
Britain and Ireland passed in the thirtieth year of the reign 
oi Her late Majesty Queen Victoria, called and known as The 
British North America Act, 1867, and of all other statutes in 
that behalf and of this our present Commission, according to 
such, instructions as are herewith given to you or which may 
from time to time be given to you in respect of the said pro- 
vince of Ontario under the sign manual of our Governor-Gen- 
eral of our said Dominion of Canada, or by order of our Privy 
Council of Canada, and according to such laws as are or shall 
be in force in the said province of Ontario." 

Their lordships have now to consider the question whether 
legislation before or after Confederation has been of such a 
character that any power of incorporation by charter from the 
Crown which formerly existed has been abrogated or interfered 
with to such an extent that companies so created no longer 
possess that capacity which the charter would otherwise have 
attached to them. 

Prior to Confederation, the granting of letters patent under 
the Great Seal of the province of Canada for the incorpora- 
tion of companies for manufacturing, mining, and certain 
other purposes was sanctioned and regulated by the Canadian 
Statute of 1864. This statute authorized the Govemor-in- 
Council to grant a charter of incorporation to persons who 
should petition for incorporation for the purposes of the enum- 
erated kinds of business. Applicants for such a charter were 
to give notice in the " Canada Gazette " of, among other things, 
the object or purpose for which incorporation was sought. By 
sec. 4 every company so incorporated under that Great Seal for 
any of the purposes mentioned in this Act was to be a body 
corporate capable of exercising all the functions of an incor- 
porated company as if incorporated by a special Act of Par- 
liament Their lordships construe this provision aa an enab- 
ling one, and not as intended to restrict the existence of the 
company to what can be found in the words of the Act aa dia- 
tinguished from the letters patent granted in accordance with 
its provisions. It appears to them that the doctrine of Ask- 
bury Carriage Company v. Riche, xupra, docs not apply, where, 
aa here, the company purports to derive its existence from 

CO. — 4 



50 THE PRIVY COUNCII< AND COMPANY LEGISLATION. 

the act of the Sovereign and not merely from the words of the 
regulating statute. No doubt the grant of a charter could not 
have been validly made in contravention of the' provisions ^f 
the Act. But, if validly granted, it appears to their lordships 
that the charter conferred on the company a status resembling 
that of a corporation at common law, subject to the restrictions 
which are imposed on its proceedings. There is nothing in the 
language used which, for instance, would preclude such a com- 
pany from having an office or branch in England or elsewhere 
outside Canada. 

The Dominion Companies Act (ch. 79 of the Revised 
Statutes of 1906) is, so far as Part I. is concerned, framed on 
the same principle, although the machinery set up is somewhat 
different. Part II. stands on another footing. This part deals 
only with companies directly incorporated by special Act of 
the Parliament of Canada, and to these it is obvious that other 
considerations may apply. But the companies to which Part I. 
applies are, like those under the old statute, to be incorporated 
by letters patent, the only material difference being that the 
Act enables these to be granted by the Secretary of State under 
his own seal of office. When granted, by sec. 5 they constitute 
the shareholders a body corporate and politic for any of the 
purposes or objects, with certain exceptions, to which the 
legislative authority of the Parliament of Canada extends. 
The Sovereign, through the medium of the Governor-General, 
in this way delegates the power of incorporation, subject to 
restrictions, on its exercise, to the Secretary of State, and it is 
by the exercise of the executive power of the Sovereign that the 
company is brought into existence. 

The Ontario Companies Act, which governs the present 
case, is ch. 191 of the Revised Statutes of the province, 1897. 
The principle is similar, save that the letters patent are to be 
granted directly by the Lieutenant-Governor of the province 
under the Great Seal of Ontario. Excepting in this respect, 
the provisions of sec. 9, which corresponds to sec. 5 of the Dom- 
inion Act, are substantially the same as those of the latter sec- 
tion, so that, subject to the express restrictions in the statute, 
it is by the grant under the Great Seal and not by the words 
of the statute, which merely restrict the cases in which such 
a grant can be made, that the vitality of the corporation is to 
be measured. It will be observed that sec. 107 enables an extra 
provincial company desiring to carry on business within the 



THE PRIVY COUNCIL AND COMPANY LEGISLATION. 51 

province of Ontario to do so if authorized by license from the 
Lieutenant-Governor, a provision which bears out the view in- 
dicated. 

It is obviously beyond the powers of the Ontario legislature 
to repeal the provisions of the Act of 1864, excepting in so 
far as The British North America Act has enabled it to do 
this in matters relating to the province. If the legislature of 
Ontario has not interfered the general character of an Ontario 
company constituted by grant remains similar to that of a Can- 
adian company before Confederation. 

The whole matter may be put thus : The limitation?? of the 
legislative powers of a province expressed in sec. 92, and in 
particular the limitation of the power of legislation to such as 
relates to the incorporation of companies with, provincial ob- 
jects, confine the character of the actual powers and rights 
which the provincial Government can bestow, either by legis- 
lation or through the executive, to powers and rights exercis- 
able within the province. But actual powers and rights are 
one thing and capacity to accept extra provincial powers and 
rights is quite another. In the case of a company created by 
charter the doctrine of ultra vires has no real application in 
the absence of statutory restriction added to what is written in 
the charter. Such a company ha.<? the capacity of a natural 
person to acquire powers and rights. If by the terms of the 
charter it is prohibited from doing so, a violation of this pro- 
hibition is an act not beyond its capacity, and is therefore not 
ultra vires, although such a violation may well give ground 
for proceedings by way of scire facias for the forfeiture of 
the charter. In the case of a company the legal existence of 
which is wholly derived from the words of a statute, the com- 
pany does not possess the general capacity of a natural person 
and the doctrine of ultra vires applies. Where, under legis- 
lation resembling that of the British Companies Act by a pro- 
vince of Canada in the exercise of powers which see. 92 confers, 
a provincial company lias been incorporated by means of ft 
memorandum of association analogous to that prescribed by 
The British Companies Act. the principle laid down by the 
House of Lords in Ashbunj Carriage Company v. Riche, of 
course, applies. The capacity of such a company may be 
limited to capacity within the province, cither l»crnu«» the 
memorandum of association has not allowed the ■ to 

exist for the purpose of enTvi'ti<r m, ,niv Inminess the 



52 THE PRIVY COUNCIL AND COMPANY LEGISLATION. 

provincial boundaries, or because the statute under which in- 
corporation took place did not authorize, and therefore ex- 
clude, incorporation for such a purpose. Assuming, how- 
ever, that provincial legislation has purported to authorize a 
memorandum of association permitting operations outside the 
province if power for the purpose is obtained ah extra, and 
that such a memorandum has been registered, the only question 
is whether the legislation was competent to the province under 
sec. 92. If the words of this section are to receive the inter- 
pretation placed on them by the majority in the Supreme Court 
the question will be answered in the negative. But their lord- 
ships are of opinion that this interpretation was too narrow. 
The words ** legislation in relation to the incorporation of com- 
panies with provincial objects" do not preclude the province 
from keeping alive the power of the executive to incorporate 
by charter in a fashion which confers a general capacity anal- 
ogous to that of a natural person. Nor do they appear to pre- 
clude the province from legislating so as to create, by or by 
virtue of statute, a corporation with this general capacity. 
What the words really do is to preclude the grant to such a 
corporation, whether by legislation or by executive act accord- 
ing with the distribution of legislative authority, of powers and 
rights in respect of objects outside the province, while leaving 
untouched the ability of the corporation, if otherwise ade- 
quately called into existence, to accept such powers and rights 
if granted ab extra. It is, in their lord^ips' opinion, in this 
narrower sense alone that the restriction to provincial objects 
is to be interpreted. It follows, as the Ontario Legislature 
has not thought fit to restrict the exercise by the Lieutenant- 
Governor of the prerogative power to incorporate by letters 
patent with the result of conferring a capacity analogous to 
that of a natural person, that the appellant company could 
accept powers and rights conferred on it by outside authorities. 

The conclusions at which their lordships have thus arrived 
are sufficient to enable them to dispose of this appeal; for 
according to these conclusions the appellant company had a 
statue which enabled it to accept from the Dominion authori- 
ties the right of free mining, and to hold the leases in question 
and take the benefit of the agreements relating to the locations 
in the Yukon district, as well as of the license from the Yukon 
authorities. 



THE PRIVY COUNCIL AND COMPANY LEGISLATION. 53 

A yet larger view of the devolution and distribution of exe- 
cutive power in Canada was suggested in some of the argu- 
ments addressed to their lordships from the Bar, and they 
are aware that this view has been contended for on former 
occasions in the Dominion. It has been urged in several caaes 
which have occurred that the Governor-General and the Lieu- 
tenant-Governors of the provinces, excepting so far as the 
Royal prerogatives have been reserved expressly or by neoes- 
sary implication, have the right to exercise them, as though 
by implication completely handed over and distributed in such 
a fashion as to cover the whole of the fields to which the self- 
government of Canada extends. The Governor and the Lieu- 
tenant-Governors would thus be more nearly Viceroys than 
representatives of the Sovereign under the restrictions ex- 
plained in Mustjrave v. Pulido, 5 App. Cas. 10?, 19 L. J. P. C. 
20, where it was laid down that, in the case of a Crown Col- 
ony, the , commission of the Governor-General must in each 
case be the measure of his executive authority, a principle 
which, in such a case as that of a self-governing Dominion like 
Canada, might find its analogy in the terms not only of the 
commission but of the statute creating the Constitution. 

The argument for the larger view concedes that it is the 
general rule in the constniction of statutes that the Crown is 
not affected unless there be words to that effect, inasmuch aa 
the law made by the Crown with the assent of the Ix)rd8 and 
Commons is enacted primd facie for the subject and not for 
the Sovereign. But this principle of construction it is said 
cannot apply to an Act the expressed object of which is to 
grant a Constitution with full legislative and executive powers. 
In the case of ^ich an Act there is therefore no presumption 
that the general provisions it contains were not intended to 
include any matter of prerogative which, in the absence of the 
rule of construction above stated, would fall witliin the general 
words employed. For a Constitution, granted to a dominion 
for regulating its own affairs in legislation and government 
generally, cannot be created without dealing with the preroga- 
tive, and The British North America Act from beginning to 
end deals with matters of prerogative, for the raowt part with- 
out expressly naming the Sovereign. 

If this argument were well-founded it would afford a short 
cut to the solution of the question which has ari«»n in this 
appeal. For under the distribution of the prerogative which 



54 THE PRIVY COUNCIL AND COMPANY LEGISLATION. 

it assumes it would be difficult to see how a Lieutenant-Gover- 
nor, placed in the position of a Viceroy as regards matters 
pertaining to the government of his province, could be excluded 
from the prerogative power of incorporating by charter, unless 
that power had been expressly taken away by legislation. 

But their lordships abstain from discussing at length the 
question so raised. They will only say that when, if ever, it 
comes to be argued, points of difficulty will have to be con- 
sidered. There is no provision in The British North America 
Act corresponding even to sec. 61 of The Aiistralian Common- 
wealth Act, which, subject to the declaration of the discre- 
tionary right of delegation by the Sovereign in ch. 1, sec. 2, pro- 
vides that the executive power, though declared to be in the 
Sovereign, is yet to be exercisable by the Governor-General. 
Moreover, in the Canadian Act there are various significant 
sections, such as sec. 9, which declares the Executive Govern- 
ment and authority over Canada to continue and be » vested in 
the Sovereign; sec. 14, which declares the power of the Sover- 
eign to authorize the Governor- General to appoint deputies; 
sec. 15, which, differing from sec. 68 of The Commonwealth Act, 
says that the command-in-chief of the naval and military 
forces in Canada is to be deemed to continue and be vested 
in the Sovereign ; and sec. 16, which says that until the Sover- 
eign otherwise directs, the seat of the Government in Canada 
shall be Ottawa. These and other provisions of The British 
North America Act appear to preserve prerogative rights of 
the Crown which would pass if the scheme were that con- 
tended for, and to negative the theory that the Governor- 
General is made a Viceroy in the full sense, and they point to 
the different conclusion that for the measure of his powers 
the words of his commission and of the statute itself must be 
looked to. In the case of The Liquidators of the Maritime 
Bank of Canada v. The Receiver-General of New Brunswick, 
already referred to, it was said by this Board that the provi- 
sions of the Act "nowhere profess to curtail in any respect the 
rights and privileges of the Crown, or to disturb the relations 
then subsisting between the Sovereign and the provinces." 

Properly understood, and subject to such express provisions 
of the Act as transfer what would otherwise remain preroga- 
tive powers, their lordships are disposed to agree with this 
interpretation. It is quite consistent with it to hold that exe- 
cutive power is in many situations which arise under the statu- 



THB PRIVY COUNCII, AND COMPANY LB0I8LATION. 55 

tory Constitution of Canada conferred by implication in the 
grant of legislative power, so that where such situations arise 
the two kinds of authority are correlative. It follows that to 
this extent the Crown is bound and the prerogative affected. 
But such a conclusion is a very different one from the far- 
reaching principle contended for in the argument in question. 
For the reasons which they have assigned earlier in this 
judgment their lordships will humbly advise His Majesty that 
this appeal should be allowed, and that the trial of the petition 
of right should be proceeded with. As these are proceedings 
arising out of a petition of right with reference to which, un- 
der the Petition of Right Act of Canada, there is discretion to 
award costs as against the Crown, the respondent will pay the 
appeUants' costs here and in the Courts below. There will be 
no order as to the costs of the interveners. 



Case III. 
Reference Re Insurance Companies, 

This is an appeal from a judgment of the Supreme Court 
of Canada answering certain questions put to the judges by a 
reference from the Government of the Dominion. The ques- 
tions so referred were as follows: 

1. Are sees. 4 and 70 of The Insurance Act, 1910, or any 
and what part or parts of the said sections, ultra vires of the 
Parliament of Canada? 

2. Does sec. 4 of The Insurance Act, 1910, operate to pro- 
hibit an insurance company incorporated by a foreign State 
from carrying on the business of insurance within Canada, if 
such company does not hold a license from the Minister under 
the said Act, and if such carrying on of the busineaa ii con- 
fined to a single province? 

Sec. 4 is in these terms : " In Canada except as otherwise 
provided by this Act, no company or underwriters or other per- 
son shall solicit or accept any risk, or issue or deliver any re- 
ceipt or policy of insurance, or grant any annuity on a life or 
lives, or collect or receive any premium, or inspect any risk, or 
adjust any loss, or carry on any business of insurance, or pro- 
secute or maintain any suit, action, or proceeding, or file any 



56 THE PRIVY COUNCIL AND COMPANY LEGISLATION. 

claim in insolvency relatinor to such business, unless it be done 
by or on l)ehalf of a company or underwriters holding a license 
from the Minister." 

The Minister is defined in the Act to mean the Minister of 
Finance of the Dominion. 

Sec. 70 is an ancillary section which imposes a penalty on 
every person who contravenes or attempts to contravene the 
provisions of the above and other sections. Soc. -3 provides 
that the provisions of the Act shall not apply to any contract 
of marine insurance effected in Canada by any company auth- 
orized to carry on such business within Canada, nor to any 
company incorporated by an Act of the late province of Can- 
ada, or by an Act of the legislature of any province now form- 
ing part of Canada, which carries on the business of insurance 
wholly within the limits of the province by the legislature of 
which it was incorporated, and which is within the exclusive 
control of the legislature of such province. Sec. 3 also provides 
that any such company as is last described may, by leave of 
the Governor-in-Council, avail itself of the provisions of this 
Act on complying with the provisions thereof, and that if it so 
avails itself these provisions shall then apply to it, and such 
comipany shall thereafter have the power of transacting its 
business of insurance throughout Canada. Sec. 12 enacts that 
no license shall be granted to any individual underwriter or 
underwriters to carry on any kind of insurance business, ex- 
cepting in the case of associations of individuals formed upon 
the plan known as Lloyd's, under which each associate under- 
writer becomes liable for a proportionate part of the whole 
amount insured by a policy. The Act contains other restric- 
tive and regulative provisions. 

It will be observed that sec. 4 deprives private individuals 
of their liberty to carry on the business of insurance, even 
when that business is confined within the limits of a province. 
It will alsx) be observed that even a provincial coiii|mny opera- 
ting within the limits of the province where it has been in- 
corporated cannot, notwithstanding that it may obtain permis- 
sion from the authorities of another province, operate within 
that other province \nthout the license of the Dominion Minis- 
ter. In other words, the capacity is interfered with which, 
according to the judgment just delivered by their lordships 
in the case of the Bonanza Company, such a company possesses 
to take advantage of powers and riofhts proffered to it by 



THE PRIVY COUNCIL AND COMPANY LEGISLATION. 57 

authorities out^de the provincial limits. Such an interferenoe 
with its status appears to their lordships to interfere with its 
civil rights within the province of incorporation, as well as 
with the power of the legislature of every other province to 
confer civil rights upon it. Private individuals are likewiae 
deprived of civil rights within their provinces. 

It must he taken to be now settled that the general authority 
to make laws for the peace, order, and good government of 
Canada, which the initial part of sec. 91 of The Brituih North 
America Act confers, does not, unless the subject-matter of 
legislation falls within some one of the enumerated heads 
which follow, enable the Dominion Parliament to trench on th^ 
subject-matters entrusted to the provincial legislatures by the 
enumeration in sec. 92. There is only one case, outside the 
heads enumerated in sec. 91, in which the Dominion Parliament 
can legislate effectively as regards a province, and that is where 
the subject-matter lies outside all of the subject-matterfr enum- 
eratively entrusted to the province under sec. 92. Russell v. 
The Queen, 7 App. Cas. 829, 51 L. J. P. C. 77, is an instance 
of such a case. There the Court considered that the particular 
subject-matter in question lay outside the provincial powers. 
What has been said in subsequent cases before this Board 
makes it clear that it was on this ground alone, and not on the 
ground that the Canada Temperance Act was considered to be 
authorized as legislation for the regulation of trade and com- 
merce, that the Judicial Committee thought that it should be 
held that there was constitutional authority for Dominion legis- 
lation which imposed conditions of a prohibitory character 
on the liquor traffic throughout the Dominion. No doubt the 
Canada Temperance Act contemplated in certain events the 
use of different licensing boards and regulations in different 
districts, and to this extent legislated in relation to local in- 
stitutions. But the Judicial Committee appear to have thought 
that this purpose was subordinate to a still wider and legiti- 
mate purpose of establishing a uniform system of legislation 
for prohibiting the liquor traffic throughout Canada, excepting 
under restrictive conditions. The case must therefore be re- 
garded as illustrating the principle which is now well estab- 
lished, but none the less ought to l)e applied only with great 
caution, that subjects which in one aspect and for one purpow? 
fall within the jurisdiction of the provincial legifHatiires may 
in another aspect and for another purpose fall within Domin- 



58 THE PRIVY COUNCIL AND COMPANY LEGISLATION. 

ion legislative jurisdiction. There was a good deal in the 
Ontario Liquor License Act and the powers of regulation 
which it entrusted to local authorities in the province, which 
seems to cover part of the field of legislation recognized as 
belonging to the Dominion in Russell v. The Queen. But in 
Hodge v. The Queen, 9 App. Cas. 117, 53 L. J. P. C. 1, the 
Judicial Committee had no difficulty in coming to the conclu- 
sion that the local licensing system which the Ontario statute 
sought to set up was within provincial powers. It was only the 
converse of this proposition to hold, as was done subsequently 
by this Board, though without giving reasons, that the Domin- 
ion licensing statute, known as the McCarthy Act, which sought 
to establish a local licensing system for the liquor traffic through- 
out Canada, was beyond the powers conferred on the Domin- 
ion Parliament by sec. 91. Their lordships think that as the 
result of these decisions it must now be taken that the autlior- 
ity to legislate for the regulation of trade and commerce does 
not extend to the regulation by a licensing system of a par- 
ticular trade in which Canadians would otherwise be free to 
engage in the provinces. Sec. 4 of the statute under considera- 
tion cannot, in their opinion, be justified under this head. Nor 
do they think that it can be justified for any such reasons as 
appear to have prevailed in Russell v. The Queen. Xo doubt 
the business of insurance is a very important one, which has 
attained to great dimensions in Canada. But this is equally 
tnie of other highly important and extensive forms of business 
in Canada, which are to-day freely transacted under provincial 
authority. Where The British North America Act has taken 
puch forms of business out of provincial jurisdiction, as in the 
case of banking, it has done so by express words which would 
have been unnecessary had the argument for the Dominion 
Government addressed to the Board from the Bar been well- 
founded. Where a company is incorporated to carry on the 
business of insurance throughout Canada, and desires to pos- 
sess rights and powers to that effect operative apart from 
further authority, the Dominion Government can incorporate 
it with such rights and powers, to the full extent explained by 
the decision in the case of The John Deere Plow Company v. 
Wharton and Duck [1915] A. C. 330, 84 L. J. P. C. 64, 7 W. 
W. R. 706. But if such a company seeks only provincial rights 
and powers, and is content to trust for the extension of these 
in other provinces to the Governments of these provinces, it 



THE PRIVY COUNCII, AKD COMPANY LEGISLATION. 59 

can at least derive capacity to accept such rights and powers 
in other provinces from the province of its incorporation, as 
has been explained in the case of the Bonanza Company. 

Their lordships are therefore of opinion that the majority 
in the Supreme Court were right in answering the first of the 
two questions referred to them in the affirmative. 

The second question is, in substance, whether the Dominion 
Parliament has jurisdiction to require a foreign company to 
take out a license from the Dominion Minister, even in a case 
where the company desires to carry on its business only within 
the limits of a single province. To this question their lord- 
ships' reply is that in such a case it would be within the power 
of the Parliament of Canada, by properly framed legislation, 
to impose such a restriction. It appears to them that such a 
power is given by the heads in sec. 91, which refer to the regu- 
lation of trade and commerce and to aliens. This question also 
is therefore answered in the afl&rmative. Their lordships will 
accordingly humbly advise His Majesty that the questions re- 
ferred to should be answered as now indicated. Following the 
usual practice, there will be no order as to costs. 



60 EARLY ENGLISH CONSTITUTIOX. 

' CHAPTER VII. 

General Sketch of Early English Constitution. 

There can be but little doubt that the germ of the Canadian 
Constitution, as it is to-day, is to be found in the early institu- 
tions of the Teutons. 

Primitive Teutonic Constitution. 

Professor Freeman describes the primitive Teutonic Con- 
stitution as beino: democratic, purely democratic in the truer, 
older, and more honourable sense of that much maligned word. 
" The early glimpses of Teutonic politics set before us three 
classes of men," he says, "as found in every Teutonic society, 
the noble, the common freeman, and the slave." 

Their Constitution has been described by Tacitus as tran- 
slated by Freeman in the following words : " They choose their 
kings on account of their nobility, their leaders on account of 
their valour. Nor have the kings unbounded or arbitrary 
powers, and are believed to rule rather by their example than 
by their right of command. If they are ready, if they are for- 
ward, if they are foremost in leading the van, they hold the first 
place in honour. On small matters the chiefs debate, on greater 
matters all men; but so that those things, whose final decision 
rests with the whole people, are first handled by the chiefs. The 
multitude sits on in such order as it thinks good. Silence is 
proclaimed by the priests, who have also the right of enforcing 
it. Presently the king or chief, according to the age of each, 
according to hi^ birth, according to his glory in war or elo- 
quence, is listened to, speaking rather by the influence of per- 
suasion than by the power of commanding. If their opinions 
give offence, they are thrust aside with a shout; if they are 
approved, the hearers clash their spears. It is held to be the 
most honourable kind of applause to use their weapons to sig- 
nify approval. It is lawful also in the assembly to bring mat- 
ters for trial, and to bring charges of capital crime. In the 
same assembly, chiefs are chosen to administer justice through 
the districts and villages. Each chief in so doing has a hun- 
dred companions of the commons assigned to him, at once his 
councillors and his authority. Moreover they do no matter of 
bufdness, public or private, except in arms." 



EAKLY ENGLISH CONSTITUTION. 61 

Mark System. 

These forefathers of ours cultivated the land upon the mark 
system, which entailed the annual allotment of the arable land 
of the community amongst the freemen, whereas the pasture- 
land was used in common. 

Folcland — Boelan d. 

After the conquest of the early Britons, the land waa doubt- 
less divided amongst the simple freemen, whereas a portion of 
the territory was kept by the chief of the tribe who subsequently 
emerges as king, as his own private estate. 

The land which remained after these allotments was the 
folcland, which was deemed to be not the property of the king, 
but the common property of the people at large. 

It is indeed prt)bable that the use of the word *' folcland " 
is not here correct, as Vinogradoff has shown conclusively that 
the real meaning of folcland is land held without any written 
title and merely under customary law, whilst "bocland" wa« 
land which had been granted to individuals by writing, that is 
by a charter or book. 

Allodial Property. 

All land which was held by individuals was known as allod, 
or allodial property, and was deemed to be the absolute pro- 
perty of the person who held it, a characteristic which, as will 
be later seen, soon disappeared upon the introduction of the 
feudal system, which involved the holding of land from the king 
or some other overlord, and placed the ownership of the entire 
land of the kiiiL'doiii in the crown. 

Tonmships. 

Geographically, the community was divided into townships 
(tun or vicus). This township was governed as far as loctl 
affairs were concerned by an assembly of the freemen who con- 
stituted it, and the reeve (gerefa), who was its chief exccutire 
officer. 

UiUkdrtds. 

These townships were grouped together so as to const iiutr 
hundreds. The government of the hundred wa» carried oa bj a 
general assembly^ which was attended by the thegns or noblee 
of the hundred and by the reeve and four picked men from 



63 EARLY ENGLISH CONSTITUTION. 

township. This meeting looked after all business, either civil 
or criminal, which arose within the boundaries of the hundred. 

Shires. 

The hundreds were in turn grouped, so as to form shires. 
The government of the shire was administered by the ealdor- 
man, whom we might describe as the chief nobleman of the 
county, and the scirgerefa, or, as we would now call him, sheriff. 

The function of the sheriff -was to represent the king, and 
80 to keep the shire in touch with the central authority. He 
was the judicial president of the shiremoot, and though origin- 
ally sharing all authority with the ealdorman, gradually ab- 
sorbed the direction of all civil matters, whilst the command of 
the forces of the shire was entrusted to the ealdorman. 

The Burg. 

The burg, or town, was, in the language of Stubbs, simply 
a more strictly organized form of the township. '^ It was prob- 
ably in a more defensible position; had a ditch or mound in- 
stead of the quick set hedge or tun from which the township 
took its name; and as the tun was originally the fenced home- 
stead of the cultivator, the burg was the fortified house and 
courtyard of the mighty man — the king, the magistrate or the 
noble. 

Nobility. 

After the earliest times, we find in England two forms of 
nobility, one consisting of eorls, who were noble by birth, 
and within whose sacred ranks the rest of the people, ceorls, 
or churls, could never penetrate. The other form of nobility 
rested its claim, not upon birth, but upon distinction acquired 
by serving as a personal follower or companion of the lord. 
Such nobles were originally known as gesiths or companions, 
but later became known as thegns or servants. The change is 
easily understood when it is remembered what social position 
and what material rewards can be won by service to a king. 
The remnant of this old theory of nobility is still to be seen 
in the precedence accorded to the nobles who bear the rank of 
the King's Chamberlain, Master of the Horse, or Ijord in 
Waiting. 

This second class of nobility tended to oust the first sort, 
inasmuch as in those days when the security of neither life nor 



EARLY ENGLISH C0N8TITDTI0N. 63 

property was guaranteed by any more eflBcient meana than that 
of might, it was clearly the advantage of the ordinary freeman 
to choose a powerful lord to whom he could attach himself or 
commend himself, as the phrase ran, yielding to the lord per- 
sonal service, and often, indeed, giving up to him his own allod 
or land held in absolute ownership, to receive it back from him 
as a beneficium to be held of the lord, a process which antici- 
pated the final introduction of the feudal system as existent on 
the continent. 

"As the royal power and dignity grew," says Freeman, " it 
came to be looked on as the highest honour to enter into the 
personal service of the king. Two results followed service. 
towards the king, a place, that is, in the king's comitatus, became 
the badge and standard of nobility, and it greatly strengthened, 
the power of the king, and he stood to all the chief men of the 
kingdom in the relation not only of a political ruler, but of a 
personal lord, a lord to whose service they were bound by a 
personal tie, and of whom they held their lands as the gift of 
his personal bounty. When personal service was deemed hon- 
ourable, the name of servant was no degradation, and the name 
became equivalent to the older eorl. The king's thegns, the men 
who held their land of the king, and were bound to him by 
the tie of personal service, formed the highest class of nobil- 
ity. The thanes of mesne lords or bishops and ealdormen, formed 
the secondary class. A nobility of this kind, there can l)e no 
doubt, was so far more liberal than the elder nobility of birth 
that admission to it is not denied to men of low degree.** 

."Status of Early Villeins. 

Between the noble, the freeman, and the slave, there came 
the villein, who is described by Maitland as follows: They 
are unfree, but we must not call them slaves; they arc not 
rightlcss; the law does not treat them as things, it treats them 
as persons; still they are unfree; they must not leave their 
lord's land ; if they do, he may recapture them and bring them 
back ; the law will aid him in this ; it gives him an action for 
recovering the body of his natives, an action de naiivo habendo. 
Generally, if not always, the nativi has land which he holda in 
villeinage, which he holds by villein senrices. He has land, but 
how far he can be said to have a right in this land is a difficult 
question. One thing is clear— the king'fr Courts do not protect 



64 EARLY ENGLISH CONSTITUTION. 

that right against his lord. If the lord capriciously chooses to 
eject him, he has no remedy against his lord in the King's 
Court*. We find, however, that he is conceived to hold his land 
by perfectly definite services (Maitland, p. 33). The lord may 
at any time seize the chattels of his nativi. Again, the lord 
may imprison the body of his nativns; the king's Conrts give 
no redress; but against maiming and death at the lord's hand 
they give protection; the life or limb of every man, be he free 
or unfree, are in the king's protection. To slay or maim him 
is a felony (Maitland, p. 34). 

The Witenagemot. 

The supreme council of the nation was known as the Wit- 
enagemot. We do not exactly know what is the composition of 
the Witenagemot. It is spoken of indefinitely as a meeting of 
the wise men or of the noble great men. It is, perhaps, true 
that theoretically it was a meeting which every free man had 
the right to attend, such as that which was described by Tacitus, 
but as is often the case, the theoretical composition differed 
considerably from the actual composition. Distance, the diffi- 
culty of travel, want of pence, must have all co-operated to 
prevent a person undertaking a journey to the site of the gen- 
eral meeting, except, perhaps, when the matters to be debated 
there were of overwhelming importance. The older places of 
meeting were Westminster, Winchester, and London, and if we 
imagine a meeting say at Westminster, we would not expect to 
find there, although entrance is forbidden to no one, any other 
person than the chief nobles and ecclesiastics of the realm, those 
officers whose duty it was to be in attendance upon the king, 
and such ordinary citizens of London and Westminster as curi- 
osity or genuine interest in the public weal might lead to the 
spot. 

The powers of the Witan were considerable. It elected and 
opposed kings ; along with the king it enacted laws, levied taxes, 
made treaties, and appointed the great officers of church and 
state, and, moreover, served as a supreme court of justice both 
in civil and criminal cases. Some of these functions may have 
been fulfilled by the king personally, but the theory always was 
that he acted upon the advice of the Witan, but even he did not 
act individually upon matters of legislation or extraordinary 
taxation. 



EARLY ENGLISH CONSTITUTION. 65 

Hundred Court. 

The Hundred Court was held once a month. The whole 
body of freeowners of the hundred were entitled to attend as 
suitors and to act as judges, but it is probable that from the 
very early days the judicial functions were exercised by repre- 
sentative committees. To this court all persons claiming jus- 
tice, whether in civil or criminal matters, were bound to make 
their first application. Here came the king's reeve to collect 
the wites or f^ne for every offence to which the king was entitled 
upon an infringement of the king's peace. Here, too, upon the 
two occasions in the year in which the king's reeve attended, 
there was an inquiry into " frank pledge." This was an institu- 
tion whereby every freeman was compelled to be enrolled in an 
association of ten men (or "tithing") at the head of 
which stood *'the tithingman." The tithing was collectively 
responsible for the conduct of its members, thus if a member 
of a tithing failed to appear to answer for a crime of which he 
was accused, the other members became liable for the penalty, 
in default of showing that they had no share in his crime or 
escape. This seems to have been the earliest form of police 
policy. 

The jurisdiction of the hundred court was frequently broken 
into by the fact that private franchises were frequently granted 
to local lords, to hold courts and to administer justice, and 
indeed sometimes the jurisdiction of whole hundreds was trans- 
ferred to secular or ecclesiastical lords. 

Shiremoot. 

The shiremoot met twice a year. To it the twelve senior 
thegns of the shire made a report on the general condition of 
the district; the court heard appeals from miscarriage of justice 
in the hundred courts. In the court the law was declared by 
the presiding nobles, but the facts were decided either by com- 
purgation or by ordeal. The compurgators were a body of 
men who might be called "witnesses of character," that is to 
say, they swore that the accused person was oath-worthy, and 
thereafter the accused person could clear himself by his own 
oath. 

In those cases where compurgation was not allowed, for ex- 
ample, when a man was caught in the act, or where he failed 
to produce compurgators, or had been previously guilty of per- 



66 EAIiLY ENGLISH CONSTITUTION. 

jury, or was not a freeman, he had to go to the ordeal, whidi 
was of three kinds, hot iron, hot or cold water, and the cors- 
ned, or accursed morsel. 

Feudnl System. 

We have seen that something like the feudal system existed 
even before the Norman conquest. And now there remains 
to show how it was that William I. and his son, William II., 
managed to bring it about that practically all the land in Eng- 
land should come to be held not as allods, but on a feudal 
tenure. William appropriated all the extensive royal domains, 
which prior to his time -had been regarded more as the pro- 
perty of the nation at large than that of the king; suffered 
Englishmen who had fought against him to retain their pos- 
sessions, but probably upon condition of surrendering their 
allods to him and receiving them back as a re-grant from him. 
So again after each insurrection against his rule, and they 
were numerous, the king confiscated the property of the rebels 
and regranted them upon feudal tenure. It must also be no- 
ticed that William in taking for himself all the advantages of 
the feudal system, also managed to abolish that characteristic 
of it which was most inimical to the royal power. By the 
celebrated oath of Salisbury in 1086, he required that all land- 
owners should take the oath of fealty directly to the king, and 
not merely to the lord of whom they held their land. This 
provision was in accordance with the old English constitution, 
but not in accordance with the continental feudal system. 
Under the latter, the oath of fealty bound the landowner to 
the lord of whom he held his land only, so that the landowner, 
in the event of a struggle between his lord and the king, felt 
bound to follow the standard of his lord. 

Under the feudal system, all the lands ana tenements in 
England in the hands of subjects are holden mediately or im- 
mediately of the king. There is no longer any such thing as 
allodial ownership, that is, land can not be owned in the same 
way as a watch can be owned. 

The scheme of the system is as follows: The original 
grantees of the king hold as tenants in chief of tenants in 
capite. From such tenants in capite, others again hold land 
who again may grant poi-tions of their land to others and are 
then known as mesne lords, and so on, but each and every tenant 
of land is bound directly to the king by an oath of fealty. 



MAWLY SVttLISH GOlltTITUTIOK. 67 

Prior to the Norman conquest, land was not rabject to 
many burdens. Chief amongst those to w^ich it wai fobjeot 
waa the trinoda necessiUu, that was a liability to serve in the 
fyrd or national militia, and to contribute towards the upair 
of fortresses and bridges. 

After the Norman conquest, a tenant had to do homagis to 
his lord, and to swear an oath of fealty to him, to which, horn- 
ever, there was always a resenration of the faith to his torereign 
lord the king. The fiefs, as they were known, wen held upon 
knight service, that is, for every portion of the land which was 
of the annual value of twenty pounds (known as a knight's 
fee), the tenant had to supply a properly equipped knight, to 
serve in the field for forty days at his own expense. 

To this were added other incidental burdens, thus the 
tenant had to pay aids, or contributions, for the purpoae of 
(1) ransoming the lord's person from captivity, (2) making 
his son a knight, and (3) providing a suitable portion for his 
eldert dliughtcr on her marriage. 

The son of the tenant, when succeeding to the land, had to 
pay a nUef, and, moreovtr, if such mm was a son of a tenant 
in capite, the king was entitled to primer seisin, thst is to 
take all the profits of the land for the first year. 

If the heir were under age when he succeeded to liis father's 
estite Ms krd was entitled to wardship, that is, to take all the 
proffts of the estate until the coming of age of the heir, with- 
out rendering any account thereof. Also the lord had a right 
to dfupofie of the hands of female wards in marriaire. If the 
wnrd married without the lord's consent, she <" ' donble 

the market vahie of the marriage; or if she ri*j iic hand 

of the husband who was proposed to her by the lord, she for- 
* 'd nfi much money as he was wiDing to pay down as the 

. of the alliance. 

When a person died without leaving any hiwful heirs, 
either because there werr in fact none such, or becatlOT lie Wm- 
self had been convicted of felony or treason, the land Utkmied 
or trferted to the lord by whom it was originallr granted. 

Besides tenure by kniglit service, there also was tonuro in 
free socage, which indeed is the tenure by which all land is 
to-day held. The service* by which such land is held were ftiwl 
and not uncertain, nuch as the payment of a fixed money rent, 
or the dutv to plow the lord's land fop a (Reed number of d«ro 



68* EARLY ENGLISH CONSTITUTION. 

in the year. It was not subject to the burdens of wardship or 
marriage. 

There might also be mentioned tenure in burgage, by which 
tenants in old burghs were held by fixed rents. It might be 
described as ''town socage"; one variety of it is known as 
Borough English, where the holding descends to the youngest 
instead of to the eldest son. 

Gavelkind is a tenure which exists chiefly in the county 
of Kent, the chief peculiarity of which is that in the case of 
intestacy, the land descends to all the sons equally. 

Below these tenures came tenure in villeinage, that is tenure 
of land by the rendering of work in lieu of wages. The gen- 
eral condition of these villeins must have varied from some- 
thing very much approaching to slavery to that of persons 
whose only duty was to perform certain agricultural services 
in return for their land. The tenure slowly passed into what 
is known as copyhold tenure, which is now, except in theory, 
practically equivalent to the ordinary socage tenure, the change 
beginning to take place as early as the time of Henry the Third, 
and being completely carried out before the reign of Edward 
the Fourth. 

The Curia Regis. 

After the Norman Conquest, the Witan remains, though in 
a slightly feudalized form, under the name of the Curia. Regis, 
but the same name is given also to the council consisting of 
the greater nobles of the realm and officers of the king's house- 
hold which follow the king in his movement from place to 
place. This council acted as a court of justice and decided 
all appeals, and to it suitors by payment of a fine could have 
their complaints removed from the older local courts already 
spoken of. 

Thus it will be seen that in early days people considered 
that royal justice was worth paying for, which must have 
served to strengthen greatly the position of the king in his con- 
tinued struggles with the chief nobles, who regarded any in- 
fringement of their rights of administering justice with the 
deepest resentment. 

The Curia Regis, being a somewhat unwieldy body, natur- 
ally tended to split up into different departments with peculiar 
duties attached thereto. 



EARLY ENGLISH CONSTITUTION. 69 

The first oflEshoot from the Curia Regis to become deflhitely 
and permanently organized was the Exchequer. This took 
place in the reign of Henry I. To this department, the sher- 
iffs were accountable for the money which they received on 
behalf of the Crown. These moneys were, (1) the ferm of the 
shire, that is the rent oi the royal land; (2) -the Danegeld, a 
tax originally imposed to pay the tribute exacted from Eng- 
land by the Danes, but subsequently transmuted into a tax for 
the purposes of national defence; (3) the fines imposed by the 
local oouri;8 for infringements of the king*s peace; (4) money 
due to the king under the feudal system, such aa aids, reliefs 
and the proceeds in wardship and marriage; (5) tallagee, or 
arbitrary payments imposed by the king upon his own domain 
lands or upon boroughs; (6) payments made to procure royal 
justice. 

It should be noticed that in this system of taxation most 
of the taxation was derived almost entirely from land. It was 
not until the reign of Henrj- II. that income or personal pro- 
perty was made liable to contribute. This was first done in 
the caae of the Saladin Tithe, in 1188. That king also intro- 
dnced Seatage, which was a money payment in lieu of the 
provision of knights to serve in the fi^ld. It is probable that 
in the imposition of this tax, Henry was influenced by the 
thought that the mercenaries, whose services he oould have 
by means of the proceeds of this tax, would be more relkble 
than feudal levies, who might be more devoted to the interests 
of their master ihsn those of the king. 

The next offshoot from the Curia Regis was the Court of 
Common Pleas. It had been found very inconvenient that 
common pleas, that is, lawsuits between subject and subject, 
should have to wait trial before^ the Curia Regis, who followed 
the king's person, inasmuch as the latter moTed about the 
kingdom to a considerable extent, and was frequently absent 
in France for long periods at a time. So it was proTided by 
Magna Charia that common pleas should not follow the king, 
but should be hoard at a fixed place, namely, Westminster. 

The result of this is, that nlwrtly after Magna Charts, tliorr 
are in existence three courts, the Court of Exchequer, hearing 
all matters in dispute as to the king's revenue; (2) the Court 
of Common Pleas, hearing suits which were merely between 
subject and subject, and did not concern the king^s interests or 



70 EARLY ENGLISH CONSTITUTION. 

the criminal law, and (3) the Court of the King's Bench, hear- 
ing all the residue of cases. 

The Judges Itinerant. 

In the time of Henry I. some of the judges were, upon 
isolated occasions, appointed by the king to attend upon the 
sittings of the County Court in order to look after the king's 
interests, and also to decide complaints of the failure of jus- 
tice in the lower courts. 

In the time of Henry II., 1176, by the Assize of North- 
ampton Henry II. divided the kingdom into six circuits; three 
judges going upon each ; whilst by the Statute of Westminster, 
in the time of Edward I., regular justices of assize were ap- 
pointed to supersede the old justices in eyre as they were 
called. It was the duty of these judges to go into the counties 
and to hear such cases as might come before them. They sat 
by virtue of five commissions: (1) of the peace, ^2) of oyer 
and terminer, (3) of gaol delivery, (4) of assize, (5) of nisi 
prius. The first commission entitled them to hear small criminal 
matters, the second and third entitled them to hear other 
criminal cases, and to try such persons as were confined in 
gaol; the fourth enabled them to try what were known as ac- 
tions of assize, that is, generally speaking, actions involving 
the ownership or possession of real property, whilst the fifth 
gave them power to hear such suits as might have been heard 
by the king's courts at Westminster. The Commission of 
Nisi Prius took its name from the writ by which the action 
was begun, by which the sheriff was directed to send a jury to 
Westminster by a certain day, unless before (nisi prius) that 
day the judges of the assdze came into the county where the 
cause of action arose. 

Writ for the Assembling of the County Court before 
THE Judges Itinerant. 

The King to the Sheriff of Yorkshire, Greetvng: 

Summon by good summoners all archbishops, bishops, 
abbots, priors, earls, barons, knights, and all freeholders from 
your bailiwick, from each vill four lawful men and the reeve, 
and from each borough twelve lawful burgesses, throughout 
your whole bailiwick, and all others who are accustomed and 
ought to appear before the justices itinerant, that they be pres- 
ent at York on the octave of Trinity Sunday in the Fifteenth 



BABLY ENGLISH CONSTITUTION. Tl 

year of our reign, before our beloved and faithful S. de Se- 
grave, Ralph Fitz-Robert> Brian Fitz Alan, William of Lisle, 
Robert of Lexington, Master Robert of Shardelawe, and Wil- 
liam of London, whom we have appointed our justices, to hear 
and perform our commands. Also at that time, cause to be 
brought before the said justices all pleas of the crown which 
have not been tried, and those which have arisen since our 
justices last went on circuit in those parts, and all attachments 
concerning those pleas, and all the assizes and all the pleas 
which are set down for the first assize of the justices, with the 
writs of the assize? and pleas, so that those assizes and pleas 
sfaall not be omitted, on account of any default of yours or of 
your summons. Also cause it to \ye proclaimed and made 
known throughout your whole bailiwick that all the assizes 
and all the pleas which were appointed a term for a hearing, 
and have not been brought to an end before our justices at 
Westminster, or before our justices who last went on circuit 
in your county to hear all pleas, or before the justices sent 
thither to hold assizes of novel disseisin and of jail-delivery, 
shall at that time come before our aforesaid justices, at York, 
in the same status in which they have remained by our order, 
or by the order of our aforesaid justices itinerant or our jus- 
tices of the bencii. Summon also all those who have been 
iherifis since the last circuit of the aforesaid justices in thofip 
partg that they** be present at that time and place before our 
aforesaid justices, with the writs concerning the antieff and 
the pleas which they received during their term of o(Boe« to 
answer for their term as they ought to answer before the jus- 
tieea itineimnt And have there the summons and this writ. 
Witness Hubert de Burgh, etc., at Westminster, the twen- 
tieth day of April. 

The Whit Prjecipb. 

Tk§ King to the Sheriff, Oresting: 

Command A. that, lawfully and without delay, he restore 
to B. one hide of land, in such a town from which the said H. 
complains that the aforesaid A. is keeping him by force, 
and if he docs not do it, summon him by good summoMny to be 
before me or my justices, on the morrow after the oetavB of 
Easter in such a place, to show cause wherefore he has not 
done it ; and have there the snmmoners and this writ 

Witness Ranulph de Oknrllle. nt Clarendon. 

(See Magna Carta, infra) 



72 RISE OF RESPONSIBLE GOVERNMENT IN^ CANADA. 

CHAPTER VIII. 
Rise of Responsible Government in Canada. 

Representative Government is essentially unstable in char- 
acter, and in the British Empire has never been a fortunate 
experiment. It must be carefully distinguished from Responsi- 
ble Government. 

This means that the colony is administered by men who 
can command the support of a majority in the colonial legisla- 
ture, not by men who, as in a crown colony, are chosen by the 
Governor, or by the Secretary of State at Whitehall, and hold 
office irrespectively of the opinions of the representative as- 
sembly where one exists (Anson, v. 2, pt. 2, p. 68). 

Canada is the birthplace of colonial responsible govern- 
ment, and there we can trace the growth of its principal fea- 
tures — the acceptance by the Governor of the advice of his 
responsible ministers, and the presence of those ministers in 
one or other house of the legislature, their dependence upon a 
parliamentary majority for their continuance in office, the 
permanent tenure of office by the civil servant, and his exclu- 
sion from the legislature. . . Statutory provision for these 
essential features is not easily found (Anson, v. 2, pt. 2, p. 67). 

It should be noticed that the responsibility of ministers is 
not merely an individual responsibility. It is a collective re- 
sponsibility to Parliament and through it to the country at 
large. '' The fi'ret work of the Cabinet,'* says Lord Morley, '^ as 
that institution is now understood, is united and indivisible 
responsibility." 

The responsible government of Canada rests on no funda- 
mentally different basis from the responsible government of 
the United Kingdom, and largely rests upon constitutional 
practice, enforced by the ultimate sanctions, e.g., by the refusal 
to pass an Appropriation Act, and not upon parliamentary 
enactment. For example, the rule of cabinet government, 
which has been developed in Canada perhaps more perfectly 
than elsewhere, is carried on under the constitutional usage 
and under the regime of formal law. Keith, p. 79). 

Difference between Settled and Conquered Colonies. 

In 1840 there were two prevailing principles with, regard 
to the position of Britisli colonies. 



BISK OF RESPONSIBLE GOVERNMENT IN CANADA. TJ> 

1. That a settler in any place not under legitimate foreign 
sovereignty, carried with him so much of the law of England 
as was appropriate to the circumstances in which he found 
himself; or, to put it another way, so much as was applicable 
to his situation and the condition of an infant colony. To 
this was superadded the principles that the money of a subject 
could only be voted by or the laws changed by a representative 
assembly. In other words, settled colonies had representative 
institutions, though they had not yet attained to responsible 
government 

2. That in the case of conquered or ceded countries, the 
crown had uncontrolled legislative authority over the colony 
(see in case of Virginia and Jamaica, Smith v. Brown, 2 Salk. 
666, and Beaumont v. Barrett, 1 Moore P. C. 75). This, how- 
ever, could be exercised either by order in council or by charter 
of justice under the great seal (Jephson v. Riera, 3 Knapp, 
130). Where there was a chance of white settlement, the 
crown was always willing to grant to conquered or ceded as 
well as to settled colonies, representative institutions. 

Representative institutions, though capable of being granted 
by the crown, could not be withdrawn by their creator, unless 
a power of revocation had been reserved in the grant. The 
withdrawal could only be effected by an Act of the Imperial 
Parliament (Campbell v. Pxdidc, 20 St. Tr. 239). 

In settlements made by Englishmen in barbarous countries, 
they carry with them not only their laws, but the sovereignty of 
their own state ; and those who live amongst them, and become 
members of their community, become also partakers of and sub- 
ject to the same law« {Adv.-Qen, of Bengal ▼. Rtmee Sumomoffe 
Dossee, 2 Moo. P. C. C. N. S. p. 59). 

No Act of Parliament made after a colony is planted is 
construed to extend to it without express words, showing the 
intention of the legislature to be that it should (ft. v. Vamghtm, 
4 Burr. p. 2500). It is true that it is only the law of England 
as it was at the date of settlement that settlers carr}* with 
them ; subsequent legislation in Engknd altering the law does 
not affect their rights, unless it ifv expressly made to extend to 
the province or the colon v (Thr Laudrrffalr Peernffe. 10 .\. C 
744). 

It 18 a very diftlnilt tlnn- :• !■ .:. .rliat lawn are adapted 
to the situntidM of n ((iloiix ( s,r U /t l(» v. Ifutne. 7 If. L. C. 



74 UISK OF KESPONSIBLK GOVERNMENT IN CANADA. 

161). One query of importance certainly is, did the law in 
question originate out of purely local polic}' or not — was it 
adapted solely to the mother country in which it was made? 

Laws contrary to the fundamental principles of the Britisli 
Constitution cease at the moment of conquest (30 St. Tr. 742 
{e.g., torture). 

IJpon the cession of French Canada in 1763, the Royal 
Commission issued to Greneral James Murray, the Captain- 
General and Governor in Chief of the Province of Quebec, 
contemplated legislation by the freeholders of the province. 
Such an assembly was in fact convoked, but it never met. 
In 1774 a purely nominee legislature was given to Canada by 
14 Geo. III. c. 83, known as the Quebec Act. The reason for 
the omission of a popular assembly is given by Lord North in 
his defence of the Act in the House of Commons as follows: 
'' The bulk of the inhabitants are Roman Catholics, and to 
subject them to an assembly " composed of a few British sub- 
jects would be a great hardship." The oaths of allegiance 
and supremacy and the declaration against transubstantiation 
would, of course, make it impossible for a Roman Catholic to 
sit in the assembly. Lord Thurlow, in his speech on the Act, 
tells how, in 1764, the grand jury in Quebec lodged a general 
presentment against all the inhabitants of the colony for being 
Papists. The Quebec Act provided that in all matters of con- 
troversy relative to property and civil rights, resort was to be 
had to the laws of Canada, except with regard to lands granted 
by the crown in free or common socage. The criminal law of 
England was to remain in force, whilst wills could be made 
either in the English or French forms. A council was con- 
stituted to consist of not more than twenty-three, nor less than 
seventeen members. Of the original twenty-three members, 
eight were Roman Catholics. The council was empowered to 
make ordinances for the province, but the power did not ex- 
tend to the levying of taxes or duties, except of such local rates 
as were required for purely local purposes. No ordinance con- 
cerning religion or imposing a greater punishment than a 
fine or three montlis imprisonment was to be valid, until it had 
been confirmed by the home government. Further, the whole 
country to the west of old Quebec was brought into the pro- 
vince with the intention of stopping further settlement in those 
regions, and of establishing uniform regulations for the Indian 
trade. 



RISE OK KE8P0X8IBLE GOVERNMENT TK CANADA. 76 

The year 1776 is remarkable for the fact that the Privy 
Council in that year decided that the action of Governor Carle- 
ton (afterwards Lord Dorchester) in consulting an inner circle 
of his council was wrong, and that all members of the Execu- 
tive Council stood on a footing of equality, and that all busi- 
ness of the council should be executed by it as a whole. 

After the treaty of Versailles and the establishment of the 
American Republic, the influx of I^oyalists into Canada and 
Xova Scotia soon called for a new constitution. These new- 
comers settled in the Eastern Townships, around Kingston, 
and along the River St. Lawrence and the Bay of Quinte. The 
result was tlie passing of the Constitutional Act of 1791, an 
endeavour to give a Constitution to Canada "the very image 
and transcript of that of Great Britain." 

In the correspondence of Lord Dorchester as to the con- 
tents of the bill, it ia interesting to find the following : " Before 
I conclude, I have to submit to the wisdom of His Majesty's 
Councils, whether it may not l)e advisable to establish a general 
government for His Majesty's Dominions upon this continent, 
as well as a Governor-General, whereby the united exertions 
of His Majesty's North American Provinces may more effectu- 
ally be directed to the general interest, and to the preservation 
of the unity of the Empire." 

The times were not yet ripe. Chief Justice Smith was tha 
parent of the dream. He writes : ** I miss in it, however, the 
expected establishment to put what remains to Great Britain 
of Her Ancient Dominions in North America, under one goi- 
eral direction, for the united interest and safety of efery 
Branch of the Empire." A regular plan drawn up by tha 
Chief Justice was forwarded to En^and, but came to nothing. 
Under this Act, the province was divided into TTp|M»r and 
Lower Canada with separate legislatures, French laws being 
retained in Tx)wer Canada, except with reirpect to criminal mat- 
ten, and English law ruling in Upper Canada. All land in 
Upper Canada (and in Lower Canada if the grantee deaired) 
were to be held in free and common aocege. The leipflatiTe 
council waa separated from the executiTe council, and the mem* 
hers of the former were given a right to hold their seats during 
their life and good l)ehaviour. The le^alature was to be called 
together once at least every year, and each awemlily was to 
eenfinue for four years, unless sooner dissolTsd by the Gov- 
ernor. The Governor might give or refuse asspnt to bills or 



76 RISB OF KESPONSIBLE GOVERNMENT IN CANADA. 

reserve them for the pleasure of the crown. Acts might be 
disallowed within two years after their receipt by the liome autli- 
orities. The right to imipose duties for the regulation of naviga- 
tion and commerce was reserved to the Imperial authorities, but 
the proceeds of such duties, if enforced, were to be exclusively 
applied to the use of the province from which they were 
derived. The Governor was authorized in making allotments 
of land to set apart for tJlie use of the Protestant clergy lands 
as nearly as the circumstances would permit of the like quality 
of the lands allotted, and as nearly as possible equal in value to 
the seventh part of such lands. Freeholders with lands to the 
clear yearly value of forty shillings were given the county 
franchise, whilst in towns, owners of houses, etc., to the 
yearly value of £5 sterling, and persons who had paid £10 for 
a year as tenants were given the right to vote. 

In 1806, the offer of the Assembly in Lower Canada to 
provide the funds for the full payment of the civil list for the 
year must be noticed. They were well aware that they wiio 
pay the piper, may call the tune. Their offer was rejected by 
Governor Craig on the ground that it had not received the con- 
currence of the legislative council. 

The state of affairs in Lower Canada at that time are de- 
scribed by Christie in the following words: 

"The affairs of the colony were guided or misguided by a 
few rapacious, overbearing and irresponsible officials, without 
stake or other connection with the country than their interests. 
Servants of the government, they seemed to imagine them- 
selves princes among the natives, upon whom they affected to 
look down; estranging them as far as they could from all 
direct intercourse or intimacy with the Governor, whose con- 
fidence, no less than the treasury, it was their policy to mon- 
opolise. They saw with dread, as a prelude to the downfall of 
their power, the offer of the assembly to defray the necessary 
expenses of the civil government, which, of course, would carry 
the right of controlling those expenses, and necessarily divest 
the officials of the possession of the treasury, which constituted 
their greatness. They wielded the powers and dispensed the 
patronage of government without any of its responsibility, 
which rested entirely upon the Governor, while the country had 
no real or efficient check either upon him or them. In fi'ne, 
the Governor, however unconscious of it he may have been, was 
really in the hands of, and ruled by, a clique of officials rioting 



KISE OF RESPONSIBLE GOVERKKENT IK CANADA. 7*f 

on the means of the country, who, however obsequious to him, 
in appearance, were nevertheless his masters. The government 
was in fact a bureaucracy, and the Grovernor little better than 
a hostage, and the people looked upon and treated as serfs and 
vassals by their official lords." 

The passage of the Constitutional Act of 1791 seems to 
have stimulated Americans to migrate into Upper Canada, an 
emigration that was speedily followed by another from the Brit- 
ish Islands, chiefly from the Scottish Highlands. 

After the war of 1812, the offer of the assembly of Lower 
Canada to pay for the civil list was accepted. Upon the ar- 
rival of the Duke of Richmond as Governor, he made a request 
for a much increased civil list. This aroused the assembly, 
who not only refused to vote a permanent civil list, but to 
specify the particular items of suoh salary, and also to appor- 
tion duties and the proceeds of crown rights, which had been 
expressly reserved by the home government. The Jjegislative 
Council in turn refused to pass the revenue bills in the form 
sent up to them. 

"Meantime the question of duties upon the goods whioh came 
to Upper Canada via the St. Lawrence was a burning question. 

In 1817, an agreement had been come to between the two 
provinces, whereby one-fifth of the duties levied at Quebec 
were paid over to Upper Canada. The igreement expired in 
1819, and the two provinces found it impossible to come to a 
fresh working agreement 

To remedy all these evils, the Imperial government in 182)^ 
proposed a union of the two Canadas. Owing to the more than 
strong opposition of the French Canadians and the luke- 
warroness of the English party, its only real supporters being 
the British inhabitants of Lower Canada, the proposal was 
withdrawn. -; 

The Canada Trade Act, 1822, however, embodied the pro- 
visions relating to the custom duties, which forbade the im- 
position of new duties on sea-borne goods without the consent 
of Upper Canada, and left the proportion of duties payable to 
either province to be settled by arbitration. 

Matters in liower Canada went from bad to worse, till in 
1836 the Assembly claimed respofosible government and refused 
to grant nipplies until there had been redress of gricvanoeB. 
"Colonial govomment. as menning an irresponsible executive 



78 RI«iE OF RESPONSIBLE GOVERNMENT IK CANADA. 

and a liberuni veto allowed to a popular Assembly puffed up 
by ignorance and vanity, had been tried and found wanting" 
(Egerton). Meanwhile dissatisfaction was increasing in Upper 
Canada; the existence of the clergy reserves claimed as its ex- 
clusive property by the Ohurch of England under the leader- 
sliip of Archbishop Strachan, at the same time its best friend 
and worst foe, and the neglect of the colony's demand for the 
responsibility of officials to the majority of the colony, and of 
its claim for an elective Legislative Council, rendered that pro- 
vince as ripe for rebellion as its sister province. The rebel- 
lions of Papineau and McKenzie were easily suppressed. There 
followed upon the collapse of these rebellions the visit of Lord 
Durham to Canada, and the publication of his famous report. 

This report surveyed the situation in general, and recom- 
mended the immediate union of the two provinces, the ulti- 
mate union of all British North America and the granting of 
full self-government. To carry out the policy of Lord Dlirham 
the Union Act of 1840 was passed, but full responsible gov- 
ernment was not yet granted. The bill when prepared went 
to Canada in charge of the Governor-General, Charles Poulett 
Thomson, afterwards Lord Sydenham, with instructions to 
obtain information. A fresh bill was drawn up upon his in- 
structions, the form of which seems to have been largely due 
to Chief Justice Stuart of Lower Canada. This bill aimed at 
introducing a form of responsible government, which should 
at the same time preserve the direct responsibility of the 
Governor to the Colonial Office. 

The principles upon which the bill proceeded were stated 
by Lord John Russell to be *'a legislative union of the two 
provinces — a just regard to the claims of either province in 
adjusting the terms of that union — the maintenance of the 
three estates of the provincial legislature — ^the settlement of a 
permanent civil list for securing the independence of the 
judges, and to the executive government that freedom of action 
which is necessary for the public good — and the establishment 
of a system of local government by representative bodies, freely 
elected in the various cities and rural districts." 

In the course of another letter, Lord John Russell notes 
what he conceives to be a sound reason for the refusal of com- 
plete responsibility. " The constitution of England, after long 
gtruggles and alternate success, has settled into a form of 
government in which the prerogative of the Crown is nndis- 



KI8£ OF KKSPONSIBLE GOVERNMENT IN CANADA. 79 

puted, but is never exercised without advice. Hence the ex- 
ercise only is questioned, and however the use of the authority 
may be condemned, the authority itself remains untouched. 

"This is the practical solution of a great problem, the re- 
sult of a contest which from 1640 to 1690 shook the mon- 
archy, and dij?turbed the peace of the country. 

" But if we seek to apply such a practice to a colony, we shell 
at onoe find ourselves at fault. The power for which a min- 
ister is responsible in England, is not his own power, but the 
power of the Crown, of which he is for the time the organ. It 
is obvious that the executive councillors of a colony is in a situ- 
ation totally different. The Governor, under whom he serves, 
receives his orders from the Crown of England. But can the 
colonial council be the advisers of the Crown of England? 
Evidently not, for the Crown has other advisers, for the same 
functions, and with superior authority. 

*' It may happen, therefore, that the Governor receives at one 
and the same time instnictions from the Queen, and advioe 
from his executive council, totally at variance with eaoli other. 
If he is to obey his instructions from England, the parallel 
of constitutional responsibility entirely fails; if, on the other 
hand, he is to follow the advice of his council, he is no longer 
a subordinate officer, but an independent sovereign. 

^ There are some cases in which the force of these objections 
. is so manifest, that those who at first made no distinction be- 
tween the constitution of the United Kingdom and that of the 
colonies admit their strength. I allude to the questions of 
foreign war, and international relations, whether of trade or 
' lomacy. It is now said that internal government is alone 
uded. 

'* Bui there are some cases of internal government, in which 
•1 » honour of the Crown or the faith of Parliament, or the 
-lit ty of the State, are 80 seriously involved, that it would 
not be iM)ssibIe for Her Majesty to detegste her authority to a 
minister in a colony. 

'* Every political constitution in which different bodies share 
the supreme power, is only enahled to exist by the Torbearanee 
of those aiBong viwm this power is distributed. , In this re- 
spect the example of England may well be imitated. The Sov- 
ereign using the prerogative of the Crown to the utmost ex- 
tent, and the House of Commons exeKing its power of the puree. 



80 RISE OF KESPONSJBLE GOVERNMENT IN CANADA. 

tfi^_carry all its resolutions into immediate effect, would pro- 
duce confusion in the country in less than a twelve-month. So 
in a colony : the Governor thwarting every legitimate proposi- 
tion of the Assembly and the Assembly continually recurring 
to its power of refusing supplies, can but disturb all political 
relations, embarrass trade, and retard the prosperity of the 
people. Each must exercise a wise moderation. The Gover- 
nor must only oppose the wishes of the Assembly, where the 
honour of the Crown or the interests of the Empire are 
deeply concerned; and the Assembly must be ready to modify 
some of his measures for the sake of harmony, and from a 
reverent attachment to the authority of Great Britain." 

Sydenham writes that he has done much, to put down the 
cry for responsible government in its inadmissible sense, 
" namely, the demand that the council shall be responsible to the 
Assembly, and that the Governor shall be bound by it." . . . 
" I have not met with anyone who has not at once admitted the 
absurdity of claiming to put the council over the head of the 
Governor." 

Sydenham would not admit the rule that if a government 
could not retain the support of a majority of the members of 
the house, they were bound to resign, but he dictated the fol- 
lowing motion : 

1. That the head of the executive government of the pro- 
vince, being, within the limits of his government the represen- 
tative of the Sovereign, is responsible to the Imperial authority 
alone ; but that nevertheless the management of our local affairs 
can only be conducted by him by and with the assistance, 
counsel and information of subordinate officers in the province. 

2. That in order to preserve between the different 
branches of the provincial parliament that harmony which is 
essential to the peace, welfare and good government of the pro- 
vince, the chief advisers of the representative of the Sovereign, 
constituting a provincial administration under him, ought to 
be men possessed of the confi'dence of the representatives of 
the people, thus affording a guarantee that the well-understood 
wishes and interests of the people, which our gracious Sov- 
ereign has declared shall be the rule of the provincial govern- 
ment, will on all occasions be faithfully represented and advo- 
cated. 

3:' That the people of this province have, moreover, a right 
to expect from such provincial administration the exertion of 



RISE OF RESPONSIBLE GOVERNMENT IN CANADA. 81 

their best endeavours, and that the Imperial authority, within 
the constitutional limits, shall be exercised in the manner most 
consistent with their well-understood wishes and interests. 

In 1843 Sir Charles Metcalfe was opposed to going to the 
full length with responsible government. Lafontaine and Bald- 
win, the then leaders of the government, objected to the ap- 
pointment of a French Canadian, who was objectionable to the 
former, to the staff of the Governor, and demanded in Met- 
calfe's words * that the patronage of the Crown should be 
surrendered to the council for the purchase of parliamentary 
support.' What responsible government meant to Metcalfe is 
very clearly put by Metcalfe in the reply made by him in 1843 
to an address from the Warden and Councillors of the Gore 
FH strict of Upper Canada. 

*• With reference to your views of responsible government, 
I cannot tell you how far I concur in them without knowing 
your meaning, which is not distinctly stated. 

*' If you mean tliat the Governor ig to have no exercise of 
his own judgment in the administration of the Government, 
and is to be a mere tool in the hands of Ihc Council, then I 
totally disagree with you. That is a condition to which I can 
never submit, and which Her Majesty's Government, in my 
opinion, can never sanction. 

"If you mean that every word and deed of the Governor 
iH to he previously submitted for the advice of the Council, 
then you propose what, besides being unnecessary and useless, 
is utterly impossible, consistently with the due despatch of busi- 
ness. 

"If you mean that the patronage of the Crown is to be 
surrendered for exclusive party purpose?, to the Council, in- 
stead of being distributed to reward merit, to meet just claims, 
and to promote the efficiency of the public service, then we are 
again at issue. Such a surrender of the prerogative of the 
Crown is, in my opinion, incompatible with tho ovJcfotv^* of a 
British colony. 

** If you mean that the Governor w an irroqKuiMlilo oflioer, 
who can, without responsibility, adopt the advice of tho Council, 
then you are. I conoeive, entirely in error. The undisputed 
f ' ' r 1, w^i^i he jg not only one of 

ti •• colony, but alio has more 

CC.--6 



82 RISE OF HESPOXSIBLE GOVERNMENT IN CANADA. 

responsibilities than any other officer in it. He is responsible 
to the Crown and Parliament and the people of the mother- 
country for every act that he performs, or suffers to be done, 
whether it originate with himself or is adopted on the advice 
of others; he could not divest himself of that responsibility by 
pleading the advice of the Council. He is also virtually re- 
sponsible to the people of this colony; and practically more so 
than even to the mother-country; every day proves it, and no 
resolutions can make it otherwise. But if instead of meaning 
any of the above-stated impossibilities, you mean that the 
government should be administered according to the well- 
under&tood wishes and interests of the people; that the resolu- 
tions of September, 1841, should be faithfully adhered to; 
that it should be competent to the Council to offer advice on all 
occasions, whether as to patronage or otherwise, and that the 
Governor should receive it with the attention due to his con- 
stitutional advisers; and consult with them on all cases of 
adequate importance; that there should be a cordial co-opera- 
tion and sympathy, between him and them; that the Council 
should be responsible to the Provincial Parliament and people ; 
and that when the acts of the Governor are such as they do not 
choose to be responsible for, they sliould be at liberty to resign ; 
then, I entirely agree with you, and see no impracticability in 
carrying on responsible government in a colony on that foot- 
ing, provided that the respective parties engaged in the under- 
taking be guided by moderation, honest purpose, common sense 
and equitable minds, devoid of party spirit.'' 

Full responsible government was, however, on its way, 
though it was not destined to prove as effective a panacea as 
was believed. Indeed the truth seems to be that responsible 
government demands as a condition of getting the best results 
party government, i.e., the existence of two distinct and pre- 
dominant parties. It does not flourish well when parties be- 
come groups, and the blending, dissolution, and re-blending of 
these groups makes instability the feature of government. 

The introduction of real responsible government seems to 
date from the instructions given by Earl Grey to Sir John 
Harvey, Lieut.-Governor of Nova Scotia, and to Lord Elgin. 
Earl Grey writes to the former : " I have assumed that those 
only of the public servants, who are to be regarded as remov- 
able on losing the confidence of the Legislature, are to be metn- 
bers of the Executive Council. This I consider to follow from 



RISE OF RESPONSIBLE GOVERNMBKT IS CANADA. 85 

the principles I have laid down. Those public servants, who 
hold their offices permanently, must upon that very ground bo 
regarded as subordinate, and ought not to be members of either 
house of the Legislature, by which they would necessarily be 
more or less mixed up in party struggles; and, on the other 
hand, those who are to have the general direction of affairs 
exercise that function by virtue of their responsibility to the 
liCgislature, which implies their being removable from office, 
and also that they should be members either of the IjCgislative 
Touncil, and it is necessary that the Governor of the pro- 
vince should, in administering its affairs, have the advice and 
assistance of those who can command the confidence of the 
T>egislature, and more especially of that branch of the Legis- 
lature which directly represents the people. 

Responsible government, then, rests upon no special statute 
or ordinance. No trace is to be found of it in the Royal In- 
structions issued with tho Commission to Sydoiiham, Motralfo 
or Elgin. 

On the contrary (t^ee Keith, vol. I. p. 60), down to the ter- 
mination of the independent existence of Canada as a province, 
the principle of responsible government rested on nothing more 
than practice, its binding force on the action of the Governor, 
who was subject of course to the possibility of his recall by 
the Imperial Government on the one hand, and the rendering 
of his position untenable by Hie liCgislature refusing to work 
with him, on the other. 

In 1849, the Canadian legislature, sitting at Montreal, 
psAsed by a large majority the Rebellion I»«ips Bill, compen- 
sating citizens, some of them French, in Lower Canada, for 
loM incurred at the hands of the loyal party during the rebel- 
lion of ten years before. The mob of Montreal pelted Lord 
Klgin because, in execution of his instructions, he give his 
astent to the bill on the ground that in ( \\ domestic 

affairs, the Canadian Parliament must be m . Responsi- 

•le government was as yet not fully understood. Ix>rd Elgin's 
• • ' is to tho point: "The nature of the (constitutional 

. which practically obtain in this se<'tion of the com- 
M I unity, is curiously exempli fie<l by the fact that it is not the 
pnM'japo of the Bill by an overwhelming majority of the rcpre- 
jiTjifativ.s of the people, or the acquiescence of the Council, but 
the consent of the (Joveriior, which furnishes the pretext for 
«n rxhiV>ition of iMnmlnr violnuv.'* 



84 RISE OF RESPONSIBLE GOVERNMENT IN CANADA. 

The repeal of the Corn Laws in 1846, involving the with- 
drawal of preference in England for Canadian wheat and flour, 
and the restrictions imposed on colonial shipping by the Navi- 
gation Acts, caused an acute commercial crisis culminating in 
a project for annexation by the United States. These troubles 
passed away on the repeal of the Navigation Acts in 1849, and 
the negotiation of a Treaty of Reciprocity in natural products 
with the States in 1854. The outbreak of the civil war in 
1861 increased the demand for Canadian products, and the 
country prospered until 1865, when the "United States, being 
then wroth with England for her attitude in the civil war, 
cancelled the treaty. Meanwhile, misunderstanding between 
French and English and frequent changes of Government 
(three in three years), made the Union Act unworkable. In 
1864 the leaders of both parties united in a coalition ministry 
to carry Federation. By permission, Canadian delegates at- 
tended at Charlottetown, a convention of delegates from Nova 
Scotia, New Brunswick and Prince Edward Island, summoned 
to consider a Maritime Union. All the delegates, reinforced 
by other Newfoundland delegates, met in Quebec in October, 
1864, and passed the 72 resolutions, known as the Quebec' 
Resolutions, which were the basis of the B. N. A. Act. 

In Nova Scotia representative institutions had been 
granted as early as 1758, but political power was largely the 
perquisite of a council of twelve, composed of the Chief Justice, 
the Anglican Bishop and others of the official class. After a 
long struggle, the- legislative assembly, led by the eloquent and 
clear-sighted Joseph Howe, won a bloodless victory for re- 
sponsible government in 1847-48. Portions of a letter written 
by Earl Grey to Sir John Harvey, the Lieutenant-Governor, 
have already been quoted. 

At the same time New Brunswick received responsible 
government, Lemuel Allan Wilmot being the protagonist in the 
successful struggle. 

In Prince Edward Island, a representative assembly had 
been established in 1773. The island did not enter Confed- 
eration until 1873. 



ILLUSTRATIVE DOCUMENTS. 85 



CHAPTER IX. 

Documents Illustrative of the Introduction of Respon- 
sible Government into Canada. 

(No, i.) 

7. Lord Durham's Report (Part). 

Such are the lamentable results of the political and social 
evils which have so long agitated the Canadas; and such is 
their condition that at the present moment "we are called on to 
take immediate precautions against dangers so alarming as those 
of rebellion, foreign invasion, and utter exhaustion and depopu- 
lation. When I look on the various and deep-rooted causes of 
mischief which the past inquiry has pointed out as existing in 
every institution, in the constitutions, and in the very compo- 
sition of society throughout a great part of these provinces, I 
almost shrink from the apparent presumption of grappling with 
these gigantic diflRculties. Nor shall I attempt to do so in 
detail. I rely on the efficacy of reform in the constitutional 
system by which these colonies are governed, for the removal 
of every abuse in their administration which defective institu- 
tions have engendered. If a system can be devised which shall 
lay in these countries the foundation of an efficient and popular 
government, ensure harmony in place of collision between the 
various powers of the State, and bring the influence of a vigor- 
OQi public opinion to bear on every detail of public affairs, we 
may rely on sufficient remedies being found for the present 
vices of the administrative system. 

Tlie preceding pages have sufficiently pointed out the nature 
of these evils, to the extensive operation of which I attribute 
iV- ^al grievances, and the present unsatisfactory 

(• Vorth American colonics. It is not by weak- 

ening, but strengthening the influence of the people on its 
government; by confining within much narrower bounds than 
those hitherto allotted to it, and not by e]Otending the interfer- 
ence of the Imperial authorities in the details of colonial aiEairs, 
that I believe that harmony is to bo restored where dissension 
has so long prevailed ; and regularity and vigour, hitherto un- 
known, introduced into the administration of these provinces. 
It needs no change in the principles of government, no inven- 



86 ILLUSTRATIVE DOCUMENTS. 

tion of a new constitutional theory, to supply the remedy which 
would, in my opinion, completely remove the existing political 
disorders. It needs but to follow out consistently the principles 
of the British constitution, and introduce into the government 
of these colonies those wise provisions, by which alone the 
working of the representative system can in any country be 
rendered harmonious and efficient. We are not to consider the 
policy of establishing representative government in the North 
American colonies. That has been irrevocably done; and the 
experiment of depriving the people of their present constitu- 
tional power is not to be thought of. To conduct their govern- 
ment harmoniously, in accordance with its established princi- 
ples, is now the business of its rulers ;. and I know not how it is 
possible to secure that harmony in any other way than by ad- 
ministering the government on those principles which have been 
found perfectly efficacious in Great Britain. I would not im- 
pair a single prerogative of the Crown; on the contrary I be- 
lieve that the interests of the people of these colonies require 
the protection of prerogatives which have not hitherto been 
exercised. But the Crown must, on the other hand, submit to 
the necessary consequences of representative institutions; and 
if it has to carry on the government in unison with a repre- 
sentative body, it must consent to carry it on by means of those 
in whom that representative body has confidence. In England 
this principle has been so long considered an indisputable and 
essential part of our constitution, that it has really hardly 
ever been found necessary to inquire into the means by which 
its observance is enforced. When a ministry ceases to command 
a majority in parliament on great questions of policy, its doom 
is immediately sealed; and it would appear to us as strange to 
attempt for any time to carry on a government by means of 
ministers perpetually in a minority, as it would be to pass laws 
witli a majority of votes against them. The ancient constitu- 
tional remedies, by impeachment and stoppage of supplies, have 
never since the reign of William III. been brought into opera- 
tion for the purpose of removing a ministry. They have never 
been called for, because in fact it has been the habit of min- 
isters rather to anticipate the occurrence of an absolutely hostile 
vote, and to retire when supported only by a bare and uncer- 
tain majority. If colonial legislaltures have frequently stopped 
the supplies, if they have harrassed public servants by unjust or 
harsh impeachments, it was because the removal of an unpopu- 



ILLUSTRATIVE DOCUMENTS. 87 

lar administration could not be effected in the colonies by those 
milder indications of a want of confidence which have alwajs 
sufficed to attain the end in the Mother Country. 

The means which have occasionally been proposed in the 
colonies themselves appear to me by no means calculated to 
attain the desired end in the best way. These proposals indi- 
cate such a want of reliance on the willingness of the Imperial 
Government to acquiesce in the adoption of a better system as, 
if warranted, should render an harmonious adjustment of the 
different powers of the State utterly hopeless. An elective execu- 
tive council would not only be utterly inconsistent with mon- 
archical government, but would really under the nominal auth- 
ority of the Crown, deprive the community of one of the great 
advantages of an hereditary monarchy. Every purpose of popu- 
lar control might be combined with every advantage of vesting 
the immediate choice of advisers in the Crown, were the Col- 
onial Governor to he instructed to secure the co-operation of the 
Assembly is his policy, by intrusting its administration to such 
men as could command a majority ; and if he were given to 
understand tiiat he need count on no aid from home in any 
<li^ -' with the Assembly, that should not directly involve 
ti ons l)etween the Mother Country and the colony. This 

change might he effected by a single dispatch containing such 
in'^tructions; or if any legal enactment were requisite, it would 
only be one that would render it necessary that the official art*» 
of the Governor should be countersigned by some public func- 
tionary. This would induce responsibility for every act of the 
OoTemment and, as a natural consequence, it would necessitate 
the substitution of a system of administration, by means of 
competent heads of departments, for the present rude machin- 
ery of our executive council. The Governor, if ho wished to 
retain advisers not possessing the confidence of the existing 
Assembly, might rely on the effect of an appeal to the people, 
and, if successful, he might be coerced hy a refusal of supplies 
or his advisers might be terrified by the prospect of impeach- 
ment. But there can be no reason for apprehending that either 
party would enter on a contest, when each would find its inter- 
ests in the maintenance of harmony; and the abuse of the 
powers which each would constitutionally possesM. would cesNC 
when the struggle for Isrger powers became unnecessar}'. Nor 
can I conceive that it would be found impossible or diflScult to 
conduct a Colonial Government with precisely that limitation 



88 ILLUSTRATIVE DOCUMENTS. 

of the respective powers which has been so long and so easily 
maintained in Great Britain. 

I know that it has been urged that the principles which 
are productive of harmony and good government in the Mother 
Country, are by no means applicable to a colonial dependency. 
It is said that it is necessary that the administration of a 
colony should be carried on by persons nominated without any 
reference to the wishes of its people; that they have to carry 
into effect the policy, not of that people, but of the authorities 
at home ; and that a colony which should name all its own ad- 
ministrative functionaries would in fact cease to .be dependent. 
I admit that the system which I propose would in fact place 
the internal government of the colony in the hands of the col- 
onists themselves; and that we should thus leave to them the 
execution of the laws of which we have long entrusted the 
making solely to them. Perfectly aware of the value of our 
colonial possessions and strongly impressed with the necessity 
of maintaining our connection with them, I know not in what 
respect it can be desirable that we should interfere with their 
internal legislation in matters which do not affect their relations 
with the Mother Country. The matters which so concern us 
are very few. The constitution of the form of government, — 
the regulation of foreign relations, and of trade with the 
Mother Country, the other British colonies and 'foreign na- 
tions, and the disposal of the public lands, are the only points 
on which the Mother Country requires a control. This control 
is now sufficiently secured by the authority of the Imperial 
Legislature; and by the protection which the colony derives 
from us against foreign enemies ; by the beneficial terms which 
our laws secure to its trade; and by its share of the reciprocal 
benefits which would be conferred by a wise system of coloniza- 
tion. A perfect subordination, on the part of the colony, on 
these points is secured by the advantages which it finds in the 
continuance of its connection with the Empire. It certainly is 
not strengthened, but greatly weakened, by a vexatious inter- 
ference on the part of the Home Government witli the enact- 
ment of laws for regulating the internal concerns of the col- 
ony, or in the selection of the persons entrusted with their 
execution. The colonists may not always know what laws are 
best for them, or which of their countrymen are the fittest for 
conducting their affairs ; but at least they have a greater interest 
in coming to right judgment on these points, and will take 



ILLUSTRATIVE DOCUMENTS. 89 

a^reater pains to do to than those whose welfare is remotely and 
slightly affected by the good or bad legislation of these portions 
of the Empire. If the colonists make bad laws, and select im- 
proper persons to conduct their affairs, they will generally be 
the only, always the greatest sufferers; and like the people of 
other countries, they must bear the ills which they bring on 
themselves, until they choose to apply the remedy. But it 
surely cannot be the duty or interest of Great Britain to keep 
a most expensive military possession of these colonies, in order 
that a Governor or Secretary of State may be able to confer 
colonial appointments on one rather than another set of per- 
sons in the colonies. For this is really the only question of 
issue. The slightest acquaintance with these colonies proves 
tlie fallacy of the common notion that any considerable amount 
of patronage in them is distributed among strangers from the 
Mother Country. Whatever inconvenience a consequent fre- 
quency of changes among the holders of ofiBce may produce is a 
necessary disadvantage of free government, which will be amply 
compensated by the perpetual harmony which the system must 
produce between the people and its rulers. Nor do I fear that 
the character of the public servants will, in any respect, suffer 
from a more }X)pular tenure of office. For I can conceive no 
system so calculated to fill important posts with inefficient per- 
sons as the present, in which public opinion is too little con- 
sulted in the original appointment, and in which it is almost 
impossible to remove those who disappoint the expectations of 
their usefulness, without infliofinu- n kind of brand on their 
capacity or integrity. 

The important alteration in the policy of the Colonial Gov- 
ernment which I recommend, might be wholly or in part 
effected for the present by the unaided authority of the Crown ; 
and I believe that the great mass of discontent in Upper Can- 
ada, which is not directly connected with personal irritation 
arising out of the incidents of the late troubles, might be 
dispelled by an assurance that the government of the colony 
should henceforth be carried on in conformity with the views of 
the majority in the Assembly. But I think that for the well 
being of the colonies and the security of the Mother Country, 
it is necessary that such a change should be rendered more per- 
manent than a momentary sense of the existing difficulties can 
ensure its being. 1 cannot believe that persons in power in 
this country will be restrained from the injudicious interference 



90 ILLUSTRATIVE DOCUMENTS. 

with the internal management of these colonies which I depi*e- 
cate, while they remain the petty divided communities which 
they now are. The public attention at home is now distracted 
by the various and sometimes contrary complaints of these dif- 
ferent contiguous provinces. Each now urges ib< demands at 
different times, and in somewhat differen.t forms, and the in- 
terests which each individual complainant represents as in 
peril are too petty to attract the due attention of the Empire. 
But if these important and extensive colonies should speak 
with one voice, if it were felt that every error of our colonial 
policy must cause a common suffering and a common discontent 
throughout the whole wide extent of British America, those com- 
plaints would never be revoked; because no authority would 
venture to run counter to the wishes of such a community, ex- 
cept on points absolutely involving the few Imperial interests 
which it is necessary to remove from the jurisdiction of colonial 
legislation. 

It is necessary that I should also recommend what appears 
to me an essential limitation on the present powers of the re- 
presentative bodies in these colonies. I consider good govern- 
ment not to be attainable while the present unrestricted powers 
of voting public money, and of managing the local expenditure 
of the community, are lodged in the hands of an Assembly. As 
long as revenue is raised, which leaves a large surplus after the 
payment of the necessary expenses of the civil government, and 
as long as any member of the Assembly may, without restric- 
tion, propose a vote of public money, so long will the Assem-\ 
bly retain in its hands the powers which it everywhere ahuses, 
of misapplying that money. The prerogative of the Crown 
which is constantly exercised in Great Britain for the real pro- 
tection of the people, ought never to have been waived in the 
colonies; and if the rule of the Imperial Parliament, that no 
money vote should be proposed without the previous consent of 
the Crown, were introduced into these colonies, it might be 
wisely employed in protecting the public interests, now fre- 
quently sacrificed in that scramble for local appropriations 
which chiefly serves to give an undue influence to particular in- 
dividuals or parties. 

No. 2. 

Opinion of Crown Law Officers in 1755. 

Pursuant to your lordships' desire signified- to us by Mr. 
Hill in his letter of the 31st of March last, setting forth that 



ILLUSTRATIVE DOCUMENTS. 91 

a doubt having arisen whether the Governor and Council of 
His Majesty's province of Xova Scotia have a power of enact- 
ing laws within the said province, and Jonathan Belcher, Esq., 
having transmitted to your lordships his observations there- 
upon, inclosing to us a copy of the said observations, together 
with copies of several clauses in the commission and instruc- 
tions of the said Governor of that province referred to (all 
which are herewith returned) and desiring our opinion, 
whether the said Governor and Council have or have not a 
power to enact laws for the public peace, welfare and good 
government of the said province and the people and the in- 
habitants thereof. 

We have taken the said observations and clauses into our 
consideration and are humbly of opinion that the Governor and 
Council alone are not authorized by His Majesty to make laws 
till there can be an Assembly. 

His Majesty has ordered the Government of the infant 
Colony to be pursuant to his commission and instructions and 
such further directions as he should give under his sign maniiol 
or by Order-in-Council. 

All of which is humbly submitted to your lordships' con- 
sideration. 

(Signed), 

Wm. Murray. 
April 29th, 1765. Rich'd Lloyd. 

No. 5. 

Lord Mansfield's Judgmint in Campbell v. Hall. 1771. 

The case of the Island of Grenada ; in relation to the pay- 
ment of four and one-half in the hundred of goods imported 
therefrom; 'between Alexander Campbell, Esq., plaintiff, and 
Wm. Hall, Esq., defendant, in the Court of Kings Bench, be- 
fore liord Chief Justice MansfieW: 16 George III., A.D. 1774. 

November 98th. 

The unanimous judgment of the Court was this day given 
by Lord Mansfield, as follows : — 

This is an action brought by ti\e plaintiff, Alexander Camp- 
bell, who is a natural-bom subject of Great Britain, and who, 
upon the third ^f May, 1763, purchaaed lands in the Island 
of Grenada ; and it is brought against the defendant, William 



92 ILLUSTRATIVE DOCUMENTS. 

Hall, who was collector for His Majesty at the time of levying 
the import of a duty of four and a half per cent, upon goods 
exported from the Island of Grenada. The action is to receover 
a sum of money, which was levied by the defendant and paid by 
the plaintiff, as this duty of four and a half per cent, upon 
sugars, which were exported from the Island of Grenada, from 
the estate and by the consignment of the plaintiff. 

The action is an action for money had and received ; and it 
is brought upon this ground, namely, that the money was paid 
to the defendant without consideration, the duty for which he 
received it not having been imposed by lawful or sufficient 
authority to warrant the same. 

And it is stated in the special verdict that the money is not 
paid over, but continues in the defend^ant's hands, by consent 
of the Attorney-General, for His Majesty, in order that the 
question may be tried. 

The special verdict states Grenada to have been conquered 
by the British arm& from the French King in 1762; that the 
island was ceded by capitulation; and that the capitulation 
upon which it surrendered was by reference to the capitulation 
upon which the island of Martinico had been surrendered on the 
7th of February, 1762. 

The special verdict then states some articles of that capitu- 
lation, particularly the fifth, which grants that Martinico should 
continue to be governed by its own laws till His Majesty's plea- 
sure be known. It next states the sixth article, where, to a 
demand of the inhabitants of Grenada requiring that they, as 
also the religious orders of both sexes, should be maintained in 
the property of their effects, moveable and immoveable, of what 
nature soever, and that they should be preserved in their privi- 
leges, rights, honours, and exemptions, the answer is that the 
inhabitants, being subjects of Great Britain, will enjoy their 
properties and the same privileges as in the other His Majesty's 
Leeward Islands. 

Then it states another article of the capitulation, namely, 
the 7th article, hy which they demand that they shall pay no 
other duties than what they before paid to the French King; 
that the capitation tax shall be the same, and that the ex- 
penses of the courts of justice, and of the administration of 
government, should be paid out of the King's demesne: in 
answer to which they are referred to the answer I have stated, 



ILLUSTRATIVE DOCUMENTS. 93 

as given in the foreign article ; that is, being subjects they will 
be entitled in like manner as the other His Majesty's subjects 
in the British Leeward Islands. 

The next thing stated in the special verdict is the treaty of 
peace signed on the 10th of February, 1763; and it states that 
part of the treaty of peace by which the Island of Grenada is 
ceded, and other articles not material. 

The next and material instrument which they state is a 
proclamation under the Great Seal, bearing date the 7th of 
October, 1763, reciting thus: 

"Whereas it will greatly contribute to the settling of our 
said islands, of which Grenada is one, that they be informed 
of our love and paternal care for the liberties and rights of 
those who are, or shall be, inhabitants thereof ; we have thought 
fit to publish and declare by this our proclamation, that we 
have by our letters patent under our Great Seal of Great 
Britain, whereby our said governments are constituted, given 
express power and direction to our governors of our said 
colonies respectively, that so soon as the state and circum- 
stances of the said colonies will admit thereof, they shall, with 
the advice and consent of our said council summon and call 
< 11. Ill ;i^^t niblies, in such manner and form as is used in the 
• mIm i ..;..,:;•>> under our immediate government. And w^ have 
also given power to the said governors, with the advice and con- 
M*nt of our sBid council and assembly of representatives as 
nforeflaid, to make, constitute, and ordain laws, statutes, and 
(trdinanccs for the public pcnc<*, welfare and good government 
of our said colonies and the inhabitants thereof, as near as may 
be agreeable to the laws of England, and under such regulations 
hikI restrictions as are used in our other colonies." 

Then follow letters patent under the Great Seal, or rather 
a proclamation of the 26th of March, 1764, whereby the King 
recites, that he had ordered a survey and division of the cedeil 
islands, as an invitation to all purchasers to come and purchase 
upon certain terms and conditions specified in that proclamation. 

The next instrument stated in the verdict is the letters 
patent bearing date the 9t4i of April, 1764. In these letters 
there is a commission appointing General Melville Governor of 
the island of Grenada, with power to summon an assembly as 
soon as the situation and circumstances of the island would 
admit; and to make laws in all the usual forms with reference 



94 ILLUSTRATIVE DOCUMENTS. 

to the manner of the other assemblies of the King's provinces 
in America. 

The Governor arrived in Grenada on tlie 14:th of December, 
1764; before the end of 1765, the particular day not stated, an 
assembly actually met ; but before the arrival of the Governor 
at Grenada, indeed, before his departure from London, there is 
another instrument upon the validity of which the whole ques- 
tion turns, which instrument contains letters patent under the 
Great Seal, bearing date the 20th of July, 1764, and reciting 
iliat in Barbadoes, and in all the^ritish Leeward Islands, a 
duty of four and a half per cent, was paid upon goods exported ; 
and reciting further: 

"Whereas it is reasonable and expedient, and of im- 
portance to our other sugar islands, that the like duties 
should take place in our said island of Grenada; we have 
thought fit, and our royal will and pleasure is, and we do 
hereby, by virtue of our prerogative royal, order, direct, and 
appoint that an import or custom of four and a half per cent, 
in specie shall, from and after the 29th day of September next 
ensuing, the date of these presents, be raised and paid to us, our 
heirs and successors, for and upon all dead commodities of the 
growth or produce of our said island of Grenada that shall be 
shipped off from the same, in lieu of all customs and impost 
duties hitherto collected upon goods imported and exported 
into and out of the said island, under the authority of his 
Most Christian Majesty, and that >the same shall be collected, 
&c."; then it goes on with reference to the island of Barbadoes, 
and the other Leeward islands. 

The jury fi'nd that in fact such duty of four and a half per 
cent, is paid to His Majesty in all the British Leeward Islands. 
And they find several Acts of Assembly which are relative to 
the several islands, and which I shall not state, as they are 
public, and every gentleman may have access to them. 

These letters patent of the 20th of July, 1764, with what I 
stated in the opening, are all that is material in this special 
verdict. 

Upon the whole of the case this general question arises, 
being the substance of what is submitted to the Court by the 
verdict: "Whether these letters patent of the 20th of July, 
1764, are good and valid to abrogate the French duties, and in 
lieu thereof to impose this duty of four and a half per cent.. 



ILLUSTRATIVE DOCUMENTS. 95 

which is paid by all the Leeward islands subject to his 
Majesty/' 

That the letters are void has been contended at the bar, 
upon hvo points: (1) That although they had been made before 
the proclamation of the 7th of October, 1763, the King by his 
prerogative could not have imposed them; and (2) that, 
although the King had sufficient authority before the 7th of 
October, 1763, he had divested himself of that authority by the 
proclamation of that date. 

A great deal has been said, and authorities have been cited 
' i itive to propositions in which both sides exactly agree, or 
\ 1 rh are too clear to be denied. The stating of these will lead 
us to the solution of the first point. 

I will state the propositions at large: — 

1. A country conquered by the British arms becomes a 
dominion of the King in the right of his Crown, and therefore 
n*'(cs.«arily subject to the legislative power of the Parliament 
oi (jreat Britain. 

2. The conquered inhabitants once received into the con- 
• 'ors protection become subjects; and are universally to be 

-idered in that light, not as enemies or aliens. 

3. Articles of capitulation, upon which the country is sur- 
rendered, and treaties of peace by which it is ceded, are sacred 
and inviolate, according to their true intent and meaning. 

4. The law and legiKlation of every dominion equally affects 
all personfl and property within the limits thereof, and is tlie 
true rule for the decision of all questions which ariw? there. 
Whoever purchawK, sues, or lives there, puts himself under the 
law8 of the j>lace, and in the situation of it.s inhabitants. An 
Kn^rliKhman in Ireland, Minorca, the Isle of Man, or the Plan- 
tations, hus no privilege distinct from the natives while he con- 
tinues there. 

6. The lawn of a conquered country continue in force until 
t^y are altered by the conqueror. The justice and antiquity 
of this maxim are incontrovertible; and the absurd exception 
a« to pagans mentioned in Calvin's case, shows the universality 
and antiquity of the maxim. That exception could not exist 
before th<» Christian era, and in all probability arose from the 
vnad enthuaiaum of the Cruwdes. In the present "^caae the 
capitulation exprefwly provided ami agrees that t4iey shall oon- 



96 ILLUSTILVTIVE DOCUlklENTS. 

tiniie to be governed by tlieir own laws, nntil his Majesty's 
pleasure be further known. 

6. If the King has power (and, when I say " the King,'' I 
mean in this case "the King without the concurrence of Par- 
liament") to alter the old and to make new laws for a con- 
quered country — this being a power subordinate to his own au- 
thority as a part of the supreme legislature and parliament — 
he can make none which are contrary to fundamental principles ; 
he cannot exempt an inhabitant from the laws of trade, or the 
authority of Parliament, or give him privileges exclusive of his 
other subjects; and so in many other instances that might be 
put. 

The present Proclamation is an Act of this subordinate 
legislative power. If it had been made before the 7th of Oc- 
tober, 1763, it would have been made on the most reasona])le 
and equitable grounds, putting the island of Grenada as to 
duties on the same footing as tho other islands. 

If Grenada paid more duties, the injury would have been 
to her; if less, it must have been detrimental to the other 
islands; nay, it would have been carrying the capitulation into 
execution, which gave the people of Grenada hopes that if any 
new duties were laid on, their condition would be the snmo as 
that of the other Leeward islands. 

The only question which remains on this first point then is, 
whether the King of himself had power to make such a change 
between the 10th of February, 1763, the day^ the treaty was 
signed, and the 7th of October, 1763. 

Taking the above propositions to be granted, he lias a legis- 
lative power over a conquered country, limited to him by the 
constitution, and subordinate to the constitution of parlia- 
ment. It is left by the constitution to the King's authority to 
grant or refuse a capitulation. If he refuses, ancl put.< the 
inhabitants to the sword or exterminates them, all tho hinds 
belong to him ; and if he plants a colony, the new settlers share 
the land between them, subject to the prerogative of the con- 
queror. If he receives the inhabitants under his protection 
and grants them their property, he has power to fix such terms 
and conditions as he thinks proper. He is entrusted with 
making peace at his discretion; and he may detain the con- 
quest, or yield it up, on such condition as he pleases. These 
powers no man ever disputed, neither has it hitherto been con- 



ILLUSTRATIVE DOCITMENTS. 97 

troverted that the King might change part or the whole of 
the law or political form of government of a conquered nation. 

To go into the history of conquests made by the Crown of 
England. The alteration of the laws of Ireland has been much 
discussed by lawyers and writers of great fame at different 
periods of time; but no man ever said the change was made 
by the parliament of England; no man, unless perhaps Mr. 
Molyneux, ever said the King could not do it. The fact, in 
truth, after all the researches that have been made, comes out 
clearly to be as laid down by Lord Chief Justice Vaugl\an, 
that Ireland received the laws of England by the charters and 
commands of Henry II., King John, Henry III., and he adds 
an et cetera to take in Edward I., and the successora of the 
princes named. That the charter of 12 King John was by 
assent of a parliament of Ireland, he shows clearly to be a mis- 
take. Whenever the first parliament was called in Ireland, 
that change in their constitution was without an act of the 
parliament of England, and therefore mu^ have been derived 
from the King. 

Mr. Harrington is well warranted in saying that the l^h 
of Edward I., called the *' Statute of Wales,*' is certainly no 
more than a regulation made by the King as conqueror, for 
the government of the country, which, the preamble says, was 
then totally subdued; and, however for purposes of policy he 
miglit think fit to claim it as a fief appertaining to the realm 
of England, he could never think himself entitled to make 
lawfi without assent of parliament to bind the subjects of any 
]).irt of the realm. Therefore as he did make laws for Wales 
without assent of parliament, the clear consequence is that he 
governed it as a conquest: which was his title in fact, and the 
feudal right was but a fiction. 

Berwick, after the conquest of it, was governed by charters 
from the Crown, till the reign of James I., without interposi- 
tion of parliament. 

Whatever changes were made in the laws of Gascony, Quy- 
enne, and Calais must have been under the King's authority; 
if by act of parliament, that act would be extant, for they were 
conquered in the reign of King Edward III. ; and all the acts 
from that reign to the present time are extant; and in some 
acts of parliament there are commercial regulations relative to 

c.c— 7 



98 II^LUSTRATIVE DOCUMENTS. 

each of the conquests which I have named; none making any 
change in their constitution and laws, and particularly with 
regard to Calais, which is alluded to as if its laws were con- 
sidered as given by the Crown. Yet as to Calais, there was a 
great change made in the constitution : for the inhabitants were 
summoned by writ to send burgesses to the English parlia- 
ment and as this was not by act of parliament, it must have 
been by the sole act of the King. 

Besides the garrison there are inhabitants, property, and 
trade at Gibraltar; the King, ever since that conquest, has 
from time to time made orders and regulations suitable to the 
condition of those who live, trade, or enjoy property in a 
garrison town. 

Mr. Attorney-Gteneral has alluded to a variety of in- 
stances, several within these twenty years, in which the King 
has exercised legislation over Minorca. In Minorca, it has 
appeared lately, there are and have been for years back a great 
many inhabitants of worth and a great trade carried on. If 
the King does it there as coming in the place of the King of 
Spain, because their old constitution continues (which by the 
by is another proof that the constitution of England does not 
necessarily follow a conquest by the King of England), the 
same- argument applies here; for before the 7th of October, 
1763, the constitution of Grenada continued, and the King 
stood in the place of their former sovereign. 

After the conquest of New York, in which most of the old 
Dutch inhabitants remained, King Charles II. changed its 
constitution and political form of government, and granted 
it to the Duke of York, to hold from his Crown under all the 
regulations contained in the letters patent. 

It is not to be wondered that an adjudged case in point 
is not to be found; no dispute ever was started before upon 
the King's legislative right over a conquest; it never was 
denied in a court of law or equity in Westminster Hall, never 
was questioned in parliament. Lord Coke's report of the 
arguments and resolutions of the judges in Calvin's case lays 
it down as clear (and that strange extra judicial opinion, as 
to a conquest from a pagan country, will not make reason not 
to be reason, and law not to be law as to the rest). The book 
says, " If a King " — I omit the distinction between a Christain 
and an infidel kingdom, which as to this purpose is wholly 
groundless, and most deservedly exploded — "If a King comes 



ILLUSTRATIVE DOCUKENTS. 99 

to a kingdom by conquest, he may, at his pleasure, alter and 
change the laws of that kingdom; but, until he doth make an 
alteration of those laws, the ancient laws of that kingdom shall 
remain; but if a King hath a kingdom by title of descent, 
then, seeing that by the laws of that kingdom he doth inherit 
the kingdom, he cannot change those laws himself without con- 
sent of parliament." It is plain that he speaks of his own 
country where there is a parliament. Also, " if a King hath 
a kingdom by conquest, as King Henry the Second had Ireland, 
after King John had given to them, being under his obedi- 
ence and subjection, the laws of England for the government 
of that country, no succeeding King could alter the same with- 
out parliament." Which is very just, and it necessarily in- 
cluded that King John himself could not alter the grant of 
the laws of England. 

Besides this, the authority of the two great names has been 
cited, who took the proposition for granted. And though 
opinions of counsel, whether acting officially in a public charge 
or in private, are not properly authority on which to found a 
decision, yet I cite them — not to establish so clear a point, 
but to show that when it has been matter of legal enquiry, the 
answer it has received, by gentlemen of eminent character and 
abilities in the profession, has been immediately and without 
hesitation, and conformable to these principles. In 1722, the 
assembly of Jamaica refusing the usual supplies, it was referred 
to Sir Philip Yorke and Sir Clement Wearge, what was to be 
done if they should persist in this refusal. Their answer is — 
''If Jamaica was still to be considered as a conquered island, 
the King had a right to levy taxes upon the inhabitants; but, 
if it was to be considered in the same light as the other col- 
onies, no tax could be imposed upon the inhabitants, but by an 
assembly of the island, or by an act of parliament." The dis- 
tinction in law U'tween a conquered country and a oolony they 
held to t)e clear and indisputable; whether, as to the case be- 
fore them of Jamaica, that island remained a conquest or was 
made a colony, they had not examined. I have, upon former 
occasions, traced the constitution of Jamaica as far as there 
are books or papers in the offices; I cannot find that any 
Spaniard reuMuned upon the island so kte as the Restoration ; 
if any, they were very few. A i^entleman to whom I put the 
question on one o< the n this cau«, said he knew 

of no Spanish names ani' . •• inhabitants of Jamaica; 



100 ILLUSTRATIVE DOCUMENTS. 

but there were amongst the negroes. The King, I mean 
Charles the Second, after the Restoration invited settlers by 
proclamation, promising them his protection. He made grants 
of land. He appointed at first a governor and council only; 
afterwards he granted a commission to the governor to call an 
assembly. The constitution of every province immediately 
under the King has arisen in the same manner ; not by grants, 
but by commissions, to call assemblies. And, therefore, all the 
Spaniards having left the island, or having been killed or 
driven out of it, Jamaica from the fi"rst settling was an Eng- 
lish colony, who under the authority of the King planted a 
vacant island, belonging to him by right of his Crown; like 
the cases of the islands of St. Helena and St. John, mentioned 
by Mr. Attorney-Greneral. 

A maxim of constitutional law, as declared by all the judges 
in Calvin's case, and which two such men in modern times 
as Sir Philip Yorke and Sir Clement Wearge took for granted, 
will acquire some authority, even if there were anything which 
otherwise made it doubtful; but on the contrary no book, no 
saying of a judge, no, not even an opinion of any counsel, 
public or private, has been cited; no instance is to be found in 
any period of our history where it was ever questioned. 

The counsel for the plaintiff undoubtedly laboured this point 
from a diffidence of what might be our opinion on the second 
question. But upon the second point, after full consideration, 
we are of the opinion -that before the letters patent of the 20th 
of July, 1764, the King had precluded himself from an exer- 
cise of the legislative authority which lie had before by virtue 
of his prerogative over the island of Grenada. 

The first and material instrument is the proclamation of 
the 7th of October, 1763. See what it is that the King thete 
says, and with what view he says it; how and to what he en- 
gages himself and pledges his word : " Whereas it will greatly 
contribute to the speedy settling our said new governments, 
that our loving subjects should be informed of our paternal 
care for the security of the liberty and properties of those who 
are, and shall become, inhabitants thereof; we have thought lit 
to publish and declare by this our proclamation, that we have 
in the letters patent under our Great Seal of Great Britain, 
by which the said governments are constituted, given express 
power and direction to our governors of our said colonies re- 
spectively, that, so soon as the state and circumstances of the 



ILLUSTRATIVE DOCUMENTS. 101 

said colonies will admit thereof, they shall, with the advice 
and consent of the members of our council, summon and call 
1,^'iieral assemblies" (and then follow the directions for that 
purpose). And to what end? "To make, constitute, and 
ordain laws, statutes, and ordinances for the public peace, wel- 
fare, and good government of our said colonies," of which this 
of Grenada is one, "and of the people and inhabitants thereof, 
as near as may be agreeable to the laws of England." With 
what view is the promise given? To invite settlers; to invite 
subjects. Why? The reason given. They may think their 
liberties and properties more secure when they have a legisla- 
tive assembly than under a governor and council only. The 
governor and council depending on the King, he can recall 
them at pleasure, and give a new frame to the constitution; 
but not so of the other, which has a negative on those parte o! 
the legislature which depend on the King. Therefore that 
assurance is given them for the security of their libert)* and 
properties, and with a view to invite them to go and settle 
there after this proclamation that assured them of the^ con- 
stitution under which they were to live. 

The next act is of tlie 26th of March, 1764, which the con- 
stitution having been established by proclamation, inWtes fur- 
ther such as shall be disposed to come and purchase, to livp 
under the constitution. It states certain terms and conditions* 
on which the allotments were to be taken, established with a 
view to permanent colonization and the increase and cultiva- 
tion of the new settlement. For further confirmation of all 
this, on the 9th of April, 1764, three months before the impost 
in question was imposed, there is an actual commission to 
Governor Melville, to call an assembly as soon as the state and 
circumstanoes of the island should admit. You will obacrve 
in the proclamation there is no legislature reserved to be ei- 
ercised by the King, or by the governor and council under his 
authority, or in any other method or manner, until the as- 
lembly should be called: the promise importa the contrary; 
for whatever construction is to be put upon it (which perhtps 
it may be somewhat difficult to pursue through all the cases 
to which it may be applied), it apparently considers laws then 
in being in the island, and to be administered by courts of 
justice; not an interposition of legislative authority between 
the time of the promise and of C4illing the assembly. It does 
not appear from the special verdict when ♦' ^ ♦'•-♦ n-wombly 



102 ILLUSTRATIVE DOCUMENTS. 

was called ; it must have been in. about a year at farthest from 
the Governor's arrival, for the jury find he arrived in Decem- 
ber, 1764, and that an assembly was held about the latter end 
of the year 1765. So that there appears to have been nothing 
in the state and circumstances of the island to prevent calling 
an assembly. 

We therefore think that, by the two proclamations and the 
commission to Governor Melville, the King had immediately 
and irrevocably granted to all who were or should become in- 
habitants, or who had or should have property, in the island of 
Grenada — in general, to all whom it might concern — ^that the 
subordinate legislation over the island should be exercised by an 
assembly, with the consent of the Governor and council, in like 
manner as in the other provinces under the King. 

Therefore, though the right of the King to have levied 
taxes on a conquered country, subject to him in right of his 
crown, was good, and the duty reasonable, equitable, and ex- 
pedient, and, according to the filiding of the verdict, paid in 
Barbadoes and all the other Leeward islands; yet by the in- 
advertency of the King's servants in the order in which the 
several instruments passed the office (for the patent of the 
20th of July, 1764, for raising the impost stated, should have 
been, first), the order is inverted, and the last we think con- 
trary to and a violation of the first, and therefore void. How 
proper soever the thing may be respecting the object of these 
letters patent of the 26th of July, 1764, it can only now be 
done, to use the words of Sir Philip Yorke and Sir Clement 
Wearg, ^^by the assembly of the island, or by an act of the 
Parliament of Great Britain." 

, The consequence is, judgment must be given for the plain- 
tiff. 



PARLIAMENT FROM THE EARLIEST TIMB8. 103 

CHAPTER X. 
Parliament from the Earliest Times. 

Uistorical Sketch. 

The passage of the Curia Regie on its judicial side has been 
traced, supra, and now is an appropriate time to draw attention 
to the many different meanings that have been attached to the 
words Curia Regis. 

As we have seen, the name is gfven, (1) to the council 
which succeeded the Witan, and indeed may be said to be the 
Witan in a feudalized form, the council of the tenants-in- 
chief, the Commune Concilium of the Magna Charta» the Mag- 
num Concilium, the National Council, the House of Lords of 
to-day; (2) to a permanent council which remained about the 
King's person, consisting of the great nobles, the officers of the 
King's household, i.e., the justice or chancellor, treasurer, and 
some or all of the judges, the King's Council par excellence, in 
days to come to be known, from which the King's courts 
were to branch off, in days to come to be known as the Con- 
tinual Council, Concilium Ordinarum, the Council, the Privv 
Council; (3) after the King's courts split off to the King's 
Bench the oourt still held coram rege, as distinct from the Court 
of Common Pleas, the Common Bench, whose 6itting>< were held 
in a flxed place. 

In early days there was not the same marked diilrnmrs 
between executive, legislative, and judicial functions, as there 
is to-day. In the earliest times there was but little legislation, 
and taxation, as we know it to-day, hence it is that both the 
National Council and the Continual Council (I \ise these terms 
not because they are correct terms to use with reference to 
every period of English history, but because they soom to me to 
convey of themselves more than the other names which are 
given to tiie Councils, the essential differences between them) 
claimed executive, legislative and judicial functions, hence it 
is, also, that the House of Lords is to-day a member of the legis- 
lative body (like tjie House of Commons), and is also (unlike 
the Honte of Commons) a court of Uw, both with original 
jurisdiction (trial of peer«) and appellate jurisdiction, whilst 
the fVrW^-^ Continual Council exercises great executive power, 



104 PARLIAMENT FROM THE EARLIEST TIMES. 

via proclamation and orders-in-council, legislative power in 
the case of Crown colonies, and judicial power as the final 
court of appeals for colonies and other places. 

The extinction of the original judicial jurisdiction of the 
Continual Council is dealt with under the heading of Privy 
Council; its appellate judicial jurisdiction survives in case of 
colonies, Isle of Man, the Channel Islands, India, etc. The 
legislative functions of the Continual Council only survive in 
the case of Crown colonies. This is further dealt with under 
Proclamations. 

The executive functions of the Privy Council survive either 
in the cabinet, or in the passing of orders-in-council, as the 
formal expression of the royal or executive will. 

The original judicial jurisdiction of the National Council 
survives in the trial of peers by the House of Lords and im- 
peachment; its appellate jurisdiction survives as a final court 
of appeal for Great Britain and Ireland. 

The legislative functions of the National Council survive 
in the House of Lords, and are dealt with in the next note on 
Legislation. 

Owing to the necessity of the executive being on the spot 
for action, the executive power of the National Council can 
never have been extensive, they were but infrequently f?um- 
moned. 

Legislation. 

In theory the National Council seems t»o have consisted 
of all the King's tenants in capite, but it is more than prob- 
able that with the exception of earls, bishops and the prin- 
cipal abbots, -the King sent his writ only to those whose pres- 
ence he desired, and indeed the duty of attending the assem- 
blies must have been viewed by the majority of tenants-in- 
capite, as a burden, rather than as a privilege. They could 
come, but they also could stay away. (See the provisions of 
Magna Charta summoning the archbishops, bishops, abbots, 
earls and majores barones individually, and the rest of the 
ieiiRnis-m-capite generally through the sheriff.) 

Laws wore passed by tlicse councils, such as the Constitu- 
tions of Clarendon, the Grand Assize, the Assizes of Clarendon 
and Northampton, but as Maitland reminds us, the King only 
"professedly legislates by the counsel and consent of the arch- 



PARLIAMENT FROM THE EARLIEST TIMES. 105 

bishops, bishops, barons, earls and nobles of England — by the 
petition and advice of his bishops and all his barons, and po 
forth. The counsel and consent may still have been little more 
than a ceremony — the exacting power was with the King — 
and he could put in respite or dispense with the ordinances 
that were issued. (The tyranny of John after the discipline of 
Henry was what was needed to turn this right of joining in 
legislation into a reality. In form the charter is a charter, a 
free grant by the King, in reality a code of reforming laws 
passed by the whole body of bishops and barons, and thrust 
upon a reluctant king.'' 

That laws should be passed without consulting the com- 
monalty of the realm never struck the people of the day as 
anything remarkable. It was only when questions of taxa- 
tion were to the fore, that questions of representation arose. 
From the earliest time these ideas are inseparable. In 1198 
Hugh of Lincoln will not pay a tax, because he and others 
have not consented to its imposition. When tho Saladin tithe 
is collected in 1188, a jury of neighbours settles the amount in 
each case, but no commoners attend the National Council, till 
1213, when after John's submission to the Pope, bishops, bar- 
ons and four men and tho rocvo from each township on the 
royal demesne go to St. Albans to a council. This is the 
germ of popular representaftion. 

In 1213 King John, by his writ to the .slierifT. diiected tho 
election of four discreet knights in each shire to come to ad 
loquendum nohiscum de negotiis regni nosiri. 

The name Parliament, however, appears with respect to a 
National Council in 1246 at London. 

In 1254 when Henry III. was absent in Gascony, his 
regents summoned two lawful and discreet knights (from each 
county, " whom the men of the county shall have chosen for 
this purpose in the place of all and each of them" {** quox 
iidfm comitaius ad hoc sligerint, vice omnium et singuhnim, 
eorundum comitatum "). The purpose of their coming to- 
gether is to consider what aid they will grant tho king." Here 
can bo seen distinguishing features of modem parliaments, 
taxation, election, representation, i.^., taxation by elected 
representatives. 

In 1264, Simon de 'Montford summoned to London two 
discreet knights for each shire, and two citizens from each city, 
and two burgesses from each borough. 



106 I'ARLIAMENT FROM THE EARLIEST TIMES. 

The year 1295 "gives us the model for all future parlia- 
ments. The archbishops and bishops are directed to bring the 
heads of their chapters, their archdeacons, one proctor for the 
clergy of each cathedral, and two for the clergy of each dio- 
cese. Every sheriff is to cause two knights of each shire, two 
citizens of each city and two burgesses of each borough to be 
elected. Seven earls and forty-one barons are summoned by 
name. The clergy and baronage are summoned to treat, ordain 
and execute, the representatives of the commons are to bring 
full powers from those whom they represent to execute (ad 
faciendum) what should be ordained by common counsel. . . . 
Thus before the end of the thirteenth century the national 
assembly is ceasing to be a feudal court; it is becoming an 
assembly of the estates of the realm (clergy, barons and com- 
mons), that is to say, according to the theory of the time, of 
all sorts and conditions of men.'' 

Even after 1295, it is not easy to distinguish between legis- 
lation by the King in Council, i.e., in the National Council 
or Assembly of Magnates, and by the King in Parliament. 
The former ordinarily legislated by ordinance embodied in 
letters patent, and both temporary and revocable, while the ' 
latter by statute intended to be permanent and engrossed on 
the statute roll (begun in the reign of Edward I.). The Com- 
mons sometimes even prefen*ed legislation by ordinance, thus 
in Edward IIT.'s reign (1363), they expressed a preference for 
sumptuary legislation " by way of ordinance, and not by way of 
statute, in order that if anything should need amendment, it 
might be amended at the next parliament," though it is true 
that in 1353 the Commons objected to the Ordinance of the 
Staple (prohibiting English merchants from exporting wool 
upon the pain of death), and asked that ''the said articles 
might be recited at the next Parliament and entered upon the 
Parliament Koll, for this cause that ordinances and agreements 
made in council are not of record, as if they had been made 
in a general Parliament." 

It seems to be clearly established .that in the earliest days 
the statutes passed in Parliament did not necessarily require 
to be assented to by the Commons; at any rate in the cases 
oif statutes founded on the petition of the clergy (who ceased 
to attend Parliament in 1341). 

Parliamentary legislation was effected in the early stages 
by a petition from the Commons, to which the King replied 



PARLIAMENT FROM THE EARLIEST TIMES. 107 

le roy le veult. The matter then left the hands of the Com- 
mons, and came into those of the King in Council, who might 
shelve the matter altogether or pass a statute (or ordinance, if 
the matter were only of temporary importance), which only in 
part corresponded with the terms of the petition, or add to it a 
power to the King to suspend or dispense with its operation. 

In the reign of Henry V. (1414), the House of Commons 
petitioned the King, that their petitions should not be changed. 
The petition is of more than ordinary interest, as it was the 
fJrst petition written in English. The petition first set out 
that it had ever been the liberty and freedom of the House of 
Commons that there should be no statute or law made unless 
with their assent; and then proceeded as follows: — *Consider- 
inge that the Comune of youre lond, the whiche that is, and 
ever hath be, a membre of youre Parlement, ben as well 
Assentirs as Peticioners, that fro this tyme foreward, by com- 
pleynte of the Comune of eny myschief axk}'nge remedie by 
mouthie of their speker for the Comune, other ellys by Peti- 
tion writen, that ther never be no Lawe made theruppon, and 
engrosed as Statute and Lawe, nother by addicions, nother by 
diminucions, by no maner of termes ne termes, the whiche 
that sholde chaunge the sentence, and the entente axked by the 
speker mouthe, or the Petitions biforesaid yeven up in writyng 
by the manere forsaid, witlioute assent of the forsaid Comune. 
Considerynge our soverain lord, that it is not in no wyse the 
entente of your Comunes, zif hit be so that they axke you by 
spekying or by writyng, two thjTiges or three, or as manye as 
them lust. But that ever it stande in the fredom of your hie 
Regalie, to graunto ubir}i<» n^ ihcm that you lust, and to woniiio 
the remanent." 

To this the King replied * Tlu f his grace especial 

graunteth that fro hensforth no thvi , . . Jiacted to the Peti- 
cions of his Comune, that be oontrarie of hir askyng i*4iarby 
they shuld be bounde withoute their aasent Savj-ng alwey to 
our liege lord his royal prerogative to graunte and donye what 
him lurt of their petitions and askynges aforesaide.* 

In the reign of Henry VI. the Commons adopted the plan 
of putting their petition into tlic exact form they wished the 
statute to take. In 1429 they had petitioned that "hit lyke 
unto ye king by ysLdvys of the I^ordys Spirituell and Temporell 
in yis present Parlement, yat graciously hit may be answered 
after the tenure and fourme yerof." 



108 PARLIAMENT FROM THE EARLIEST TIMES. 

These petitions were known as ' petitio7ies fonmam actuum 
in se continentesf Not till after this did the House of Lords 
begin to originate bills. Thereafter the rule was that either 
House could originate a bill, but the Upper House could not 
originate a money bill, and the Lower House could not origi- 
nate a bill affecting the Peerage. 

From the beginning of the fifteenth century it appears 
to be settled that money grants are to be initiated in the House 
of Commons. 

In the time of Charles I. the modern form appears, the 
act imposing a tax recites that the Commons have granted a 
tax, and then it is enacted by the King, by and with the ad- 
vice and consent of the lords spiritual and temporal and com- 
mons in parliament assembled, and by the authority of the 
same, that the tax be imposed. After the Restoration it is 
established that the lords cannot amend a money bill, but 
must simply accept it or reject it. According to the resolu- 
tions of 1860, they cannot even reject a money bill. 

Under the Parliament Act 1911, no money bill can be 
rejected by the House of Lords, or at least if it is not assented 
to by the House of Lords within a month of reaching that 
body, it automatically becomes law. 

The legislative formula of a statute tells the whole tale of 
the increasing and finally predominant share of the Commons 
in legislation. 

In the 14th century, the statute is made by the King with 
the assent of the prelates, earls, and barons, and at the request 
of the knights of the shire and commons. Afterwards they 
become "as well Assentirs as Peticioners,'' as we have seen, 
and the statute is passed by the advice and assent of lords and 
commons. For a while the form oscillates between the two 
positions, but becomes constant under the Tudors; the King 
enacts '^ with the assent of the lords spiritual and temporal and 
commons in parliament assembled, and by the authority of the 
said Parliament." 

In the case of bills passed under the provisions 'of the 
Parliament Act 1911, there is a new formula: "Be it enacted 
by the King's most Excellent Majesty, by and with the advice 
and consent of the Commons in this present Parliament as- 
sembled in accordance with the provisions of the Parliament 
Act 1911, and by authority of the same, as follows." 



PARLIAMENT FROM THE EARLIEST TIMES. 109 

Money Bills. 

Under Standing Order 66, no petition for any sum relating 
to the public service, nor any motion for a grant or charge 
upon the public revenue, whether payable out of the Consoli- 
dated Fund or out of moneys to be provided by Parliament, 
will be received or proceeded with unless recommended from 
the Crown. Compare the Preamble to a Dominion Appro- 
priation Act in Canada, ' Whereas it appears by a message 
from his Excellency the Right Honourable Sir Albert Henry 
George, Earl Grey, Governor-General of Canada, and the esti- 
mates accompanying the said message, that the sum hereinafter 
mentioned is required to defray certain expenses of the public 
eervices of Canada/ and similar preambles in provincial 
statutes. 

Two conventions of the Imperial Parliament are embodied 
in statute or observed in practice in Canada. The rule that 
money bills must originate in a recommendation from the re- 
presentative of th^ Crown is based on statute, and not on stand- 
ing order or convention; and in some form or otlier, the initi- 
ative and control of the Lower House over such bills is estab- 
lished. Moreover, all moneys can only be issued under a war- 
rant 8ign<»d by the Governor, and in signing such warrant, he 
must exercise his discretion in seeing that the grounds for his 
signature are good. 

Dissolution — Prorogation — A djoumment. 

A distinction must be drawn between a dissolution, a pro- 
rogation, and an adjournment. A dissolution brings the par- 
liament to an end ; a prorogation brings the session to an end, 
and terminates all pending business, and is brought about by 
the royal prerogative, the prorogation being to a fixed date, 
unless an acceleration or postponement of the same is directed 
by proclamation. An adjournment brings about a cessation 
of business for a fixed period at the discretion of the house, 
and does not terminate pending business. 

Dissolution of Parliament used to take place on the demise 
of the Crown, but by the liepresentation of the People Act 
1867, the duration (5 years under the Parliament Act 1911) 
of Parliament is independent of the Crown. By 37 Geo. III. 
c. 127, if a demise of the Crown occurs during a dissolution, 
the old Parliament is revived for six months. The legislatures 



110 PARLIAMENT FROM THE EARLIEST TIMES. 

of Canada are not in any way affected by the demise of the 
Crown. 

Powers of Canadian Parliament. 
Parliament may, — 

(1) Change the number for a quorum of the Senate (s. 35). 

(2) Make a change in electoral districts (s. 40). 

(4) Change the qualifications and disqualifications of per- 

sons to be elected or to sit or vote as members of the 
House of Commons, the voters at elections of such 
members, the oaths to be taken by voters, the return- 
ing officers, their powers and duties, the proceedings 
at elections, the periods during which elections may 
be continued, the trial of controverted elections, and 
proceedings incident thereto, the vacating of seats of 
members, and the execution of new writs in case o^ 
seats vacated otherwise than by dissolution (s. 41). 

(5) Change the method of election of Speaker (s. 47). 

(6) Make a decennial readjustment of representation in 

Parliament as between the different provinces (s. 51). 

(7) Increase the number of members of the House of Com- 

mons, provided the proportionate representation pre- 
scribed by the B. N. A. Act is not thereby disturbed 
(?. 52). 

Disqualifications {Imperial — Canadian). 

Disqualifications for sitting in the Imperial House of Com- 
mons arise from: 1. Infancy. 2. Lunacy or idiocy. 3. Alienage. 
4. The Possession of a peerage other than an Irish peerage, the 
holder not being one of the twenty-eight Irish peers. 5. Holy 
orders of clergy of the Established Church, ministers of the 
Church of Scotland or clergy of the Roman Catholic Church. 
6. Possession of certain offices, returning officers, judges, all 
offices under the Crown created since 1705, and not specially 
exempted by statute, secretaries or under-secretaries of state, 
when more than four of either class are elected. These are 
entirely disqualified. Holders of old offices (created before 
1705) must vacate their seats, but may be re-elected. 7. 
Pensioners holding their pensions at the pleasure of the Crown, 
other than civil service and diplomatic pensioners. 8. Govern- 
ment contractors. 9. Convicted felons. 10. Bankrupts. 11. 



PARLIAMENT FROM THE EARLIEST TIMES. Ill 

Persons who have been found guilty of corrupt practices at 
elections (partial). 

Persons disqualified from sitting in the Dominion Parlia- 
ment: 1. Members of the provincial legislatures. 2. Senators. 
3. Officers under the Crown, with the exception of those speci- 
fied in R. S. C. c. 1, 10. 4. Government contractors and share- 
holders in companies contracting for public works. -5. Lenders 
of money to government, and 6. Militiamen. 

The rules as to Provincial Assemblies are similar. 

Parliament — (Continued) . 

Privileges of the House of Commons. 

The House of Commons always claim their privileges at 
the beginning of every Parliament, in particular they claim 
freedom from arrest, liberty of speech, that they may have 
access to His Majesty, and that their proceedings may receive 
the most favourable construction. 

Freedom from Arrest. 

This does not cover arrest for treason, felony, or breach of 
the peace, nor, indeed, for any indictable offence (T?esolution 
of the Houses 1763), nor for contempt of court. By statute 
10 Geo. III. c. 60, the old rule that action could not be com- 
menced against a member or his servant (except 12 & 13 Wm. 
III. c. 3, during a dissolution, prorogation or adjournment for 
more than 14 days), was done away with, and process was 
allowed to issue against property, and the freedom from arrest 
limited to the person of members. 

Members also have a right not to be subpoenaed to attend 
as a witness (a privilege which is always waived), and a right 
not to serve on juries. Confirmed by 33 & 34 Vict. c. 77, s. 9. 

Freedom of Speech. 

Though claimed for many centuries, the existence of this 
privilege was by no means firmly established, either under the 
Tudor or Stuart sovereigns, as witness the proceedings 
against Eliot, Holies and Valentine for speeches in Parliament 
in 1609. 

It was distinctly recognized in the Bill of Rights (q.v.), 
but under George III. it was quite usual to remove from office 
held under the Crown, persons whose speeches wore unpleasing 



112 PARLIAMENT FROM THE EARLIEST TIMES. 

to the King, e.g., the dismissal of General Conway in 1764 
from his colonelcy of voting against the government on the 
question of general warrants. 

The right to forbid publication of the proceedings of the 
House is a breach of this privilege, but the House at the pres- 
ent day does not consider a report of its proceedings in a news- 
paper or other publication to be a breach of its privileges, un- 
less such report is manifestly inaccurate or iintrue (Wason v. 
Walter, L. R. 4 Q. B. 73), but regards it as a breach of its 
privileges to publish a report from one of the parliamentary 
committees, before it is communicated to the House. 

Now a fair and honest report does not lay the ground for 
an action of libel, except where there is an attempt to claim 
the privilege for a speech made in the House, and afterwards 
published by the maker himself. 

The fact that defamatory statements have been published 
by the order of the House of Commons was held to be no de- 
fence in an action for libel {Stockdale v. Hansard, 9 A. & E. 
1) ; but under a statute passed largely in consequence of this 
case, a certificate from the proper officer of the House acts as 
a stay of the action. 

Strangers, though admitted by ticket, have no right to be 
present at the debates, and, since 1875, the Speaker can remove 
them upon his own initiative or they may be removed on the 
motion of any member who '^spys strangers," without debate 
or amendment. 

Right of Access. 

The right of access to the King on the part of the House of 
Commons is a collective right, and exercised on the occasion of 
an address to the Crown being presented by the Speaker. 

Sir Wm. Anson, vol. I. 167, notes as privileges of the House 
of Commons, which are not specifically claimed from the 
Crown : 

(a) The right to provide for its proper Constitution. 

(1) The right to issue a writ, when a vacancy occurs. 

(2) The right to determine questions of disputed 
returns (in 1868 delegated to a judge). 

(3) The right to enforce disqualifications, e.g., the 
disqualification of Arthur Lynch, who fought 
on the Boer side in the Boer war. 



PARLIAMENT FROM THE EARLIEST TIMES. 113 

(4) The right to expel members who have conducted 
themselves so as to be unfit members of a legis- 
lative assembly/ 

(b) The right to the exclusive cognizance of matters aris- 

ing within the House, i.e., the Courts of law will not 
inquire into matters arising within the House (e.g., 
the expulsion of a member by the Serjeant-at-Arms, 
as in the case of Mr. Bradlaugh), except in the case 
of a crime (see Bradlaugh v. Oossett, 12 Q. B. D. 
280). 

(c) The power to inflict punishment for breach of privi- 

lege by admonition, reprimand or commitment. 

In considering the question as to how far the Courts are 
bound by the decisions of the House as to their privileges, Sir 
William Anson comes to the conclusion that the Courts will 
not be deterred from upholding private rights by the fact that 
questions of parliamentary privilege are involved in their 
maintenance; and that, except as regards the internal regula- 
tion of its proceedings by the House, courts of law will not 
hesitate to inquire into alleged privilege, as they would into 
local custom, and determine its extent and application. 

The House of Ix)rds has similar privileges, but there are a 
few differences; the right of access to the Sovereign is an in- 
dividual right, SLH distinguished from a collective right ; up 
to 1868 the Lords could vote by proxy, and a member of 
the House of Lords has the privilege of recording a protest 
against any proceeding of the House upon the journals of 
the House. It can exclude disqualified persons, but has no 
right to decide upon claims to old peerages, except where the 
question is referred to it by the King. 

It is well settled that the extraordinary privileges of the 
TTonse are part of the lejr et consuetudo ParUammti. which is 
jKHuliar to the English Parliament, and cannot be claimed by 
colonial legislatures, except, of course, when given to them by 
statute. 

In lAmden v. Woodworih, 2 C. S. C. R. 158, Mr. Wood- 
worth had been adjudged guilty of contempt in refusing to 
apologize to the provincial secretary, whom he had accused of 
falsifying a record, without foundation for the charge as found 
by a committee of the House. Mr. Woodworth was forcibly 

ccS ^ 



114 PAULIAMENT FROM THE EARLIEST TIMES. 

removed from the House and brought an action against the 
Speaker, etc., and recovered damages. The courts held that 
the assembly could not remove a member for contempt unless 
he was actually obstructing the business of the House. 

Apart from statutory authority, Canadian legislatures have 
only such powers as are necessary to the existence of such a 
body, and the proper exercise of the functions which it is 
intended to execute (Kielley v. Carson, 4 Moo. P. C. 88). 
Protective and self-defensive powers only are necessary, and 
not punitive. (Barton v. Taylor, 11 A. C. 1S7). 

Canadian legislatures can confer these powers upon them- 
selves, but the Dominion Parliament cannot confer upon itself 
any privileges, immunities or powers exceeding those then held 
by the English House of Commons and the members thereof 
(B. N. A. Act, s. 18). It has been argued that the limitation 
placed upon the exercise of this power by the Parliament, also 
applies to provincial legislatures, but this argument can scarcely 
be seund. 

And in the case of a province which has never been a 
colony within the meaning of the Colonial Laws Validity Act, 
the power can be exercised under sec. 92 (1) (see the Statutes 
of Alberta 1909, c. 2). Provincial legislatures may exclusively 
make laws relating to "the amendment from time to time, not- 
withstanding anything in this Act, of the constitution of the 
province, except as regards the office of Lieutenant-Governor" 
(B. N. A. Act, s. 92 (1)). It is clear that in the case of legis- 
latures before the passage of the B. N. A. Act, there exists the 
power given by the Colonial Laws Validity Act and by sec. 
92 (1). (See Ee Initiative and Referendum Act, [1917] 1 W. 
W. R. 1012). 

The Colonial Laws Validity Act 1865, s. 5, runs as follows : 
Every representative legislature shall, in respect to the colony 
under its jurisdiction, have and be deemed at all times to have 
had, full powers to make laws respecting the constitution, 
powers and procedure of such legislature. (See Fielding v. 
Thomas, 1896, A. C. 600), but whether this is true in the case 
of the Dominion or of post- federation provinces is perhaps 
doubtful. 

Ontario, Quebec, Nova Scotia, New Brunswick, Prince 
Edward Island, Alberta and Saskatchewan all have laws deal- 
ing with these privileges. In British Columbia it is provided 



PARLIAMENT FROM THE EARLIEST THCBB. 115 

by c. 47 of the Revised Statutes that the privileges of the House 
are not to exceed those of the British House of Commons. 

None of the Acts, however, in fact seem to go as far as the 
powers of the English House of Commons, though they prac- 
tically amount to the same thing. To give one small differ- 
ence, they do not confer any right to impose a fine, a right 
which exists in the English House of Commons, though indeed 
it may be regarded as obsolete by reason of disuse. 

Tendencies in Procedure. 

Professor Redlich in his " Procedure of the House of Com- 
mons," vol. I. p. 206, points out the tendencies in procedure 
of the English House of Commons, (1) the strengthening of 
the disciplinary and administrative powers of the speaker, the 
continuous extension of the rights of the Government over the 
direction of all parliamentary action in the House, and lastly, 
the complete suppression of the private member, both as to his 
legislative initiative and as to the scope of action allowed to 
him by the rules. 

It is, he remarks, a simple dictate of political logic that the 
metamorphosis in the attitude of Qovernment towards Parlia- 
ment should receive outward formulation in parliamentary 
procedure. He shows how the Qovernment has reached a posi- 
tion of supreme authority in that (1) the greatest part of the 
time and energy of the House is securely assigned to the Gov- 
ernment by the syrttem of Government days, (2) the granting 
of supplies advocated by the Government is oonflhed to cer- 
tain time, and accompanied by certain facilities, and (3) the 
head of the Government, as leader of the House, has by cus- 
tom beoome entrusted with complete disposal of the arrange- 
ments for settling the programme of parliamentary business, 
exercising thus a privilege which gives constant occasion for 
showing the coiifTdpnt-o of the majority. 

** In the British cabinet of to-day is concentrated all politi- 
cal power, all initiative in legislation and administration, and 
finally all piihlir authority for carrying out the laws in king- 
dom and empire. In the sixteenth oentury and down to the 
middle of the seventeenth, this wealth of authority was united 
in the liands of the Crown and its Privy Council ; in the eigh- 
teenth century and the first half of the nineteenth. Parliament 
was the dominant central organ from which proceeded the most 
powerful stimulus to action and sll decisive acts of policy. 



116 PARLIAMENT FROM THE EARLIEST TIMES. 

legislation and administration; the second half of the last cen- 
tury saw the gradual transfer from Crown and Parliament into 
the hands of the cabinet of one after another of the elements 
of authority and political power. This process — it must not 
.be forgotten — took place side by side and in organic connection 
with the passing of political sovereignty into the hands of the 
House of Commons, supported, as it now was, by an electorate 
comprising all sections of the population" (Redlich, p. 207). 

These remarks are equally applicable to Canadian legisla- 
tures. A strong contrast is offered by U. S. A. legislatures 
where the private member is active in initiating legislation. 

Delegation of Powers by Provincial Parliament. 

The Provincial Parliament can delegate its powers, i.e., can 
confide to a municipal institution or body of its own creation 
authority to make by-laws or resolutions as to subjects speci- 
fied in the enactment, and with the object of carrying tlie 
enactment into operation and effect. (See Hodge v. R., 9 A. 
C. 167.) It can be by no means said that the limits of this 
power of delegation are absolutely determined, e.g., it would 
probably be ultra vires of a province to set up another body 
with the same powers by enacting that its regulations on the 
topics in sec. 92 should be law. It must be noted that one 
of the effects of this delegation to municipal bodies is the ten- 
dency to deprive the Crown of its veto. 

Delegation hy Dominion Parliament. 

The Dominion Parliament can make its laws dependent on 
action by the Provincial Parliaments. (See Reg. v. O'Rourke, 
32 U. C. C. P. 38"8, where it was held that the Dominion could 
delegate the Dominion power of legislating as to the qualifi'ca- 
tion of jurors.) 

Could the parliament of the commonwealth delegate the 
power to legislate regarding divorce to a committee of per- 
sons elected or summoned in some manner? The answer ap- 
pears clearly to be in the negative, and it is easy to feel that 
this is correct, but the line might be hard to draw in any 
given case (see Keith, vol. I. 359). 

It is not a sound argument that, because a change might 
be deliberately made by parliament in a constitution, therefore 
any ordinary act whatever might be passed, though in contra- 
vention of constitutional provisions as they stood (Cooper v. 
Commissioner of Tncome Tax, 4 C. L. R. 1304). 



PARLIAMENT FROM THE EARLIEST TIMES. 117 

Closure and The OtiUlotine. 

*' Under one of the standing orders, a member rising in his 
place may claim to move 'that the question be now put/ and, 
unless it appears to the chair that the motion is an abuse of 
the rules of the house or an infringement of the rights of the 
minority, the preliminar}^ question must be put forthwith, 
and, if it is carried, the original question is put forthwith 
and decided without amendment or debate. But a motion 
for the closure cannot be made unless the speaker or the chair- 
man or deputy chairman of ways and means is in the chair, 
and is not carried unless it appears on a division that not less 
than 100 members voted in its support. The effect is to leave 
to the chair much discretion as to the time and circumstances 
in which closure should with propriety be granted. 

" By recent amendments of standing orders, the machinery 
of closure has been extended to standing committees on bills, 
and, when a bill is being debated in a committee of the whole 
house, or at the report stage, the occupant of the chair may be 
clothed with powers for selecting the particular amendments 
to be discussed. 

" But in recent years the machinery of the ordinary closure 
has been found inadequate for getting through the most im- 
portant government bills of the session, and, at the instance of, 
but under protest from, each party in turn, more drastic 
measures have been adopted. They take the form of special 
orders of the house for the allocation of time on particular 
bills, are sometimes described as "closure by compartments," 
but are more popularly known as the guillotine. So much 
time k allotted for the discussion of a clause or a group of 
clauses, or a particular stage of a bill, and at the expiration 
of ^is time, the necessary question or series of questions is 
pat, all remaining amendments, except government amend- 
ments, being excluded. 

''Attempts are always made so to arrange the time as to afford 
opportunity for discussing all the more serious issues raised by 
the bill, but these attempts are usually defeated by the pro- 
longation of the debate on minor point^i. No one defends 
these orders as satisfactory. Neither party, when in power, 
has foimd itJiolf able to do without them.'' (rsrliament. Sir 
Conrtenay Ilbert. 186.) 



118 PABLIAMENT FROM THE EABLIEST TIMES. 

General Principles Governing the Financial Action of Parlia- 
ment, 

Sir Courtenay Hbert, in his book on Parliament, sums up 
the general principles governing the financial action of par- 
liament in four rules: — 

1. The Crown, that is to say, the King, acting through his 
ministers, who constitute the executive government, cannot 
raise money by taxation, borrowing or otherwise, or spend 
money, without the authority of parliament. 

2. The power to grant money in parliament, a power which 
includes both the raising of money by tax or loan and the 
authorizing of expenditure, belongs exclusively to the house of 
commons. The house of lords assents to, and may, except as 
provided by the Parliament Act, reject, a grant of money, but 
cannot initiate or alter a grant. 

3. Parliament, that is to say, the house of commons, cannot 
vote money for any purpose whatsoever except at the demand 
and upon the responsibility of ministers of the Crown. 

4. Parliament, that is to say, the house of common?^, can- 
not impose a tax, except upon the recommendation of the 
Crown. Accordingly any proposal for the levy of a new tax 
must come from the government. This rule only applies to 
general taxes, not to the taxes for local purposes which are 
known as rates. 

Disallowance of Acts of Parliament. 

Acts Oif Canada may be disallowed by the Crown in council 
within two years after the receipt of the Act by the Principal 
Secretary of State, the disallowance operating from the day on 
which it is signified by the Governor-General (s. 56). Pro- 
vincial Acts may be disallowed by the Governor-General in 
council within one year after the receipt of the Act by him, the 
disallowance operating from the day on which it is signified 
by the Lieutenant-Governor (s. 90). 

The veto of the Governor- General, as it would seem, must 
be exercised on the advice of his responsible ministers by the 
Governor-General in council, and not by the Governor- General 
as an imperial officer exercising a discretion in the interests of 
the home and colonial governments. It would follow from 
this view of the matter that the bill of a provincial legislature 
could not go beyond the Governor-General, or l)e submitted to 



PARLIAMENT FROM THE EARLIEST TIMB8. 119 

the Secretary of State for confirmation or disallowance. If 
the measure is inexpedient, the Governor-General must never- 
theless affirm it, if his responsible ministers so advise him. If 
when so affirmed it is alleged to be beyond the powers of the 
provincial legislature, the matter may come before the Courts 
and 80, ultimately, before the Judicial Committee of the Privy 
Council (see Anson, Vol. II. Pt. II. 71). 

Keith does not take quite the same view as Anson, and 
deals with the quesytion as follows : — 

In 1875 the p;t)vemment of Canada held that the disallow- 
ance of provincial Act^ was an act to be done by the Governor- 
General on ministerial advice, as all his other acts were done. 
The Imperial government seems never to have accepted this 
view, rather holding that a Governor-General was at liberty to 
foUow the advice of ministers as a rule, whether or not he con- 
curred in it as regards Acts which he deemed objectionable as 
illegal or unconstitutional, but in the case of Acts which he 
thought gravely unconstitutional, or which would have required 
reservation under the Royal Instructions in iforoe for the 
Dominion, he should, even against the advice of his Ministers, 
refer home for guidance. Todd seems to agree with the view 
of the Canadian government. The question really hinges on 
the omission oi tlie words " in council " after Governor-General 
in 8. 90 of the B. N. A. Act, which gives to the latter the 
power of disallowance of provincial statutes. The Canadian 
government contended that the omission was for brevity and to 
awid repetition. Under s. 56 disallowance by the Sovereign 
must be exercised by him in council, but the council, in that 
OMe, need not contain a minister at all, any three councillors 
being sufficient for the purpose. The constitutional practice, 
however, seems to be settled in favour of the Dominion conten- 
tions. This power was ezerdsed for some time, as if it was 
almost an arbitrary power and upon quite inadequate legal 
grounds, but at the present time seems only to be exercised 
on legal and constitutional grounds, or on grounds of wide 
public and Imperial policy. Thus in 1909, Sir Allan Ayles- 
worth clearly itatet that as Minister of Justice he '*was not, 
as advising His Excellency in council, called upon to think at 
•11 of the injustice, of the outrageous character it might be, of 
the legislation, but that (his) one inquiry ought to be whether 
or not there was anything in the legislation itself which went 



120 PABLIAMENT FROM THE EARLIEST TIMES. 

beyond the power of the Provincial Le^slature to pass a law 
referring alone to property and civil rights within the pro- 
\ince." 

In the same sense is the memorial sent by the Grovernment 
of Ont-ario to the Governor-General at the end of 1909, pro- 
testing against "any check upon the right of the Legislature 
to legislate with reference to subjects within its well-deflhed 
jurisdiction, although a technical right to disallow may exist." 

A list of subjects in which Imperial control has been exer- 
cised even in late years: (1) matters affecting the internal 
affairs of the Dominion; (2) native affairs; (3) the immigi-a- 
tion of coloured races; (4) treaty relations and foreign affairs ; 
(5) trade and currency; (6) merchant shipping; (7) copy- 
right; (8) divorce and status; (9) military and naval defence, 
and, according to instructions, matters affecting the preroga- 
tive. 

Bills allowing appointments of colonial peerages or prece- 
dence, bills affecting prerogative of mercy or the Privy Council 
as an ultimate court of appeal, bills purporting to confer upon 
public bodies the title of chartered, and bills which are com- 
pletely ultra vwes are best disallowed. 



THE PBIVY COUNCIL AND THE CABINET. 121 

CHAPTER XI. 

The Privy Council and the Cabinet — Historical Sketch. 

The King*8 Council initially was, in theory at any rate, an 
assembly of his tenants-in-chief. Under the Norman kings, 
this Council had certainly some share in legislation ; the ordin- 
ances of the period are expressed to be made with the counsel 
and consent of the great. The Council was also the highest 
court of judicature for great cases and great men. 

Within this assembly there developed a smaller body of 
administrators, including the justiciar, the chancellor, and the 
great officers of the household. This smaller body becomes 
well defined under Henry I., and subsequently threw off as 
offshoots the Exchequer and the Curia Regis proper or law 
court. The term Curia Regis is used to denote both this 
smaller permanent council and the larger assembly of tenants- 
in -chief. 

After the formation of a real parliament in 1295 (the word 
parliament wtis applied to any consultative meeting of the 
estates of the realm, i.e.. of the clergy, baroiLs and commons) 
the legislative work of the Great Council was continued, so it 
becomes necessary to distinguish between the work done by the 
barons as the King's Council and that done by Parliament. 

"At the time of which we are speaking (1307)." says Mait- 
land, " the parliament of the three estates was by no means the 
only organ of government ; indeed, as we have seen, it was only 
just coming into being. Most of the great statutes of the 
reign were made in assemblies of the older type, assemblies in 
which the commons and the inferior clergy were not repre- 
sented. Such assemblies of prelates and barons were held in 
later times, and got the name of Magna Concilia, which dis- 
tinguished them from true Parliamenta." 

The smaller body off administrators spoken of above con- 
tinued to act as a permanent council of the King, and is often 
called Concilium Regis as opposed to the commune concilium 
regni, or nssembly of the tenanta-in-chief. This concilium 
first became distinct during tlie minority of Henry III., when 
it acted as a council of regency. It ifrequently exercised the 
power of legislation by ordinance. The House of Lords, as 



122 THE rillVY COUNCIL AND THE CAJUXET. 

successors to the Ma^um Concilium, retained the right to 
correct the errors in law of all the lower courts, but gave up 
all claims to act as a court of first instance, save at the trial 
of a peer for treason or felony. They also tried persons who 
were impeached before them by the House of Commons. The 
House of Commons, after requesting in the reign of Henry 
IV., to be relieved of the judicial business of parliament, in 
1621 condemned a certain Floyd to a fi'ne and the pillory for ex- 
pressing satisfaction at the triumph of the Catholic cause in 
Grermany, but were in the end compelled to admit that thoy 
had no power of punishment, save where the privileges of 
their house were concerned. The Concilium Regis or smaller 
body (afterwards to grow into the Privy Council), attempted 
to assert the right of correcting the errors in law, but by the 
end of the 14th century it is definitely settled that they have 
no such jurisdiction. Notwithstanding many statutes of the 
reign of Edward III. forbidding the exercise of original jur- 
isdiction by the council, the latter persisted in exercising such 
jurisdiction, nor was it oppressively exercised until the days 
of the Tudor sovereigns. At the beginning 0(f the reign of 
Henry VII., it exercised original jurisdiction in the cases of 
crimes the penalty for which fell short of death, and especi- 
ally over offences which consisted in an interference with the 
ordinary course of justice, such as insurrections or riots, and 
in the case of men who were too great for the power of the 
ordinary courts. 

It also exercised a civil jurisdiction in cases where there 
was no remedy at law, or where the persons petitioned against 
were too powerful to be attacked in iftie ordinary courts^ 
These petitions were, however, as a rule referred by the King's 
Council to the Chancellor, so much so that at the beginning 
of the fifteenth century the petitions begin to be addressed to 
the Chancellor himself, and by the time of Henry VII. the 
Court of Chancery has taken its place by the side of those of 
the King's Bench, Exchequer and Common Pleas as an estab- 
lished court of justice. Side by side with this jurisdiction of 
the Chancellor, the Council continued to act in poor men's 
causes (later becoming the Court of Requests, which came to 
an end during the troublous times of the civil war), and in 
cases where the delinquents were powerful or an ordinance was 
to be enforced, or in cases of offences against order, fraud, 
forgery, perjury, mutilation of documents or conspiracy. 



THE PRIVY COUNCIL AND THE CABINET. 123 

This original jurisdiction of the Privy Council was finally 
taken away by the Long Parliament in 1640. 

In the reign of Charles II., the Privy Council began to split 
up into committees for various purposes, e.g., for Foreign Plan- 
tations, for Admiralty, for the Treasury, and soon there appears 
X in this council, an inner council of privileged advisers of the 
King, who in time are termed the Cabinet. It is during the 
reign of William IV. that the Cabinet first becomes a recog- 
nized institution. By the time of Queen Anne there is found 
to be in existence a council the only duty of which is to give 
expression to the royal will, a committee of council which does 
the work now done by the different departmental heads, and 
a Cabinet which determines the policy of the nation. 

The Cabinet. 

The accident that George I. was entirely ignorant of Eng- 
lish rendered his presence at a meeting of the Cabinet useless, 
and there begins to be Cabinet Government in the modern 
sense. At this time the Cabinet ceases to bo a meeting of the 
Lords of the Priv)- Council and becomes a meeting of the leaders 
of the party in power, while the place of the king as president 
of the meetings is necessarily taken by another, who comes to 
be known as the Prime Minister, and the connection between 
ttie Privy Council and the Cabinet ceases, except in so far as 
it is practically an imperative rule that all members of the 
Cabinet must take the oath of secrecy as a privy councillor. 
The members of the Cabinet are heads of the executive depart- 
ments, but the Cabinet is a deliberative body, whilst the Privy 
Council is an executive body carrying out the mandates of the 
Cabinet, when necessary, by Orders in Council. Sir Wm. 
Anson regards the Cabinet as a committee of heads of 
departments, united in holding the political opinions of the 
majority in the Commons, not severed from the House of 
Commons (i.e., the meml)ers must ordinarily he niombers of one 
of the Houses of Parliament), through which, and not with 
which, the King acts, its members being jointly responsible 
for its actions. As a separate body, the collective Cabinet is 
unknown to law, it is summoned by the Prime Minister, a 
personage unknown to the law (except in 90 far as the title 
has gained recognition by the precedence given to him next 
after the Archbishop otf York by Boyal Warrant in 190r). and 



124 THE PRIVY COUNCIL AND THE CABINET. 

by the fact that IMsraeli signed the treaty of Berlin as '* Prime 
Minister of England"). For a time, towards the end of the 
eighteenth century, the Cabinet showed signs of becoming an 
unwieldy body. The members were divided into "efficient" 
and " honorary." To the former only were the important state 
papers communicated. This was known as the circulation of 
papers. This external lionorary NCabirijet disappears about 
1806. Collective responsibilit}', i.e., responsibility to public 
opinion, liability to loss of office, for the action of any one of 
his members, was established about the same time. No record 
is kept of the doings or debates of the Cabinet, except such as 
is furnished by the Prime Minister to the King after the meet- 
ings, indeed the taking of a note is regarded with the great- 
est suspicion. The evolution of the Prime Minister has been 
rIow. It cannot be said that there was any Prime Minister, 
in the modern sense of the word, until the time of Walpole, 
hut the necessity of there being such an official was not recog- 
nized until the time of Pitt. 

Of later days, Cabinets have tended to^grow larger, but 
this has only led to the existence of an inside Cabinet, who 
control the policy of the government. 

It must be noticed that the Cabinet and the Ministry are 
not identical, it is quite possible to be a Minister without being 
a member of the Cabinet at all. 

Sir Wm. Anson notes that the King should only consult 
members of his Cabinet, and should neither act without their 
advice, nor refuse his support to any measure proposed by it; 
on the other hand, he should be given full information as to 
all acts of his government, and should he made acquainted with 
changes in administration prior to communication to out- 
siders. 

"It is true," says Sir Wm. Anson, "to say that in the last 
100 years the power which determines the existence and de- 
struction of Cabinets, has shifted first from the Crown to the 
Commons, and then from the Commons to the electorate. But 
it is no longer true that the House of Commons is always a 
close reflection of the opinion of the country, or that it cor- 
responds to changes of public opinion as they may occur dur- 
ing the existence of a Parliament." He concludes that the 
House of Commons is dependent rather on the Cabinet than 
the Cabinet on the Commons, a result in his opinion attribut- 



THE PRIVY COUNCIL AND THE CABINET. 12o 

able to the effect of the perfection of modern party organiza- 
tion, and of procedure rules, including the closure and guillo- 
tine. 

For a complete working out of the idea that political power 
has been transferred in its entirety to the Cabinet, see Sidney 
Low^s stimulating work on the Government of England. 

To continue the story of the Privy Council. The growth oif 
the Cabinet has caused it to be no longer a Council of tho 
Crown. It still meets but only to make orders in Council, 
to issue Proclamations, or to attend formal acts of state. 
A Privy Councillor is appointed by the King, he takes the 
oath of allegiance and the oath of office, which pledges him to 
secrecy. He is removed from office by the simple expedient 
of the King striking his name off the list. 

The Privy Council consists of (1) Members of the Cabinet. 
(2) Great officials, e.g., the Lord Chancellor, the Lords of 
Appeal in Ordinarj-, the Archbishops of Canterbury and York 
and the Bishop of London. In 1897 all tlie premiers of the 
self-governing colonies were made Privy Councillors. (3) Per- 
sons who have won eminence in politics, etc., or the service of 
the Crown, and often take the dignity in preference to taking 
an hereditary peerage. 

The office lasts for the life of the Sovereign and six months 
afterwards, lin*^ Ox. now Sovoivign invariably renews \ho f^\^- 
pointment. 

The Judicial Committee of the Privy Council is not one of 
the old committees. It is a statutory creation, having been 
e8tahli.«?hed by 3 & 4 Wm. IV. It hears appeals from the Col- 
onies, Channel Islands, tho Tsle of Man and India, from ecclesi- 
astical courts, vice-admiralty courts abroad, consular court.*? 
and prize courts. The committee consists of persons who have 
held high judicial office at home or abroad, inchiding colonial 
rliief justices, who are privy councillors. Though the court 
hears cases just as an ordinary court would, yet theoretically, 
it only advi.ses the King, and hence no dissenting opinions are 
ever given ; and, unlike tho House of Ivord.s, it is not bound by 
the advice given on a former occasion. Tlie proceedings are by 
petition, a,s seeking the King's grace. Besides the appellate, 
there exists in the sovereign in council an original jurisdiction 
on questions concorning boundaries between dependencies, the 
extent of charters and such like mattera. 



126 THE PRIVY COUNCIL AND THE CABINET. 

For a meeting of the Privy Council, three persons are suf- 
ficient. No person has a right to attend. The presence o»f the 
clerk of the Council is necessary, as his attestation is necessary 
to an order. 

Orders in Council may consist of legislation for Crown 
colonies, newly settled countries and protectorates, or orders 
to carry out the details of a statute (statutory powers bein.£( 
given), orders for confi"rming or disallowing colonial statutes 
prior to being giving effect to, treaties, etc. The orders pre- 
sented to the Council have of course been fully discussed by 
the Cabinet if of importance, or carefully prepared by the 
minister whose department they concern, and the actual busi- 
ness of the Council appears to be merely formal. The form of 
an Order in Council is given by Maitland as follows: 

October 4, 1887. 
At the Court of Balmoral the 15th day of September, 1887. 

Present: The Queen's Most Excellent Majesty in Council. 
Whereas under certain statutes the Ecclesiastical Commission- 
ers have prepared a scheme for making new parishes. And 
whereas the scheme has been approved of by H. M. in Council. 
Now therefore H. M. by and with the advice of her s&id Council 
is pleased to order and direct that the said scheme shall come 
into force on a certain date. 

C. L Peel. 

When it is desired to render the action of the Council 
widely public, a Eoyal Proclamation is issued. An example is 
here given. 

A Proclamation. 

We, being persuaded that the abstention from all unneces- 
sary consumption of grain will furnish the surest and most 
effectual means of defeating the devices of Our enemies and 
thereby bringing the war to a speedy and successful termina- 
tion; 

And out of Our resolve to leave nothing undone which can 
contribute to these ends or to the welfare of Our people in these 
times of grave stress and anxiety; 

Have thought fit by and with the advice of Our Privy 
Council to issue this Our Royal Proclamation, most earnestly 



THE PRIVY COUNCIL AND THE CABINET. 127 

exhorting and charging all those of Our loving subjects, the 
men and women of Our realm who have the means to procure 
articles of food other than wheat and corn, as they tender their 
immediate interests and feel for the want of others, especially 
to practise the greatest economy and frugality in the use of 
every species of grain; 

And We do for this purpose more particularly exhort and 
charge all heads of households to reduce the consumption of 
bread in their respective families by at least one-fourth of 
the quantity consumed in ordinary times; 

To abstain from the use of flour in pastry, and moreover 
carefully to restrict, or wherever possible to abandon, the use 
thereof in all other articles than bread; 

And We do also in like manner exhort and charge all persons 
who keep horses to abandon the practice of feeding the same 
on oats or other grain, unless they shall have received from 
Our Food Controller a licence to feed horses on oats or other 
grain, to be given only in cases where it is necessary to do so 
with a view to maintain the breed of horses in tbo national 
interest ; 

And We do hereby further charge and enjoin all ministers 
of religion in their respective churches and chapels within 
Our United Kingdom of Great Britain and Ireland to read or 
cause to be read this Our Proclamation on the Lord's Day for 
four Buccessive weeks after the issue thereof. 

Given at Our Court of Buckingham Palace this second day 
of May in the year of Our Lord 1917, and in the seventh year 
of Our Reign. 

God Save the Kinx). 

In Canada, also, parliament has left much to the control 
of orders in council, e.g,, in health matters, food adulteration, 
penitentiaries, patents and copyrights, collection of statifftics. 
By thom the Governor-General disallows acts of the provincial 
legislatures. Their use ia similarly extensive in the provinces. 

In the case of the Dominion: Where an entirely new 
government ia formed, all ministers who accept departmental 
offices must seek re-election, but where there is merely recon- 
struction of a government upon the death or resignation of a 
premier, re-election is unnecessary. 



128 THE PKIVY COUNCIL AND THE CABINET. 

In the case of all tlie provinces, acceptance of office vacates 
a seat, but re-election is allowed, and it is not necessary if the 
minister is reappointed after resignation within a month, un- 
less a new ministry has been formed in the interim. 

In Canada there is a practice of having honorary ministers, 
or ministers without a portfolio, which is unknown to the 
English constitution, though the same end is attained by 
appointing a minister to a post, the duties of which are nomi- 
nal, such as those of the Lord Privy Seal. 

The head of a department in Canada has no assistance in 
Parliament corresponding to the Secretaries and Under-Secre- 
taries of the English constitution. 

In 1887 a Solicitor-General was appointed to assist the 
Minister of Justice. He may sit in parliament, but is not a 
member of the Cabinet. This appears to be the nearest ap- 
proach in Canada to the departmental Secretaries and Under- 
Secretaries of the English constitution, who take so much 
work off the shoulders of their chief, though an unsuccessful 
attempt was made to establish similar offices in the department 
of trade and commerce in 1892. 

Canadian ministries do not necessarily resign when de- 
feated on a measure of importance. Cf., Mr. Joly's ministry 
in Quebec, 1878-1879, and the ministry in British Columbia, 
1899-1900. 

In Canada neither the Governor-General nor the Lieuten- 
ant-Governors attend meetings of the Privy Council, except 
upon formal occasion,s, but all the orders in council are sub- 
mitted to them for their signature. 

Again, the Privy Council of the Dominion and the Execu- 
tive Councils of Ontario, Quebec, Manitoba Alberta and Sas- 
katchewan exist by virtue of statutory authority, whereas the 
Privy Councils or Executive Councils of England, the Mari- 
time Provinces and British Columbia are the outcome of 
the King's prerogative to seek advice. 

Ministerial responsibility in Canada, as in England, rests 
entirely upon convention and practice, there being no provision 
that the members of the Cabinet or Privy Council or Execu- 
tive Council, should be members of the Legislature. The rule, 
however, appears to be as in England, and it seems to be hon- 
oured in the breach in the same way,, e.g., Mr. Gladstone was 
a Secretary of State, 1845-56, without a seat in the House of 



THE PRIVY COUNCIL AND THE CABINET. l'^9 

Commons, and Mr. Templeman was a minister, 1908-1909, 
without a seat in the Canadian House of Commons. On the 
other hand, this action of Mr. Gladstone's was viewed with 
much disapproval, while the Lieutenant-Governor of British 
Columbia was dismissed by the Dominion Government in 1900 
for entrusting the government for several months to a ministry 
of whom only one had a seat in the last Legislature. 

Sir William Anson notices the immense importance of the 
business which may be transacted in the Council without dis- 
cussion, and with no opportunity of question in Parliament, 
and instances orders in Council which redistributed duties in 
the Admiralty, and extended the powers of the High Commis- 
sioner in South Africa, an act that amounted to an assump- 
tion of sovereign rights over a vast territory. No doubt, he 
gays, this is desirable in the interests oi good government. The 
executive could not transact its business if every action de- 
pended on the approval of irresponsible politicians, and the 
collective House of Commons is well advised if it leaves to the 
Executive the responsibility in their inception for measures 
for the results of which a government must ultimately render 
an account to the country. 

The Cabinet system in Canada bears a very close resem- 
blance to that of England, but yet there are differences which 
it might be well to notice. 

In England, the Cabinet is a small portion of the Council, 
and there may be ministers who are not Privy Councillors, or 
in the Cabinet. 

In the Canadian provinces, the Executive Council is tht* 
Cabinet. 

The Privy Council of the Dominion contains some persons 
who arc not ministers or members of the Cabinet, but such 
memberfl of the Council are not summoned to meetings of the 
Priv)' Council, except under unusual circumfrtances. 

The Cabinet or group of departmental chiefs, on leaving- 
office, remain members of the Executive Council, thotigh Uiey 
only attend its meetings for the transaction of formal Parlia.- 
ment business, or to advise on non-political questions. 

Appeals to Privy Council. 

By the Judicial Committee Act, 1844, a right is given tc^ 
admit appeals from any Court in the Dominions whatever^ 

C.C.— 



i;JO Tin: PRIVY COrXCIL and THK CABINEl'. 

whether or not the Court is a Court of Error. The Oanadian 
Act, R. S. C. 1906, c. 146, s. 1025, purports to extinguish all 
right of appeal in criminal cases. This latter Act is clearly 
ultra vires, but the point is of little moment as it is not likely 
that such an appeal will again be permitted. 

The Privy Council has laid down a code of rules permitting 
appeals as of right; in such case leave to appeal is granted by 
the Colonial Court, but if there are no rules, or the rules do 
not cover the point, special leave musrt be asked, which is only 
granted whei^e some important question of law is to be de- 
cided, or some important right is brought in question. No 
appeal, however, lies of right from the Supreme Court of Can- 
ada, and normally the Privy Council will not grant spexiial 
leave in such cases to an appellant, though leave is more 
readily granted to a defeated respondent. 

In general, appeals in the case of Canada will only be 
allowed where the case is of gravity, involving matters of pub- 
lic interest, or some important question of law as affecting 
property of considerable amount, or where the case is other- 
wise of some public importance, or of a very substantial char- 
acter. Appeal will not be allowed where the judgment ap- 
pealed from appears to be plainly right (see R. v. Louw 
['1904] A. C. 412). Rules asf to appeals to the Privy Council 
are now established in Canada, and most of the provinces by 
Orders in Council. 

His Majesty may refer to the Privy Council such matters 
as he may think fit, e.g., the question of the boundary between 
Manitoba and Ontario in 1885, and the opinion reluctantly 
given as to prohibitory liquor laws in Canada. 

It seems undeniable that in all cases, criminal as well as 
civil, arising in places from which an appeal would, and where 
either by the terms of a charter or statute the authority has 
not been parted with, it is the inherent prerogative right and 
on all proper occasions the duty of the Queen in Council to 
exercise an appellate jurisdiction with a view not only to 
ensure, as far as may be, the due administration of justice in 
the individual case, but also to preserve the due course of pro- 
cedure generally {Atfy-Gen. New South Wales v. Bertrand, 
L. R. 1 P. C. 520). 



THK PRIVY COUNCIL AND THE CABINKT. IH 

A right of appeal to the King in Council as of right given 
by a Colonial Act, may be taken away by a subsequent Colonial 
Act; but apparently the Privy Council, or rather His Majesty 
in Council, may entertain appeals concerned with any sub- 
ject-matter as a a matter of grace, save where the right of 
appeal has been taken away by an Imperial statute. Clement, 
at pp. 157 et seq., throws some doubt upon this proposition 
(see Cushing v. Dupuy, 5 A. C. 409, and Re Wi Matua's Will, 
1908, A. C. 448). There is, however, no right of appeal from 
a Court when it is exercising a function conferred upon it by 
statute, which would not otherwise have belonged to it u the 
general distributor oi justice. The King in Council does not 
act as a court of appeal in criminal matters except where by a 
disregard of the forms of legal process or by some violation of 
the principles of natural justice or otherwise, substantial and 
grave injustice has been done {In re Dulet, 12 A. C. 469). 



^S2 THE FIIEROGATIVI-: OF THE (HOWi^. 

CHAPTER XII. 

The Prerogative op the Crown. 

Prerogative was defi'iied by Blacksi;one ' as a special pre- 
eminence which the King hath, over and above all other per- 
sons, and out of the ordinary course of the common law in 
right of his royal dignity'; but the term ''prerogative" is 
properly limited to the ancient customary powers of the Crown 
(Anson) ; it is the discretionary authority of the executive 
(Dicey). Statutory powers cannot strictly be classed as pre- 
rogiative, the nature of the latter being only ascertainable by 
precedent, and its exercise limited by discretion allied to pre- 
rogative are the feudal rights of the Crown, which are ' mere 
incidents of prerogative.' 

Prerogative has three sources, (1) the residue of the execu- 
tive authority from the days when the King was a tribal, chief- 
tain; (2) the position of the King as the ultimate owner of 
land and lord of every man, e.g., escheat, treasure trove, the 
custody of idiots and lunatics; (3) the attributes given to the 
Crown by legal theory. 

(a) The attribute of perpetuity embodied in the maxim 

"The King never dies." 

(b) The attribute of perfection of judgment embodied in 

the maxim, "The King can do no wrong," leading 
to the theory of ministerial responsibility, the exist- 
ence of a petition of right, and the rule that in gen- 
eral the Crown cannot be attacked in tort. 
(4) The King can pardon offences after indictment, but 
not before. (See The Bills of Rights). 

Passing to concrete instances, of the exercise of the preroga- 
tive, we find — 

A. The prerogatives affecting external relations: 

(a) The power af making war and concluding peace. 

(b) The power of sending and receiving ambassadors. 

(c) The power of concluding treaties (but not where the 

Tights of subjects under the ordinary law are affected, 
e.g., copyright, or where the treaty involves the rais- 
ing of money. TTere the consent of parliament 



THE PREKOOATIVE OP THE CROWN. 133 

is necessary. Theoretically the Crown can cede ter- 
ritory by a treaty, but this course is not pursued in 
important cessions, e.g., that of Heligoland in 189(^ 
but territory has often been ceded in India without 
parliamentary sanction). 
(4) The power of granting passports, safe conduct*?, let- 
ters of marque and reprisals. 

(Privateering was abolished by International Law 
under the Declaration of Paris, 1856.) 

B. Personal Prerogatives: 

(a) The King never dies. 

(There is only a demise of the Crown, or transfer 
of royal authority to another.) 

(b) The King can do no wrong, in the sense that he can- 

not be held responsible for a crime or tort, 

(c) The King is not aifected by Statutes of Limitation. 

except where expressly or by necessary iUtendment 
included. 

(d) The King does not pay tolls or taxes. 

(e) The King's person cannot be distrained nor his ^oods 

taken in execution. 

C. Political Prerogatives: 

1. All land is held of the Crown mediately or immediately. 

2. Accretions to land, e.g., by departure of the aea/ so 

lands newly discovered by a subject, belong to him. 
8. The King haa a right of veto on Bills. (This has not 
been exercised since .1707, when Queen Atitu* rofn<4r.1 
assent to a Scotch Militia Bill.) 

4. A limited power of issuing proclamations. 

5. The power of conferring titles, granting proced«nf.i^ Hini 

armorial bearing?. 

6. The King is Supreme Commander of army andnayy^ 

but needs parliamentery authority for a standing 
army. . . . 

7. The coining of money, regulating weights and toea«- 

urea, establishing markets and fairs, and the ereetiii; 
of beacons, lighthouses and sea marks. (These iiia<> 
ters are more frequently dealt with by Psrliamehti)' 



134 THE PREROGATIVE OF THE CROWN. 

8. The Crown as parens patrice is ex officio guardian of 
infants, idiots and lunatics. 

D. Judicial Prerogatives: 

(1) The Crown can establish Courts to proceed according 
to the common law, but not a court of equity, and can- 
not issue commissions of martial law forbidden by 
the Petition of Right. The King is always present 
in court to do justice, therefore he cannot be non- 
suited, though a nolle prosequi may be entered. 

(2) The King cannot be sued in an ordinary action, 

though he may as an act of grace allow a petition of 
right, in cases of contract, or where he holds pro- 
perty belonging to a subject, but not in tort. Stat- 
utes sometimes expand the scope of a petition of 
right. 

(3) The King can make use of prerogative process, thus 

he could issue an inquest office to determine the 
Crown's rights to lands or goods, used in cases of 
honu vacantia or escheat (statutes in places restrict 
this right) or a writ of escheat (a mode of execution) 
or a scire facias for the. resumption of a grant. 

Extensive Scope of Prerogative. 

** She,'' sa3's Bagehot, referring to Queen Victoria, ^' could 
disband the army (by law she cannot engage more than a cer- 
tain number of men, but she is not obliged to engage any men) ; 
she could dismiss all the officers, from the general commanding 
in chief downwards; she could dismiss all the sailors too; she 
could sell off all our ships of war and all our naval stores ; she 
could make a peace by the sacrifice of Cornwall and begin a war 
for the conquest of Brittany. She could make every citizen in the 
TJnited Kingdom, male or female, a Peer ; she could make every 
parish in the United Kingdom a * university ;' she could dismiss 
most of the civil servants; she could pardon all offenders." It 
is not, of course, suggested that the King in his personal capa- 
city could do any of these things. When it is said that the 
King can do these things, it is meant that the Cabinet can by 
nee of the prerogative do them. A practice, not altogetlier in- 
convenient, has arisen of speaking of the Crown, and the pre- 
rogative of the Crown, when it is desired to mark t}ie difference 
between the kingly powers wielded by Cabinet Ministers, from 



THE I'REKOGATIVB OF THE CROWN. 135 

such powers as the King may possess in his ovni person. It is 
worth while noticing that in 1905, by a mere exercise of the 
prerogative, the form and administration of the Englisli army 
was entirely recast. 

The Prerogative in the Hands of the Governor. 

The Crown must be taken to have vested in the GoTemor- 
General such prerogative power as is necessary for the conduct 
of the executive government of the Dominions, and in the 
Lieutenant-Governors such as is necessary for the purposes of 
provincial government The prerogatives thus given are not 
conferred by law, but their exercise is regulated by law. These 
prerogatives too are exercisable only as far as they have been 
delegated by the Crown, and are not co-extensive with those of 
the Crown in the United Kingdom. 

The distribution of executive authority between the Do- 
minion and Provincial Executives in substance follows the dis- 
tribution of legislative powers. Thus the prerogative power of 
the Crown to incorporate companies by charter has been held 
to reside in the Lieutenant-Governor of Ontario in so far as 
provincial objects required its exercise (see Bonanza Creek 
Mining Co, v. Rex, 10 W. W. R. 391). (It is said by Keith. 
vol. I., p. 118, that a Governor cannot grant royal charters of 
incorporation). The Dominion government lias the preroga- 
tive of appointing officers of the Crown, including K.C.'s, for 
federal purposes, and each provincial government has a simi- 
lar power of appointment for provincial purposes: Lenoir v. 
Ritchie, 1898, A. C. 247. It is to l)e observed tlmt a Governor- 
General or a Lieutenant-Governor can legally do, not what 
the Crown can do, but what the Crown has entrusted to him 
(either expressly or ^nl|^H^'dh^ <^r u]»nf is vi'<it«»d in him bv 
legislation). 

Executive Powers of Oovemor-Oeneral and Lieutenant* 
Oovemor. 

** The old view that the Lieutenant-Gd^•erno^ is a mere crea- 
ture of the Governor-General, which was at the bottom of the 
disptiiefl on the question of the power to appoint Queen's Coun- 
wl and to pardon offenders against provincial laws and so forth, 
may be refused aa entirdy gone. By virtue of their commis- 
aions from the Oovemor-Oeneral and by firtue of iho terms of 
the British North America Act creating the Governmentii of 



136 Tllf: PEEKOGATIVE OP THE CROWN. 

th^: two re-separated provinces and continuing those of the 
Maritime Provinces, taken in conjunction witli the terms on 
which British Columbia and Prince Edward Island joined the 
Union and the Acts creating the provinces of Manitoba, Alberta 
and Saskatchewan, there is no doubt at all about the Lieutenant- 
Governor being representative of tlie Queen and having full 
powers to perform all the acts for a province which a Governor 
may perform for a colony, as for instance, the appointment of 
officers, the dismissing of officers, the summoning, proroguing 
and dissolving of parliaments, and so forth. . . . The real 
position of tlie Lieutenant-Governor is that he is the wielder of 
the executive power of the province in its entirety, just as a 
colonial Governor wields the power of the colony." (Keith, 
p. 655). On tlie whole it would appear that the extent of tlie 
prerogative exercisable by a Lieutenant-Governor or- the Gover- 
nor-General must be sought for ija their commissions or in the 
express words of the B. N. A. Act, always remembering that 
" executive power is in many situations which arise under the 
statutory constitution of Canada conferred by implication in 
the grant of legislative power, so that where such situations 
arise the two kinds of authority are correlative." 

Powers not Delegated to Governor. 

Powers which have not been delegated include, the right 
to bestow honours, the right of investiture, the right of coinage 
(exercised however as a statutory power in Canada), the pro- 
clamation of war and peace, the making of treaties, the crea- 
tion of courts (apart from statutory authorization), preroga- 
tives relating to the conduct of foreign affairs, the right to fiat 
a petition of right. (Canadian legislation on this subject seems 
to -leave the prerogative untouched). The rights that have not 
been either expressly or tacitly excluded by Canadian legisla- 
1ion and have not been delegated to Governors, are exercisable 
by the Crown {The Liquidators of the Maritime Banlc of (Can- 
ada V. The Beceiver-General of NeiV Brunswick, [1892] A. C. 
437). . .' . 

Pardon. 

The prerogative of mercy is always delegated to tthe Gov- 
ernor by some instrument, and, perhaps, without , delegation 
it would not pass to him (see A.-G. for Canada Y, .A'\-Q.... for 
Ontario, 23 C. C. R. 458). .!.M:';T 



THE PREROGATIVE OP THE CROWN. 137 

The power of pardon can be barred by express words in a 
local Act, and in that case it seems that the Crown Imperial 
could not exercise the prerogative, though it might do so in 
cases where it had delegated the power. The power of pardon 
is not referred to in the letters patent, but it is sot out in tho 
instructions. Under these the Governor-General, when any 
crime or offence has been committed against the laws of the 
Dominion, *'shall not pardon or reprieve any such offender with- 
out firfd receiving in capital cases the advice of the Privy 
Council for our said Dominion, and in other cases the advice 
of one, at least, of his ministers; and in any case in which 
such pardon or reprieve might directly affect the interests of 
our Empire or any country or place beyond the jurisdiction of 
the government of our said Dominion, our said Governor- 
General shall, before deciding as to either pardon or reprieve, 
take those interests specially into his personal consideration 
in conjunction with such advice as aforesaid." 

The power of pardon is given by local statutes in all the 
provinces, and the power of altering the great seal is given by 
Imperial Statute in the case of the new provinces of Ontario and 
Quebec, and by local Acts in the old provinces which joined 
the Federation, and by the constitutions in the case of the 
provinces created after Federation. 

Treaties. 

Treaties made by the Crown are legally binding on Can- 
ada, whether or not the Dominion government consents thereto 
or not, but it must be taken that it is an essential part of the 
Constitution of the Empire that no treaty obligations shouhl 
be imposed on a self -governing Dominion without its concur- 
rence, but the mere making of a treaty cannot niter the ordin- 
ary rights of British subjects, so it becomes necessary for Can- 
ada, as it did in 1906, 1908, and 1911, with respect to Japnn- 
cte and French Treaties, to pass the legislation whUh is nrr<\s- 
sary to give it full force (Keith, 1102). 

Commercial treaties do not become applicable to s<»lf-gov- 
erning colonies automatically, they are given a period within 
which to exercise an option oi adherence. This rule docs not 
hold in the case of general jwlitioal treaties, though of course 
the Dominion is consulted with res^xvf \n nuv iviHtical trralv 
which directly affects its interest.^ 



138 THE PREKOQATIVE 01< THE CROWN. 

The Dominion government does not adhere to new treaties 
where the matter concerned is one which is within the exclusive 
legislative competence of the provincial legislature, though, pro- 
bably, it would be legally justified in so doing as really the 
treaty is made by the Imperial government. The desirability of 
consultation with the provinces in such matters is, however, 
evident. 

Sir Robert Borden, in 1909, insisted that treaties should 
Ix' made subject to the ratification and approval of the Domin- 
ion Parliament. It can scarcely be said that it would mater- 
ially change tlie actual situation, if the treaty-making power 
were given in completeness to the Dominion. Consuls in the 
Dominion are entitled to no diplomatic privileges, though they 
receive certain courtesies. 

With regard to commercial treaties, it has been laid down 
by the Imperial government that negotiations between Her 
Majesty and the foreign sovereign must be conducted by Her 
Majesty's representative at the foreign court, who would keep 
Her Majesty's government informed of the progress of the dis- 
cussion, and seek instruction from them as necessity arose. 
In order to give due help in the negotiations, Her Majesty's 
representative should, as a rule, be assisted by a delegate, ap- 
pointed by the colonial government, either as a plenipotentiary 
or in a subordinate capacity as the circumstances might re- 
quire. Canada seems never to have concluded a treaty with a 
foreign power direct; but in two cases provisional arrange- 
ments have been made of an informal character, expressly in 
contemplation of formal arrangements. Canada is, however, 
in the habit of carrying on informal negotiations with consular 
representatives oif foreign powers. 

In 1911 Sir Wilfrid Laurier " expressly declined to accept 
a resolution in the Colonial Conference asking that political 
treaties in general should be submitted to the Dominions 
before they were ratified by the Imperial government, giv- 
ing as his reason that, if the Dominions demanded that 
they should be consulted in regard to such treaties, they would 
be bound to accept the consequences of the policies denoted by 
such treaties. 

Letters Patent. 

" The effect of these sections of The British North America 
Act (ss. 12, 64, 65) is that subject to certain express provi- 



THE PREBOOATIVB OP THE CROWN. 139 

sions in that Act and to the supreme authority of the Sov- 
ereign, who delegates to the Governor-General and through his 
instrumentality to the Lieutenant-Governors the exercise of 
the prerogative on terms defined in their Commissions, the 
distribution under the new grant of executive authority in 
substance follows the new grant of legislative authority . . . 
Under both s. 12 and s. 65, the continuance of the powers thus 
delegated is made by implication to depend on the appropriate 
legislature not interfering. 

''In the case of a company created by charter, the doctrine 
of ultra vires has no real application in the absence of statu- 
tory restriction added to what is written in the charter. Such 
a company has the capacity of a natural person to acquire 
powers and rights. If by the terms of the charter it is pro- 
hibited from doing so, a violation of this prohibition is an act not 
beyond its capacity, and is therefore not ultra vires, although 
such a violation may well give ground for proceedings by way 
of scire facias for the forfeiture of the charter. In the case 
of a company, the legal existence of which is wholly derived 
from the words of a statute, the company does not possess the 
general capacity of a natural person and the doctrine of ultra 
vires applies." 

" The words ' legislation in relation to the incorporation of 
companies with provincial objects,' do not preclude the province 
from kepvng alive the power of the executive to incorporate 
by charter in a fashion which confers a general capacity analo- 
gous to that of a natural perwn. No do they appear to pre- 
clude the province from legislating so as to create, by or by 
virtue of a statute, a corporation with this general capacity. 
What the words really do is to preclude the grant to such a 
corporation, whether by legislation or by executive act, accord- 
ing with the distribution of legislative authority of powers and 
rights in respect, of objects outside the province, while leaving 
(iTifouched the ability of the corporation, if otherwise ade- 
quately called into existence, to accept such powers and rights 
if granted ab extra.'* (Lord Ilaldane in The BonanMa Cr^k 
Gold mning Co. v. The King, 10 W. W. R. 391). 



140 GOVERNORS AND TUEIR POWERS. 

CHAPTER XIII. 
Governors. 

The Governor-General is appointed by the Sovereign on 
the advice of the Secretary of State for the Colonies, and aifter 
consultation with the Government of the Dominion. (Cf. the 
successful objection on the part of the government of South 
Australia to the appointment of the Marquis of Normanby). 
A Lieutenant-Governor is appointed by the Governor- General 
in Council by Instrument under the Great Seal of Canada. 

The office of Governor-General was constituted by letters 
patent under the Great Seal of the United Kingdom, and the 
appointment of the individual Governor- General is made by 
commission under the sign manual and signet, and is accom- 
panied by royal instructions under the sign manual and signet 
dealing inter alia with the exercise of the power of pardon, the 
transmission of laws, and leave of absence from the Dominion. 

In case of the absence or incapacity of the Governor, the 
administration of the government devolves upon the Chief 
Justice, or in his absence the senior judge. The Governor- 
General can by s. 14, and letters patent establishing the office, 
appoint a deputy or deputies by letters patent to exercise such 
of his powers, functions and authorities as he may deem ex- 
pedient; and the appointment of such deputy or deputies is 
not to affect the exercise by the Governor-General himself of 
any power, authority or function, a position which, it has been 
said, "seems open to serious objection, as a Governor would 
seem to have power only within the limits of the territory of 
his colony, and the assent to a bill if given outside these limits 
might be deemed illegal. During the absence, illness or other 
inability of a Lieutenant-Governor, the Governor-General in 
Council may appoint an administrator to execute his office and 
functions. A Lieutenant-Governor is also authorised by letters 
patent to appoint deputies: s. 67. 

With respect to exemptions of a Governor-General or Lieu- 
tenant-Governors from liability to answer in civil actions for 
acts of state in the courts both of Canada and the United King- 
dom, it is thought the following summing up adequately re- 
presents the position : ^' The facts are clearly tliat, as the exe- 



GOVERNORS AND THEIR POWERS. 141 

cutive head of the colony, the Governor has tlie responsbility 
for the maintenance of the government thrown upon him in 
especial measure, and that he will therefore be judged in his 
actions according to the duties which were imposed upon him. 
How far his actions will be held to have been reasonable will 
depend on circumstances, and will be weighed on the princi- 
ples laid down in It. v. Pinney, 3 St. Tr. (N.S.) 11, and 
Phillips V. Eyre, 6 Q. B. 1, and the Governor will normally 
require the protection of the Act of Indemnity, which saved 
Eyre from serious difficulties": Keith, vol. I. p. 117. 

A Lieutenant-Governor or the Governor-General may be 
sued in contract or tort with regard to his private acts: HUt 
V. Bigge, 3 Moo. P. C. 465, or for acts done in his official 
position (Mtisgrave v. Pulido, 5 A. C. 102), in Canada or in 
England (Fabrigas v. Mostyn, 20 St. Tr. 81). Under 11 & 12 
\Vm. TIL c. 12, a Governor is made liable in England for 
oppression or crime beyond the seas, and for misdemeanours 
under 42 Geo. ITT. c. 85. Moreover, under the Offences 
against the Person Act, 1861, any British subject may be tried 
in England, if he is found there, for manslaughter or murder, 
and it is probable that even a Canadian Act of Indemnity 
would not save him from trial and possible condemnation (c/. 
the case of Governor Wall, 28 St. Tr., who nineteen years 
after the event was actually put to death for the murder of a 
floldier by exces.«?ive flogging). Apparently no mandamus lies 
against a Canadian Governor (Church v. Middlemiss, 81 L. 
C. J. 319, and Molson v. Chapleau, 6 L. R. 224). 

It is clear that a Governor-General has a dual capacity 
as an Imperial officer, and as head of a dominion with re- 
sponsible government. Mr. Edward Blake, Minister of Jus- 
tice in 1876, propounded the theory that when acting in the 
latter c^ipacity the Governor is "as of course to act on the 
advice of responsible ministers," but may act without "the 
advice not merely of a particular set of ministers, but of any 
ministers" in the rare instAnces in whioli, owing to the exist- 
ence of substantial Imperial as distinguished from Canadian 
interests, it is conpridered that fnll freedom of action is not 
invested in the Canadian people. He is, however, something 
more than a mere formal officer in cases not involving his posi- 
tion as an Imperial officer, t.e., he is not obliged to act on the 
advice of his minifrters in the same sense as that in which the 



142 GOVERNORS AND TllEIK TOWERS. 

King of the United Kingdom acts on the advice of his min- 
isters, thus even within this sphere he receives instructions 
from the Crown, which he is bound to obey. (See Keith, vol. 
I., 171). 

A Governor must not accept presents as Governor except 
with the permission in each case obtained of the Secretary of 
State. (Colonial Regulations, Nos. 46 and 47). 

For the measure of the powers of a Governor-General, or 
of a Lieutenant-Governor, the words of his commission and of 
the British North America Act must be looked to. The prero- 
gative powers of the Crown, unless parted with by express 
words, or by implication in the grant of legislative power, are 
not curtailed by the Act. 

The provinces all include in their Revised Statutes an Act 
respecting the office of Lieutenant-Governor, creating him a 
corporation sole, and authorizing him to create deputies to 
sign licenses to incorporate companies, etc. 

" Governor of Colony'' in Imperial Acts. 

A Lieutenant-Governor of a province is not a Governor of a 
colony within the meaning of the Imperial Acts, such as the 
Fugitive Offenders' Act, 18'81; in such case the ' Governor' is 
the Governor-General, 



Appendix to Chapter XIII. 

Pulido V. Musgrave. 

Sir Montague E. Smith delivered the judgment of their 
Lordships — To an action of trespass brought against the 
appellant, Sir Anthony Musgrave, in the Supreme Court of 
Jamaica, for seizing and detaining at Kingston, in Jamaica, a 
British schooner called the Florence, of which the plaintiff was 
charterer and which had, as alleged, put into the port of 
Kingston in distress and for repairs, the api:)ellant pleaded the 
following plea: — 

[His Lordship read the plea.] 

The plaintiff demurred to this plea, and the present appeal 
is from the judgment of the Supreme Court allowing the 
demurrer, and ordering the appellant to answer further to the 
writ and declaration. 



OOVSBKOBS AND THEIR P0WEH8. 143 

The plea is in form a dilatory plea, and does not profess to 
contain a defence in bar of the action. It was advisedly pleaded 
as a plea of privilege, with the object of raising the question of 
the immunity of the appellant as Governor from being impleaded 
and compelled to answer in the Courts of the Colony. That 
this was so is plain, not only from the form of the plea, but 
from an arran^^ement come to between the ])arties before the 
argument of the demurrer. In an interlocutory proceeding to 
set aside a judgment of non pros., as irregularly obtained, an 
order was made by consent *'that all pleas of the defendant, 
Sir Anthony Musgrave, except the plea of privilege by attorney, 
be struck out, togetlier with replications and entry of judg- 
ment of non pros., with liberty to the plaintiff to demur, it 
being arranged that the demurrer be set down for hearing at 
the }>resent term, and if a judgment respondeat ouster, the 
defendant. Sir Anthon}', have liberty to plead not guilty by 
statutes." 

The decision of the Supreme Court was accordingly given 
upon the plea, as a plea of privilege, and altogether upon this 
aspect of it, the judgment being one of respondeat oust(»r. 

Upon the hearing of the present appeal, the Attorney- 
General, on the part of the appellant, whilst not giving up the 
plea in the shape in which it was pleaded, insisted that if it 
disclosed a good defence in substance to the action, as he con- 
tended it did, its form and the arrangement of the parties 
might be disregarded, and a general judgment given for the 
defendant; and, though under protest from the respondent's 
oounsel, the discusffion at their Lordship's bar was allowed to 
take the wider scope which the Attorney-General's contention 
introduced into the case. 

If the plea is to be regarded as a plea of privilege only, 
and as claiming immunity to the Governor from liability to be 
sued in the Courts of the Colony, their Tjords-hips think it 
cannot, in that aspect of it, be snstained. 

The dictum attributed to Lord Mansfield in Mostyn v. 
Fabrigas, that " the Governor of a colony is in the nature of 
a Viceroy, and therefore locally during hisgovernmcnt, no civil 
or criminal action will lie against him, the reason is, because 
upon process he wo\ild be subject to imprisonment," was dis- 
sented from, and declared to be without legal foundation in 
the judgment of the Lords of the Judicial Committee delivered 



144 GOVERNORS AND TIIP:iR POWERS. 

by Lord Broiighain in the case of Hill v. Bigg. In that 
appeal their Lordships were of opinion that the plea of the 
Lieutenant-Governor of the Island of Trinidad to an action 
brought against him in the Civil Court of the island, claiming 
that whilst Lieutenant-Governor he was not liable to be sued 
in that Court, could not be sustained. The action was for a 
private debt contracted by the defendant in England before 
he became Governor, but the principle affirmed by the judg- 
ment is that the Governor of a colony, under the commission 
usually issued by the Crown, cannot claim, as a personal privi- 
lege, exemption from being sued in the Courts of the colony. 
The claim to such exemption is thus met : " If it be said that 
the Governor of a colony is quasi Sovereign, the answer is that 
he does not even represent the Sovereign generally, having only 
the functions delegated to him by the terms of his commission, 
and being only the officer to execute the specific powers with 
which that commission clothes him." 

The defendant has sou^t to strengthen his claim of privi- 
lege by averring in his plea that the acts complained of wero 
done by him as Governor, and acts of Siate. Their Lordships 
propose hereafter to consider the particular averments of this 
plea. It is enough here to say that it appears to them that if 
the Governor cannot claim exemption from being sued in thfe 
Courts of the colony in which he hold that office, as a per- 
sonal privilege, simply from his being Governor, arid is obliged 
to go further, his plea must then show by proper and sufficient 
averments that the acts complained of were acts of State policy 
within the limits of his commission, and were done by him as 
the servant of the Crown, so as to be, as they are sometimes 
shortly termed, acts of State. A plea, however, disclosing 
these facts would raise more than a question of personal ex- 
emption from being sued, and would afford an answer to the 
action, not only in the Courts of the colony, but in all Courts : 
and therefore it would seem to be a consequence of the deci- 
sion in Hill V. Bigg, that the question of personal privilege 
cannot practically arise, being merged in the larger one ; whether 
the facts pleaded show that the acts complained of were really 
ffuch acts of state as are not cognizable by any Municipal Court. 
In the case of The Nabob of the Carnaiic v. The East India 
Company, Lord Thurlow said that a pica pleaded in form to 
the jurisdiction of the Courts, but which denied the jurisdic- 



GOVERNORS AND THEIR POWERS. 145 

lion of all Courts over the matter, was absurd; and that such 
a plea, if it meant anything, was a plea in bar. 

In their Lordships' view, therefore, this plea, if it can 
be supported, must be sustained on the ground mainly relied 
upon by the Attorney-General, namely, that it discloses in sub- 
stance a defence to the action. ' 

Before adverting to the sufficiency of the averments in this 
plea, it will be convenient to refer to some decisions in which 
the position of Grovernors of colonies has been considered. In 
the leading case of Mostyn v. Fdbrigas, the action was brought 
against Mr. Most3m, the Governor of Minorca, for imprison- 
ing the plaintiff, and removing him by force from that island. 
The Governor's special plea of justification alleged that he 
was invested with all the powers, civil and military, belonging 
to the government of the island, that the plaintiff was guilty 
of a riot, and was endeavouring to raise a mutiny among the 
inhabitants, in breach of the peace, and that, in order to pre- 
serve the peace and government of the island, he was forced to 
banish the plaintiff from it. It then averred that the acts 
complained of were necessary for this object, and were done 
without undue violence. Upon the trial, the Governor failed to 
prove this plea, and the plaintiff had a verdict. When the case 
came before the Court of Queen's Bench, upon a bill of excep- 
tions to the ruling of the Judge, Lord Mansfi'eld said that his 
great difficulty had been, after two arguments, to be able 
clearly to comprehend what the question was that was meant 
seriously to be argued. It seems, however, that the liability 
of the Governor to be sued, was raised, and very fully dis- 
cussed, one ground of objection being that he could not bo 
ffued in England for an act done in a country beyond the seas» 
and upon this question Lord Mansfield declared that the action 
would, to use his own phrase, " most emphatically " lie against 
the Governor. His judgment proceeds to show, in a passage* 
bearing materially on the point now under discussion, ii» 
what way a defence to such an action might be made. Tie says, 
" If he has acted right according to the authority with which 
he is invested, he may lay it hrifore the Court by way of plon, 
and the Court will exercise their judgment whether it is a 
sufficient justification or not. In this case, if the justifTcation 
had been proved, the Court might have considcrcil it a sufRoi- 

CO.— la 



M« GOVEKNOHS AND THEII{ I'OWERS. 

ent answer; and if the nature of the case would have allowed 
of it, it might have adjudged that the raising of a mutiny was 
a good ground for sucli a proceeding." 

In the case of Cameron v. Ki/te, which came before this 
Board on an appeal from the Colony of Berbice, the question 
was, whether the Government had authority to reduce a com- 
mission of five per cent, upon all sales in the Colony, granted 
to an officer called the Vendue Master by the Dutch West 
India Company before the capitulation of the Colony to the 
British Crown. It was urged that the Governor was the 
King's representative, exercising the general authority of the 
Crown, and, as such, had power to make the disputed reduc- 
tion. It was, however, decided that the Governor did not hold 
the position or possess the authority sought to be attributed 
to him, and that the act in question was beyond his powers. 
In the judgment of this Committee, delivered by Baron Parke, 
it is said: — 

" There being, therefore, no express authority irom the 
Crown, the right to make such an order must, if it exist at all, 
be implied from the nature of the office of Governor. If a 
Governor had, by virtue of that appointment, the whole sov- 
ereignty of the Colony delegated to him as a Viceroy, and re- 
presented the King in the government of that Colony, tliore 
would be good reason to contend that an act of sovereignty done 
by him would be valid and obligatory upon the subject living 
within his government, provided the act would be valid if 
done by the Sovereign himself, though such act might not be 
in conformity with the instructions which the Governor had 
received for the regulation of his own conduct. 

The breach of those instructions might well be contended 
on this supposition to be matter resting between the Sovereign 
and his deputy, rendering the latter liable to censure or pun- 
ishment, but not affecting the validity of the act done. But 
if the Governor be an officer merely with a limited authority 
from the Crown, his assumption of an act of sovereign power, 
out Otf the limits of the authority so given to him. would be 
purely void, and the Courts of the Colony over which he pre- 
sided could not give it any legal effect. We think the office 
of Governor is of the latter description, for no authority or 
dictum has been cited before us to show tliat a Governor can 
be considered as haviner dclei^ation of tlio whole Royal power 



COVKKNOKS AM/ IIIKU: luW KIJS. 147 

in any colony, as between him and the subject, when it is not 
expressly given by his commission. Anxi we are not aware that 
any commission to Colonial Governors conveys such an exten- 
sive authority/' 

Again, it is said: ''All that we decide is that the sdmple 

Act of the Governor alone, unauthorised by his commission, and 

not proved to lx» expressly or impliedly authorised by any 

in^nictions, is not equivalent to such an act done by the 

Crown itself." 

In the well-known case of the action brought by Mr. Phil- 
lips against Mr. EyTe, the former Governor of Jamaica, for acts 
done by him whilst he was Governor, in suppressing an insur- 
rection in that colony, the question raised was, whether the 
Colonial Act of Indemnity was an answer to an Action brought 
in England. That such an Act was thought to be necessary, 
and it was alone relied on as a defence to the action, raises a 
strong presumption that it had been thought that the action 
might, but for this Act, have been maintained. It is to be 
observed, however, that the facts of the rebellion, and of its 
suppres^on, were averred in the plea, by way of introduction 
to the Ac?t of Indemnity, and Mr. Justice Willes, in delivering 
the judgment of the Exchequer Chamber, after saying that 
the Court had discuseed the validity of the defence upon the 
only question argued by counsel, namely, the effect of the 
('olonial Act. adds* — "hut we are not to be understood as 
thereby intimating that the plea might not be sustained upon 
more general grounds, as showing that the acts complained of 
were incident to the enforcement of martial law.'' It is to be 
noticed that the nature of those acts, and the occasion \i\k)U 
which they were committed, wcro <]iow?i b\- di«tin(»t av(M'menfs 
in the plea. 

It i.<* apparent from these authorities, that the Governor of 
a Colony (in ordinary cases) cannot l)e regarded as a Viceroy; 
nor can it be assumed that he possesses general sovereign power. 
His authority is derived from his commission, and limited to 
the powers thereby expressly or impliedly entnisted to him. 
lict it be granted that, for acts of power done by a Governor 
ndor and within the limits of his commission, he is protected, 
H-cause in doing them he is the servant of the Crown and i« 
♦ xercising its rovereign authority, the like protection cannot 
be extended to acts which are wholly l^evond the anthoritv con- 



148 GOVERNORS AND THEIR TOWERS. 

fided to him. Such acts, though the Governor may assume 
to do them as Governor, cannot be considered as done on be- 
lialf of the Crown, nor to be in any proper sense acts of state. 
AVhen questions of this kind arise, it must necessarily be within 
the province of Municipal Courts to determine the true char- 
acter of the acts done by a Governor, though it may be that, 
when it is established that the particular act in question is 
really an act of state policy done under the authority of the 
Crown, the defence is complete, and the Courts can take no 
further cognizance of it. It is unnecessary, on this demurrer, 
to consider how far a Governor when acting within the limits 
of his authority, but mistakenly, is protected. 

Two cases from Ireland were cited by the appellant's coun- 
sel, in which the Irish Courts stayed proceedings in actions 
brought against the Lord Lieutenant of Ireland. In these 
cases, the Lord Lieutenant appears to have been regarded as 
a Viceroy. In both, the facts were brought before the Court, 
and in both it appeared that the acts complained of were politi- 
cal acts done by the Lord Lieutenant in his official capacity, 
and were assumed to be within the limits of the authority delor 
gated to him by the Crown. The Courts appear to liave thought 
that under these circumstances no action would lie against the 
Lord Lieutenant in Ireland, and upon the facts brought to their 
notice it may well be that no action would have lain against 
him anywhere — Tandy v. Earl of Westmoreland, Lxiby v. Lord 
Wodehouse. 

Several cases .were cited during the argument of actions 
brought against the East India Company, and the Secretary 
of State for India, in which questions have arisen whether the 
acts of the Indian Government were or were not acts of Sov- 
ereignty or State, and so beyond the cognizance of the Muni- 
cipal Courts. The East India Company, though exercising 
(under limits) delegated sovereign power, was subject to the 
jurisdiction of the Municipal Courts in India, and it will be 
found from the decisions that many acts of the Indian Govern- 
ment, though in some sense they may be designated "acts of 
State,'^ have been declared to be within the cognizance of those 
Courts. Thus, in the Rajah of Tanjore's Case, the question 
to be decided was thus stated by Lord Kingsdown, in giving 
the judgment of the Committee : " What is the real character 
of the act done in this case? Was it a seizure by arbitrary 



GO\'EBNORS AND THEIR POWERS. 149 

power on behalf of the Crown of Great Britain of the domin- 
ion and property of a neighbouring State, an act not affecting 
to justify itself on grounds of municipal law ; or was it in whole 
or in part a possession taken by the Crown under colour of 
legal title of the property of the late Rajah, in trust for those 
who by law might be entitled to it? If it were the latter, the 
defence set up, of course, has no foundation." 

This Committee, in deciding the questions thus raised, held 
that the seizure was of the former character, and, therefore, 
not cognizable by a Municipal Court. The answer of the East 
India Company in this case did not rest on the simple assertion 
that the seizure was an act of State, but set out the circum- 
stances under which the Rajah's property was taken. After re- 
ferring to the treaties made with the Rajah, it averred that in 
entering into these treaties, and in treating the sovereignty and 
territories of Tanjore as lapsed to the East India Company in 
trust for the Crown, the company acted in their public political 
capacity, and in exercise of the powers (referring at length to 
them) committed to them in trust for the Crown of Great 
Britain, and that all the acts set forth in the answer " were 
acts and matters of State." 

In the case of Forester and others v. The Secretary of State 
for In4ia, in which the judgment of this Committee was de- 
livered on the 11th of May, 1872, a defence of the same nature 
as that in the last-mentioned case was set up ; but the decision 
there was, on this point, against the Secretary of State. In 
this suit also the answer set out the facts which were relied on 
to show that the action of the Government complained of was 
a political act of State. 

As far as their Ix)rdships are awftre, it will be found tliat in 
all the 8riit.«» brought against the Government of India, whether 
in this country or in India, the pleas and answers oi the Gov- 
ernment have shown, with more or less particularity, the na- 
ture and character of the acts complained of, and the grounds 
on which, as being political acts of the Sovereign power, they 
were not cognizable by the Courts. (See The Nabob of the 
Camaiic v. The East India Company, The Ex-Rajah of Coorg 
V. ne East Iiulia Company, Rajaii Salig Ram v. The Secre- 
tary of State for India, in which judgment was given by this 
Committee on the 22nd of August, 1872.) 



150 GOVERNORS AND TIIEIU POWERS. 

None of these cases help the present plea. On the contrary, 
it appears from them not only that the facts were laid before 
the Courts, but that the Courts entertained jurisdiction to 
enquire into the nature of the acts complained of, and it was 
only when it was established that they bore the character of 
political acts of State, that it was decided they could not take 
further cognizance of thorn. It is to be observed that the 
sovereign authority conferred upon the East India Company 
appears in Acts of Parliament, and, therefore, without being 
pleaded, the Courts would have judicial notice of it. Coming 
to the present plea, we fi'nd that, after stating that the defendant 
was Captain General and Governor-in-Chief of the Island of 
Jamaica, the only averments in it are, that the acts complained 
of were done by him as Governor of the Island, and in the 
exercise of (his reasonable discretion as such, and as acts of 
State. There is no attempt to show the occasion on which the 
seizure of the plaintiff's ship was made, nor the grounds on 
which that seizure, which is not in itself of the nature 
of an act of State, became and was such an act. The 
plea does not aver, even generally, that the seizure was an act 
which the defendant was empowered to do as Governor, nor 
even that it was an act of State. It would have been con- 
tended at the trial, if issue had been taken, that it would satisfy 
the averments of this plea to prove that the defendant as- 
sumed to make the seizure as Governor, and assumed to do it 
as an act of State, without showing that the act itself was an 
act of State properly so called, and was within the limits of his 
authority. It was said that the plea should be construed as 
requiring, by implication, pi-oof of these matters; but having 
regard to its nature and form as a plea of privilege, ijhis can- 
not properly be held to be its meaning. Their lordships can- 
not but think it was designedly pleaded in its present shape. 
It was a preliminary plea intended to raise the question whe- 
ther the Governor, if acting de facto as such, and doing an act 
that he assumed and deemed to be an act of State, could be 
called on to show in the Courts of tlie Colony tbat the seizure 
complained of was really an act of State, of. the nature and 
class of those which, as Governor acting on behalf of the 
Crown, he had authority to do. • The object of the plea plainly 
was to stop the Court from entering upon sudh an enquiry; 
but upon the construction now sought to be given to it, this 
object would, from the fi'rst, have been frustrated, if issue had 



GOVERNORS AND THEIR POWERS. 151 

been taken, for the Court must then have gone into the very 
enquiry which it was the manifest purpose of the plea to avert. 
It appears to their Lordships that the plaintiff could not have 
safely taken issue on it. He would have been met at the trial 
by the objection that it was a plea of privilege, pleaded as a 
preliminary plea to the jurisdiction, and neither was, nor was 
intended to be, an answer to the action. 

It was contended that, under " The Supreme Court Pro- 
cedure Law, 1872," of the Colony, which provides that defects 
in form shall be disregarded, and that, on demurrer, the Court 
shall give judgment according to the very right of the cause, 
the judgment ahould now be given for the appellant; but their 
Lordships think, for the reasons above given, that upon this 
ambiguous and defective plea a proper and final judgment on 
the right of the cause, cannot be pronounced. 

In the result, their Lordships must humbly advise Her 
Majesty to affirm the judgment of tihe Court below, and with 
costs. 



152 COMMISSIONS, ETC., OF GOVERNORS. 



CHAPTER XIV. 

Thb Commission op the Governor — Documents and Anno- 
tations. 

1. Commission of Governor Comwallis, 1749. 

George the Second, by the Grace of God of Great Britain, 
France, and Ireland, King, Defender of Faith, etc. To our 
trusty and well beloved, the Honourable Edward Cornwallis, 
Esquire, Greeting. Whereas we did by our letters patent under 
our Great Seal of Great Britain,* bearing date at Westminster 
the eleventh day of September in the second year of our reign, 
constitute and appoint Eichard Philipps, Esquire, our Captain 
Greneral, and Governor in Chief, in and over our Province of 
Nova Scotia or Acadie, in America, with all the rights, mem- 
bers and appurtenances whatsoever thereunto belonging, for 
and during our will and pleasure; as by the said recited letters 
patent, relation being thereunto had, may more fully and at 
large appear. 

Now know you that we have revoked and determined, and 
by these presents do revoke and determine the said recited 
letters patent, and every clause, article and thing therein con- 
tained; and further know you that we reposing special trust 
and confidence in the prudence, courage, and loyalty of you, 
the said Edward Cornwallis, of our special grace, certain know- 
ledge and mere motion, have thought fit to constitute and 
appoint you, the said Edward Comwallis, to be our Captain 
General and Governor in Chief in and over our Province of 
Nova Scotia or Acadie in America, with all the rights, mem- 
bers, and appurtenances whatsoever thereunto belonging, and 
we do hereby require and command you to do and execute all 
things in due manner tlhat shall belong unto your said, com- 
mand and the trust we have reposed in you according to the 
several powers and authorities granted or appointed you by 
this present Commission and the instructions herewith given 
you; or by such further powers, instructions and authorities as 
shall at any time hereafter be granted or appointed you under 
our signet and sign maJiual, or by our order in our Privy 
Council, and according to such reasonable laws and statutes as 
hereafter shall be made or agreed upon by you with the advice 



COMMISSIONS, ETC., OP GOVERNORS. 153 

and consent of our Council and the Assembly of our said Pro- 
vince, under your government hereafter to be appointed in such 
manner and form as is hereafter expressed. 

And for the better administration of justice, and th§ 
management of the public affairs of our said Province, we 
lioreby give and grant unto you, the said Edward Cornwallis, 
full power and authority to chuse, nominate and appoint such 
fitting and discreet persons as you shall either fi'nd there or 
carry along with you, not exceeding the number of twelve, to 
bo of our Council in our said Province. As also to nominate 
and appoint by warrant under your hand and seal all such other 
officers and mini^rs as you shall judge proper and necessary 
for our service and the good of the people whom we shall settle 
in our said Province until our furtfher will and pleasure shall 
be known. 

And our will and pleasure is, that you the 5?aid Edward 
Cornwallis (after the publication of these our letters patent), 
do take the oaths appointed to be taken by an Act passed in 
the first year of his late Majesty's, our Royal father's reign, 
entitled "An Act for the further security of His Majesty's 
Person and Government and the succession of the Crown in 
the Heirs of tihe late Princess Sophia, being Protestants, and 
for extinguishing the hopes of the pretended Prince of Wales 
and his open and secret abettors." As also that you make and 
subscribe the Declaration mentioned in an Act of Parliament 
made in the twenty-fifth year of the reign of King Charles the 
Second, entitled " An Act foT preventing danger whicfli may 
happen from PopisH Recusants." And likewise that you take 
the usual oath for the due execution of the office and trust of 
our Captain General and Governor in Chief of our said Pro- 
vince, for the due and impartial administration of justice; and 
further that you take the oath required to be taken by Gov- 
ernors of Plantations to do tiheir utmost that the several laws 
relating to Trade and the Plantations be observed. All which 
said oaths and declaration our Council in our said Province, 
or any five of the members thereof, have hereby full power and 
authority and are required to tender and administer unto you 
and in your absence to our Lieutenant-Governor, if there be 
any upon the place, all which being duly performed you shall 
administer unto each of the members of our said Council, ax 
also to our Lieutenant-Governor, if there he any such upon 
the place, the said oaths mentioned in the said .Art entitled 



154 COMMISSIONS, ETC., OF GOVEUNORS. 

*' An Act for the further security of His Majesty's Person and 
Government and the succession of the Cix)\vn in the heirs of 
the late Princess Soplhia, being Protestants, and for extinguish- 
ing the hopes of the pretended Prince of Wales and liis open 
and secret abettors;" as also to cause them t<> make and sub- 
scribe the aforementioned declaration and to administer to 
them the oath for the due execution of their places and trusts. 

And we hereby give and grant unto you fnll power and au- 
thority to suspend any of the members of our said Council to 
be appointed by you as aforesaid from sitting, voting, and 
assisting therein if you shall find just cause for so doing. 

And if it shall at any time happen that by the death, de- 
parture out of our said Province, suspension of any of our 
said Councillors, or otherwise, there shall be a vacancy in our 
said Council (any fi've whereof we do hereby appoint to be a 
quorum), our will and pleasure is iihat you signify the same 
unto us by the first opportunity that we may under our signet 
and sign manual constitute and appoint others in their stead. 

But that our affairs at that distance may not suffer for want 
of a due number of Councillors, if even it shall happen that 
there shall be less than nine of them residing in our said Pro- 
vince, we liereby give and grant unto you the said Edward 
Cornwallis full power and authority to chuse as many persons 
out of the principal freeholders inhabitants thereof as will 
make up the full number of our vsaid Council to be nine and 
no more; which persons so chosen and appointed by you shall 
be to all intents and purposes Councillors in our said Province 
until eitiher they shall be confi'rmed by us, or that by the nomi- 
nation of others by us under our sign manual or signet our 
said Council shall have nine or more persons in it. 

And we do hereby give and grant unto you full power and 
authority, with the^ advice and consent of our said Council, 
from time to time as need shall require, to summon and call 
General Assemblys of the Freeholders and Planters within 
your Government, according to the usage of the rest of our 
Colonies and Plantations in America. 

And our will and pleasure is that the persons thereupon 
duly elected by the major part of the Freeholders of the re- 
spective counties and places and so returned shall before their 
sitting take the Oaths mentioned in the Act entitled "An Act 
for the further security of his Majesty's Person and Govern- 



COMMISSIONS, ETC., OF GOVERNORS. 155 

nient and the succession of the Crown in the Heirs of the lato 
princess Sophia beiiTcj Protestants, and for extinguishing the 
hopes of the pretended Prince of Wales and his open and secret 
abettors," as also make and subscribe the aforementioned de- 
claration (whicli Oaths and Declaration you shall commission- 
ate fit persons under our Seal of Nova Scotia to tender and 
administer unto them), and until the same shall be so taken 
and subscribed no person shall be capable of sitting tho' 
elected, and we do hereby declare that the persons so elected 
and qualified shall be called and deemed the General Assembly 
of that our Province of Nova Scotia. 

And that you the said Edward Cornwallis with the advice 
and consent of our said Council and Assembly, or the major 
part of them respectively, shall have full power and authority 
to make, constitute, and ordain Laws, 'Statutes and Ordin- 
ances for the publick peace, wnelfare and good government of 
our said province and of the people and inhabitants thereof 
and such others as ^all resort thereto, and for the benefit of 
us, our heirs and successors, which said Laws, Statutes, and 
Ordinances are not to be repugnant,' but as near as may be 
agreeable, to the T^aws and Statutes of this our Kingdom of 
Oreat Britain. 

Provided tJiat all such Laws, Statutes and Ordinances, of 
what nature or duration so ever, be within three months or 
so^mer after the making thereof transmitted to us under our 
Seal of Nova Scotia for our approl)ation or disallowance there- 
of, as also duplicates by the next conveyance. 

.\nd in case any or all of the said Laws, Statutes and 
Ordinances not before confirmed by us shall at an) time be 
disallowed, and not approved and so signified by us, our Heirs 
or Successors under our or their sign manual and signet, or by 
order of our or their privy Council unto you the said Edward 
Cornwallis, or to the Commander in Chief of our said Province 
for the time being, then such and so many of the said Laws, 
Statutes and Ordinances as shall Ik* so disallowed and not 
approved shall from thenceforth cease, determine, and become 
utterly void and of none ofTect, anything fo tl,.. onnfiniv 
thereof notwithstanding. 

And to the end that notliing may Ik* passed or done by our 
said Council or Assembly to the prejudice of \is our Heirs 
and Successors, we will and ordain that you the said Edward 



156 COMMISSIONS, ETC., OF GOVERNORS. 

Comwallis ^lall have and enjoy a negative voice in the making 
and passing of all Laws, Statutes and Ordinances as aforesaid. 
And you shall and may likewise from time to time, as you 
shall judge it necessary, adjourn, prorogue and dissolve all 
General Assemblies as aforesaid. 

And our further will and pleasure is that you s»hall and may 
keep and use the Publick Seal of our Province of Nova Scotia 
for sealing all things whatsoever that pass the Great Seal of 
our said Province under your Government. 

And we do further give and grant unto you the said Edward 
Comwallis full power and authority from time to time and 
at any time hereafter, by yourself or by any other to be author- 
ized by you in that behalf, to administer and give the oaths 
mentioned in the aforesaid Act to all and every such person or 
persons as you shall think fit, who shall at any time or times 
pass into our said Province or shall be residing or abiding 
there. 

And we do by these presents give and grant 'unto you the 
said Edward Comwallis 'full power and authority, with advice 
and consent of our said Council, to erect, constitute, and estab- 
lish such and so many Courts of Judicature and Publick Justice 
within our said Province and Dominions as you and they shall 
tliink fit and necessary for the hearing and determining all 
and for awarding of Execution thereupon with all reasonable 
and necessary powers, authorities, fees and privileges belonging 
thereunto, as also to appoint and commissionate fit j^ersons in 
the several parts of your Government to administer the oaths 
mentioned in the aforesaid Act, entitled " An Act for the fur- 
ther security of His Majesty's Person and Government and the 
Succession of the Crown in the Heirs of the late Princess 
Sophia being Protestants, and for extinguishing the hopes of 
the pretended Prince of Wales and his open and secret abet- 
tors;" as also to administer the aforesaid declaration unto sudh 
persons belonging to the said Courts as shall be obliged to take 
the same. 

And we do hereby authorize and impower you to constitute 
and appoint Judges, and in cases requisite Commissioners of 
Oyer and Terminer, Justices of the Peace, and other necessary 
officers and ministers in our said Province for the better 
administration of justice and putting the laws in execution, and 
to administer or cause to be administered inifn thom such oath 



COMMISSIONS, ETC., OF GOVERNORS. 157 

or oaths as are usually given for the due execution and perform- 
ance of offices and places and for the clearing of truth in 
judicial causes. 

And we do hereby give and grant unto you full power and 
authority, where you shall see cause, or shall judge any offender 
or offender in criminal matters or for any fines or forfeitures 
due unto us objects of our mercy, to pardon all such offenders 
and to remit all such offences, fines, and forfeitures, treason 
and wilfull murder only excepted; in which cases you shall 
likewise have power upon extraordinary occasions to grant 
reprieves to the offenders until and to the intent our Royal 
pleasure may be known therein. 

We do by these presents authorise and empower you to col- 
late any person or persons to any churches, chapels, or other 
ecclesiastical benefices within our said Province as often as any 
of them shall happen to be void. 

And we do hereby give and grant unto you the said Edward 
Cornwallis, by yourself or by your captains and commanders by 
you to be authorised, full power and authority to levy, arm, 
muster, command and employ all persons whatsoever residing 
within our said Province, and as occasion shall serve, to march 
from one place to another or to embark them for the resisting 
and withstanding of all enemies, pirates and rebels, both at 
land and sea, and to transport such forces to any of our plan- 
tations in America, if necessity shall require, for the defence 
of the same against tlie invasion or attempts of any of our 
enemies; and such enemies, pirates and rebels, if there shall 
be occasion to pursue and prosecute in or out of the limits of 
OUT said Province and plantations or any of them and (if it 
shall 80 please God) to vanquish, apprehend and take them, and 
being taken, according to law to put to death or keep and 
preserve them alive at your discretion, and to execute Martial 
liaw in time of invasion or other times when by law it may be 
executed, and to do and execute all and every other thing or 
things which to our Captain rjfMunnls nnd n«)vprnor in Chiof. 
doth or ought of right belong 

And we do hereby give and grant unto )x)u full power and 
authority by and with the advice and consent of our said Coun- 
cil of Nova Scotia, to erect, raise ami build in our said Province 
such and bo many forta and platforms, castles, citys, Iwroughs, 

towns an^l forfifirnfinny n« von \\v flu- mU ii <• nforrsnid f^ftll 



158 COMMISSIONS, KTC, OF CJOVKKNOIJS. 

judge necessary, and the same or any of them to fortify and 
furnish with ordinance, ammunition and all sorts of arms fit 
and necessary for the i^ecurity and defence of our said Province, 
and by the advice aforesaid the same again, or any of them, to 
demolish or dismantle as may be most convenient. 

And for as much as divers mutinies and disorders may hap- 
pen by persons sliipped and employed at sea during the time of 
war, and to the end that such as shall be shipped and employed 
at sea during the time of war may be better governed and 
ordered, we hereby ''give and grant unto you, the said Edward 
Cornwallis, full power and authority to constitute and appoint 
captains, lieutenants, ipasters of ships, and other commanders 
and officers, and to grant to such captains, lieutenants, masters 
of ships, and other commanders and officers commissions in 
time of war to execute the law martial according to the direc- 
tions of sudi laws as are now in force or shall hereafter be 
passed in Great Britain for that purpose, and to use such pro- 
ceedings, authorities, punishments and executions upon any 
oifender or offenders who shall be mutinous, seditious, dis- 
orderly or any way unruly either at sea or during the time of 
their abode or residence in any of the ports, harbours, or bays 
of our said Province, as the cause shall be found to require 
according to the martial law and the said directions during the 
time of war as aforesaid. 

Provided that nothing herein cont'kined shall be construed 
to tihe enabling you or any by your authority to hold, plea or 
have any jurisdiction of any offence, cause, matter or thing 
committed or done upon the high sea, or within any of the 
havens, rivers or creeks of our said Province under your gov- 
ernment by any captain, commander, lieutenant, master, ofificer, 
seaman, soldier or person whatsoever, who shall be in our actual 
service or pay in or on board any of our ships of war or other 
vessels, acting by immediate Commission or Warrant from our 
Commissioners for executing the office of our High Admiral 
of Great Britain for the time being, under the Seal of our 
Admiralty, but that v«fuch captain, commander, lieutenant, 
master, officer, seaman, soldier, or other person so offending 
shall be left to be proceeded against and tryed as their offences 
shall require, either by Commission under our Great Seal of 
Great Britain as the Statute of the 28th of Henry the Eighth 
directs, or by Commission from our said Commissioners for 
executing the office of our High Admiral, or from our High 



C0M1CI8SI0NS, ETC., OF GOVERNORS. 15!) 

Admiral of Great Britain for the time being, according to the 
afore-mentioned Act for the establishing articles and orders 
for the regulating and better government of His Majesty's 
Navies, Ships of War and Forces by Sea, and not otherwise. 

Provided nevertheless that all disorders and misdmean'ours 
committed on shore by any captain, commander, lieutenant, 
master, officer, seaman, soldier or other person wliatsoever be- 
longing to any of our ships of war or other vessels acting by 
immediate Commission or Warrant from our said Commission- 
ers for executing the office of High Admiral, or from our High 
Admiral of Great Britain, for the time being under the Seal 
of our Admiralty, may be tried and punished according to the 
laws of the place where any suolu disorders, offences, and mia- 
demeanors shall be committed on phoro, notwithstanding such 
ofTender be in our actual service, and borne in our pay, on 
board any such our ships of war or other vessels acting by im- 
mediate Commission or Warrant from our said Commissioners 
for executing the office of Higli Admiral, or our High Admiral 
of Great Britain for the time being as aforesaid, so as he shall 
not receive any protection for the avoiding of justice for such 
offences committed on shore from any pretence of his being 
employed in our service at sea. 

And our further will and pleasure is that all publitk money 
raised, or which shall be raised by any Act hereafter to be made 
within our said Province be issued out by Warrant from you 
by and with iht advice and consent of the Council and disposed 
of by you for the support of the Government, and not other- 
wise. 

* And we do likewise give a'ld grant unto you full power 
and authority, by and with the advice and consent of our said 
Council, to settle and agree with the Inhabitants of our Pro- 
vince for such lands, tenements and hereditaments as now are 
or hereafter shall ho in our power to dispose of, and them to 
grant to any person or persons upon such terms and under 
such moderate quit rents, services, and acknowledgments to 
be thereupon reserved unto us as you by and with the advice 
aforesaid shall think fit. When said grants are to pass and be 
sealed by our goal of Nova Scotia, and being entered upon 
record by such officer or officers as shall be appointed tliereunto 
shall be goQ^ and effectual in law against us, our heirs and sue- 



160 COMMISSIONS, ETC., OF GOVERNORS. 

And we do hei-eby give you the said Edward Cornwallis 
full power to order and appoint fairs, marts and markets, as 
also such and so many ports, harbours, bays, havens and other 
places for convenience and security of shipping and for the 
better loading and unloading of goods and merchandizes, as 
by you with the advice and consent of the said Council shall be 
thought fit and necessary. 

And we do hereby require and command all officers and min- 
isters, civil and military, and all other Inhabitants of our said 
Province, to be obedient, aiding and assisting unto you the 
said EdT^^rd Cornwallis in the execution of this our commission 
and of the powers and authorities herein contained, and in case 
of your death or absence out of our said Province to be obedi- 
ent, aiding and assisting unto such person as s:hall be appointed 
by us to be our Lieutenant-Governor or Commander in Chief, 
of our said Province; to whom we do therefore by these pre- 
sents give and grant all and singular the powers and authoritys 
herein granted, to be by him executed and enjoyed during our 
pleasure, or until your arrival within our said Province. 

And if upon your death or absence out of our said Province 
there be no person upon the place commissionated or appointed 
by us to be our Lieutenant-Governor or Commander in Chief 
of the said Province, our will and pleasure is that the Eldest 
Councillor, who shall be at the time of your death or absence 
residing within our said Province, shall take upon him the ad- 
ministration of the government and execute our said Commis- 
sion and Instructions and the several powers and authorities 
therein contained in the same manner and to all intent and 
purposes as either our Governor or Commander in Chief shoi^ld 
or ought to do in case of your absencel until your return, or in 
all cases until our further pleasure be known herein. 

And we do hereby declare, ordain and appoint that you the 
said Edward Cornwallis, shall and may hold, execute and en- 
joy the office and place of our Captain General and Governor 
in Chief in and over our said Province of Nova Scotia, with 
all its rights, members and appurtenances whatsoever, to- 
gether with all and singular the powers and authorities hereby 
granted unto you for and during our will and pleasure. 

In witness whereof we have caused these our letters to be 
made patent. Witness ourself at Westminster the sixth day 
of May in the twenty-second year of our reign. 
By writ of Privy Council. 

[L.S.] (Signed) Yorke & Yorke. 



COMMISSIONS, ETC., OF GOVERNORS. 161 

2. Commission and Instructions of Visoount Monck, 1867. 

Draft of a •Commission to be passed under the Great Seal 
of the United Kingdom, appointing Viscount Monck to be 
Governor-General of Canada, on and after the first day of 
July, 1867. 

Victoria, by the Grace of God, of the United Kingdom of 
Great Britain and Ireland, Queen, Defender of the Faith, to 
our Right Trusty and Well-Beloved Cousin, Charles Stanley, 
Viscount Monck, — Greeting : 

1. Whereas We did, by divers Letters Patent, under the 
Great Seal of Our United Kingdom of Great Britain and Ire- 
land, bearing date severally at Westminster the second day of 
November, one thousand eight hundred and sixty-one, in the 
Twenty-fifth year of Our Reign, constitute and appoint you. 
Our Right Trusty and Well-beloved Cousin, Charles Stanley, 
Viscount Monck, to be, during Our pleasure. Our Captain, 
General and Governor in Chief in and over Our Province of 
Canada, and in and over the Province of Nova Scotia and its 
Dependencies, and in and over the\ Province of New Brunswick, 
and also Governor-General of all Our Provinces in North 
America and of the Island of Prince Edward, as by the several 
recited I^etters Patent, relation being thereunto had. may more 
fully and at large appear: 

And whereas by an Act of Parliament passed in thr Thir- 
tietfi year of Our Reign, intituled, " The British North America 
Act, lfi'67," it is, amongst other thing.*?, enacted that it shall be 
lawful for Us, by and with the advice of Our Privy Council, to 
declare, by Proclamation, that on and after a day therein ap- 
pointed, not being more than Six Months after the passing of 
the said Act, the Provinces of Canada, Nova Scotia and New 
Brunswick, shall form and be One Dominion, under tiie name 
of Canada ; and on and after that day those tiiree Provinces 
shall form and be One Dominion under that name, accordingly, 
and that Canada shall be divided into Four Provinces, named 
Ontario, Quebec. Nova Scotia and New Brunswick: 

And whereas we did, on the twenty-second day of May, one 
thousand eight hundred and sixty-seven,, by and with the advice 
of Our Privy Council, declare by Proclamation that, on and 
tflCT the ffrst day of July, one thousand eight hundre<1 and 
aixty-aefen, being within six months after the pMfliiig of the 

ao^— 11 



162 COMMISSIONS, ETC., OF GOVERNORS. 

said Act, the Provinces of Canada, Nova Scotia, and New 
Brunswick, sJiould form and be one Dominion, .under the name 
of Canada: 

Now know You, that We do by these Presents declare Our 
pleasure to be, that the said recited Letters Patent, and every 
clause, article and thing therein contained, shall be and they 
are hereby declared to be Revoked and Determined, on the said 
first day of July, one thousand eight hundred and sixty-seven: 

And further Know You, ijhat We, reposing especial Trust 
and Confidence in the prudence, courage and loyalty of you, 
the said Charles Stanley, Viscount Monck, of our Special Grace, 
certain knowledge and mere motion, have thought fi't to consti- 
tute and appoint, and we do by these Presents constitute and 
appoint you to be, on and after the said first day of July, one 
thousand eight hundred and sixty-seven, during Our pleasure, 
Our Governor-General of Canada ; and We do hereby authorize, 
empower, require and command you thereafter, in due manner 
to do and execute all things that shall belong to your said 
Command and the Trust We have reposed in you, according 
to the several powers, provisions and of the said recited Act of 
Parliament, and according to such instructions as are herewith 
given to you, or which may from time to time hereafter be given 
to you, in respect of the said Dominion of Canada, under Our 
Sign Manual and Signet, or by Our Order in Our Privy Coun- 
cil, or by Us, through one of Our principal Secretaries of State, 
and according to such laws as are or shall be in force within Our 
said Dominion. 

II. And We do hereby authorize and empower you to keep 
and use the Great Seal of Canada, for the sealing of all things 
wihatsoever that shall pass the said Seal. 

III. And We do further authorize and empower you to ex- 
ercise all such powers as We may be at any time entitled to 
exercise, in respect of the constitution and appointment of 
Judges; and, in cases requisite. Commissioners of Oyer and 
Terminer, Justices of the Peace, and other necessary Officers 
and Ministers of Our said Dominion of Canada, for the better 
administration of Justice, and putting the Laws into execution. 

IV. And we do hereby give and grant unto you, so far as 
We lawfully may, full power and authority, upon sufficient 
cause to you appearing, to remove from his Office or to suspend 



COMMISSIONS, ETC., OF GOVEUXOIW. 163 

from the exercise of the same, any person exercising any office 
or place within Our said Dominion, under or by virtue of any 
Commission or Warrant ^^ranted, or which may be granted by 
IJs, in our name or under Our authorit\% 

V. And We do hereby give and grant unto you full power 
and authority, when you shall see cause, in Our name and on 
Our behalf, to grant to any offender convicted of any crime in 
Court, or before any Judge, Justice or Magistrate within our 
said Dominion, a Pardon, either free or subject to lawful con- 
ditions-, or any respite of the execution of the sentence of any 
such offender, for such period as to you may seem fit; and to 
remit any fTnes, penalties or forfeitures, which may become 
due and payable to TJs. 

VI. And We do hereby authorize you to exercise, from time 
to time as you may judge necessary, all powers belonging to Us, 
in respect of Assembling or Proroguing the Senate or the 
House of Commons; and We do hereby give the like authority 
to the several Lieutenant-Governors for the time being, of Ijhe 
Four Provinces in Our said Dominion, with respect to the 
Legislative Councils or the Legislative or General Assemblies 
of those Provinces respectively. 

VII. And We do by these Presents authorize and empower 
you within our said Dominion, to exercise all such powers as 
We may be entitled to exercise therein, in respect of granting 
Licenses for Marriages, letters of Adminij?tration and Probates 
of Wills, and with respect to the custody and management of 
Idiots and Lunatics, and their Estates; and to Present any 
person or persons to any Churches, Chapels or other Ecclesiasti- 
cal Benefices, within Our said Provinces of Nova Scotia and 
New Brunswick, to which Wc shall from time to time be entitled 
to Present. 

VIII. And whereas, by the said recited Act, it is amongf?t 
other tilings enacted, that it shall be lawful for Us, if We think 
fit, to authorize the Governor-General of Canada to appoint 
any person or persons jointly or severally to be his Deputy .or 
Deputies within any part or parts of Canada, and in that capa- 
city to exercise, during the pleasure of the Governor-General, 
such of the powers, authorities and functions of the Governor- 
General as he may deem it necessary or expedient to assign to 
him or them, subject to any limitations or directions from time 



164 COMMISSIONS, ETC., OF GOVERNORS. 

to time expressed or given by Us; now We do hereby authorize 
and empower you, subject to such limitations and directions 
as aforesaid, to appoint any person or persons jointly or sever- 
ally, to be your Deputy or Deputies within any part or parts 
of Our Dominion of Canada, and in that capacity to exercise., 
during our pleasure, such of your powers, functions and au- 
thorities as you may deem it necessary or expedient to assign 
to him or tiiem: Provided always, that the appointment of 
such Deputy or Deputies shall not affect the exercise of any 
such power, authority, or function by you, the said Charles 
Stanley,. Viscount Monck, in person. 

IX. And in ease of your death, incapacity, or absence out of 
Our said Dominion, We do by these Presents give and grant, 
all and singular, the powers and authorities herein to you 
granted to Our Lieutenant-Governor for the time being of Our 
said Dominion of Canada, or in the absence of any such Lieu- 
tenant-Governor to such person as we may by Warrant under 
Our Sign Manual and Signet, appoint to be the Administrator 
of the Government of Our said Dominion, or in the absence 
of any such Lieutenant-Governor or person as aforesaid, to the 
senior Military Officer for the time being in command of Our 
regular forces in our said Dominion, such powers and authori- 
ties to be by him executed and enjoyed during our pleasure. 

X. And We do hereby require and command all Our Offi- 
cers and Ministers, civil and military, and all other inhabitants 
of Our said Dominion of Canada, to be obedient, aiding, and 
assisting unto you in the execution of this Our Commission, 
and of the powers and authorities herein contained. 

3. Commission of the Marquis of Lome, 1878. 

Draft of a Commission passed under the Royal Sign Manual 
and Signet, appointing the Right Honourable the Marquis of 
Lome, K.T., G.C.M.G., to be Governor-General of the Do- 
minion of Canada. Dated 7th of October, 1878. 
Victoria, R. 

Victoria, by the Grace of God, of the United Kingdom of 
Great Britain and Ireland, Queen, Defender of the Faith, Em- 
press of India, To Our Right, Trusty, and Well-beloved Coun- 
cillor Sir John Douglas Sutherland Campbell (commonly called 
thfe Marquis of Lome), Knight of Our Most Ancient and Most 
Noble Order of the Thistle, Knight Grand Cross of our Most 
Distinguished Order of St. Michael and St. George, Greeting: 



COMMISSIONS, ETC., OP GOVERNORS. 165 

We do, by this Our Commission under our Sign-Manual and 
Si<^uet, appoint you, the said Sir John Douglas Sutherland 
Campbell (commonly called the Marquis of Lome), until Our 
fiirtiher pleasure shall be signified, to be Our Governor-General 
in and over Our Dominion of Canada during Our will and^ 
pleasure, with all and singular the powers and authorities 
granted to the Governor-General of Our said Dominion in Our 
Letters Patent under the Great Seal of Our United Kingdom 
of Great Britain and Ireland, constituting the Office of Gov- 
ernor, bearing date at Westminster the Fifth day of October, 
1878, in the forty-second year of Our Reign, which said powers 
and authorities We do hereby authorize you to exercise and per- 
form, according; to such Orders and Instructions as Our said 
Governor-General for the time being hath already or may here- 
after receive from Us. And for so doing this shall be your 
Warrant. 

II. And we do hereby command all and singular Our offi- 
cers, Ministers, and loving subjects in Our said Dominion, and 
all others whom it may concern, to take due notice hereof, and 
to give their ready obedience accordingly. 

Given at Our Court at Balmoral, this Seventh day of Octo- 
ber, 1878, in the Forty-second year of Our Reign. 

By Her Majesty's Command. 

M. E. Hicks-Beach. 

Tlie formal distmction between the three documents, the 
Letters Patent, the Comrnvtsion and the Instructions. — All 
three exemplify the theory- that some Minister must be respon- 
sible for the acta of the Crown. 

In the case of the I^etters Vatoiit, a warrant under the Sign 
Manual (Kignature) of the Sovereign and (X)untersigned by one 
of the principal Secretaries of State, issues to the liord Chan- 
cellor, authorizing him to affix the great seal. 

In the case of the Commission, there is no warrant, but 
there is a Sign Manual and the Signet (one of the three seals 
of which each Secretary of State in possessed, the others being 
the lesser seal and the cachet). All bear the royal arms, and the 
Signet has the royal arms with supporters, together with a 
I'ounter-gignature of the Secretary of State. 

Instructions are signed at the head by the Sovereign and 
initialed at the bottom, but there is no counter-signature of a 
Secretary of Stnto. thouL'h the Signet is nffixcd. 



16B COMMISSIONS^ ETC., OF GOVERNORS. 

A close comparison of the different Letters Patent, Instruc- 
tion and Commission given above will be well repaid. 

In 187S', the old plan of issuing new letters patent on the 
appointment of each Governor-General was abandoned, and 
permanent provision was made for the office by letters patent 
and a permanent set of instructions, and the actual appoint- 
ment is made by a short commission. 

Much of lihe older documents was meaningless and even 
misleading, as many of the things provided for therein were the 
subject of actual legislation. For instance, paragraph VI T. 
in Lord Monck^s instructions, no longer appears, and paragrapli 
V. of the same is now provided for in the Instructions. Sir 
Edward Blake by his criticisms of the proposed form of letters 
patent, &c., in 1876, did much to put these matters on a proper 
footing. Clauses in the draft instructions to \vthich he took 
especial objection required the keeping of exact minutes of the 
Council and their confirmation, which in practice was never 
done; provided for the Grovernor presiding at Council, which 
was clearly inexpedient, for consultation with the Council with 
certain exceptions, for action by the Governor in^ opposition to 
the advice of his Council in the exercise of the power sfiven 
him by his commission. 

As to this last clause. Sir Edward Blake said '^ the sub- 
committee assume that the power in question is to be exercised 
only in the rare instances in which, owing to the existence of 
substantial Imperial as distinguished from Canadian interests, 
it is considered that full freedom of action is not vested in the 
Canadian people. 

All these provisions have now disappeared, though Pome 
apparently purposeless provisions are still retained, such as 
the power of summoning, proroguing and dissolving Parliament 
in the Letters Patent. Finally, it might be noticed, with refer- 
ence to the power of pardon (now removed from Letters Patent 
to the instructions), which is dealt with in the text supra, that 
apparently the last time in whioli the pow|er of pardon was 
exercised by a Governor without the advice of his responsible 
ministers was in 1875, when Alexander Lepine, sentenced to 
death for the murder of Thomas during the Ped River Rebel- 
lion, was reprieved. 



MAGNA OHAKTA. 167 

CHAPTER XV. 
Magna Charta Annotated. 

Magna Charta. 

Made in the Ninth Year of King Henry the Third, and 
confirmed by King Edward the First in the Five an^ Twentieth 
Year of his Reign. 

Edward by the Grace of God King of England, Lord of 
Ireland, and Duke of Guyan, to all Archbishops, Bishops, &c. 
We have seen the Great Charter of the Lord Henry, sometune 
King of England, our Father, of the Liberties of England, in 
these words: Henry by the grace of God, King of England, 
Ix)rd of Ireland, Duke of Xormandy and Guyan, and Earl of 
Anjou, to all Archbishops, Bishops, Abbots, Priors, Earls, 
Barons, Sheriffs, Provosts, Officers, and to all Bailiffs, and 
other our faithful Subjects, which shall see this present Charter, 
greeting. Kiiow ye that we, unto the Honour of Almighty God, 
and for the salvation of the souls of our progenitors and suc- 
cessors Kings of England, to the advancement of holy Church, 
and amendment of our Realm of our meer and free will, have 
given and granted to all Archbishops, Bishops, Abbots, Priors, 
EarLs, Barons, and to all freemen of this our realm, these liber- 
ties following, to be kept in our kingdom of England forever. 

(This is Vnmvn q< nn " Inspeximus.") 

Cap. I. 

.4 Confirmation of Liberties. 

First, we have granted to God, and by this our present 
Charter have confirmed, for us and our Heirs forever. That the 
Church of England shall be free, and shn^i i^-^^" ^ii ^vr whole 
rights and liberties inviolable. 

(2) We have granted also, and given to all the freemen of 
our realm, for us and our Heirs for over, tfiese liberties under- 
written, to have and to hold to them and their Heirs, of us and 
our Heirs for ever 

(In confirming tlie liberties of the Church, the charter fol- 
lows the accession of charter of Henry let, and probably the 
insertion of the clause may be regarded aa merely formal and 
introductory). 



168* MAGNA CHABTA. 

Cap. II. 

The Relief of the King's Tenant of Full Age. 

If any of our Earls or Barons, or any other which hold of 
IJs in chief by Knight's Service, die, and at the time of his 
death his heir be of full age, and oweth to us Relief, he shall 
have his inheritance by the old Relief; that is to say, the heir 
or heirs of an Earl, for a whole Earldom, by one hundred 
pound; the heir or heirs of a Baron, for an whole Barony, by 
one hundred marks ; the heir or heirs of a Knight, for one whole 
Knight's fee, one hundred shillings at the most; and he that 
hath less, according to the old custom of the fees. 

(Under the CSharter of Henry I., these reliefs were to be 
" justa et legitima." The relief itself appears to be a feuda- 
lised form of the ancient English heriot). 

Cap. III. 

The Wardship of an Hew within Age. The Heir a Knight. 
But if the heir of any such be within age, his Lord shall not 
have the ward of him, nor of his land, before that he hath taken 
of him homage. (2) And after that such an heir hath been 
in ward (when he is come to full age), that is to say, to the 
age of one and twenty years, he shall have his inheritance with- 
out Relief, and without Fine; so that if such an heir, being 
within age, be made a Knight yet nevertheless his land shall 
remain in the keeping of his Lord unto the term aforesaid. 

Cap. IV. 

No Waste shall he made hy a Guardian in Ward's Lands. 

The keeper of the land of such an heir, being within age, 
shall not take of the lands of the heir, but reasonable issues, 
reasonable customs, and reasonable services, and that without 
destruction and waste of his men and his goods. (2) And if 
we commit the custody of any such land to the Sheriff, or to 
any other, which is answerable unto us for the issues of the 
same land, and he make destruction or waste of those things 
that he hath in custody, we will take of him amends and recom- 
pence therefore, (3) and the land shall be committed to two 
lawful and discreet men of that fee, which shall answer unto 
us for the issues of the same land, or unto him whom we will 



MAGNA CHARTA. 169 

assign. (4) And il we give or sell to any man the custody of 
any such land, and he therein do make destruction or waste, 
he shall lose the same custody; and it shall be assigned to two 
lawful and discreet men of that fee, which also in like manner 
shall be answerable to us, as afore is said. 

(Under the charter of Henry I., the widow or next of kin 
was entitled to wardship, but the Assize of Northumberland in 
1176 gave it to the lord. Neither wardship nor marriage, as 
feudal exactions, are a necessary part of the feudal system. It 
seems that they were not claimed in England until the time of 
William Rufus. At the age of 21 males (16 in the case of 
females) were entitled to ousterlemain or sue out their livery, 
i.e., require the lands to be handed over to them on payment of 
half a year's proftts). 

Cap. V. 

Guardians shall Maintain the Inheritance of their Wards and 

of Bishopricks, Etc. 

The keeper, so long as he hath the custody of the land of 
such an heir, shall keep up the houses, parks, warrens, ponds, 
mills, and other things pertaining to the same land with the 
issues of tlie said land : and ho shall deliver to the heir, when 
he Cometh to his full age, all his land stored with ploughs, and 
all other things, at the least as he received it. All these things 
shall be obsperved in the custodies of Archbishoprioks, Abbeys, 
Priories, Churches, and Dignities vacant, wliieh a[>]iertain to 
us; except this, that such custody shall not be sold. 

Cap. VI. 

Heirs shall be Married without Disparagement. 

Heirs shall be married without disparagement (i.e., mar- 
ried to anyone who is not the peer of the heir or heiress). 

(By a strained construction of this statute, "haeredes '* was 
held to extend to heirs as well as to heiresses, and thereafter 
the marriage of anv ward could be sold in open market '^. 

Cap: VII. 

A Widow sliall have Her Marriage, Inheriiance, and Quarantine. 

The King's Widow, Etc. 

A widow, after the death of her husband, incontinent, and 
without any difficulty, shall have her marriage, and her inheri- 



170 MAGNA ClIARTA. 

tance, (2) and shall give nothing for her dower, her marriage, 
or her inheritance, which her husband and she held the day of 
the death of her husband, (3) and she shall tarry in the chief 
house of her husband by forty days after the death of her hus- 
band, within which days her dower shall be assi,£]:ned her (if 
it were not assigned her before), or that the house be a castle; 
(4) and if she depart from the castle, then a competent house 
shall be forthwith provided for her, in the which she may hon- 
estly dwell, until her dower be to lier assigned, as it is aforesaid ; 
and she shall have in the mean time her reasonable estovers of 
the common; (5) and for her dower shall be assigned unto her 
the third part of all the lands of her husband, which were his 
during coverture, except she ^^ ere endowed of less at the Church - 
door. (6) No widow shall be distrained to marry herself; 
nevertheless she shall find surety, that she shall not marry with- 
out our license and assent (if she hold of us), nor without the 
assent of the Lord, if she hold of another. 

It was by no means an uncommon practice to force a widow 
to marry again in order to obtain the fi'ne payable for consent 
to the marriage; of dower there were many varieties, dower at 
the common law being a life estate in one- third of the lands, 
dower ad ostium ecclesiae (at the church door) ; dower ex asse-n- 
seu patris, and dower de la pluis heale. Under the Statute of 
Uses (Henry VIII.) it became possible to avoid dower by 
assigning a jointure. Since 1833 dower cannot be claimed in 
England except upon an intestacy. 

Cap. VIII. 

How Sureties Shall he Charged to the King. 

We or our Bailiffs shall not seise any land or any rent 
for any debt, as long as the present goods and chattels of the 
debtor do suffice to pay the debt, and the debtor himself be 
ready to satisfy therefore. (2) Neither shall the pledges of 
the debtor be distrained, as long as the principal debtor is suffi- 
cient for the payment of the debt. (3) And if the principal 
debtor fail in payment of the debt, having nothing wherewith 
to pay, or will not pay where he is able, the pledges shall an- 
swer for the debt. (4) And if they will, they shall have the 
lands and rents of the debtor, until they be satisfi'ed of that 
which they before payed for him, except that the debtor can 
shew himself to be acquitted against the said sureties. 



MAGNA CHABTA. 171 

(In the original charter two sections stand here relating to 
the Jews, and providing that debts due to the Jews are to bear 
no interest during the minority of an heir, and that the dower 
of the widow and necessaries for the children are to take priority 
of the debt. 

The Jews, it must be remembered, were always luuu-r the 
direct control of the king, who taxed them as he pleased, &x)me- 
times to the extent of one-fourth of bheir property, and imposed 
fines upon them at his good pleasure. They were his special 
prey. " Tlie Jews," says Abrahams in his Jewish Life in the 
Middle Ages, ch. xii., "were unwilling sponges by means of 
which a large part of the subject's wealth found its way into the 
royal exchequer." Their fiscal value to the Crown is attested 
by the existence of a separate exchequer for the Jews. "The 
king seemed to be absolute lord of their estates and effects. 
'Tis true he let them enjoy their trade and acquests, but they 
kerned to trade and acquire for hig profit as well as their own, 
for at one time or other their fortunes, or great part of tlieni, 
came into his coffers '' (Madoy, ITislory of the Excliequer, 2nd 
ed. 11, 221-;<>01). 

There follows in the original charier the provision forbid- 
ding the imposition of any scutage or aid, except by the com- 
mon counsel of our realm, other than those for redeeming the 
king's body from captivity, for knighting his eldest son, and for 
once marrying his eldest daughter, and even these aids are to 
be reasonable. In like manner, adds the section, it shall be 
concerning the aids of the city of I^ondon. 

The articles of the barons had added to the words city of 
London " and other places," but these words were for some 
reason omitted in the charter. There is here, then, no general 
piohibition of arbitrary taxation, merely a privilege from arbi- 
trary taxation for a privileged and limited class. 

The reason why this and tho following clauses disappeared 
in the re-issues of the charter by Henry IIL, is that war was 
then being actively waged against Louis of France; it was a 
popular war and there can be no desire to hamper the executive ; 
moreover, John, the tyrant, was dead, and it may have l)een 
thought only fair not to bind down the young king until he 
had been tried). 



172 MAGNA CIIARTA. 

Cap. IX. 

The Liberties of London, and other Cities and Towns, Con- 
firmed. 

The city of London shall have all the old liberties and cus- 
toms which it hath been used to have. Moreover we will and 
grant, that all other Cities, Boroughs, Towns, and the Barons 
of the Five Ports, and all other Ports, shall have all their liber- 
ties and free customs. 

(Still another omitted section follows: ''And to take the 
common counsel of the realm in the imposition of an aid, other 
than in the three aforesaid cases, or in iihe imposition of scutage 
we will cause to be summoned archbishops, bishops, abbots, 
earls, and the greater barons by our writ severally, and more- 
over we will cause to be summoned in general, by our sheriffs 
and our bailiffs, all those who hold of us in chief (in capite). 
for a fixed day, that is to say, at a term of forty days at least, 
and for a fixed place, and in all the writs of summons we will 
set out the cause of the summons, and when the summons shall 
have been so given, let the business proceed on the appointed 
day in accordance with the advice of those who are present, 
although all those who have been summoned shall not have 
come. 

This section probably only lays down the procedure in call- 
ing a National Council, which had already been followed 
throughout the reign of Henry II. 

It is difficult to say who exactly are meant by the greater 
barons. Maitland thinks we can say very little more than 
that certain particular estates had come to be regarded as 
baronies and to pay the heavier relief (see Cap. TI.). ''Ten- 
ancy in chief is not sufficient now," he says, "to give a man 
this title of haro; he may hold in-chief and yet be merely miles 
(knight). The estate of the baron is a barony, but though 
there may be a theory floating about that the barony is or should 
be related to the knight's fee as the mark is related to the shil- 
ling, that is to say, that the barony should consist of thirteen 
knights' fees and a third — still it seems certain that an estate 
of this value was neither necessary nor in itself sufficient, to en- 
title the holder to the special summons." 

With respect to the right of later days to a seat in the House 
of Lords, Sir William Anson says that tenure of the Crown 



MAGNA CHAETA. 173 

created a liability though it did not give a right to a writ of 
summons; and that the estate of the baronage was ultimately 
constituted and defined, not by conditions of birth or of tenure, 
but by the exercise of the royal prerogative in issuing the 
writ of summons. 

Towards the beginning of the 14th century it becomes 
established that a person who receives a writ of summons, and 
in obedience to it takes his seat in the House of Lords, is the 
founder of an hereditary peerage. (See The Clifton Case, Col- 
lins, 292). 

The early likeness of a peerage to an interest in land is 
exemplified by the fact that claims were made to sell a peerage 
to another, or to have a peerage by virtue of the possession of 
certain lands. 

These questions are now settled in the negative. See The 
Berkeley Peerage Case, 8 H. L. C. 1 ; in other words, bar- 
onies by tenure exist no longer. 

The Crown may create a life peerage, but the holder will 
not be entitled to a seat in the House of Lords. That right 
can only be given by statute, as it has been given to the Lords 
of Appeal in Ordinary. 

A scutage, i.e., a money payment in lieu of personal service 
in the army, was instituted in 1159, and was one of the first 
marks of tlie decline of feudalism as a political force. 

By the 15th section (omitted from Henry's Charter), the 
mesne lord is restricted to the three customary aids) . 

Cap. X. 

None Shall Distrain for More Service than is Due, 

No man shall be distrained to do more service for a Knight's 
fee, nor any freehold, than therefore is due. 

Cap. XL 

Ootnmon Pleas shall not Follow the King's Court. 

Common Plear shall not follow our Court, but shall be 
lield in some place certain. 



174 MAGNA ClIARTA. 

Cap. XII. 

Where and Before Whom Assizes Shall he TaJcen. Adjourn- 

ment for Difficulty. 

Assizes of novel disseisin, and of Mortdancester, shall not 
be taken but in the shires, and after this manner: If we be 
out of this realm; our chief Justicer shall send our Justicers 
through every County once in the year, which, with the Kniglits 
of the shires, shall take the said Assizes in those Counties; 
(2) and those things that at the coming of our foresaid Jus- 
ticers, being sent to take those Assizes in the Counties, cannot 
be det<?rmined, shall be ended by them in some other place in 
their circuit; (3) and those things, which for difficulty of 
some articles cannot be determined by them, shall be referred 
to our Justicers of the Bench, and there shall be ended. 

Cap. XIII. 

Assizes of Darrein Presentment. 

Assizes of Darrein Presentment shall be alway taken before 
our Justices of the Bench, and there shall be determined. 

(The assizes mentioned in these two sections were the pos- 
sessory assizes. Henry II. was astute enough to take possession 
of land, as distinguished from ownership entirely under his 
own jurisdiction. Ownership of land could be adjudicated 
upon in the feudal courts if, after Henry II., a writ of right or 
king's writ should direct it. It is true that the case could l)e 
removed or ' lifted ' by a writ of tolt into the King's Court, 
where it wQ;uld be tried by an assisa or jury of neighbours. 
This was known as the Grand Assize, but the procedure thereon 
was so highly technical, and a flaw therein so fatal to the pro- 
ceedings, that persons claiming ownership preferred to rely on 
the possessory assizes, which were much simpler. 

The theory at the back of the Assize of Novel Disseisin 
(1166), i.e.. Recent Dispossession, was that a man has no right 
to put another out of possession of lands without a judgment 
of the Court, accordingly if a man had been recently in pos- 
session of land and was expelled, he would be put back into 
possession without any question, as to title or ownership. 

By the Assize of Mort a ancestor, relief was given wheue 
the -person seeking it was the heir of the person dispossessed, 
but never had been in possession himself. 



MAGNA CHABTA. 175 

The Assize of Darrein Presentment settled questions as to 
the right to make appointments to benefices, by settling who 
last exercised the power, or in other words, who was in posses- 
sion of the right.) 

Cap. XIV. 

How Men of all Sorts Shrill he Amerced, and by Whom. 

A Freeman shall not be amerced for a small fault, but after 
the manner of the fault; and for a great fault after the great- 
ness thereof, saving to him his contentement ; (2) and a mer- 
chant likewise, saving to him his merchandise; (3) and any 
other's villain than ours shall be likewise amerced, saving his 
wainage, if he fall into our mercy. (4) And none of the said 
Amerciaments shall be assessed, but by the oath of honest and 
lawful men of the vicinage. (5) Earls and Barons shall not 
be amerced but by their Peers, and after the manner of their 
offence. (6) No man of the Church shall be amerced after 
the quantity of his spiritual Benefice, but after his Tjay-tene- 
ment, and after the quantity of his offence. 

Amercement was a pecuniary punishment or penalty as- 
sessed by the peers or equals of the party amerced for an of- 
fence, by the commission of which he had placed himself at 
the mercy of the lord. The difference between amercements 
and fines is as follows : The latter are certain and are created 
by some statute; they can only be imposed and assessed by 
Courts of record ; the former are arbitrarily imposed by Courts 
not of record, as Courts leet (Termes de la Ley. 40). 

Contenement is a man's countenance or credit, which he 
has with and by reason of his freehold; or that which is neces- 
sary for the support and maintenance of men, agreeably to 
their several qualities of life. 

Wainage is the countenance of a villein, that which is neces- 
sary for the cultivation of land. 

Cap. XV. 

Making of Bridges and Banks. 

No Town or Freeman shall bo distrained to make Bridges 
nor Banks, but such as of old time and of right have been 
accustomed to make them in the time of King Henry owr 
Grandfather. 



176 MAGNA CHARTA. 

(It appears that King John in visiting districts, for the 
purposes of sport, grievously oppressed the people of the neigh- 
bourhood in this way.) 

Cap. XVI. 
Defending of Banks. 

No Banks shall be defended from henceforth, but such 
as were in defence in the time of King Henry our Grandfather, 
by the same places, and the same bounds, as they were wont to 
be in his time. 

Cap. XVII. 

Holding Pleas of the Crown. 

No Sheriff, Constable, Escheator, Coroner, nor any other 
our Bailiffs, shall hold Pleas of our Crown. 

(The effect of this provision is that henceforth there could 
be no trial of any case, in which a breach of the King's Peace 
was involved, save before the King's judges. Presentments and 
indictments continued to be taken in the local courts, but actual 
trials were reserved for the visits of the King's justices. It is 
clear that a wish for the King's justice, as more certain and 
unbiased, was making itself strongly felt. 

Here foUows in the original version a provision that the 
firma comitatus, the ferm of the shire, i.e., the sum payable 
to the king by the various shares, hundreds, wapentakes and 
ridings, should remain fixed and not be subject to increase, 
except in the case of the manors in the Boyal demesne. It was 
the practice of the kings to farm out this revenue to tlie high- 
est bidder, who recouped himself by exactions from the people. 

Wapentake was the name given to a hundred in the north- 
east of England; whilst a riding is a thirding or third of a 
hundred). 

Cap. XVIII. 

The King's Debtor Dying, the Ki/ng shall be First Paid. 

If any that holdeth of us Lay-fee do die, and our Sheriff 
or Bailiff do shew our Letters Patents of our summons for Debt, 
which the dead man did owe to us; it shall be lawful to our 
Sheriff or Bailiff to attach and inroll all the goods and chatties 
of the "dead, being found in the said fee, to the value of the same 
debt, by the sight an-d testimony of lawful men, so thai nothing 



MAGNA CHARTA. 1 ; ; 

thereof shall be taken away, until we be clearly paid off the 
debt; (2) and the residue shall remain to the Executors to per- 
form the testament of the dead; (3) and if nothing be owing 
unto us, all the chattleg shall go to the use of the dead (saviuir 
to his wife and children their reasonable parts). 

(The 'reasonable part' of a wife in her husband's goods 
and chattels was one-third, that of the children one-third, the 
third third he could dispose of by will. Down to the reign of 
Charles I. this right to a rationabUis pars existed, but about 
the beginning of the reign of George I. the right to the reason- 
able part (then existent only in London) was taken away by 
statute. 

WTiere there was no will, the king could administer, but 
more frequently he granted this profitable franchise to lords 
of manors. In time this right passed to the Ordinary or Bishop, 
and was greatly abused. Hence by the Statute of Westminster 
11. (1285), it was enacted that the Ordinary should be bound. 
to pay the debts of the intestate, so far as his goods extended, 
in the same manner as executors were bound in the case of a 
will. In Edward III.'s reign, the Ordinary was required in 
ease of intestacy, to depute the next and most lawful friend of 
the deceased to administer his goods. This was construed to 
mean the next-of-kin, but in the reign of Henry VIII. the 
judge gains tJie power of committing administration to the 
widow.) 

Cap. XIX. 
Purveyance for a Castle. 

No Constable, nor liis Bailiff, shall take corn or other chat- 
ties of any man, if the man be. not of the Town where the 
Ciistle is, but he shall forthwith pay for the same, unless that 
the will of the seller was to respite the payment; (2) and if he 
he of the same Town, the price shall be paid unto him within 
forty days. 

( This right of purveyance was the right of Uie king and \ns 
.'icrvants * to buy ])rovisions at the lowest rate, to compel the 
owners to sell, and to pay at their own time — which often 
«'nough meant never' (Maitland). The claim to the right per- 
sisted and was aMished when feudal tenures were alwlishod. 
but |)ersisted tlirougliout the Stuart |)crio<1, at any rate, in a 
new form, ie., of the right of billeting soldiers). 

c.c— 12 



17S" MAGNA CIIAKTA. 

Cap. XX. 

Doing of Castle-ward. 

No Constable shall distrain any Knight for to give money 
for keeping of his Castle, if he himself will do it in his proper 
person, or cause it to be done by another sufficient man, if he 
may not do it himself for a reasonable cause. (2) And if he 
do lead or send him in an army, he shall be free from Castle- 
ward for the time that he shall be with us in fee in our host, 
for the which he hath done service in our wars. 

Cap. XXI. 

Taking of Uttrses, Carts, and Wood. 

No Sheriff nor Bailiff of ours, or any other, shall take the 
Horses or Carts of any man to make carriage, except he pay 
the old price limited, that is to say, for carriage with two horse, 
X. d. a day; for three horse, xiv. d. a day. (2) No demesne 
Cart of any Spiritual person or Knight, or any Lord, shall be 
taken by our Bailiffs; (3) nor we, nor our Bailiffs, nor any 
other, shall take any man's wood for our Castles, or other our 
necessaries to be done, but by the license of him whose the 
wood is. 

Cap. XXII. 

How \Long Fdon's Lands shall he Holden by the King. 

We will not hold the lands of them that be convict of Fel- 
ony but one year and one day, and then those lands shall be 
delivered to the Lords of the fee. 

Cap. XXIII. 

In what Places Wears shall he put Down. 

Atiy Wears from henceforth shall be utterly put down by 
Thames and Medway, and through all England, but only by the 
sea-coasts. 

(The object of this was to prevent encroachment on the pub- 
lic right of fishing). 

Cap. XXIV. 

In what Case a Praecipe in Capite is not Grantable. 

The Writ that is called Praecipe in capite shall be from 
henceforth granted to no person of any freehold, whereby any 
freeman may lose ihis^ Court. 



MAGNA CHARTA. 179 

(The writ of yra^clju' (in capite or praecipe quod reddat) 
■was the writ by whicli tlio royal Courts eneroaclied on the man> 
orial Courts. It directed the sheriff to command someone to 
return land or chattels unjustly detained to another. Disobedi- 
ence to the writ was disobedience to the king and became cog- 
ni.«able by the Royal Courts). 

Cap. XXV. 

There Shall he hut One Measure Throughout the Realm. 

One Measure of Wine shall be through our Realm, and one 
Measure of Ale, and one Measure of Corn, that is to say, the 
Quarter of Tjondon ; and one breadth of dyed Cloth, Russet*?, and 
Haberjeci*', that is to say, two Yards within the lists. (2) And 
it shall be of Weights as it is of Measures. 

(A Haberject was a cloth of a mixed colour.) 

Cap. XXVI. 
Inquisition of Life Memher. 

Nothing from henceforth shall be given for a Writ of In- 
quisition, nor taken of him that prayeth Inquisition of Life, or 
of Member, but it shall be granted freely, and not denied. 

(Tlie writ "here referred to is the writ de odio et atia. which 
commanded the sheriff to inquire whether a prisoner charged 
with murder was committed on general cause of suspicion or 
merely propter odium el nfinm, i.e., for hatred and ill-will, 
with a view to issuing a further writ to admit him to bail to 
wait the Iter of the King's Justices. The writ originally onlv 
issued by r?oyal Favour, and wms .1 r.iAonritf* infsrtrument of 
extortion during John's reign.) 

( \r. XWH. 

^Tenure of the King in Socugr. find of Another hy Knight. < 

Servire. Petit Serjeanty. 

If any do hohl of us by Fee-ferni, or by Socage, or Burgage, 
and he holdeth Land-s of anotiher by Knights Service, we will 
not have the custody of his* lioir, nor of his I^and, which. is 
holden of the Fee of another, by reason of that Fee-ferm, So- 
cage, or Burgage. (2) Neither will we have the custody o( 
such Fee-ferm, or Socage, or Burgage, except Knights Service 
l>e due unta us out of the same Fee-ferm. (3) We will ^^ot 
have the custodT of the heir, or of anv liand which he tiold:? 



180 MAGNA CHART A. 

of another by Knights Service, by occasion of any Petit Ser- 
jeanty, that any man holdeth of us by Service to pay a Knife, 
an Arrow, or the like. 

(A Fee-ferm is an estate in fee granted in perpetuity subject 
to a rent for so much as it is reasonably worth. Burgage is 
merely a species of Socage whereby houses are held by a cer- 
tain rent. One noteworthy species is Borough English, in which 
the land descends to the youngest son.) 

Cap. XXVIII. 

\V(hger of Law shall not he unthout Witness. 

No Bailiff from henceforth shall put any man to his open 
Law, nor to an Oath, upon his own bare saying, without faith- 
ful Witnesses brought in for the same. 

(This refers to the method of trial known as the wager of 
law, which was a relic of the old English trial by compurgators, 
described by Maitland in his second lecture on Forms of Action 
in the following words : " It is adjudged for example in an 
acj;ion for debt that the defendant do prove his assertion that 
he owes nothing by his own oath and the oaths of a certain 
number of compurgators or oath helpers. fThe defendant must 
then solemnly swear that he owes nothing, and his oath-helpers 
must swear that his oath is clean and unperjured. If they 
safely get through this ceremony, punctually repeating the right 
formula, there is an end of the case ; the plaintiff, if he is hardy 
enough to go on, can only do so by bringing a new charge, a 
criminal charge of perjury against them. They have not come 
there to convince the Court, they have not come there to be 
examined and cross-examined like modern witnesses, they have 
come there to bring upon themselves the wrath of Grod, if what 
they say be not true.'' This process is known in Eng- 
land as ' making one's law ' ; a litigant who is ad- 
judged to prove his case in this way is said to 'wage 
his law' (vadiare legem), when he finds security that on 
a future day he will bring compurgators and perform this 
solemnity; then when on the appointed day he comes and per- 
form.s that ceremony with success, he is said ' to make his 
law' (facere legem). Wager of law was not abolished formally 
till 183S; see an actual instance in 1824 in King v. Williams, 
2 B. & C. 538. 



MAGNA CIIARTA. 181 

Before a man could be put to his oath, the accuser Iiad to 
produce his witnesses. This practice became obsolete in the reign 
of Edward III., when the fi'ctitious John Doe and Richard Roe 
make their appearance as pledgers of prosecution. 

It may be that here there is a reference to the ordeal. In 
that case the section would mean that no one was to go to the 
ordeal, except on the presentment of a jury of the hundred. 
On the other hand, the ordeal was in effect abolished by the 
liateran Council in 1215, and we find this section in the re- 
ifisues Off Henry V.) 

Cap. XXIX. 

None Shall Be Condemned without Trial. Justice Shall Not 

be Sold or Deferred. 

No freeman shall be taken, or imprisoned, or be disseised 
of his freehold, or liberties, or free customs, or be outlawed, or 
exiled, or any otherwise destroyed; nor will we pass upon him 
nor condemn him, but by lawful judgment of his peers, or by 
the law of the land. (2) We will sell to no man, w'e will not 
deny or defer to any man either justice or right. 

Cap. XXX. 

Merchant Strangers Cominfj info this Realm Shall be Wei! 

Used. 

\u. merchants (if they were not openly prohibited before) 
shall have their safe and sure conduct to depart out of Eng- 
land, to come into England, to tarry in, and go througli Eng- 
land, as well by land as by water, to buy and sell without any 
manner of evil tolts by the old and rightful customs, except in 
time of war. (2) And if they be of a land making war againjrt 
us, and l>e found in our realm at the beginning of the wars, 
they shall bo attached without liarm of body or goods, until it 
he known unto us*, or our Chief Justice, how our merchants 
be intreated there in the land making war against us; (3) and 
if our merchants Ik* well intreated there, theirs shall be like- 
wise with us. 

(In the original issue, here follows a section permitting free 
ingress to and egress from the kingdom oxcrpt in time of wnr. 
It was reserved for further considi'mfinn in U.Mn-v TTT'< nv<t 
reissue and was never afterwards. 

Aa to "evil tolts*' and the "old and rightful customJ!." siee 
imdor Taxation.) 



182 MAGNA CHARTA. 

Cap. XXXI. 

Tenure of a Barony Coming into the King's Hands by Eschete. 

If any man hold of any eschete, as of the honour of Wal- 
lingford, Nottingham, Bolin, or of any other eschetes which be 
in our hands, and are baronies, and die, his heir shall give none 
other relief, nor do none other service to us?, than he should 
to the baron, if it were in the baron's hand. (2) And we in 
the same wise shall hold it as the baron held it; neither shall 
we have, by occasion of any barony or eschete, any eschete or 
keeping of any of our men, unless he that held the barony or 
eschete elsewhere held of us in chief. 

(Here follows in the earlier issue a provision that persons 
dwelling without the limits of a forest should not be com- 
pelled to attend Forest Courts upon common summons, unless 
they themselves were impleaded or were pledges for another. 

By the Assize of Woodstock in 1184, Henry II. compelled 
persons to attend the King's Forest Courts held before the 
warden and forester, who presented criminals before the itin- 
erant justices in eyre of the forest, in the same way as ordin- 
ary criminals were presented by the county before the ordin- 
ary justices in eyre. These provisions were embodied in the 
-Carta de Foresta granted by Henry III. (1217). 'I'heso pow- 
ers as to forests are now vested in His Majesty's Commission- 
ers of Woods, Forests, and Land Revenues. 

Next is an omitted provision that the king will only ap- 
point judges, constables, sheriffs and bailiffs of such as know 
the law and mean duly to observe it. 

Next are omitted provisions providing for disafforestation 
of forest afforested in John's time and for the removal of other 
forest evils, the surrender of charters and hostages placed in 
the king's hands as securities, the dismissal of foreign servants 
and mercenary troops, doing justice to the Welsh and Scotch, 
and granting a general political amnesty) . 

Cap. XXXII. 

Lands Shall not he Aliened to the Prejudice of the Lord's 

Service. 

No freeman from henceforth sliall give or sell any moi-e 
of his land, but so that of the residue of the lands the Lord of 
the Fee may have the service due to him, which belongeth to 
the fee. 

(This is not in the original issue). 



MAGNA .CHAETA. 183 

(This was aimed at the practice of sub-infeudation. The 
provision itself was abrogated by the Statute of Quia Emp- 
tores, 18 Edw. I. c. 1, whereby sub-infeudation was entirely 
forbidden, and every freeman was allowed to aliene his land 
(save by will) or part, to be held not of the alienor, but of the 
lord from whom the latter held. Even after this provision, 
tenants in capite could not aliene without the license of the 
king, but by 1 Edw. III. c. 12, even tenants m capite were 
allowed to aliene on payment of a reasonable fine to the king.) 

Cap. XXXTJT. 

Patrons of Abhies S-liaU Hare the Custody of them in the 

Time of Vacation. 

All patrons of abbies, which have the King's Charters of 
England of Advowson, or have old tenure or possession in the 
same, shall have the custody of them when they fall void, as 
it hath been accustomed, and as it is afore declared. 

Cap. XXXIV. 

In what only Case a Woman shall have an Appeal of Death. 

No man shall be taken or imprisoned upon the appeal of a 
woman for the death of any other, than of her husband. 

(From the time of the Norman Conquest, the regular me- 
thod of bringing a criminal to trial was by the " appeal/' i.e. a 
private accusation which led to battle (in civil cases a cham- 
pion could l>e employed, so also in the case of a corporation). 
In criminal " appeals " the parties were obliged to fight per- 
sonally, unless the appellant was a woman, a priest, an infant, 
lame, blind or sixty years old; in that case the appellee put 
liimself on his country, i.e. was tried by a jury, and it seems 
that sometimes this right could l)e purrhnsod from the King's 
Court'. 

The * appellum ' or appeal was entirely a Norman institu- 
tion, and was looked upon with great disfavor by the Saxons. 

The battle was held in special lists before the judges of 
the Court of Common Pleas, who clad in scarlet rol)e8 watched 
the combatants ftghting with ell-long staves, from the rising 
of the sun to that of the stars, unless one of thorn before that 
uttered the horrible word " craven." 

If the appellee was worsted in the ngiu, lie luet with the 
same penalty as if he had been convicted on an indictment. 



184 MAGNA CHARTA. 

The Crown could not pardon him, as an appeal was consid- 
ered as being a private suit. 

The * appeal ' was? not formally abolished till 1819. The 
abolition was on account of the claim of Thornton, the ap- 
pellee in the suit oi-Ashford v. Thoniton (1 B. and Aid. 405) 
to trial by battle. The appellor declined and the appellee was 
discharged; and, on being arraigned on the Crown side of the 
Court, successtiilly pleaded ' autrefois acquit/ 

The report makes strange reading : *' The appellee being 
brought into Court and placed at the bar, and the appellant 
being also in Court, the count was again read over to him 
and he was called upon to plead. He pleaded as follows: *Not 
guilty ; and, I am ready to defend the same by my body,' and 
thereupon taking his glove off, he threw it upon the floor of 
the Court.'') 

Cap. XXXV. 

At what Time shall he Kept a County Court, Sheriff's Ttirn, 

and a Leet. 

No County Court from henceforth shall be holden, but 
from month to month ; and where greater time hath been used, 
there shall be greater. (2) Nor any sheriff, or his bailiff, shall 
keep his turn in the hundred but twice in the year; and no 
where but in due place, and accustomed; that is to say, once 
after Easter, and again after the Feast of Saint Michael. (3) 
And the view of Frankpledge shall be likewise at the Feast 
of Saint Michael without occasion; so that every man may 
have his liberties which he had, or used to have, in the time 
of King Henry, our Grandfather, or which he hath purchased 
since. (4) The View of Frankpledge shall be so done, that 
our peace may be kept; (5) and that the tything be wholly 
kept as it hath been accustomed; (6) and that the sheriff seek 
no occasions, and that he be content with so much as the sheriff 
was wont to have for his view-making in the time of King 
Henry our Grandfather, 

(The sheriff'? tourn or turn was the occasion on which the 
slieriff went into eacli County Court in the shire, as officer 
of the king, to hold the view of frankpledge, and to recei.e 
fines and other moneys payable to the king. Frankpledge and 
Tvthing have been dealt witli supra). 



MAGNA CHARTA. 185 

Cap. XXXVI. 

Xo Land Shall be Given in Mortmain, 

It shall not be lawful from henceforth to any to give hi-^ 
lands to any religious house, and to take the same land again 
to hold of the same house. Nor shall it be lawful to any 
house of religion to take the lands of any, and to lease the 
same to him of whom he received it. Ji any from henceforth 
give his lands to any religious house, and thereupon be con- 
vict, the gift shall be utterly void, and the land shall accrue to 
the Lord of the Fee. 

(This is aimed at the practice of granting lands to religious 
houses atid receiving them back again freed from feudal obli- 
gations, as religious houses were .not subject to these. The 
])resent provision was construed by Edward I.'s statute De 
Religiosis to refer to all grants to religious houses, whether 
fraudulent or not.) 

Cw. XXW II. 

A Snihsidy in respect of //m> Charter, and tht Charier of the 
Forest, Granted to the King. 

Scutaoe from henceforth shall be taken like as it was wont 
to be in the time of King Henry our Grandfather; reserving 
to all archbishops, bishops, abbots, priors, templers, hospital- 
lers, earls, barons, and all persons as well spiritual as tem- 
}x)ral all their free liberties and free customs, whiili they have 
had in time passed. (2) And all these customs and liberties 
;i foresaid, which we have granted to be holden within this our 
n-alm, as much as ap})ertaineth to us and our heirs, we shall 
observe; (3) and all men of this our realm, as well spiritual 
as temporal (as much as in them is), shall observe the same 
against all persons in like wise. (4) And for this our gift 
and grant of these liberties, and of other contained in our 
Charter of Liberties of our Forest, the archbishops, bishop**, 
ablK)t8, priors, earls, barons, knights, freeholders, and other 
our subjects, have given unto us the fifteenth part of nil their 
moveables. (5) And we have granted unto them on the other 
part thnt neither we, nor our heirs, shall procure or do any 
thing whereby the Lil>ertie8 in this Charter contained shall b<' 
infringed or broken; (6) and if any thing be procured by any 

Tifrson «(>ritr;u\ to tho tiri'ini^os if shnll 1m» hjid (if no fortr 



186 MAGNA CHARTA. 

nor effect. These being witnesses : Lord S. Archbishop of 
Canterbury, E. Bishop of London, J. Bishop of Bathe, P. of 
Winchester, H. of Lincohi, R. of Salisbury^ W. of Rochester 
W. of Worcester, J. of Ely, H. of Hereford, R. of Chichester, 
W. of Exeter, Bishops, the Abbot of St. Edmonds, the Abbot 
of St. Albans, the Abbot of Bello, the Abbot of St. Aiigustines 
in Canterbury, the Abbot of Evesham, the Abbot of West- 
minister, the Abbot of Bourgh St. Peter, the Abbot of Reding, 
the Abbot of Abindon, the Abbot of Malmsbury, the Abbot of 
Winchcomb, the Abbot of Hyde, tlie Abl>ot of Certesey, the 
Abbot of Sherburn, the Abbot of Cerne, the Abbot of Abbote- 
bir, the Abbot of Middleton, the Abbot of Seleby, the Abbot 
of Cirencester; H. de Burgh Justice, H. Earl of Chester and 
Lincoln, W. Earl of Salisbury, W. Earl of Warren, G. de Clare 
Earl of Gloucester and Hereford, W. de iFerrars Earl of 
Derby, W. de Mandeville Earl of Essex, H. de B3^god Earl of 
Norfolk, W. Earl of Albemarle, H. Earl of Hereford, J. Con- 
Ftable of Chester, R. de Ros, R. Fitzwalter, R. de'Vyponte, 
W. de Bruer, R. de Monteiichet, P. Fitzherbert, W. de Au- 
benie, F. Gresly, W. de Breus, J. de Monemue, J. Fitzallen, 
H. de Mortimer, W. de Beuchamp, W. de St. John, P. de 
Mauli, Brian de Lisle, Thomas de Multon, R. de Argenteyn, 
G. de Nevil, W. de Mauduit, J. de Balun, and others. Given at 
AVestm' the 11th day of Febr' the 9th year of our Reign. 

II. We, ratifying and approving these Gifts and Grants 
aforesaid, confirm and make strong all the same for us and 
our heirs perpetually, and by the tenour of these Presents, do 
renew the same; willing and granting for us and our heirs, 
that this Charter, and all and singular his Articles, for ever 
shall be steadfastly, firmly, and inviolably /observed; and if 
any Article in the same Charter contained, yet hitherto perad- 
venture hath not been kept, we will, and by Authority Royal 
command, from henceforth firmly they be observed. In wit- 
ness whereof we have caused these our Letters Patents to be 
made. T. Edward our Son at Westminster, the Twenty-, 
eighth day of March, in the Twenty-eighth year of our Reign. 

(The imposition of a tax upon personal property to the 
extent of one-fifteenth, points the necessity of imposing regu- 
lated taxation consequent upon the insistence that the unregu- 
lated imposition of tallages should bo given up). 



Jd.\<J\A niAIJTA. 187 

Confirnrntio Cartai-um. 

Edward, by the grace of God, king of England, lord of 
Ireland, and duke of Guyenne, to all those that these present 
letters shall hear or see. Greeting. 

1. Know ye that we to the honor of ^d, and of hol/ 
Church and to tlie fprofit of our realm, have granted for us 
^nd our heirs, that the great Charter of Liberties, and the 
Charter of the Forest, which were made by common assent of 
all the realm, in the time of king Henry our father, shall be 
kept in every point without breach. And we will that the 
same charters shall be sent under our seal, as well to our jus- 
tices of the forest, as to others, ,and to all sheriffs of shires, 
and to all our other officers, and to all our cities throughout 
the realm, together with our writs, in the which it shall be 
contained, that they cause the aforesaid charters to be pub- 
lished, and to declare to the people that we have confirmed 
them in all points; and to our justices, sheriffs, mayors, and 
other ministers, which under us and by us have the laws of 
our land to guide, that they shall allow the same charters in 
all their points, in pleas before them, and in judgements ; that 
is to wit, the Great Charter as the common law, and the 
Charter of the Forest according to the assize of the forest, 
for the wealth of our realm. 

-. And we will, that if any judgement be given from hence- 
forth contrary to the points of the charters aforesaid by the 
justices, or by any other our ministers that hold plea before 
them against the points of the charters, it shall be undone 
and holden for nought. 

3. And we will, that the name charters be sent, under our 
seal, to cathedral churches throughout our realm, there to re- 
main, and shall be read before the people two times each year. 

4. And that all archbishops and bishops shall pronounce 
the sentence of great excommunication against all tlioso that 
by deed, aid, or counsel do contrary to the aforesaid charters, 
or that in any point break or undo them. And that the said 
curses be twice a year denounced and published by the pre- 
lates aforesaid. And if the same prelates, bishops, or any of 
them be remiss in the denunciation of the said sentences, the 
archbif^ops of Canterbury and York, for the time being, as U 
fitting, shall compel and distrain them to make that denunci- 
ation in form aforesaid. 



188' MAGNA CI I ART A. 

5. And for so much as divers people of our realm are in 
fear, that the aids and tasks which the)- have given to us be- 
foretime, towards our wars and other business, of their own 
grant and good will, howsoever they were made, might turn 
to a bondage to them and their heirs, because they might 
be at another time found in the rolls, and so likewise the prises 
taken throughout the realm by our ministers in our -name; we 
Ivave granted for us and our heirs, that we shall not draw such 
aids, tasks, nor prises into a custom, for any thing that hath 
been done heretofore, or that may be found by roll or in any 
other manner. 

6. Moreover, we have granted for us and our heirs as well 
to archbishops, bishops, abbots, priors, and other folk of holy 
Church, as also to earls, barons, and to all the commonalty of 
the land, that for no business from henceforth we shall take 
of our realm such manner of aids, tasks nor prises, but by the 
common assent of all the realm, and for the common profit 
thereof, saving the ancient aids and prises due- and accus- 
tomed. 

And for so much as the more part of the commonalty of 
the realm find themselves sore aggrieved with the maletote of 
wools, that is to wit, a toll of forty shillings for every sack of 
wool, and have made petition to us to release the same ; we at 
their requests have clearly released it, and have granted that 
we will not take such thing nor any other without their com- 
mon assent and good will; saving to us and our heirs the 
custom of wools, skins, and leather, granted before by the 
commonalty aforesaid. In witness of which things we have 
caused these our letters to be made patents. 

Witness Edward our son at London the tenth day of Oc- 
tober, the five and twentieth year of our reign. 

And be it remembered that this same charter, in the same 
terms, word for word, was sealed in Flanders under the King*s 
great seal, that is to say, at Ghent the fifth day of November 
in the twenty-fifth year of the reign of our aforesaid lord the 
king, ajui sent into England. 



PETITION OF RIGHT. l89 

CHAPTER XVI. 

The Petition of Right— annotated. 

The Petition of Rigii i (1028). 

To the King's Most Excellent Majesty. 

Humbly show unto our Soverei<Tn Lord the King, the 
Tvords Spiritual and Temporal, and Commons in Parliament 
assembled, thfit whereas it is declared and enacted by a statute 
made in the time of the reign of King Edward the First, com- 
inonly called Statutum de tallagio non concedendo, that no 
tallage or aid shall be laid or le^ied by the King or his heirs 
in this realm, without the good will and assent of the Arch- 
bishops, Bishops, Earls, Barons, Knights, Burgesses, and other 
the freemen of the commonalty of this realm : and by auth- 
ority of Parliament holden in the fi've and twentieth year of 
the reign of King Edward the Third, it is declared and en-, 
acted, that from henceforth no person shall be compelled to 
make any loans to the King against his will, because such 
loans were against reason and the franchise of the land ; and 
by other laws of this realm it is provided, that none should 
be charged by any charge of imposition, called a BencYolence, 
nor by such like charge ; by which, the statutes before mentioned 
and other the good laws and statutes of this realm, your sub- 
jects have inherited this freedom, that they should not he 
compelled to contribute to any tax, tallage, aid or oth^r like 
charge, not set by common consent in Parliament: 

II. Yet nevertheless, of late divers commissions directed to 
sundry commissioners in several counties with instructions, 
have issued, by means whereof your people have been in divers 
places ajisembled, and required to lend certain sums of money 
unto your Majesty, and many of them upon their refusal so 
to do, have had an oath administered unto them, not war- 
rantable by the laws or statutes of this realm, and have been 
constrained to become bound to make appearance and give 
attendance before your Privy Council, and in other places, 
and otluTs of them have lM»cn therefore imprisoned, confine<l, 
and sundry other ways molested and disquieted : and divers 
other charges have been laid and levied upon your people in 
several count le*», by Tx>rd Lieutenants, Deputy' Lieut^^nants, 



IIMI I'l/nilUN OF Itir.HT. 

( oinmissioners for Musters, Justices of Peace and others, by 
command or direction from your Majesty or your Privy Coun- 
cil, against the laws and free customs of this realm. 

III. And where also by the statute called, ' The Great 
Charter of the Liberties of England,' it is declared and en- 
acted, that no freeman may he taken or imprisoned or be dis- 
seised of his freehold or liberties, or his free customs or be 
outlawed or exiled, or in any manner destroyed, but by the 
lawful judgment of his peers, or by the law of the land ; 

IV. And in the eight and twentieth year of the reign of 
King Edward the Third, it was declared and enacted by au- 
thority of Parliament, that no man of what estate or condi- 
tion that he be, should be put out of his lands or tenements, 
nor taken, nor imprisoned;, nor disinherited, nor put to 
death, without being brought to answer by due process of law : 

V. Nevertheless, against the tenor of the said statutes and 
other the good laws and statutes of your realm, to that end 
provided, divers of your subjects have of late been imprisoned, 
without any cause showed, and when for their deliverance 
they were brought before your Justices, by your Majesty's 
writs of Habeas Corpus, there to undergo and receive as the 
Court should order, and their keepers commanded to certify 
the causes of their detainer: no cause was certified, but that 
they were detained by your Maje^y's special command, sig- 
nified by the Lords of your Privy Council, and yet were returned 
back to several prisons, without being charged witli anything 
to whifch they might make an^*wer according to the law. 

VI. And whereas of late great companies of soldiers and 
mariners have been dispersed into divers counties of the realm, 
and the inhabitants against their wills have been compelled to 
receive them into their houses, and there to suffer them to 
sojourn, against the laws and customs of this realm, and to 
tlie great grievance and vexation of the people. 

VII. And whereas also by authority of Parliament in the 
25th year of the reign of King Edward the Third, it is de- 
clared and enacted, that no man shall l)e. forejudged of life or 
limb against the form of tha Great Charter and the law of the 
land; and by tlie said Great Charter and other the laws and 
1he statutes of tliis your realm, no man ouglit to be adjndgcd 
to death, but by the laws established in this your realm, either 
bv the customs of the same realm or ))v Acts of Parliament: 



PETITION OF RIGHT. 191 

and whereas no offender of what kind soever is exempted from 
the proceedings to be used, and punishments to be inflicted 
by the laws and statutes of this your realm ; nevertheless of late 
divers commissions under your Maje^t/s Great Seal ha\-e 
issued forth, by which certain persons have been assioriied and 
appointed Commissioners with power and authority to proceed 
within the land, according to the justice of martial law against 
such soldiers and mariners, or other dissolute persons joining 
with them, as should commit any murder, robbery, felony, 
mutiny, or other outrage or misdemeanour whatsoever, and by 
such summary course and order, as is agreeable to martial law, 
and is used in armies in time of war, to proceed to the trial 
and condemnation of such offenders, and them to cause to be 
executed and put to death, according to the law martial: 

VIII. By pretext whereof, some of your Majesty's subjects 
have been by some of the said Commissioners put to death, 
when and where, if by the laws and statutes of the land they 
had deserved death, by the same laws and statutes also they 
might, and by no other ouglit to have been, judged and executed. 

IX. And also sundry grievous offenders by colour thereof, 
claiming an exemption, have escaped the punishments due to 
them by the laws and statutes of this your realm, by reason 
that divers of your officers and ministers of justice have un- 
justly refused, or forborne to proceed against such offenders 
according to the same laws and statutes, upon pretence that 
the said offenders were punishable only by martial law, and 
by authority of such commissions as aforesaid; which commis- 
sions, and all other of like nature, are wholly and directly con- 
trary to the said laws and statutes of this your realm. 

X. They do therefore humbly pray your Most Excellent 
Majesty, that no man her<^after be compelled to make or yield 
any gift, loan, benevolence, tax, or such like charge, without 
common consent by Act of Parliament ; and that none be 
called to make answer, or take such oatli, or to give attendance, 
or be confined, or otherwise molested or disquieted concerning 
the same, or for refusal thereof; and that no freeman, in any 
such manner as is l>ef ore-mentioned, be imprisoned or de- 
tained ; and that your Majesty will be pleased to remove the 
said soldiers and marines, and that your people may not be so 
burdened in time to come; and that the aforesaid commit- 
sions for proceeding by martial law, may l)e revoked and 



192 PETITION OF RIGHT. 

annulled ; and that hereafter no commissions of like nature may 
issue forth to any person or persons whatsoever, to be executed 
as aforesaid, lest by colour of them any of your Majesty's sub- 
jects be destroyed or put to death, contrary to the laws and 
franchise of the land. 

XI. All which they most humbly pray of your Most Excel- 
lent Majesty, as their rights and liberties according to the 
laws and statutes of this realm: and that your Majesty would 
also vouchsafe to declare, that the awards, doings, and pro- 
ceedings to the prejudice of your people, in any of the pro- 
mises, shall not be drawn hereafter into consequence or ex- 
ample; and that your Majesty would be also graciously pleased, 
for the further comfort and safety of your people, to declare 
your royal will and pleasure, that in the things aforesaid all 
your officers and ministers shall serve you, according to tho 
laws and statutes of this realm, as they tender the honour of 
your Majesty, and the prosperity of this kingdom. 

(Which Petition bejng read the 2nd of June, 1628, the 
King's answer was thus delivered unto it: 

The King willeth that right be done according to the laws 
and customs of the realm ; and that the statutes be put in due 
execution, that his subjects may have no cause to complain of 
any wrong or oppressions, contrary to their just rights and 
liberties, to the preservation whereof he holds himself as well 
obliged as of his prerogative. 

On June 7 the answer was given in the accustomed form, 
Soit Droit Fait Come il est desire). 

(Notice that this is the form of an answer to a petition; 
the assent of the king to a bill runs: "le roy le veult," and 
his dissent runs : " le roy s'avisera "). 

Commissioners of Musters. 

The old feudal levy, service wherein depended on the tenure 
of land under the king, was abolished at the restoration, but 
there still remained tlie general liability to serve in the Fyrd 
or National militia incumbent on every able-lx)died male be- 
tween 16 and 60. Men raised under this were inspected and 
trained from time to time by commissioners of musters during 
the Stuart period. These forces were known as train bands 
or trained bands ; the expenses fell upon the county and the 
lord lieutenant of the countv was their statutory officer, but 



PETITION OF RIGHT. 193 

otherwise there was no regimental organization. This force 
was regarded as the army of the state, as distinguished from 
the standing army, which was more especially the army of the 
king. It was not until 1871 that the control of the militia 
was taken aw;ay from the lord lieutenant of the county, and 
virtually ceased to exist as a body distinct from the regular 
forces. 

The first form of benevolence was a * forced loan/ popular 
with both Edward II. and Richard IT., but in the reign of Ed- 
ward IV. the pretence of repayment was abandoned and that of 
a freewill offering substituted under the name of ' benevo- 
lence.' This instrument of extortion Was too useful to be 
lightly abandoned, and under the Tudors and James I. the 
exactions were frequent, witness the ' loving contribution ' 
under Henry VIII., failure to pay which involved punishment 
at the hands of the Council. 

Justice of the Peace. 

The office of a Justice of the Peace is as old as the reign 
of Edward I., their importance being augmented by a statute 
of Edward IV., which took away from the sheriff's tourn the 
power of hearing and determining criminal charges. Prior to 
34 Edw. III. c. 1, they were appointed by the freeholders of 
the county, but the power then passed to the Crown. 

Habeas Corpus. 

This writ was first used to bring cases from the feudal or 
private courts before the King's Court. It was a prerogative 
writ. Under early English law every man before trial had a 
right to find " pledges," ue. to be " replevied," unless he was 
accused of treason, murder, forest offences, and in a few 
other cases, committed to prison by the king's command. Re- 
fusal to admit to bail could be brought before the King's 
Bench, which could admit to bail a person accused of treason 
or murder; but it was disputed as to whether the King's 
Bench could on a writ of habeas corpus release a person, be- 
fore trial, who was committed to prison by the King's, ue. the 
Council's comniamls. In the case of the fi\'e Knights com- 
mitted to gaol for refusal to contribute to a benevolence (com- 
monly called Darnel's case), the matter was decided in the 
favour of the King. 

C.C.— 18 



194 PETITION OF RIGHT. 

In the reign of Charles II., 1679, the Habeas Corpus Act 
was passed giving the wj-it to any one committed for trial, 
unless the warrant of commitment plainly expressed commit- 
tal for treason or felony. 'The writ was to be granted during 
vacation, and any judge refusing the wi-it or gaoler delaying 
to make a return thereto, was subjected to a penalty. In 
1816 the Act was extended to persons confined on civil charges. 
On occasions the Habeas Corpus Act is suspended, but it is 
usual for Parliament to pass an Act of Indemnity for things 
done during the suspension. 

In 1862 there was passed in consequence of the decision in 
Anderson's Case (39 L. J. Q. B. 129), an Act providincr that 
no writ of habeas corpus shall issue out of England by author- 
ity of any judge or court of justice therein, into any colony 
or foreign dominion of the Crown, where her Majesty has a law- 
fully established court or courts of justice, having authority 
to grant and issue the said writ, and to insure the due execu- 
tion thereof throughout such colony or dominion. 

Martial Law. 

" When first we hear of martial law in England it is spelt 
indifferently marshall and martial, and it is quite clear that 
the two words were confused in the popular mind — the law 
administered by the constable and marshall was martial law.'* 
(Maitland p. 266.) Queen Elizabeth was particularly partial 
to martial law, thus we find in her reign (1588) a proclama- 
tion that any person importing Papal bulls, &c., is to be pro- 
ceeded against by martial law, and in 1595 we filid her appoint- 
ing a provost martial *^ to repair to all common highways near 
to the city, which any vagrant persons do haunt, and with tlie 
assistance of justices and constables, to apprehend all such 
vag^-ant and suspected persons, and them to deliver to the said 
justices, by them to be committed and examined of the causes 
of their wandering, and finding them notoriously culpable in 
their unlawful manner of life, as incorrigible, and so certified 
by the said justices, to cause to be executed upon the gallows or 
gibbet such of them that are so found most notorious and 
incorrigible offenders." Five persons were accordingly exe- 
cuted. In James I.'s reign, a commission issue to try soldiers 
and ' other dissolute persons ' for mutinies, robberies and 
felonies. 



PETITION OF RIGHT. 195 

As to tlie nature of martial law, Dicey (at p. 544) draws four 
conclusions: 1. Martial law cannot exist in time of peace. 2. 
The existence of martial law does not in any way depend upon 
tlie Proclamation of martial law. 3. The Courts have, at any rate 
in time of peace, jurisdiction in respect of acts which have been 
done by military authorities and others during a state of war. 
4. The protection of military men and others against actions or 
prosecutions in respect of unlawful acts done during a time of 
war, bona fide and in the service of the country, is an Act of 
Indemnity. This doctrine Dicey calls the doctrine of immediate 
necessity, and in its favour he rejects three other doctrines, 
first, that which bases the use of martial law on the royal pre- 
rogative, second, the second basing that use on the immunity of 
soldiers from liability to proceedings in the civil Courts as con- 
trasted with the military Courts. (See H. Erie Richard's Mar- 
tial Law, L. Q. R. XVIII. p. 133), and lastly the doctrine of 
political necessity or expediency. (See Sir Frederick Pollock, 
L. Q. R. XVIII. 162). 



190 BILL OF RIGHTS AND ACT OF SETTLEMENT. 

CHAPTER XVII. 

The Bill of Rights and the Act of Succession Annotated. 

An Act for declaring the Rights and Liberties of the Subject, 

and settling the S'uccession of the Crown. 

Whereas the lords spiritual and temporal, and commons 
assembled at Westminster, lawfully, fully, and freely represent- 
ing all the estates of the people of this realm, did upon the thir- 
teenth day of February, in the year of our Lord one thousand 
six hundred and eighty-eight, present unto their Majesties, then 
called and known by the names and style of William and Mary, 
prince and princess of Orange, being present in their proper 
persons, a certain declaration in writing, made by the said lords 
and commons, in the words following, viz. 

Whereas the late King James the Second, by the assistance 
of divers evil counsellors, judges, and ministers employed by 
him, did endeavour to subvert and extirpate the protestant reli- 
gion, and the laws and liberties of this kingdom. 

(1). By assuming and exercising a power of dispensing with 
and suspending of laws, and the execution of laws, without con- 
sent of parliament. 

(2). By committing and prosecuting divers worthy prelates, 
for humbly petitioning to be excused from concurring to the 
^ame assumed power. 

(3). By issuing and causing to be executed a commission 
under the great seal for erecting a court called. The Court of 
Commissioners for Ecclesiastical Causes. 

(The Court of Com^missioners for Ecclesiastical Causes. 

The Court of High Commission was established in the fi'rst 
years of the reign of Elizabeth for the trial of errors, schisms, 
heresies, abuses, offences, contempts and enormities. It was 
abolished by the Long Parliament, but was re-established by 
James II. 

(4). By levying money for and to the use of the Crown, by 
pretence of prerogative, for other time, and in other manner, 
than the same was granted by parliament. 



BILL OP RIGHTS AND ACT OF SETTLEMENT. 197 

(5). By raising and keeping a standing army within this 
kingdom in time of peace, without conj^ent of parliament, and 
quartering soldiers contrary to law. 

(Standing Army. 

There cannot he said to have been any standing army in 
England until the Protectorate, when the Instrument of Govern- 
ment (1653) provided for a regular army of 30,000 men. The 
tjrranny which Cromwell established with this weapon aroused 
the opposition of the nation and at the Restoration the army 
was disbanded, but 5,000 men, including the Coldstreams, were 
retained under the name of Guards. James II. utilised the re- 
bellion of Monmouth to keep on foot an army of 30,000. which 
he kept in camp at Hounslow in order to overawe London. The 
declaration pronouncing the illegality of a standing army with- 
out the consent of Parliament contained in the Bill of Rights is 
repeated in the Mutiny Act, which authorises the continuance 
of an army, and is ipassed annually and for one year only). 

(6). By causing several good subjects, being protestants, to 
be disarmed, at the same time when paipists were both armed 
and employed, contrary to law. 

(7). By violating the freedom of election of members to 
serve in Parliament. 

(Interference with Elections. 

The Tudor sovereigns did their best to render the House of 
Commons subservient by creating new boroughs, and managing 
elections. James I. in summoning his new Parliament specified 
the kind of men who wore io ho elected. Tlio Stuarts did not 
create many new boroughs, indeed, Charles only created one, 
but they did forfeit and remodel borough charters so that they 
might have a court party in the Commons). 

(8). By prosecutions in the court of King's Bench, for mat- 
ters and causes cognizable only in Parliament; and by divers 
other arbitrary and illegal courses. 

(9). And whereas of late years, partial, corrupt, and un- 
qualiffed persons have been returned and served on juries in 
trials, and particularly divers jurors in trials for high treason, 
which were not freeholder > 

(10). And excessive bail hath l)een required of persons viym- 
mitted in criminal cases, to elude the benefit of the laws made 
for the liberty of the jnibjerts. 



198 BILL OF RIGHTS AND ACT OF SETTLEMENT. 

(11). And excessive fines have been imposed; and illegal 
and cruel punishments inflicted. 

(12). And several grants and promises made of fines and 
forfeitures, before any conviction or judgment against the per- 
sons, upon whom the same were to be levied. 

All which are utterly and directly contrary to the known 
laws and statutes, and freedom of this realm. 

And whereas the said late King James the Second having 
abdicated the government, and the throne being thereby vacar.t, 
his highness the prince of Orange (whom it hath pleased Al- 
mighty God to make the glorious instrument of delivering this 
kingdom from popery and arbitrary power) did (by the advice 
of the lords spiritual and temporal, and divers principal per- 
sons of the commons) cause letters to be written to the lords 
^iritual and temporal, being protestants; and other letters to 
the several counties, cities, universities, borougbs, and cinque- 
ports, for the choosing of such persons to represent them, as 
were of right to be sent to parliament, to meet and sit at West- 
minster upon the two and twentieth day of January, in this 
year one thousand six hundred eighty and eight, in order to 
such an establishment, as that their religion, laws, and liber- 
ties might not again be in danger of being subverted : upon 
which letters, elections have been accordingly made, 

And thereupon the said lords spiritual and temporal, and 
commons, pursuant to their respective letters and elections, be- 
ing now assembled in a full and free representative of this na- 
tion, taking into their most serious consideration the best means 
for attaining the ends aforesaid; do in the first place (as their 
ancestors in like case have usually done) for the vindicating and 
asserting their ancient rights and liberties, declare; 

(The cinque ports are the towns of Hastings, Komney, 
Hythe, Dover and Sandwich w^th the ' ancient towns ' of Win- 
chelsea and Rye. Up to the time of Henry VII. they prac- 
tically supplied the whole fleet, and for a long time after a per- 
manent fleet had come into existence, largely defrayed its ex- 
penses. In return they received many privileges and exemp- 
tiong.) 

(1). That the pretended power of suspending of laws, or the 
execution of laws, without consent of parliament, is illegal. 



BILL OF RIGHTS AND ACT OF SETTLEMENT. 199 

(2). That the pretended power of dispensing with laws, or 
the execution of laws, by regal authority, as it hath been as- 
sumed and exercised of late, is illegal. 

(3). That the commission for erecting the late court of 
commissioners for ecclesiastical causes, and all other commis- 
sions and courts of like nature are illegal and pernicious. 

(4). That levying money for or to the use of the crown, by 
pretence of prerogative, without grant of parliament, for longer 
time, or in other manner than the same is or shall be granted, 
i.^ illegal. 

(5). That it is the right of the subjects to petition the King, 
and all commitments and prosecutions for such petitioning are 
illegal. 

(6). That the raising or keeping a standing army within 
the kingdom in time of peace, unless it be with consent of par- 
liament, is against law. 

(7). That the subjects which are protestants, may have arms 
for their defence suitable to their conditions, and as allowed 
by law. 

(8). That election of members of parliament ought to be 
free. 

(9). That the freedom of speech, and debates or proceedings 
in parliament, ought not to be impeached or questioned in any 
court or place out of parliament. 

(10). That excessive bail ought not to be required, nor ex- 
cessive fines imposed; nor cruel and unusual punishments in- 
flicted. 

(The excessivenesg of the bail frequently rendered the 
Habeas Corpus Act a dead letter.) 

(11). That jurors ought to be duly impanelled and re- 
turned, and jurors which pass upon men in trials for high trea- 
son ought to be freeholders. 

(12). That all grants and promises of fines and forfeitures 
of particular persons before conviction, are illegal and void. 

(13). And that for redress of all grievances, and for the 
amending, strengthening, and preserving of the laws, parlia- 
ments ought to be held frccjuontly. 

And they do claim, demand, and insist upon all and singu- 
lar the premises, as their undoubted rights and liberties; and 



200 BILL OF RIGHTS AND ACT OF SETTLEMENT. 

that no declarations, judgments, doings or proceedings, to the 
prejudice of the people in any of the said premises, ought in 
any wise to be drawn hereafter into consequence or example. 

To which demand of their rights they are particularly en- 
couraged by the declaration of his highness the prince of Orange, 
as being the only means for obtaining a full redress and rem- 
edy therein. 

Having therefore an entire confidence. That his said high- 
ness the prince of Orange will perfect the deliverance so far 
advanced by him, and will still preserve them from the viola- 
tion of their rights, which they have here asserted, and from 
all other attempts upon their religion, rights, and liberties. 

II. The said lords spiritual and temporal,, and commons, 
assemble-d at Westminster do resolve, That William and Mary 
prince and princess of Orange, be, and be declared. King and 
Queen of England, France and Ireland, and the dominions there- 
unto belonging, to hold the crown and royal dignity of the 
said kingdoms and dominions to them the said prince and prin- 
cess during their lives, and the life of the survivor of them; 
and that the sole and full exercise of the regal power be only 
in, and executed by the said prince of Orange, in the names of 
the said prince and princess, during their joint lives; and after 
their deceases, the said crown and the royal dignity of the said 
kingdoms and dominions to be to the heirs of the body of the 
said princess ; and for default of such issue to the princess Anne 
of Denmark, and the heirs of her body ; and for default of such 
issue to the heirs of the body of the said prince of Orange. 
And the lords spiritual and temporal, and commons, do pray 
the said prince and princess to accept the same accordingly. 

III. And that the oaths hereafter mentioned be taken by all 
persons of whom the oaths of allegiance and supremacy might 
be required by law, instead of them; and that the said oaths 
of allegiance and supremacy be abrogated. 

I A. B. do sincerely promise and swear. That I will be faith- 
ful, and bear true allegiance, to their Majesties King William 
and Queen Mary: 

So lielp mo God. 

I A. B. do swear, That I do from my heart abhor, detest, 
and abjure as impious and heretical, that damnable doctrine 
and position. That princes excommunicated or deprived by the 



BILL OF RIGHTS AND ACT OF SETTLEMENT. 201 

pope, or any authority of the sec of Rome, may be deposed or 
murdered by their subjects, or any other whatsoever. And I 
do declare. That no forei^rn prince, person, prelate, state, or 
potentate hath, or ought to have any jurisdiction, power, su- 
I^eriorit}', pre-eminence, or jinthoritv occlesi apical or spirifunl, 
within this realm : 

So help me (xod. 

IV. Upon which their said Majesties did accept the crown 
and royal dignity of the kingdoms of England, France, and 
Ireland, and the dominions thereunto belonging, according to 
the resolution and desire of the said lords and commons con- 
tained in the said declaration. 

V. And thereupon their Majesties were pleased. That the 
said lords spiritual and temporal, and commons, being the two 
houses of parliament, should continue to sit, and with their 
Majesties' royal concurrence make effectual provision for the 
settlement of religion, laws and liberties of this kingdom, so 
that the same for the future might not be in danger again of 
l)eing subverted ; to which the said lords spiritual and temporal, 
and commons, did agree and proceed to act accordingly. 

["The Estates of the Realm which deposed Richard were 
changed into a Parliament of Henry by the transparent fiction 
of sending out writs, which were not, and could not be, fol- 
lowed by any real elections. The convention which recalled or 
elected Charles the Second did indeed turn itself into a Parlia- 
ment, but it was deemed needful that its acts should l)e con- 
firmed by another Parliament. The Acts of the Convention of 
1088 were not deemed to need any such confirmation. Each 
of these differences marks a stage in the return to the doctrine 
of common sense, that, convenient as it is in all ordinary times 
that Parliament should be summoned by the writ of the sov- 
ereign, yet it is not from that summons, ))ut from the choice of 
the people, that Parliament derives its real being and its in- 
herent powers." (Freeman's Growth of the English Constitu- 
tion, p. 137.)] 

VI. Now in pursuance of the premises, the said lords spirit- 
ual and temporal, and commons, in parliament assembled, for 
the ratifying, confirming, and establishing the said declaration, 
and the article*?, clauses, matters, and things therein contained, 
by the force of a law made in due form by authority of parlia- 



202 BILL OF RIGHTS AND ACT OF SETTLEMENT. 

ment, do pray that it may be declared and enacted. That all and 
singular the rights asserted and claimed in the said declaration, 
are the true, ancient, and indubitable rights and liberties of 
the people of this kingdom, and so shall be esteemed, allowed, 
adjudged, deemed, and taken to be, and that all and every the 
particulars aforesaid shall be firmly and strictly liolden and 
observed, as they are expressed in the said declaration; and all 
officers and ministers whatsoever shall serve their Majesties and 
their successors according to the same in all times to come. 

VII. And the said lords spiritual and temporal, and com- 
mons, seriously considering how it hath pleased Almighty God, 
in his marvellous providence, and merciful goodness to this 
nation, to provide and preserve their said Majesties' royal per- 
sons most happily to reign over us upoti the throne of their 
ancestors, for which they render unto him from the bottom of 
their hearts their humblest thanks and praises, do truly, firmly, 
assuredly, and in the sincerity of their hearts think, and do 
hereby recognize, acknowledge and declare, That King James 
the Second, having abdicated the government, and their Majes- 
ties having accepted the crown and royal dignity as aforesaid, 
their said Majesties did become, were, are, and of right ouglit 
to be, by the laws of this realm, our sovereign liege lord and 
lady, King and Queen of England, France, and Ireland, and the 
dominions thereunto belonging, in and to whose princely per- 
sons the royal state, crown, and dignity of the said realms, with 
all honours, stiles, titles, regalities, prerogatives, powers, juris- 
dictions and authorities to the same belonging and app'i^rtain- 
ing, are most fully, rightfully, and intirely invested and incor- 
porated, united and annexed. 

VIII. And for preventing all questions and divisions in 
this realm, by reason of any pretended titles to the crown, and 
for preserving a certainty in the succession thereof, in and upon 
which the unity, peace, tranquility, and safety of this nation 
doth, under God, wholly consist and depend, The said lords 
spiritual and temporal, and commons, do beseech their Majes- 
ties that it may be enacted, established, and declared. That tie 
crown and regal government of the said kingdoms and domin- 
ions, with all and singular the premises thereunto belonging 
and appertaining, shall ]>e and continue to their said Majesties, 
and the survivor of them, during their lives, and the life of the 
survivor of them ; And that the intire, perfect, and full exercise 



IJILL OF RIGHTS AND ACT OF SETTLEMENT. 203 

of the regal power and government be only in, and executed 
by his Majesty, in the names of both their Majesties durinp^ 
their joint lives; and after their deceases the said crown and 
premises shall be and remain to the heirs of the body of lu»r 
Majesty; and for default of such issue, to her royal highness 
the princess Anne of Denmark, and the heirs of her body : and 
for default of such issue, to the heirs of the body of his siii 1 
Majesty; and thereunto the said lords spiritual and temporal, 
and commons, do, in the name of all the people aforesaid, most 
humbly and faithfully submit tiiemselves, their heirs and pos- 
terities forever: and do faithfully promise. That they will stand 
to, maintain, and defend their said Majesties, and also the 
limitation and succession of the crown herein specified and 
contained, to the utmost of their powers, with their lives and 
estates, againsft all persons whatsoever, that shall attempt any- 
thing to the contrary. 

IX. And whereas it hath been found by experience, that it 
is inconsistent with the safety and welfare of this protestant 
kingdom, to be governed by a popish prince, or by any King 
or Queen marrying a papist ; the said, lords spiritual and tem- 
poral, and commons, do further pray that it may be enacted, 
That all and every person and persons that is, are or shall be 
reconciled to, or shall hold communion with, the see or church 
of Rome, or shall profess the popish religion, or shall marry a 
papist, shall be excluded, and be for ever incapable to inherit, 
possess, or enjoy the crown and government of this realm, and 
Ireland, and the dominions thereunto belonging, or any part of 
the same, or to have, use, or exercise any regal power, author- 
ity, or jurisdiction within the same; and in all and every such 
case or cases the people of these realms shall be, and are hereby 
absolved of their allegiance; and the said crown and govern- 
ment shall from time to time descend to, and be enjoyed by such 
person or persons, being protestants, as should have inherited 
and enjoyed the same, in case the said person or persons so 
reconciled, holding communion, or professing, or marrying as 
aforesaid, were naturally dead. 

X. And that every King and Queen of this realm, who at 
any time hereafter shall come to and succeed in the imperial 
crown of this kingdom, shall on the first day of the meeting 
of the f?rst parliament, next after his or her coming to the 
crown, sitting^in his or her throne in the house of peers, in the 



204 BILL OF RIGHTS AND ACT OF SETTLEMENT. 

presence of the lords and commons therein assembled, or at his 
or her coronation, before such person or persons who shall ad- 
minister the coronation oath to him or her, at the time of his 
or her taking the said oath (which shall first happen) make, 
subscribe, and audibly repeat the declaration mentioned in the 
statute made in the thirtieth year of the reign of King Charles 
the Second, intituled, an Act for the more effectual preserving 
the King's person and government, by disabling papists from 
sitting in either house of parliament. But if it shall happen, 
that such King or Queen, upon his or her succession to the crown 
of this realm, shall be under the age of twelve years, then every 
such King or Queen shall make, subscribe, and audibly repeat 
the said declaration at his or her coronation, or the first day 
of the meeting of the fi'rst parliament as aforesaid, which shall 
first happen after such King or Queen shall have attained the 
said age of twelve years. 

(The declaration mentioned in this section is a declaration 
against the doctrine of transubstantiation.) 

(The coronation oath at the coronation of Edward VII. was 
as follows: — 

Will you solemnly promise and swear to govern the people 
of this United Kingdom of Great Britain and Ireland, and the 
Dominions thereto belonging, according to the Statutes in Par- 
liament agreed on, and the respective laws and customs of the 
same? 

I solemnly promise so to do. 

Will you to your power cause Law and Justice in mercy to 
be executed in all your judgments ? 

I will. 

Will you to the utmost of your power, maintain the Laws of 
God, the true profession of the Gospel, and the Protestant re- 
formed religion established by law? And will you maintain 
and preserve inviolably the Settlement of the Church of Eng- 
land, and the doctrine, worship, discipline and government 
thereof, as by law established in England? And will you pre- 
serve unto the Bishops and Clergj' of England, and to the 
Church there committed to their charge, all such rights and 
privileges, as by law do or shall appertain to them or any of 
them ? 

All this I promise to do) . 



BILL OF RIGHTS AND ACT O^ SETTLEMENT. 205 

XI. All which their Majesties are contented and pleased 
nhall IjC declared, enacted, and esUiblished by authority of this 
present parliament, and shall stand, remain, and be the law of 
this realm for ever; and the same are by their said Majesties, 
by and with the advice and consent of the lords spiritual, and 
commons, in parliament assembled, and by the authority of the 
same, declared, enacted, and established accordingly. 

XII. And be it further declared and enacted by the author- 
ity aforesaid, That from and after this present session of par- 
liament, no dispensation by non obstante of or to any statute, 
or any part thereof, shall be allowed, but that the same sliall 
be held void, and of no effect, except a dispensation be* allowed 
of in such statute, and except in such cases as shall be specially 
provided for by one or more bill or bills to l)e passed during 
this present session of parliament. 

The Dispensing Power and Legislation by Proclamation. 

The right to dispense with laws was a remnant of the right 
to legislate by proclamation, a right which prior to the formation 
of a Parliament, as we know it to-day, the King in Council had 
frequently exercised as distinct from statute. These Ordinances 
were usually, though not always, of a temporary nature. In- 
deed even after the institution of a re^lar Parliament, the 
Lords and Commons suggested that the sumptuary laws of 1363 
should be enacted by Ordinance rather than by Statute, but in 
1353 the Commons objected to the Ordinances of the Staple, 
which prohibited English merchants from exporting wool under 
pain of death, and petitioned tliat they misrht be entered upon 
the Parliament Roll. These Ordinances largely disappeared 
during the fifteenth century, but reappear in the sixteenth un- 
der- the form of Poyal Proclamations. The Tudor monarchy 
made considerable use of tlu'in. and enfoned them by meaiir? 
of the Court of Star Chamber, rather than in the ordinary 
courts of the land. Indeed in 1539, Henry VIII. managed to 
extract from Parliament legislation giving Proclamations the 
force of statutes, but this legislation was repealed at the be- 
ginning of the next reign. The Tudors and James I. however 
continued to legislate by proclamation until the matter was 
brought to an issue when James I. issued proclamations for- 
bidding the increase of buildings about Ix)ndon and the mak- 
ing of starch out of wheat (1610). The question was referred 
to Coke and three other judges, who expressed the following 



206 BILL OF KIGilTS AND ACT OF SETTLEMENT. 

opinion : ( 1 ) . The King by his proclamation cannot create any 
offence which was not one before: for then he might alter the 
law of the land in a high point; for if he may create an offence 
where none is, ii-pon that issues filie and imprisonment. (2). 
ITie King hath no prerogative but what the law of the land 
allows him. (3). But the King, for the prevention of offences, 
may by proclamation admonish his subjects that they keep the 
laws and do not offend them, upon punishment to be inflicted 
by law: the neglect of such proclamation aggravates the of- 
fence. (4). If an offence be not punishable in the Star Cham- 
ber, the prohibition of it by proclamation cannot make it so. 

For some time after this declaration no proclamation im- 
posing fi'ne and imprisonment was issued, but during the reign 
of Charles I. many oppressive royal proclamations were issued 
and upheld through the servility of the judges. The abolition 
of the Star Chamber by the Long Parliament removed the ma- 
chinery by which proclamations were rendered effective. Anson 
notes an episode of the eighteenth century, as furnishing an 
excellent illustration of the difference between legal and illegal 
proclamations. In 1766, during times of scarcity induced by a 
bad harvest, the Crown on the advice of its ministers issued 
two proclamations, one proclaiming penalties against regraters 
(or persons who buy up food to hold for a better price or to 
carry it to another part of the country to get a better price). 
In this case there were statutes against regrating and so the 
proclamation was lawful. The second proclamation laid an 
embargo on all ships laden with wheat or wheat flour. By 
statute, however, the export of corn was free. The ministers 
did not attempt to defend this second proclamation as being 
legal, but claimed that it was warranted by the emergency" and 
procured an Act of Indemnity both for themselves and for the 
officials who had carried out the embargo. 

Dvipensing Power. 

Collateral with the question of the legislative effect of a 
proclamation is the question whether laws can be dispensed 
with by the Crown. There seems to be no doubt that in the 
middle ages dispensations from the observance of statutes were 
given and pardons granted before indictment. 

In the reign of Richard II. it was held by the Courts that 
the King could not dispense with the laws relating to mala in se, 



BILL OF RIGHTS AND ACT OF SETTLEMENT. 207 

nor those relating to the rights of individuals and corporations, 
but could do so in the case of mala prohibita (offences created 
by statute). The dispensing power was generally effected by a 
non obstante clause, a procedure copied from the Papacy whicli 
was in the habit of issuing bulls, " non obstante, any law to 
the contrary." 

A constant struggle, says Taswell Langmead, respecting the 
exercise of this prerogative seems to have been maintained for 
centuries between the Crown and the upholders of constitutional 
freedom, in which sometimes one side prevailed and s6metimes 
the other. 

In the case of Thomas v. Sorrell, Vaughan, J., rejected the 
distinction between mala prohibita and mala in se, and gave 
expression to opinions tending to show that the King might dis- 
pense with the breach of a statute where no private right was 
injured, or with the continuous breacli of a penal statute en- 
acted for the exclusive benefit of the Crown. 

Sir E. Hales accepted a military office; though being a 
Roman Catholic, lie had not taken the oaths of supremacy and 
allegiance and received the sacrament according to the rights 
of the Church of England as required by the Test Act. To 
.tejirt the question a collusive action was brought to recover the 
statutory penalt}', and the day before the indictment Sir E. 
Hales received letters patent under the great seal dispensing 
with the statute in his case. A subservient Court pronounced 
in the favour of the dispensing power. 

The Bill of Rights recites that " King James II., by the ad- 
vice of diverse evill counsellors, judges and ministers imployed 
by him, did endeavour to subvert and extorpate the Protestant 
religion, and the lawes and liberties of this kingdome," and then 
declares that " the pretended power of dispensing with laws, or 
the execution of laws, by regall authoritie, as it hath beene as- 
sumed and exorcised of late, is illegal." Tlie Bill (s. 12) de- 
clared and enacted, " That from and after this present session 
of Parlyament noe dispensation by non obstante of or to any 
statute, or any part thereof, shall be allowed, but that the same 
shall be held void and of noe effect, except a dispensation be 
allowed of in such statute." 

Suspending Power. 

The Suspending Power was a power which was not claimed 
earnestly by aiiy king except James 11., who by his Declaration 



208 BILL OF RIGHTS AND ACT OF SETTLEMENT. 

of Indulgence 1687, suspended the execution of ''all and all 
manner of penal laws in matters ecclesiastical." The Declara- 
tion involving as it did the petition of the seven bishops against 
being asked to declare and distribute it and their subsequent 
trial and acquittal for an alleged libel contained in their peti- 
tion, wag the direct cause of the do\vnfall of the Stuart Dy- 
nasty. The Bill of Rights declared that 'Hhe pretended power 
of suspending of laws, or the execution of laws, by regall au- 
thority, with consent of Parly ament, is illegal.") 

XIII. Provided that no charter, or grant, or pardon, 
granted before the three and twentieth day of October, in the 
year of our Lord one thousand six hundred eighty nine, shall 
be any ways impeached or invalidated by this Act, but that the 
same shall be and remain of the same force and effect in law, 
and no other than as if this said Act had never been made. 

THE ACT OF SETTLEMENT. 

Whereas in the first year of the reign of Your Majesty and 
of our late most gracious sovereign lady queen Mary (of blessed 
memory) an Act of parliament was made, entitled. An Act for 
declaring the Rights and Liberties of the Subject and for set- 
tling the Succession of the Crown, wherein it was (amongst 
other things) enacted, established and declared, that the crown 
and regal government of the kingdoms of England, France 
and Ireland, and the dominions thereunto belonging, should 
be and continue to Your Majesty and the said late queen dur- 
ing the joint lives of Your Majesty and the said queen and to 
the survivor*; and that after the decease of Your Majesty and 
of the said queen, the said crown and regal government should 
be and remain to the heirs of the body of the said late queen ; 
and for default of such issue to Her Royal Highness the prin- 
cess Anne of Denmark and the heirs of her body; and for de- 
fault of such is^e to the heirs of the body of Your Majesty. 
And it was thereby further enacted, that all and every person 
and persons that then were or afterwards should be reconciled 
to or should hold communion with the See or Church of Rome, 
or should profess the popish religion, or marry a papist, should 
be excluded, and are by that Act made forever incapable to 
inherit, possess or enjoy the crown and government of this 
realm and Ireland and the Dominions thereunto belonging or 
any part of th€ same, or to have, use or exercise any regal 



BILL OF RIGHTS AND ACT OF SETTLEMENT. 209 

power, authority or jurisdiction within the same; and in all 
and every such case and cases the people of these realms shall 
be and are thereby absolved of their allegiance; and that the 
said crown and government shall from time to time descend to 
and be enjoyed by such person or persons, being Protesftants, 
as should have inherited and enjoyed the same, in case the said 
person or persons so reconciled, holding communion, profes- 
sing or marrying as aforesaid were naturally dead. After the 
making of which statute and the settlement therein contained, 
Your MajestVs good subjects, who were restored to the full and 
free possession and enjoyment of their religion, rights and 
liberties, by the Providence of God giving success to Your 
Majesty's just undertakings and unwearied endeavours for 
that purpose, had no greater temporal felicity to hope or wish 
for, than to see a royal progeny descending from Your Ma- 
jesty, to whom (under God) they owe their tranquility, and 
whose ancestors have for many years been principal assertors 
of the reformed religion and the liberties of Europe and from 
our said most gracious sovereign lady, whose memory will 
always be precious to the subjects of these realms ; and it having 
since pleased Almighty God to take away our said sovereign 
lady, and also the most hopeful prince William, duke of Glouces- 
ter (the only surviving issue of Her Royal Highness Uie prin- 
cess Anne of Denmark), to the unspeakable grief and sorrow 
of Your Majesty and your said good subjects, who, under such 
losses being sensibly put in mind, that it standetli wholly in the 
pleasure of Almighty God to prolong the lives of Your Majesty 
and of Her Royal Highness, and to grant to Your Majesty or 
to Her Royal Highness such issue as may be inheritable to the 
crown and regal government aforesaid, by the respective limi- 
tations in the said recited Act contained, do constantly implore 
the divine mercy for those blessings; and Your Majesty's said 
subjects having daily experience of your royal care and con- 
cern for the present and future welfare of those kingdoms, and 
particularly recommending from your throne a further provi- 
sion to be made for the succession of the crown in the Protes- 
tant line, for the happiness of the nation and the security of 
our religion ; and it being absolutely noc^sary for the safety, 
peace and quiet of this realm, to obviate all doubts and con- 
tentions in the same, by reason of any pretended title to the 

C.C.— 14 



210 BILL OF UIGHTS AND ACT OF SETTLEMENT. 

crown and to maintain a certainty in the succession thereof, to 
which your subjects may safely liave recourse for their protec- 
tion, in case the limitations in the said just recited Act should 
determine: Therefore for a further provision of the succes- 
sion of the crown in the Protestant line, we Your Majesty's 
most duti'ul and loyal subjects, the lords spiritual and tem- 
poral and commons in this present parliament assembled, do 
beseech Your Majesty that it may be enacted and declared, and 
be it enacted and declared by the king'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, that the most excellent prin- 
cess, Sophia, electress and duchess dowager of Hanover, daugh- 
ter of the most excellent princess Elizabeth, late queen of Bo- 
hemia, daughter of our late sovereign lord king James the First, 
of happy memory, be and is hereby declared to be the next in 
succession in the Protestant line to the imperial crown and dig- 
nity of the said realms of England, France and Ireland with 
the dominions and territories thereunto belonging, after His 
^Maje^y and the princess Anne of Denmark, and in default of 
issue of the said princess Anne and of His Majesty respectively: 
and that from and after the deceases of His said Majesty our 
now sovereign lord and of Her Eoyal Highness the princess 
Anne of Denmark, and for default of issue of the said princess 
Anne and of his Majesty respectively, the crown and regal 
government of the said kingdoms of England, France and Ire- 
land and of the dominions thereunto belonging, with royal 
state and dignity of the said realms and all honours, styles, 
titles, regalities, prerogatives, powers, jurisdictions and au- 
thorities to the same belonging and appertaining, shall be, re- 
main and continue to the said most excellent princess Sophia 
and the heirs of her body, being Protestants; and thereunto 
the said lords spiritual and temporal and commons shall and 
will in the name of all the people of this realm, most humbly 
and faithfully submit themselves, their heirs and posterities, 
and do faithfully promise that after the deceases of His Ma- 
jesty and Her Royal Highness, and the failure of the heirs of 
their respective bodies, to stand to, maintain and defend the 
said princess Sophia and the heirs of her body, being Protesr 
tant according to the limitation and succession of the crown in 
this Act specified and contained, to the utmost of their powers. 



BILL OF BIGHTS AND ACT OF SETTLEMENT. 211 

with their lives and estates, against all persons whatsoever that 
shall attempt an3ihing to the contrary. 

II. Provided always, and it is hereby enacted, that all and 
every person and persons, who srhall or ma}' take or inherit the 
said crown, by virtue of the limitation of this present Act 
and is, are or shall he reconciled to or shall hold communion 
with the See or Church of I?ome, or shall profess the popi.sh 
religion, or shall marry a papisrt, shall be subject to such in- 
capacities, as in such caf^e or cases are by the said recited Act 
provided, enacted and established: and that everv king and 
queen of this realm who shall come to and succeed in the im- 
perial crown of this kingdom by virtue of this Art, shall have 
the coronation oath administered to him, her or them at their 
respective coronation, according to the Act of Parliament made 
in the fiVst year of the reign of His Majesty and the said late 
queen Mary, entitled, An Act for establishing the Coronation 
Oath, and shall make, subscribe and repeat tlie declaration in 
the Act first above recited, mentioned or referred to, in the 
maimer and form thereby prescribed. 

III. And whereas it is requisite and necessary that some 
further provision be made for securing our religion, laws and 
liberties, from and after the death of His Majesty and the 
princess Anne of Denmark, and in default of issue of the body 
of the said princess and of His ^fajesty respectively; be it en- 
acted by the king's most excellent Majesty, by and with the 
advice and consent of the lords spiritual and temporal and 
commons in parliament assembled, and bv nntlioritv of tbo 
same: 

(1) That whosoever shall hereafter come to the possession of 
this crown shall join in communion witb the Church of Eng- 
land as by law established. 

(2) That in case the crown- and imperial dignity of this 
realm shall hereafter come to any jx^rson, not being a native of 
this kingdom of England, this nation be not obliged to engage 
in any war for the defence of any dominions or territories which 
do not belong to the crown of England, without consent of par- 
liament. 

(3) That no person who shall hereafter come to tlie possea- 
of this crown shall go out of tbc dominions of England, 

"land or Ireland, without conwnt of Parliament. 



212 BILL OF RIGHTS AND ACT OF SETTLEMENT. 

(4) That from and after the time tliat the further limita- 
tions by this Act shall take effect, all matters and things relating 
to the well governing of this kingdom, which are properly cog- 
nizable in the privy councdl by the laws and customs of this 
realm, shall be transacted there ; and all resolutions taken there- 
upon shall be signed by sucli of the privy council as shall advise 
and consent to the same. 

(5) That after the said limitation shall take effect as afore- 
said, no person born out of the kingdoms of England, Scotland 
or Ireland or the dominions thereunto belonging (although he be 
naturalized or made a denizen, except such as are born of Eng- 
lish parents) shall be capable to be of the privy council, or a 
member of either house of parliament, or to enjoy any office 
or place of trust, either civil or military, or to have any grant 
of lands, tenements or hereditaments from the crown to him- 
self or to any other or others in trust for him. 

(6) That no person who has an office or place of profit under 
the king or receives a pension from the crown shall be capable 
of serving as a member of the house of commons. 

(7) That after the said limitations shall take effect as afore- 
said, judges^ commissions be made qiLam diu se bene gessermt, 
and their salaries ascertained and established, but upon the 
address of both houses of parliament it may be lawful to re- 
move them. 

(8) That no pardon under the great seal of England be 
pleadable to an impeachment by the commons in parliament. 

IV. And wheieas the laws of England are the birthright 
of the people thereof, and all the kings and queens who shall 
ascend the throne of this realm ought to administer the gov- 
ernment of the same according to the said laws, and all their 
officers and ministers ought to serve them respectively accord- 
ing to the same ; the said lords spiritual and temporal and com- 
mons do therefore further humbly pray, that all the laws and 
statutes of this realm for securing the established religion and 
the rights and liberties of the people thereof, and all other laws 
and statutes of the same now in force, may be ratifi'ed and con- 
firmed, and the same are by His Majesty by and with the ad- 
vice and consent of the said lords spiritual and temporal and 



BILL OF RIGHTS AND ACT OF SETTLEMENT. 213 

commons, and by authority of the same, ratified and confirmed 
accordingly. 

(It should be noted tliat 111. (4; and (6) were repealed by 
4 & 5 Anne c. 20, ss. 27 & 28. Maitland, at p. 368 of his Con- 
stitutional History points out liow different would have been the 
history of Parliament had III. (6) become a permanent part of 
the law of the land. The modem English ministerial system 
would have been impossible, and the House of Lords, to which 
the King would have called his ministers, would have become 
far more important than the House of Commons. Clause III. 
(4) was due to the fact that Parliament, even at the date of the 
Act of Settlement, had not the conception that it was the ruler 
of the country ; it had no objection to the King ruling with the 
advice of ministers, who would openly avow that advice, but 
objected strongly to secret councils or cabals of ministers who 
shrank from putting their names to their advice). 



214 THE BRITISH NORTH AMERICA ACT. 



CHAPTER XVIII. 



Thb B. N. a. Act Annotated. 



THE BRITISH NORTH AMERICA ACT, 1867. 

An Act for the Union of Canada, Nova S^cotia and New Bruns- 
wick, and the Government thereof, and for purposes con- 
nected therewith. 

[29th March, 1867.] 

WHEREAS the Provinces of Canada, Nova Scotia and New 
Brunswick have expressed their Desire to be federally 
united into One Dominion under the Crown of the United 
Kingdom of Great Britain and Ireland, with a Constitution 
similar in Principle to that of the United Kingdom : 

And whereas such a Union would conduce to the Welfare 
of the Provinces and promote the Interests of the British Em- 
pire: 

And whereas on the Establif?hment of the Union by Author- 
ity of Parliament, it is expedient, not only that the Constitu- 
tion of the Legislative Authority in the Dominion be provided 
for, but also that the Nature of the Executive Government 
therein be declared: 

And whereas it is expedient that Provision be made for 
the eventual Admission into the Union of other Parts of British 
North America: 

Be it therefore enacted and declared 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 fol- 
lows : 

I. — PRELIMINARY. 

1. This Act may be cited as the British North America Act, 
1867. 

2. The Provisions of this Act referring to Her Majesty the 
Queen extend also to the Heirs and Successors of Her Majesty, 
Kings and Queens of the United Kingdom of Great Britain and 
Ireland. 



TIIE BRITISH NORTH AMERICA ACT. 215 

II. — UNION. 

3. It shall be lawful for the Queen, by and with the Advice 
of Her Majesty's Most Honourable Privy Council, to declare by 
Proclamation that, on and after a Day therein appointed, not 
being more than Six Months after the passing of this Act, the 
Provinces of Canada, Nova Scotia and New Brunswick shall 
form and be One Dominion under the name of Canada ; and on 
and after that Day those Three Provinces shall form and be One 
Dominion under that Name accordingly. 

4. The subsequent Provisions of this Act shall, unless it is 
otherwise expressed or implied, commence and have effect on and 
after the TTnion, that is to say, on and after the Day appointed 
for the Union taking effect in the Queen's Proclamation ; and 
in the same Provisions, unless it if? otherwise expressed or im- 
plied, the Name Canada shall be taken to mean Canada as con- 
stituted under this Act. 

5. Canada shall be divided into Four Provinces, named 
Ontario, Quebec, Nova Scotia, and New Brunswick. 

6. The Parts of the Province of Canada (as it exists at the 
passing of this Act) which formerly constituted respectively the 
Provinces of Upper Canada and Lower Canada, shall be deemed 
to be severed, and shall form Two Separate Provinces. Tlie 
Part which formerly constituted the Province of Upper Canada 
shall constitute the Province of Ontario: and the Part wliich 
formerly constituted the Province of TiOwer Canada sliall con- 
stitute the Province of Quebec. 

7. The Provinces of Nova Scotia and New Brunswick shall 
have the same Limits as at the passing of this Act. 

8. In the general Census of the Population of Canada which 
is hereby required to l)e taken in the year One thouf^md eight 
hundred and seventy-one, and in every Tenth year thereafter, 
the respective Populations of the Four Provinces shall be dds- 
tinguished. 

III. — EXECUTIVE POWER. 

9. The Executive Government and Authority of and over 
Canada is hereby declared to continue and be vested in the 
Queen. 

(Compare s. 61 of The Australian Commonwealth Act which 
subject to the declaration of the discretionary right of delegation 
by the Sovereign in s. 2, provides that the executive power 



316 TUB BRITISH NORTH AMERICA ACT. 

though declared to be in the Sovereign is yet to be exercisable 
of the Governor-General. See also ss. 14, 15, IG, which in the 
words of Lord Haldane, appear to negative the theory that the 
Governor-General is made a viceroy). 

10. The Provisions of thds Act referring to the Governor- 
General extend and apply to the GoNTrnor-General for the Time 
being of Canada, or other the Chief Executive Officer or Admin- 
i^rator for the Time being carrying on the Government of 
Canada on behalf and in the name of tlie Queen, by whatever 
title he is designated. 

11. Theix* shall be a Council to- aid and advise in the Gov- 
ernment of Canada, to be styled the Queen's Privy Council for 
Canada ; and the Persons who are to be Members of that Coun- 
cil shall be from Time to Time chosen and summoned by the 
Governor-General and sworn in as Privy Councillors, and Mem- 
bers thereof may be from Time to Time removed by the Gov- 
ernor-General. 

(See chapter on Privy Council). 

12. All Powers, Authorities, and Functions which under 
any Act of the Parliament of Great Britain, or of the Parlia- 
ment of the United Kingdom of Great Britain and Ireland, 
or of the Legislature of Upper Canada, Lower Canada, Canada, 
Xova Scotia or New Brunswick, are at the Union vested in or 
exercisable by the respective Governors or Lieutenant-Governors 
of those Provinces, with the Advice, or with the Advice and 
Consent, of the respective Executive Councdls thereof, or in con- 
junction with those Councils, or with any number of Members 
thereof, or by those Governors or Lieutenant-Governors individ- 
ually, shall, as far as the same continue in existence and cap- 
able of being exercised after the Union, in relation to the Gov- 
ernment of Canada, be vested in and exercisable by the Gover- 
nor-General, with the Advice or with the Advice and Consent 
of or in conjunction with the Queen's Privy Council for Can- 
ada or any members thereof, or by the Governor-General individ- 
ually, as the Case requires, subject nevertheless (except with re- 
s|>ect to such as exist under Acts of the Parliament of Great Bri- 
tain or of the Parliament of the United Kingdom of Great Bri- 
tain and Ireland) to l)e abolished or altered by the Parliament 
of Canada (see sec. 65). 

13. The Provisions of the Act referring to the Governor- 
General in Council shall be construed as referring to the 



THE BRITISH NORTH AMERICA ACT. 217 

Governor-General acting by and with the Advice of the Queen's 
Privy Council for Canada. 

14. It shall be lawful for the Queen, if Her Majesty thinks 
fit, to authorize the Governor-General from Time to Time to 
appoint any Person or any Persons jointly or severally to he 
his Eteputy or Deputies within any Part or Parts of Canada, 
and in that Capacity to exercise during the Pleasure of the 
Governor-General such of the Powers, Authorities and Func- 
tions of the Governor-General as the Governor-General deems 
it necessary or expedient to assign to him or them. Subject to 
any Limitations or Directions expressed or given by the Queen ; 
but the Appointment of sucli a Deputy or Deputies shall not 
affect the Exercise by the Governor-General himself of any 
Power, Authority, or Function. 

15. The Commander-in-Chief of the Land and Naval 
Militia, and of all Naval and Military Forces, of and in Can- 
ada, is hereby declared to continue and be vested in the Queen. 

(See The Bills of Rights, as to the right to maintain a 
standing army, and note that before the Revolution, the Crown 
■was commander of (1) the old feudal levies or array arising 
out of the military tenures, and of (2) the train bands, sprung 
from the Anglo-Saxon fyrd or National Militia, which, how- 
ever, did not receive the name of 'militia ' until the time of 
Charles I., and note that the nccessit}* of providing for an 
army and it,s pay is one of the chief means l)y which annual par- 
liaments are ensured in England ; cf. s. 20 of this Act). 

16. Until the Queen otherwise directs, the Seat of Govern- 
ment of Canada shall be Ottaw^a. 

IV. — LEGISLATIVE POWBR. 

17. There shall be One Parliament for Canada, consisting 
of the Queen, an Upper House styled the Senate, and the House 
of Commons. 

18. The Privileges, Immunities, and Powers to be held, 
enjoyed and exercised by the Senate and by the House of Com- 
mons, and by the Members thereof respectively, sliall he such 
as are from Time to Time defined by Act of the Parliament of 
Canada, but so that the same shall never exceed those at the 
passing of this Act held, enjoyed, and exercised by the Com- 
mons House of Parliament of the United Kingdom of Great 
Britain and Ireland, and bv tbo MombcMs t hereof . 



218 THE BRITISH XORTII AMERICA ACT. 

(Note that the legislative assemblies of the Provinces are 
not thus limited, but excessive legislation in this direction is 
guflBciently guarded against by the existence of the veto power 
in the Dominion Government.) For substituted section, see 
38 & 39 Vict. c. 38, infra, 

19. The Parliament of Canada shall be called together not 
later than Six months after the Union. 

20. There shall be a Session of the Parliament of Canada 
once at least in every Year, sc) that Twelve mon+hs shall not 
intervene between the last Sitting of the Parliament in one 
Session and its ffrst Sitting in the next Session. 

(The date of the sitting is taken as that fixed for the roluni 
of the writs, not of the actual return). 

The Senate. 

21. The Senate shall, subject to the Provisions of this Act, 
consist of Seventy-two Members, who shall be styled Senators, 

(See 34 & 35 Vict. c. 28, s. 2, and 49 & 60 Vict. c. 35, s. 1, 
infra), 

22. In relation to the Constitution of the Senate, Canada 
shall be deemed to consist of Three Divisions : — 

(1). Ontario; 

(2). Quebec; 

(3). The Maritime Provinces: Nova Scotia and New Bruns- 
wick; which Three Divisions shall (subject to the Provisions 
of this Act) be equally represented in the Senate as follows: 
Ontario by Twenty-four Senators; Quebec by Twenty-four Sena- 
tors; and the Maritime Provinces by Twenty-four Senators, 
Twelve thereof representing Nova Scotia and Twelve thereof 
representing New Brunswick. 

In the case of Quebec, each of the Twenty-four Senators 
represpnting that Province shall be appointed for one of the 
Twenty-four Electoral Divisions of Lower Canada specified in 
Schedule A, to Chapter One of Consolidated Statutes of Canada. 

23. The Qualifi'cations of a Senator shall be as follows: — 
(1). He shall be of the full Age of Thirty years. 

(2). He shall be either a Natural-born Subject of the Queen, 
or a Subject of the Queen naturalized by an Act of 
the Parliament of Great Britain, or of the Parlia- 
ment of the United Kingdom of Great Britain and 



THE BRITISH NORTH AMERICA ACT. 219 

Ireland, or of the Legislature of one of the Provinces 
of Upper Canada, Lower Canada, Canada, Nova 
Scotia, or New Brunswick, before the Union, or of the 
Parliament of Canada after the Union. 

(3). He shall be legally or equitably seized as? of Freehold 
for his own Use and Benefit of Lands or Tenements 
held in free and Common Soccage, or 8ei25ed or pos- 
sessed for his own Use and Benefit of T^nds or Tene- 
ments held in Franc-alleu or in Roture, within the 
Province for which he is appointed, of the value of 
Four Thousand Dollars, over and above all Rents, 
Dues, Debts, Charges, Mortgages and Licumbrances 
due or payable out of, or charged on or affecting the 
same; 

(4). His Real and Personal Property shall be together 
\vorth Four Thousand Dollars over and above his Debts 
and Liabilities; 

(5). He shall be resident in the Province for which he is 
appointed ; 

(6). In the Case of Quebec, he shall have his Real Property 
qualification in the Electoral Division for which he is 
appointed, or shall be resident in that Division. 

24. The Governor-General shall from Time to Time, in the 
Queen's Name, by Instrument under the Great Seal of Canada, 
summon qualified persons to the Senate; and, subject to the 
Provisions of this Act, every person so summoned shall become 
and be a Member of the Senate and a Senator (see sec. 127). 

25. Such persons shall be fiVst summoned to the Senate as 
the Queen by Warrant under Her Majesty's Royal Sign Manual 
thinks fit to approve, and their names s'liall b(^ insortod in tlie 
Queen's Proclamation of Union. 

26. If at any Time, on the Recommendation of the Governor- 
General, the Queen thinks fi't to direct that Three or Six Mem- 
bers be added to the Senate, the Governor-General may, by 
Summons to Three or Six Qualified Persons (as the case may 
be), representing equally the Tlircp Divisions oT Canada, add 
to the Senate accordingly. 

27. In case of such Addition being at any IHme made, the 
Governor-General shall not summon any Person to the Senate, 
except on a further like Direction by the Queen on the like 



220 IHB BRITISH NOBTH AKEBICA ACT. 

Hecommendation, until each of the Three Divisions of Canada 
is represented by Twenty-four Senators, and no more. 

(It should be noticed that there does not seem to be much 
room for composing differences between iihe Senate and the 
House of Commons by the threat of creating new Senators, as 
is the practice in case of vital differences of opinion between the 
Houses of Lords and Commons. This provision has never been 
utilized. During Mr. Mackenzie's administration an applica- 
tion was made that appointments should be made. The appli- 
cation wa« courteously refused, with an intimation that the 
power was one which was only intended to be used on a very 
extraordinaiy occasion, when parties were nearly equal, with the 
object of bringing about a settlement of some very important 
question). 

28. The Number of Senators shall not at any time exceed 
Seventy-Eight. 

29. A Senator shall, subject to tlie Provisions of this Act, 
hold his place in the Senate for life. 

30. A Senator may, by writing under his hand, addi*essed 
to the Govemor-GJeneral, resign his place in the Senate, and 
thereupon the same shall be vacant. 

(Note that it is impossible for the successor to a Peerage 
in the United Kingdom to waive his right to sit in the House 
of Lords, and to continue to sit in House of Commons. See 
case of Lord Wolmer on succeeding to the Earldom of Selborne 
in 1895). 

31.. The place of a Senator shall become vacant in any of 
the following cases : — 

(1). If for two Consecutive Sessions of the Parliament he 
fails to give his Attendance in the Senate; 

(2). If he takesi an Oath or makes a Declaration or Ac- 
knowledgment of Allegiance, Obedience or Adherence 
to a Foreign Power, or does an act whereby he be- 
comes a Subject or Citizen, or entitled to the Rights 
or Privileges of a Subject or Citizen of a Foreign 
Power ; 

(3). If he is adjudged Bankrupt or Insolvent, or applies 
for the benefit of any Law relating to Insolvent debt- 
ors, or becomes a public defaulter ; 



THE BRITISH NORTH AMERICA ACT. 221 

(4). If he is attainted of Treason, or convicted of Felony 
or of any infamous Crime; 

(5). If he ceases to be qualified in respect of Property or of 
Residence; provided that a Senator shall not be 
deemed to have ceased to be qualified in respect of 
Residence by reason only of his residing at the Seat 
of Government of Canada while holding an Office 
Tinder that Government requiring his Presence there. 

(See section 39 of this Act). 

32. When a vacancy happens in the Senate by Resignation, 
Death, or otherwise, the Governor-General shall, by Summons 
to a fit and qualifi'ed Person, fill the Vacancy. 

33. If any Question arises respecting the Qualification of a 
Senator or a Vacancy in the Senate, the same shall be heard and 
determined by the Senate. 

34. The Governor-General may from Time to Time, by 
Instrument under the Great Seal of Canada, appoint a Senator 
to be Speaker of the Senate, and may remove him and appoint 
another in his stead. 

35. Until the Parliament of Canada otherwise provides, the 
Presence of at least Fifteen Senators, including the Speaker* 
shall be necessary to constitute a Meeting of the Senate for the 
exercise of its Powers. 

36. Quesrtions arising in the Senate shall be decided by a 
majority of Voices, and the Speaker shall in all Cases have a 
vote, and when the Voices are equal the Decision shall be 
deemed to be in the Negative. 

The House of Commons. 

37. The House of Commons shall, subject to the Provisions 
Off this Act, consist of One hundred and eighty-one Members, 
of whom Eighty-two sliall be elected for Ontario, Sixty-fiVe for 
Quebec, Nineteen for Nova Scotia, and Fifteen for New Bruns- 
wick. 

38. The Governor-General shall from Time to Time, in the 
Queen's name, by Instrument under the Great Seal of Canada, 
summon and call together the House of Commons. 

d9. A Senator shall not l>e capable of being elected, or of 
sitting or voting as a member of the House of Commons. 
(See note to sec. 30). 



222 THE BRITISH NORTH AMERICA ACT. 

40. Until the Parliament of Canada otherwise provides, 
Ontario, Quebec, Nova Scotia and New Brunswick shall, for 
the Purposes of the Election of Members to serve in the House 
of Commons, be divided into Electoral Districts as follows: — 

I.— ONTAEIO. 

Ontario shall be divided into the Counties, Ridings of 
Counties, Cities, Parts of Cities, and Towns enumerated in the 
First Schedule to this Act, each whereof shall be an Electoral 
District, each such District as numbered in that Schedule being 
entitled to return One Member. 

IT.— QUEBEC. 

Quebec shall be divided into Sixty-five Electoral Districts^ 
composed of the Sixty-five Electoral Divisions into which Lower 
Canada is at the passing of this Act divided under Chapter 
Two of the Consolidated Statutes of Canada, Chapter Seventy- 
fi've of the Consolidated Statutes for Lower Canada, and tha 
Act of the Pi'ovince of Canada of the Twenty-third year of the 
Queen, Chapter One, or any other Act amending the same in 
force at the Union, so that each such Electoral Division shall 
be for the Purposes of this Act an Electoral District entitled to 
return One Member. 

III.— NOVA SCOTIA. 

Each of the Eighteen Counties of Nova Scotia shall be an 
Electoral District. The County of Plalifax shall be entitled to 
return Two Members, and each of the other Counties One 
Member. 

IV.— NEW BRUNSWICK. 

Eacli of the Fourteen Counties into which New Brunswick 
is divided, including the City and County of St. John, shall be 
an Electoral District. The City of St. John shall also be a 
separate Electoral District. Each of those Fifteen Electoral 
Districts shall be entitled to return One Member. 

11. Until the Parliament of Canada otherwise provides, all 
l>aw8 in force in the several Provinces at the Union relative to 
the following Matters or any of them, namely, — the Qualifica- 
tions and Disqualifications of Persons to be elected or to sit or 
vote as Members of the House of Assembly or Legislative As- 
sembly in the several Provinces, the Voters at Elections of such 



THE BRITISH NORTH AMERICA ACT. 223 

Members, the Oaths to be taken by Voters, the Returning Ofl&- 
cers, their Powers and Duties, the Proceedings at Elections, the 
Periods during which Elections may be continued, the 
Trial of Controverted Elections and Proceedings incident 
thereto, the vacating of Seats of Members, and the Execution 
of new Writs, in case of Seats vacated otherwise than by Disso- 
lution, — shall respectively apply to Elections of Members to 
serve in the House of Commons for the same several Provinces. 

Provided that, until the Parliament of Canada otherwise 
provides, at any Election for a Member of the House of Com- 
mons for the District of Algoma, in addition to Persons quali- 
fied by the Law of the Province of Canada to Vote, every male 
British Subject, aged Twenty-one Years or upwards, being a 
Householder, shall have a Vote. 

42. For the First Election of Members to serve in the House 
of Commons, the Govern or- General shall cause Writs to be is- 
sued by such Person, in such Form and addressed to snich Re- 
turning Officers as he thinks fit. 

The Person issuing Writs under this Section shall have the 
like Powers as are possessed at the Union by the Officers charged 
with the issuinor of Writs for the Election of Members to 
serve in the respective House of Assembly or Legislative As- 
sembly of the Province of Canada, Nova Scotia or New Bruns- 
wick; and the Returning OflBcers to whom Writs are directed 
under this Section shall have the like Powers as are possessed 
at the Union by the Officers charged with the returning of Writs 
for the Election of Members to serve in the same respective 
House of Assembly or Legislative Assembly. 

43. In case a vacancy in the Representation in the House 
of Commons of any Electoral District happens be/ore the Meet- 
ing of the Parliament, or after the Meeting of the Parliament 
before Provision i.<? made by the Parliament in this behalf, the 
Provisions of the last foregoing Section of this Act shall extend 
and apply to the issuing and returning of a Writ in respect of 
such vacant District. 

44. The House of Commons, on its first assembling after a 
general Election, shall proceed with all practicable speed to 
elect One of its Members to be Speaker. 

45. In case of a Vacancy happening in the OflBce of Speaker, 
by Death. Resignation or otherwise, the House of Commons 



224 THE BRITISH NORTH AMERICA ACT. 

shall, with all practicable speed, proceed to elect another of its 
Members to be Speaker. 

(The Speaker is not, as in England, re-elected as a matter 
of course. A seat in the English parliament cannot be resigned. 
It is vacated by application for a nominal office under the 
Crown, either the Stewardship of the Chiltern Hundreds or 
that of the Manor of Northstead. Provision is generally made 
in Canada for resignation of the membership of lawmaking 
bodiei? by writing or oral announcement from his seat by the 
member intending to resign. 

46. The Speaker shall preside at all meetings of the House 
of Commons. 

47. Until the Parliament of Canada otherwise provides, in 
caae of the Absence, for any Reason, of the Speaker from the 
Chair of the House of Commons for a period of Forty-eight 
Consecutive Hours, the House may elect another of its Mem- 
bers to act as Speaker, and the Member so elected shall, during 
the Continuance of such Absence of the Speaker, have and exe- 
cute all the Powers, Privileges and Duties of Speaker. 

48. The Presence of at least Twenty Members of the House 
of Commons shall be necessary to constitute a Meeting of the 
House for the Exercise of its Powers ; and for that Purpose the 
Speaker shall be reckoned as a Member. 

49. Questions arising in the House of Commons shall be 
decided by a Majority of Voices other than that of the Speaker, 
and when the Voices are equal, but not otherwise, the Speaker 
shall have a Vote. 

50. Every House of Commons shall continue for Five Years 
from the day of the Return of the Writs for choosing the House 
(subject to be sooner dissolved by the Governor-General), and 
no longer. 

51. On the completion of the Census in the Year one thou- 
sand eight hundred and seventy-one, and of each siibsequent 
decennial Census, the Representation of the Four Provinces 
shall be readjusted by sucli Authority, in such a manner, and 
from such time as the Parliament of Canada from Time to 
Time provides, subject and according to the following Rules : — 

(1). Quebec shall have the fixed Number of Sixty-fiVe 
Members ; 



THE BRITISH NORTH AMERICA ACT. 225 

(2). There shall be assigned to each of the other Provinces 
such a number of Members as will bear the same Pro- 
portion to the Number of its Population (ascertained 
at such Census) as the Number Sixty-fiVe bears to 
the Number of the Population of Quebec (so ascer- 
tained) ; 

(3). In the Computation of the Number of Members for 
a Province, a fractional Part not exceeding One-half 
of the whole number requisite for entitling the Pro- 
vince to a Member shall be disregarded; but a frac- 
tional Part exceeding One-half of that number shall 
be equivalent to the whole number. 

(4). On any such Readjustment the Number of Members 
for a Province shall not be reduced unless the Propor-, 
tion which the number of the Population of the Pro- 
vince bore to the Number of the aggregate population 
of Canada at the then last preceding Readjustment 
of the Number of Members for the Province is ascer- 
tained at the then latest Census to be diminished bv 
One-twentieth Part or upwards; 

(5). Such Readjustment shall not take effect until the Ter- 
mination of the then existing Parliament. 

52. The Number of Members of the House of Commons 
may be from Time to Time increased by the Parliament of 
Canada, provided the proportionate Representation of the Pro- 
vinces prescribed by this Act is not thereby disturbed. 

Money Votes; Ttoyod Assent. 

53. Bills for appropriating any part of the Public Revenue, 
or for imposing any Tax or Impost, shall originate in the House 
of Commons. 

54. It shall not be lawful for the House of Commons to 
adopt or pass any Vote, Resolution, Address, or Bill for the 
appropriation of any Part of the Public Revenue, or of any Tax 
or Impost, to any purpose, that has not been first recommended 
to that House by Message of the Governor-General in the Ses- 
sion in which such Vote, Resolution, Address, or Bill is pro- 
poeed. (A committee of the Senate refported in 1918 that the 
Senate has the power to amend money bills, but has not the 
right to increase the same without the consent of the Crown), 

o.c. — ^15 



226 THE BUlTISIl XOHTII AMERICA ACT. 

55. Where a Bill passed by the Houses of Parliament is 
presented to the Governor-General for the Queen's Assent, he 
shall declare, according to his discretion, but subject to the 
Provisions of this Act and to Her Majesty's Instructions, either 
that he assents thereto in the Queen's Name, or that he with- 
holds the Queen's Assent, or that he reserves the Bill for the 
Signification of the Queen's Pleasure. 

56. "Where the Governor-General assents to a Bill in the 
Queen's Name, he shall by the fiVst convenient Opportunity send 
an authentic Copy of the Act to One of Her Majesty's Princi7 
pal Secretaries of State, and if the Queen in Council within 
Two Years after receipt thereof by the Secretary of State 
thinks fit to disallow the Act, such Disallowance (with a certi- 
ficate of the Secretary of State of the Day on which the Act 
was received by him) being signified by the Governor-General, 
by Speech or Message to each of the Houses of the Parliament 
or by Proclamation, shall annul the Act from and after the Day 
of such Signifi'cation. 

57. A bill reserved for the Signification of the Queen's 
Pleasure shall not have any Force unless and until' within Two 
Years from the day on which it was presented to the Governor- 
General for the Queen's Assent, the Governor-General signifies, 
by Speech or Message to each of the Houses of the Parliament 
or by Proclamation, that it has received the assent of the Queen 
in Council. 

An Entry of every such Speech, Message, or Proclamation 
shall be made in the Journal of each House, and a Duplicate 
thereof duly attested shall be delivered to the proper officer to 
be kept among the Records of Canada. 

(See note to sec. 90). 

V. — Provincial Constitutions. 

Executive Powtr. 

58. For each Province there shall be an Officer, styled the 
Lieutenant-Governor, appointed by the Governor-General in 
Council by Instrument under the Great Seal of Canada. 

59. A Lieutenant-Governor shall hold Office during the 
Pleasure of the Governor-General ; but any Lieutenant-Governor 
appointed after the commencement of the First Session of the 
Parliament of Canada shall not be removable within Five Years 



THE BRITISH NORTH AMERICA ACT. 227 

from his Appointment, except for cause assigned, which shall 
be communicated to him in Writing within One Month after 
the Order for his Kemoval is made, and shall be communicated 
by Message to the Senate and to the House of Commons within 
One Week thereafter if the Parliament is then sitting, and if 
not then, within One Week after the Commencement of the next 
Session of the Parliament. 

60. The Salaries of the Lieutenant-Governors shall be fixed 
and provided by the Parliament of Canada. 

61. Every Lieutenant-Governor shall, before assuming the 
Duties of his office, make and subscribe before the Governor- 
General or some Person autJiorized by him, Oaths of Allegiance 
and Office similar to those taken by the Governor-General. 

62. The Provisions of this Act referring to the Lieutenant- 
Governor extend and apply to the Lieutenant-Governor for the 
Time being of each Province or other the Chief Executive Officer 
or Administrator for the Time being carrying on the Grovern- 
ment of the Province, by wiiatever Title he is designated. 

63. The Executive Council of Ontario and Quebec shall he 
composed of such Persons as the Lieutenant-Governor from 
Time to Time thinks fit, and in the first instance of the follow- 
ing Officers, namely, the Attorney-General, the Secretary and 
Registrar of the Province, the Treasurer of the Province, the 
Commissioner of Crown Lands, and the Commissioner of Agri- 
culture and Public Works, witliin Quebec, the Speaker of the 
TiCgislative Council and the Solicitor-General. 

64. The Constitution of the Executive Authority in each 
of the Provinces of Nova Scotia and New Brunswick shall, sub- 
ject, to the Provisions of this Act, continue as its exists at the 
Union, until altered under the Authority of this Act. 

65. All Powers, Authorities, and Functions which under 
any Act of the Parliament of Great Britain, or of the Parlia- 
ment of the United Kingdom of Great Britain and Ireland, or 
of the Ijcgislature of Upper Canada, Lower Canada, or Canada, 
were or are before or at the Union vested in or exercisable by 
the respective Governors or Lieutenant-Governors of those 
Provinces, with the Advice, or with the Advice and Consent, of 
the respective Executive Councils thereof, or in conjunction 
with those Councils or with any Number of Members thereof, 
or by those Governors or Lieutenant-Governors individually, 
shall, as far as tbe same are capable of being exercised after the 



THE BRITISH NORTH AMERICA ACT. 

Union in relation to the Government of Ontario and Quebec 
respectively, be vested in and shall or may be exercised by the 
Lieutenant-Governor of Ontario and Quebec respectively, with 
the Advice, or with the Advice and consent of, or in conjunction 
with the respective Executive Councils or any members thereof, 
or by the Lieutenant-Governor individually, as the case requires, 
subject nevertheless (except with respect to such as exist undei; 
Acts of the Parliament of Great Britain, or of the Parliament 
of the United Kingdom of Great Britain and Ireland), to be 
abolished or altered by the respective Legislatures of Ontario 
and Quebec (see sec. 12). 

66. The Provisions of this Act referring to the Lieutenant- 
Governor in Council shall be construed as referring to the 
Lieutenant-Governor of the Province acting by and with the 
advice of the Executive Council thereof. 

67. The Governor-General in Council may from Time to 
Time appoint an Administrator to execute the Office and Func- 
tions of Lieutenant-Governor during his Absence, Illness, or 
other Inability. 

68. Unless and until the Executive Government of any Pro- 
vince otherwise directs with respect to that Province, the Seats 
of Government of the Provinces shall be as follows, namely, — 
of Ontario, the City of Toronto ; of Quebec, the City of Quebec ; 
of Nova Scotia, the City of Halifax; and of New Brunswick, 
tlie City of Fredericton. 

Legislative Power. 
l._ONTARIO. 

69. There shall be a Legislature for Ontario, consisting of 
the Lieutenant-Governor and of One House, styled the Legisla- 
tive Assembly of Ontario. 

70. The Legislative Assembly of Ontario shall be composed 
of Eighty-two Members, to be elected to represent the Eighty- 
two Electoral Districts set forth in the First Schedule to this 
Act 

2.— QUEBEC. 

71. There shall be a Legislature for Quebec, consisting of 
the Lieutenant-Governor and of Two Houses, styled the Legis- 
lative Council of Quebec and the Legislative Assembly of 
Quebec. 



THE BRITISH NORTH AMERICA ACT. 229 

72. The Legislative Council of Quebec shall be composed of 
Twenty-four Members, to be appointed by the Lieutenant- 
Governor in the Queen's Name by Instrument under the Great 
Seal of Quebec, one being appointed to represent each of the 
'iVenty-four Electoral Divisions of Tjower Canada in this Act 
referred to, and each holding Office for the Term of his life, 
unless the Legislature of Quebec otherwise provides under the 
Provisions of this Act. 

(See R. S. C. 1909, ss. &4-86). 

73. The Qualifi'cations of the Legislative Councillors of 
Quebec shall be the same as those of the Senators for Quebec. 

74. The Place of a Legislative Councillor of Quebec shall 
become vacant in the Cases, mutatis mutandis, in which the 
Place of Senator becomes vacant. 

75. When a Vacancy happens in the Legislativij Council of 
Quebec by Resignation, Death or otherwise, the Lieutenant- 
Governor, in the Queen's Name, by Instrument under the Great 
Seal of Quebec, shall appoint a fit and qualified Person to fill 
the Vacancy. 

76. If any Question arises respecting the Qualification of a 
Legislative Councillor of Quebec, or a vacancy in the Legisla- 
tive Council of Quebec, the same shall be heard and determined 
by the I^egislative Council. 

77. The Lieutenant-Governor may, from Time to Time, by 
Instrument under the Great Seal of Quebec, appoint a Member 
of the Legislative Council of Quebec to be Speaker thereof, and 
may remove him and appoint another in his Stead. 

78. Until the Legislature of Quebec otherwise provides, tlie 
Presence of at least Ten Members of the Ix»gislative Council, 
including the Speaker, shall be necessary to constitute a Meet- 
ing for the Exercise of its Powers. 

79. Questions ari^ng in the Ijegislative Council of Quebec 
shall be decided by a Majority of Voices, and the Speaker shall 
in all cases have a Vote, and when the Voices are equal, the 
Decision shall be deemed to be in the negative. 

80. Tlje Ijegislative Assembly of Quebec shell be composed 
• ' ^' ^^ nbers, to be elected to represent the Sixty-fiVe 
1 lis or Districts of Lower Canada in this Act 
leferred to, subject to Alteration thereof by the Legislature of 
Quebec : Provided that it shall not be lawful to present to the 



230 TUE BRITISH NORTH AMERICA ACT. 

Lieutenant-Governor of Quebec for Assent any Bill for altering 
the Limit8 of any of the Electoral Divisions or Districts men- 
tioned in the Second Schedule to this Act, unless the Second 
and Third Readings of such Bill have been passed in the Legis- 
lative Assembly with the Concurrence of the Majority of the 
Members representing all those Electoral Divifdons or Districts, 
and the Assent shall not be given to such Bill unless an Address 
has been presented by the Legislative Assembly to the Lieuten- 
ant-Governor, stating that it has? been so passed. 

3.— ONTARIO AND QUEBEC. 

81. The Legislatures of Ontario and Quebec respectively 
shall be called together not later than Six Months after the 
Union. 

82. The Lieutenant-Governor of Ontario and of Quebec 
shall, from time to time, in the Queen's Name, by Instrument 
under the Great Seal of the Province, summon and call together 
the Legislative Assembly of the Province. 

83. Until the Legislature of Ontario or of Quebec otherwise 
provides, a Person accepting or holding in Ontario or in Que- 
l)ec, any Office, Commission or Employment, permanent or tem- 
porary, at the nomination of the Lieutenant-Governor, to which 
an annual Salary, or any Fee, Allowance, Emolument or profit 
of any kind'or Amount whatever from the Province is attached, 
shall not be eligible as a Member of the Legislative Assembly of 
the respective Province, nor shall he sit or vote as such ; but 
nothing in this Section shall make ineligible any Person being 
a member of the Executive Council of the respective Province, 
or holding any of the followinrr offices, that is to say, the offices 
of Attorney-General, Secretary and Registrar of the Province, 
Treasurer of the Province, Commissioner of Crown Lands, and 
Commissioner of Agriculture and Public Works, and in Que- 
bec, Solicitor-General, or shall disqualify, him to sit or vote in 
the House for which he is elected, provided he is elected while 
holding such office. 

84. Until the Legislatures of Ontario and Quebec respec- 
tively otherwise provide, all Laws which at the Unjon are in 
force in those Provinces respectively, relative to the following 
matters or any of them, namely, — the Qualifications and Dis- 
qualifications of Persons to be elected or to sit or vote as Mem- 
bers of the Assembly of Canada, the Qualifi'cations or Disquali- 



THE BRITISH NORTH AMERICA ACT. 231 

fications of Voters, the Oaths to be taken by Voters, the Return- 
ing Officers, their Powers and Duties, the Proceedings at Elec- 
tions, the Periods during whicli such Elections may be con- 
tinued, and the trial of Controverted Elections and the Pro- 
ceedings incident thereto, the vacating of the Seats of Mem- 
bers, and the is^ing and execution of new Writs in case of 
Seats vacated otherwise than by Dissolution, shall respectively 
apply to Elections of Members to serve in the re5?pective T^egis- 
lative Assemblies of Ontario and Quebec. 

Provided that until the Legislature of Ontario otherwise 
provides, at any Election for a member of the Legislative As- 
sembly of Ontario for the District of Algoma, in addition to 
persons qualified by the Law of the Province of Canada to vote, 
every male British Subject aged Twenty-one Years or upwards, 
being a Householder, shall have a Vote. 

85. Every Legislative Assembly of Ontario and every Legis- 
lative Assembly of Quebec shall continue for Four Years from 
the Day of the Return of the Writs for choosing the same (sub- 
ject, nevertheless, to either the Legislative Assembly of On- 
tario or the Legislative Assembly of Quebec being sooner dis- 
solved by the Lieutenant-Governor of the Province), and no 
longer. 

S"6. There shall be a Session of the Legislature of Ontario 
and of that of Quebec, once at least in every Year, so that 
Twelve Months shall not intervene between the last Sitting of 
the Ijegislature in each Province in one Session and its fiYst 
Sitting in the next Session. 

87. The following Provisions of this Act respecting the 
House of Commons of Canada, shall extend and apply to the 
Legislative Assemblies of Ontario and Quebec, that is to say, — 
the Provisions relating to the Election of a Speaker originally 
and on Vacancies, the Duties of the Speaker, the Absence of 
the Speaker, the Quorum, and the Mode of Voting, as if those 
Provisions were here re-enacted and made applicable in terms 
to each such Legislative Assembly. 

4.— NOVA SCOTIA AND NEW BRUNSWICK. 

88. The Constitution of the Ijegislature of each of the Pro- 
vinces of Nova Scotia and New Bninswick shall, subject to the 
Provisions of this Act, continue as it exists at the Union until 
alforrri ipirior iho Authority of thi« A^* ?^"'l the House of 



232 THE BRITISH NOBTH AMERICA ACT. 

Anemblj of New Brunswick existing at the passing of this Act 
shall, iinless sooner dissolved, continue for the period for which 
it was elected. 

(The second chamber of Nova Scotia (the Legislative Coun- 
cil) is composed of not more than 21 nominate members. The 
members cannot be members of the Federal Parliament or hold 
certain specified offices under the Provincial Government. It 
appears that prior to 1867 the Governor could not increase the 
number of the Legislative Council beyond twenty-one (see Com- 
misaion to Earl Cathcart), and the Governor was directed to 
suspend members upon bankruptcy, insolvency, conviction for 
an infamous crime, or absence for a prescribed period (see de- 
spatoh to Lord Falkland, Aug. 20th, 1845). Membership of 
the Council was during pleasure. Though the Governor wa.<? 
thus limited, the Crown was not. After Nova Scotia entered 
into the Union, the Crown was no longer able to increase the 
number, but the tenure continued to be during pleasure. Many 
attempts to abolish this Council have been in vain, as members 
appointed thereto on condition of voting for abolition have not 
kept their pledges, and the Imperial Government has stead- 
fastly refused to aid abolition by swamping the House by legis- 
ktion, being of opinion that alteration of the constitution was 
entirely a matter for the province (see B. N. A. Act, s. 91). 
It would appear that legally, but unconstitutionally, the Lieu- 
tenant-Governor could dismiss all Councillors and appoint 
others to consent to abolition. 

The Legislative Assembly of Nova Scotia consists of thirty- 
eight members and exists for five years, unless it is sooner 
ilissolved. 

The Ijcgislative Council of New Brunswick came to an end 
in 1892, by virtue of an Act passed in 1891). 

(Note tliat in Prince Edward Island the second chamber 
was merged in the Assembly by an Act of 1893, whilst that in 
Manitoba was abolished in 1876. Ontario, British Columbia, 
Alberta, and Saskatchewan have never had a second chamber). 

5.— ONTAKIO, QUEBEC AND NOVA SCOTIA. 

89. Each of the Lieutenant-Governors of Ontario, Quebec, 
and Nova Scotia, shall cause Writs to be issued for the first 
Election of Members of the Legislative Assembly thereof in 
such Form and by such Person as he thinks fit, and at such 



THE BRITISH NORTH AMERICA ACT. 233 

Time and addressed to such Returning Officer as the Governor- 
General directs, and so that the first Election of Member of 
Assembly for any Electoral District or any Subdivision thereof 
shall be held at the same Time and at the same Places as the 
Election for a Member to serve in the House of Commons of 
Canada for that Electoral District. 

6.— THE FOUR PROVINCES. 

90. The following Provisions of this Act respecting the 
Parliament of Canada, namely, — the Provisions relating to 
Appropriation and Tax Bills, the Recommendation of Money 
Votes, and Assent to Bills, the Disallowance of Acts and the 
Signification of Pleasure on Bills reserved, — shall extend and 
apply to the Legislatures of the several Provinces as if those 
Provisions were here re-enacted and made applicable in Terms 
to the respective Provinces and the Ijegislatures thereof, with 
the Substitution of the Lieutenant-Governor of the Province for 
the Governor-General, of the Governor-General for the Queen, 
and for a Secretary of State, of One Year for Two Years, and of 
the Province for Canada. 

(Notwithstanding the onii.'^sion of words "in Council" after the 
words "Governor-General," the best opinion is that disallowance 
of provincial bills, &c., should be made u}X)n ministerial advice, 
and that the omission is unintentional and has not the effect of 
casting personal responsibility upon the Governor- General. In 
fact, the ]K)wer always has been exercised in Council. It should 
be noticed that an Order-in-Council in England is not quite the 
same thing as it is in Canada, as in England an order may be 
issued at a meeting of the Council at which no minister is pre- 
sent, and at the request of a single departmental minister; 
whereas in Canada, Council practically means the ministers, and 
necessarily introduces the idea of ministerial responsibility. The 
reading of the words *' in Council " into the section lessens, how- 
over, the security of the provinces. 

As a rule, Lieutenant-Governors assent to all bills, thougli 
they may know they will be disallowed. 

Where provincial Acts seem open to object.ion l>eoause they 
are altogether or partly illegal or unconstitutional, or 'clash with 
Dominion legislation or affect the interest of the Dominion 
generally, the Minister of Justice makes detailed reports of 
them. It ha.s l)een laid do^^-n in Severn v. The Queen, 2 S. 0. R. 



234 THE BRITISH NORTH AMERICA AC;T. 

70, that the assertion of the prerogative right of disallowance by 
the Federal Government would always be considered a harsh 
exercise of power, unless in cases of great and manifest neces- 
sity, or where the Act was so clearly beyond the powers of the 
local legislature that the propriety of interfering would at once 
be recognized. Sir Allan Aylesworth is of opinion that it was 
not intended by the British North America Act that the power 
of disallowance should be exercised for the purpose of annulling 
provincial legislation, even though the Dominion Ministry con- 
sidered the legislation unjust or oppressive, or in conflict with 
recognized legal principles, so long as such legislation was with- 
in the power of the provincial legislature to enact it. (Provin- 
cial Legislation, 1904-6, p. 8). 

Refusal of assent or reservation seems not to be legitimate 
save on explicit instructions, even in a case where a bill con- 
tains mistakes. In that case, it seems to be the better course 
that the bill should be repealed by another passed the same 
session. 

Mr. Blake (see Canada Sess. Papers 1877, No. 13), laid it 
down that Dominion legislation should be completed within 
Canada, and pressed for withdrawal from the instructions to 
the Governor-General of directions to reserve specific classes of 
bills. This was done, but reservation was not abandoned en- 
tirely. The ordinary course now taken is to declare that a law 
is not to come into effect until the Governor-General issues a 
proclamation, if issued. (See fifteenth part of the Merchant 
Shipping Act, K S. C. 1906; c. 113). 

VI. — DISTRIBUTION OF LEGISLATIVE POWERS. 

Powers of the Parliament. 

91. It shall be lawful for the Queen, by and with the Ad- 
vice and Consent of the Senate and House of Commons, to 
make Laws for the Peace, Order and Good Government of Can- 
ada in relation to all Matters not coming within the Classes 
of Subjects by this Act assigned exclusively to the Legislatures 
of the Provinces; and for greater certainty, but not so as to 
restrict the Generality of the foregoing Terms of this Section, 
it is hereby declared that (notwithstanding anything in this 
Act) the exclusive Legislative Authority of the Parliament of 
Canada extends to all Matters coming within the Classes of 
Subjects next hereinafter enumerated, that is to say : — 



THE BRITISH NORTH AMERICA ACT. 235 

1. The Public Debt and Property. 

(See sections 102-126). 

2. The Regulation of Trade and Commerce. 
(Regulation of trade and commerce includes political ar- 
rangements in regard to trade requiring sanction of parliament, 
regulations of trade in matters of inter-provincial concern, and 
it may be that the words would include general regulationh* of 
trade affecting the whole Dominion, but not the regulation by 
legislation of the contract of a particular business or trade, sruch 
as the business of fire insurance in a particular province). 

(The Power of the Dominion to regulate trade and com- 
merce at all events enables the Parliament of Canada to pre- 
scribe to what extent the powers of companies, the objects of 
which extend to the entire Dominion, should be exercisable and 
what limitations should be placed on such powers. (John Deere 
Plow Co. V. Wharton, [1915] A. C. 330). 

3. The Raising of Money by any Mode or System of Tax- 

ation. 
The taxation may be either direct or indirect. See s. 92 (2). 

4. The Borrowing of Money on the Public Credit. 

5. Postal Service. 

6. The Census and Statistics. 

7. Militia, Military and Naval Service and Defence. 

8. The fi'xing of and providing for the Salaries and Allow- 

ances of Civil and other Offirers of the Govornmoiit 
of Canada. 

9. Beacons, Buoys, Lighthouses and Sable Island. 

10. Navigation and Shipping. 

(Tlie Supreme Court of Canada has upheld the validity at 
the Dominion Merchant Shipping Act, but, query, whether 
it is not repugnant to 36 & 37 Vict. c. 85, s. 17. See Chinn 
Merchants' Steam Navigation Co, v. Bignold, 7 A. C. 612, 
The Khedive, 5 A. C. 486, and The Ship ' Cuba ' v. McMillan, 
26 S. C. R. 651). 

11. Quarantine and the Establishment and Maintenance of 

Marine Hospitals. 

12. Sea Coast and Inland Fisheries. 

13. Ferries between a Province and any British or Foreign 

Country, or between Two Provinces. 

14. Currency and Coinage. 



236 THE BRITISH NORTH AMERICA ACT. 

15. Banking, Incorporation of Banks and the Issue of Pa- 

per Money. 
(Banking is an expre^^sion which is huge enough to embrace 
every transaction coming within the legitimate business of a 
banker. (Tennant v. Union Bank, [1894] A. C. 46).) 

16. Savings Banks. 

17. Weights and Measures. 

18. Bills of Exchange and Promissory Notes. 

19. Interest. 

(It may be that the Dominion power as to 'interest' will 
be ultimately found to be confined to fixing what shall be the 
legal rate of interesrt apart from express agreement or express 
provincial enactment, and the passing of usury laws, restricting 
the charging of interest throughout the Dominion or any part 
thereof. Lefroy, p. 278'). 

20. Legal Tender. 

21. Bankruptcy and Insolvency. 

22. Patents of Invention and Discovery. 

23. Copyrights. 

24. Indians and Lands reserved for the Indians. 

(See note to s. 109). 

25. Naturalization and Aliens. 

(" The Dominion Parliament has power to decide the con- 
ditions on which naturalization shall be accorded, but the rights 
of a naturalized person in any province must depend on the 
provincial law, e.g. an alien may be prohibited from voting, 
but the province must not go so far as to prohibit the continued 
residence of aliens in the piovince by preventing them earn- 
ing their living in the province. See Union Colliery Co. of 
British Columbia v. Bryden (1899), A. C. 580, and 1 B. C. 
(Irving) 101. (Keith, p. 698). 

It is very doubtfud whether in view of this decision {In re 
Nakane and Okazaha, 13 B. C. R. 370) much useful purpose 
will ever be served by a province attempting to legislate regard- 
ing the question of immigration. Normally legislation restrict- 
ing immigration has been simply disallowed, as being contrary 
to Dominion policy, and in any case possibly invalid (Keith, p. 
689). 



THE BRITISH NORTH AMERICA ACT. 237 

" The net result, therefore, of these two Privy Council de- 
cisions (Union Colliery Co. v. Bryden, [1899] A. C. 580, and 
Cunningham v. Tomey Homma, 1903, A. C. 151), seems to be 
that provincial legislatures cannot legislate against aliens, 
whether before or after naturalization, merely as such aliens, so 
as to deprive them of the ordinary rights of the inhabitants of 
the province ; although they might so legislate against them as 
possessing this or that personal characteristic or habit, which 
disqualifies them from being permitted to engage in certain 
occupations, or enjoy certain rights generally enjoyed by other 
people in the province. The Dominion Parliament alone can 
legislate in relation to them merely as aliens. But it is a differ- 
ent matter when rights and privileges which have to be specially 
conferred are in question, such as the right to exercise the fran- 
chise. It is within the power of provincial legislatures to refuse 
to confer such rights upon aliens or any other class of persons in 
the province; and especially is this clear in the case of the 
legislative franchise for the qualifications for the exercise of 
that are an integral part of the Constitution of the province, 
which by No. 1 of section 92 is expressly assigned exclusively 
to the provincial legislature." (Lefroy p. 308).] 

26. Marriage and Divorce, 

[" Their Lordships have arrived at the conclusion that the 
jurisdiction of the Dominion Parliament does not, on the true 
construction of sections 91 and 92, cover the whole field of 
validity. They consider that the provision in section 92 con- 
ferring on the provincial legislature the exclusive power to make 
laws relating to the solemnization oC marriage in the province 
operates by way of exception to the powers conferred as regards 
marriage by section 91, and enables the provincial legislature 
to enact conditions as to solemnization which may affect the 
validity of the contract. There have doubtless been periods as 
there have been and are countries where the validi^ of the 
marriage depends on the bare contract of the parties without 
reference to any solemnity. But there are, at least, as many in- 
5?tance8 when the contrary doctrine has prevailed. The Com- 
mon law of England, and Xho. law of Quebec, before Confedera- 
tion, are conspicuous examples, which would naturally have been 
in the minds of those wlio inserted the words about solemnisa- 
tion of marriage into the statute. Prima facie these wonl» ap- 
pear to their Lordships to import that the whole of what solem- 



THE BKITISII NORTH AMERICA ACT. 

nization ordinarily meant in the systems of law of the provinces 
of Canada at the time of Confederation is intended to come 
within them, including conditions which affect validity/* 
(Marriage Reference, [1912] A. C. S80).] 

27. The Criminal Law, except the Constitution of the Courts 

of Criminal Jurisdiction, but including the Procedure 
in Criminal Matters. 
(See Note to 92 (15)). 

28. The Establishment, Maintenance and Management of 

Penitentiaries. 

29. Such Classes of Subjects as are expressly excepted in 

the* Enumeration of the Classes of Subjects by this 

Act assigned exclusively to the Legislatures of the 

Provinces. 

And any Matter coming within any of the Classes of Subjects 

enumerated in this Section shall not be deemed to come within 

the Class of Matters of a local or private Nature comprised in 

the Enumeration of the Classes of Subjects by this Act assigned 

exclusively to the Legislatures of the Provinces. 

Exclusive Powers of Provincial Legislatures. 

92. In each Province the Legislature may exclusively make 
Laws in relation to Matters coming within the Classes of Sub- 
jects next hereinafter enumerated ; that is to say : — 

1. The Amendment from Time to Time, notwithstanding 
anything in this Act, of the Constitution of the Province, ex- 
cept as regards the Office of Lieutenant-Governor. 

[Apparently a provincial legislature may impose upon the 
Lieutenant-Governor a statutory increase of duties germane to 
the office (A.-G. of Canada v. A.-G. of Ontario, 20 0. R. 222, but 
see Re Initiative and Referendum Act ll^llf] 1 W. W. P. 1012, 
where Cameron, J. A., expresses an opinion that it is immaterial 
whether a provincial legislature by an Act seeks to add to or 
take from the riglits, powers or authorities, which by virtue of 
his office, a Lieutenant-Governor exercises; in either case it is 
ultra vires legislation). 

In the case last cited it was held that the Initiative and 
Referendum Act of Manitoba was ultra vires, in part. The case 
lays down the rule that a provincial parliament cannot abdicate 
its functions, and that it may delegate powers in the nature 



THE BRITISH NORTH AMERICA ACT. 239 

of policing regulations, powers necessary for the proper carrying 
into effect of legislation, but not powers which would have the 
effect of causing others to take the place of or perform the 
functions of the legislature. 

The Act in question provided for a bill carried by a refer- 
endum becoming law even against the will of the legislature. 
Other Provincial Acts providing for a referendum stipulate that 
the legislature shall pass the bill when it has received the en- 
dorsement of the people. The validity of such an Act seems 
questionable. There would appear to be latent in it an abdi- 
cation of the most essential function of a legislature, deliber- 
ation and debate. The Albei-ta Act is of this nature, but its 
validity is as yet intact.] 

2. Direct Taxation within the Province in order to the rais- 

ing of a Revenue for Provincial Purposes. 

[The Provincial Legislature may, whenever it sees fit, impose 
direct taxation for a local purpose upon a particular locality 
within the Provin<^e (see Dow v. Black L. R. 6 P. C. 272). 

It is ultra vires of a Provincial Legislature to tax property 
not within the Province (Woodruff v. A.-G. for Ontario [1908] 
A. C. 508, and Coiion v. R, [1914] A. C. 176. 

A direct tax is one which is demanded from the very person 
who it is intended or desired should pay it. Indirect taxes are 
those which are demanded from one person in the expectation 
and intention that he shall indemnify himself at the expense of 
another. (Dictum of John Stuart Mill quoted with approval by 
the Privy Council, per Lord Moulton, in Cotton v. E.. [1914], 
A.C. 176; 83 L.J.P.C. 106). 

It lias been held in Manitoba that heading 14 of this section 
will not authorize indirect taxation for the purposes of that 
heading. Dulmage v. Douglas, 4 Man. L. R. 495). Bed qumre, 

3. The Borrowing of Money on the sole Credit of the Pro- 

vince. 

4. Hie Establishment and Tenure of Provincial Offices, and 

the Appointment and Payment of Provincial Officers. 

5. The Management and Sale of the Public Lands belonging 

to the Province, and of the Timber and Wood thereon. 

6. The Establishment, Maintenance, and Management of 

Public and Reformatory Prisons in and for the Pro- 
vince. 



240 THE BRITISH NORTH AMERICA ACT. 

7. The Establighment, Maintenance, and Management of 

Hospitals, Asylums, Charities and Eleemosynary Insti- 
tutions in and for the Province, other than Marine 
Hospitals. 

8. Municipal Institutions in the Province. 

[The authority given by s. 92 (8) to make laws as to munici- 
cipftl institutions in the province only authorizes the giving of 
such institutions powers that are given to the provincial legis- 
lature by the other headings of the sections, and does not per- 
mit the clothing of the municipal institution with all the wide 
authority wliich might have been grante<l to them before feder- 
ation.] 

9. Shop, Saloon, Tavern, Auctioneer, and other License?, 

in order to the raising of a Revenue for Provincial, 
Local, or Municipal Purposes. 

[Apparently there is nothing to hinder provincial legisla- 
tures from demanding licenses as a method of police regulation. 
Taxation by license is direct taxation. See the Brewers and 
Malisters' Association Case [1897], A. C. 231. 

In construing this section ' other licenses ' is not to be con- 
strued ejusdem generis. The Privy Council in the case just 
cited did not doubt that general words might be restricted to 
things of the same kind as those particularized, but were unable 
to see what was the genus which would include ' shop, saloon,, 
tavern and auctioneers' licenses and which would exclude brew- 
ers' and dif^tillers'' licenses.' 

In John Deere Plow Co. Ltd. v. Wharton [1915], A. C. r>30, 
it was held that the provisions of the Companies' Act of British 
Columbia compelling a Dominion company to obtain a license 
to carry on business or to be registered as a condition of exer- 
cising its powers or of suing in the courts are inoperative for 
such purposes, inasmuch as they are directed to interfering with 
the stetus and corporate capacity of Dominion companies, and 
to preventing them from exercising the powers conferred on 
them by the Parliament of Canada, dealing with a matter which 
was not entrusted under section 92 of the B.N.A. Act to Pro- 
vincial Legislatures.] 

10. Local Works and Undertakings, other than such as are 

of the following Classes, — 
a. Lines of Steam or other' Ships, Railways, Canals, Tele- 
graphs, and other 'Works and Undertakings, connecting 



THE BRITISH NORTH AMERICA ACT. 241 

the Province with any other or otliers of the Provinces, 
or extending beyond the Limits of the Province: 
[The net result of s. 92 (10 a) when read in conjunction 
with 8. 91 (29) is to confer upon the Dominion Parliament* 
exclusive right of legislation with regard to railways, canals, 
telegraphs and otlier works and undertakings connecting a pro- 
vince with any other province or provinces, or extending beyond 
the limits of the province. On the other hand the province 
clearly has powers to legislate exclusively regarding property 
and private rights. The line of distinction may be seen by con- 
sidering the following propositions:— 

(1). Provincial legislation as to the physical tracks and 
works of a Dominion railway is impassible {A.-O. 
(Alberta) v. A.-O. (Canada) ,[1915'] A. C. 363), so is 
legislation directing the creation of new works or the 
alteration of the construction of the Dominion rail- 
way (Madden v. Nelson [1899], A. C. 626. Thus 
a province could not regulate the structure of a ditch 
forming part of the Dominion railway's authorized 
works, but could provide that in the event of its becom- 
ing choked with silt or rubbish so as to cause overflow 
and injury to adjoining property, it should be 
thoroughly cleaned out (C.P.R. v. Notre Dame d^ 
Bonsecours [1899], A.C. 367). 
(2). Federal legisation as to rates to be charged by pro- 
vincial railway companies is ultra vires (The Through 
Traffic Case [1912], A. C. 333) (Keith, page 709). 
Lefroy (p. 452) thinks that provincial Acts authorizing the 
construction of a railway to the boundary line of a province are 
intra vires of the province, and so also with regard to Acts 
authorizing the construction of canals, telegraphs, telephones, 
or electric power Iransmission lines fo the boundary of the pro- 
vince.) 

b. Lines of Steamships between the Province and any Bri- 

tish or Foreign Country : 

c. Such Works as, although wholly situate within the Pro- 

vince, are l)efore or after their Execution declared by 
the Parliament of Canada to be for the general Ad- 
vantage of Canada or for the Advantage of Two or 
more of the Provinces. 

( r If? 



♦348 TIIK BRITISH NORTH AMERICA ACT. 

11. The Incorporation of Conxpanies with Provincial Ob- 

jects. 
[The powers of provincial legislatures to incorporate com- 
panies with provincial objects and to make laws in relation to 
Propert>' and Civil Rights in the province must be read 
disjunctiin and the latter expression must be regarded as ex- 
cluding cases expressly dealt with elsewhere in sections 91 & 
92, notwithstanding the generality oi tlie words. (John Deere 
Plow Co. V. Wharton [1915], A. C. 330).] 

12. The Solemnization of Marriage in the Province. 

13. Property and Civil Rights in the Province. 

14. The Administration of Justice in the Province, includ- 

ing the Constitution, Maintenance, and Organization 
of Provincial Courts, both of Civil and of Criminal 
Jurisdiction, and including Procedure in Civil Matters 
in those Courts. 

15. Tlie Imposition of Punishment by Fine, Penalty, or Im- 

prisonment for enforcing any Law of the Province 

made in relation to any Matter coming within any of 

the 'Classes of subjects enumerated in this Section. 

[It is not a breach of the criminal law for a province to punish 

by imprisonment for default on a judgment debt {Ex p. Ellis, 

1 P. & B. 593), and a Provincial Tx^gislature may punish by 

hard labour {Hodge v. The Queen, 9 A.C. 117). If an offence 

is a crime in criminal law the province has no authority to 

make provision for its trial and punishment {R, v. Lnwrence, 

43 U. C. Q. B. 164), but in the sf)}iore of its authority it can 

regulate procedure {Pope v. Oriffilh, 16 L. .hn. i69, R. v. lUt- 

tie, 21 O.n, 605).] 

16. Generally all matters of a merely local or private, nature 

in the Province. 
[The Dominion has pre-legislated on the subject of the 
LoTd's Day Observance; provincial legislation on the subject 
seems to be ultra vires {A.-Q. for Ontario v. Hamilton Street 
Railway, [1903] A.C. 624, and Reference to Supreme Cpurt, S5 
S.CR. 581). 

- '^ The Privy Council in the case of the prohibitory liquor law 
[1896], A.C. 348, even allowed a province to forbid manufacture 
if its prohibition could be regarded in any one case as a merely 
provincial matter; while they did not think importation could 



THE BRITISH NORTH AMERICA ACT. 243 

be forbidden, because that would go beyond .private or local 
matters solely. But they did not accept as a ground the view 
that prohibition of manufacture or importation would interfere 
with Dominion jx)wcrs." (Keith, p. 719).] 

Education. 

93. In and for each Province the Legislature may exclu- 
sively make Laws in relation to Education, subject and accord- 
ing to the following Provisions : — 

(1). Nothing in any such Law shall prejudicially affect any 
Right or Privilege vith respect to Denominational 
Schools which any Class of Persons have by law in the 
Province at the Union ; 

(2). All the Powers, Privileges, and Duties at the Union by 
Law conferred and imposed in Upper Canada on the 
Separate Schools and School Trustees of the Queen's 
Roman Catholic Subjects, shall be and the same are 
hereby extended to the Dissentient Schools of the 
Queen's Protestant and Roman Catholic Subjects in 
Quebec; : /: 

(3). Where in any Province a System of Separate or Dis- 
sentient Schools exists by Law at the Union or is there- 
after established by the Legislature of the Province, 
an Appeal shall lie to the Governor-General in Council 
from any Act or Decision of any Provincial Authority 
affecting any Right or Privilege of the Protestant or 
Roman Catholic Minority of the Queen's Subjects in 
relation to Education; 

(4). In case any such Provincial Law as from Time to Time 
seems to the Governor-General in Council requisite for 
the due Execution of the Provisions of this Section is 
not made, or in any case any Decision of the Governor- 
General in Council on any Appeal under this Section is 
not duly executed by the proper Provincial Authority 
in that behalf, then and in every such case, and ad far 
only as the circumstances of each case require, the, 
Parliament of Canada may make remedial Law« ior 
the due Execution of the Provisions of this Sectibn,* 
and of any Decision of the Govemor-Gcnoral in Co\i^^ 
cil tinder tliis Section. 



K 



244 THE BRITISH NORTH A^klERICA ACT. 

Uniformity nf Ltiir.<; in Ontario, Nova Scotia and New 
Brunswick. 

94. Notwithstanding anything in this Act, the Parliament 
of Canada may make Provision for the Uniformity of all or any 
of the Laws relative to Properfy and Civil Rights in Ontario, 
Nova Scotia and New Brunswick, and of the Procedure of all or 
any of the Courts in those Three Provinces, and from and after 
the passing of any Act in that behalf, the Power of the Parlia- 
ment of Canada to make Laws in relation to any matter com- 
prised in any such Act, sthall, not\vithstanding anything in this 
Act, be unrestricted ; but any Act of the Parliament of Canada 
making Provision for such Uniformity, shall not have effect in 
any Province unless and until it is adopted and enacted as Jjaw 
by the Legislature thereof. 

Agriculture and Immigration. 

96. In each Province the Legislature may make Laws in re- 
lation to Agriculture in the Province, and to Immigration into 
the Province; and it is hereby declared that the Parliament of 
Canada may from Time to Time make Laws in relation to Agri- 
culture* in all or any of the Provinces, and to Immigration into 
all or any of the Provinces ; and any Law of the Legislature of 
a Province, relative to Agriculture or to Immigration, shall 
have effect in and for the Province as long and as far only as it 
18 not repugnant to any Act of the Parliament of Canada. 

(This is the only case of true 'concurrent' legislation of 
Dominion and Province), 

VII. — JUDICATURE. 

96. The Governor-General shall appoint the Judges of the 
Superior, District and County Courts in each Province, except 
those of the Courts of Probate in Nova Scotia and New Bruns- 
wick. 

97. Until the Laws relative to Property and Civil Rights in 
Ontario, Nova Scotia and New Brunswick, and the Procedure 
of the Courts in those Provinces, are made uniform, the Judges 
of the Courts of those Provinces appointed by the Governor- 
(ieneral shall be selected from the respective Bars of those Pro- 
vinces. 

98. The Judges of the Courts of Quebec shall be selected 
from the Bar of that Province. 



THE BRITISH NORTH, AMERICA ACT. 245 

09. The Judges of the Superior Courts shall hold office dur- 
ing good behaviour, but shall be removable by the Governor-Gen- 
eral on Address of the Senate and House of Commons. 

100. The Salaries, Allowances and Pensions of the Judges of 
the Superior, District and County Courts (except the Courts of 
Probate in Nova Scotia and New Brunswick), and of the Admir- 
alty Courts in cases where the Judges thereof are for the time 
being paid by Salary, shall be fixed and provided by the Parlia- 
ment of Canada. 

101. The Parliament of Canada may, notwittistanding any- 
thing in this Act, from Time to Time, provide for the Consti- 
tution, Maintenance and Organization of a General Court of 
Appeal for Canada, and for the Establishment of any additional 
Courts for the better Administration of the T^aws of Canada. 

[The Supreme Court of Canada exercises an appellate juris- 
diction in case of appeals from provincial Courts, the jurisdiction 
varying with regard to the different Provinces. Appeals lie 
from this Court to the Privy Council by special leave (there 
being also a direct appeal to the Privy Council from the pro- 
vincial Supreme Courts). The Court also has an appellate juris- 
diction in the case of controverted elections, but from its deci- 
sion no appeal lies to the Privy Council (see Theberge v. Landry. 
2 A.C. 102). To this Court the Governor-General refers import- 
ant questions of law or fact as to interpretation of the B N. A. 
Act or the constitutionality of any Dominion or Provincial Act. 
The.«je judgments are merely advisory, but are to be treated as 
final judgments for the puri)ose of appeal to the Privy Council. 
The Supreme Courts vriW not hear appeals from the reference 
of constitutional questions by the Provincial governments to the 
Provincial Courts, though sufh api)eals are provided for by the 
Provincial Statutes. 

The judges of tlie Supreme Court of the Superior Courts of 
the provinces hold ofhce during goo<l Ix'haviour, but are remov- 
able by the Governor-General on address of the Senate and House 
of Commons. The salaries are not voted annually, they are put 
on the civil list. Tt should be noted that Burke's Act, 22 Geo. 
III., c. 75, applicable to all officers appointed by patent and 
holding during good behaviour, permits the Governor in Council 
of a colony to amove a judge, but not without the approval of 
the Privy Council. To judges of Superior Courts this Act has 
no apnlitatioTi. fboui'^li if Jimv bnve to judg^^R ^>r ^ho Su|>rofmc 



246 THE BRITISH NORTH AMERICA ACT. 

Court and of the various Provincial, District and County Courts. 
These last are by statute removable for sufficient cause (R.S.C.. 
1906, c. 138, s. 2). (Keith. 1338). 

A colonial judicial officer is exempt from suit on the same 
principles as apply to an Imperial judge (see Haggard v. 
Pelicier Freres [1892], A.C. 61; Anderson v. Gorrie [1895], I. 
Q. B. 668).] 

VIII. — revenues; debts; assets; taxation. 

102. All Duties and Revenues over which the respective Tjegis- 
latures of Canada, Nova Scotia and New Brunswick before and 
at the Union, had and have power of Appix)priatioii. except such 
Portions thereof as are by this Act reserved to the respective 
I^egislatures of the Provinces, or are raised by them in accord- 
ance with the special Powers conferred on them by this Act, 
8hall form One Consolidated Revenue Fund, to be appropriated 
for the Public Service of Canada in the manner and subject to 
the charges in this Act provided. 

103. The Consolidated Revenue Fund of Canada shall be 
permanently charged with the Costs, Charges and Expenses in- 
cident to the Collection, Management, and Receipt thereof, and 
the same shall form the First Charge thereon, subject to be re- 
viewed and audited in sucli Manner as shall be ordered by tlie 
Governor-General in Council until iho. Pnrliament otherwise pro- 
vides. 

' '104. The annual Interest of the Public Debts of the several 
Provinces of Canada, Nova Scotia, and New Brunswick at the 
"Union shall form the Second Charge on the Consolidated Rev- 
enue Fund of Canada. 

106. Unless altered by the Parliament of Canada, the Sal- 
ary of the Governor-General shall be Ten Thousand Pounds 
Sterling Money of the United Kingdom of Great Britain and 
Ireland, payable out of the Consolidated Revenue Fund of Can- 
ada, and the same shall form the Third Charge thereon. 

106. Subject to the several Payments by this Act charged on 
the Consolidated Revenue Fund of Canada, the same shall be 
appropriated by the Parliament of Canada for the Public 
Service. 

107. All Stocks, Casli, Bankers' Balances, and Securities for 
Money belonging to each Province at the Time of tlie Union, 



THE BKITISII NORTH AMEBICA ACT. 247 

except as in this Act mentioned, shall be the Property of Can- 
ada, and shall be taken in Reduction of the amount of the Re- 
spective Debts of the Provinces at the Union. 

108. The Public Works and Property of each Province 
enumerated in the Third Schedule to this Act shall be the Pro- 
perty of Canada. 

109. All Lands, Mines, Minerals, and Royalties belonging 
to the several Provinces of Canada, Nova Scotia and New Bruns- 
wick at the Union, and all sums then due or payable for such 
Lands, Mines, Minerals, or Royalties, shall belong ix> the several 
Provinces of Ontario, Que])ec, Nova Scotia and New Brunswick 
in which the same are situate or arise, subject to any Trusts 
existing in resipect thereof, and to any interest other than that 
of the Province in the same. 

[It must be always kept in view that where public land, with 
its incidents, is described as * the property of ' or as ^ belonging 
to ' the Dominion or a province, these expressions merely import 
that the right to its beneficial user, or to its proceeds, has been 
appropriated to the Dominion or the province, as the case may 
be, and is subject to the control of its Legislature, the land it- 
self being vested in the Crown (S't, Catherine's Milling and 
Lumber Co, v. The Queen, 5Sl,.J.F.C. 54). 

Lands in Ontario surrendered by the Indians by treaty be- 
come vested in the Crown for the benefi'cial use of the province, 
whose grantees' title prevails over the title ]ur ported to be 
granted by the Dominion. {Ontario Mining Co. v. Seybold, 73" 
L.J.P.C. 5). 

It should be nojkiced that in British Columbia *' the Indian '' 
title has been denied and almost completely disregarded. 
(Clement, p. G34). 

It seems to be the better opinion that a province cannot of 
its own motion and power extinguish Indian Rights. 

It has been contended that what is ineant by ' royalties ' in 
the phrase ' all lands, mines, minerals and royalties ' is royalties 
in connection with mines or minerals, but this restriction of the 
meaning of the word did not commend itself to tlie Privy Coun- 
cil in Attomey-Oeneral of Ontario v. Mercer, 8 A. C. 767. " It 
appears," runs the judgment in that case, " however, to their 
Lordships to be a fallacy to assume that because the word 
'royalties ' in this context would not be inofficiouj' or in.^ensible, 



248 THE BRITISH NORTH AMERICA ACT. 

if it were regarded as having reference to mines and minerals, 
it ought, therefore, to be limited to these subjects. They see no 
reason why it should ^lot have its primary and appropriate 
sense, as to (at all events) all the subjects with which it is here 
found associated — lands, as well as mines and minerals." Even 
as to mines and minerals, it here necessarily sngnifies rights be- 
longing " to the Crown, jure coronae.'^ The judgment carefully 
adds : " Their Lordships are not now called upon to decide 
whether the word ' royalties' in section 109 of the British North 
America Act of 1867, extends to other royal rights besides those 
connected with ' lands,' ' mines ' and ' minerals.' " 

Escheats arising in Alberta and Saskatchewan are amongst 
the rights and sources of revenue excepted and reserved to the 
Dominion of Canada by the Acts, s. 21, creating them as pro- 
vinces. {Ttex V. Trusts and Guarantee Co. [1917], I.W.W.R. 
358). As to the position in Manitoba see sec. 30 of the Mani- 
toba Act. 

The word '^royalties" includes prerogative rights to gold 
and silver mines (The Precious Metals Case, 14 A. C. 295), 
which accordingly are vested in the Crown, subject to the con- 
trol and disposal of the Government of Britisih Columbia. 

" The expressions ' subject ^ any trusts existing in respect 
thereof ' and * subject to any interest other than that of the pro- 
vince ' appear to their Lordships to be intended to refer to dif- 
ferent classes of right. Their Lordships are not prepared to 
hold that the word trust was meant by the legislature to be 
strictly limited to such proper trusts as a Court of Equity would 
undertake to administer ; but, in their opinion, must at least 
have been intended to signify the existence of a contractual or 
legal duty, incumbent upon the holder of the beneficial estate,, 
or its proceeds, to make payment, out of the one or other of 
those, of the debt due to the creditor to whom that duty ought 
to be fulfilled. On the other hand ^an interest, other than of 
the province in the same,' appears to them to denote some right 
or interest in a third party, independent of and capable of being 
vindicated in competition with the l>enefi'cial interest of the old 
province. Their Lordships have been unable to discover any^ 
reasonable grounds for holding that by the terms of the treaties 
any independent interest of that kind was conferred upon the In- 
dian communities. . .Their Lordships have had no difficulty in 



THE BRITISH NORTH AMERICA ACT. 249 

coming to the conclusion that under the treaties the Indians ob- 
tained no right to their annuities, whether original or augmented, 
beyond a promise and agreement which was nothing more 
than a personal obligation by its Governor, as representing the 
old province, that the latter should pay the annuities as and when 
they became due ; that the Indians obtained no right wliich gave 
them any interest in the territory which they surrendered other 
than that of the province ; and that no duty was imposed upon 
tlie province, whether in the nature of a trust, obligation, or 
otherwise, to apply the revenue derived from the surrendered 
lands in payment of the annuities (The Indian Claims? Case 
[1897], A. C. 199, with reference to lands surrendered by In- 
dians in Ontario for perpetual annuities and for augmented 
annuities in case the Government could in the future augment 
them without loss).] 

110. All Assets connected with such Portions of the Public 
Debt of each Province as are assumed by that Province shall be- 
long to that Province. 

111. Canada shall be liable for the Debts and Liabilities of 
each Province existing at the Union. 

112. Ontario and Quebec conjointly shall be liable to Canada 
for the amount (if any) by whidi the Debt of the Province of 
Canada exceeds at the Union Sixty-two million five hundred 
thousand Dollars, and shall be charged with interest at the Rate 
of Five per centum per annum thereon. 

113. The Assets enumerated in the Fourth Schedule to this 
Act, belonging at the Union to the Province of Canada, shall be 
the Property of Ontario and Quebec conjointly. - 

114. Nova Scotia shall be liable to Canada for the Amount 
(if any) by which its Public Debt exceeds at the Union Eight 
million Dollars, and shall be charged with Interest at the rate 
of Five per centum per annum thereon. 

115. New Brunswick shall be liable to Canada for the 
Amount (if any) by which its Public Debt exceeds at tlie Union 
Seven million Dollars, and shall be charged with Interest at the 
rate of Five per centum per annum thereon. 

116. In oase the Public Debts of Nova Scotia and New 
Brunswick do not at the Union amount to Eight million and 
Seven million Dollars respectively, they shall respectively receive, 
by half-yearly Payments in advance from the Government of 
Canada, Interest at Five per centum per annum on the dif- 



250 THE BRITISH NORTH AMERICA ACT. 

ference between the actual Amounts of their respective Debta 
and such stipulated Amounts. 

117. The several Provinces shall retain all their respective 
Public Property not otherwise disposed of in this Act, subject 
to the Right of Canada to assume any Lands or Public Property 
required for Fortifications or for the Defence of the country. 

118. The following sums shall be paid yearly by Canada to 
the several Provinces for the support of their Governments and 
Ivegislatures : 

DOLLARS. 

Ontario Eighty thousand. 

Quebec Seventy thousand. 

Nova Scotia Sixty thousand 

New Brunswick Fifty thousand. 

Two hundred and Sixty thousand ; 

and an annual Grant in aid of each Province shall be. made, 
equal to Eighty cents per Head of the Population as ascertained 
by the Census of One thousand eight hundred and sixty-one, 
and in the case of Nova Scotia and New Brunswick, bj^ each sub- 
sequent Decennial Census until the Population of each of those 
two Provinces amounts to Four hundred thousand Souls, at 
which Rate such Grant shall thereafter remain. ' Such Grant 
shall be in full Settlement of all future demands oil Canada, and 
shall be paid half-yearly in advance to each Province; but the 
Government of Canada shall deduct from such Grants, as against 
any Province, all sums chargeable as Interest on the Public Debt 
of that Province in excess of the several amounts stipulated in 
this Act. 

119. New Brunswick shall receive, by lialf -yearly Payments 
in advance from Canada, for the Period of Ten Years from the 
Union, an additional Allowance of Sixty-three thousand Dollars 
per annum ; but as long as the Public Debt of that Province re- 
mains under Seven million Dollars, a deduction equal to the 
Interest at five per centum per annum on such Deficiency shall 
be made from that Allowance of Sixty-three thousand Dollars. 

120. All payments to be made under this Act, or in discharge 
of Liabilities created under any Act of the Provinces of Canada, 
Nova Scotia and New Brunswick, respectively, and assumed by 
Canada, shall until the Parliament of Canada otherwise directs. 



THE BRITISH NORTH AMERICA ACT. 25 X 

be made in such Form and Manner as may from Time to Time 
be ordered by the Governor-General in Council. 

121. All Articles of tlie Growth, Produce or Manufacture of 
any one of the Provinces shall, from and after the Union, be ad- 
mitted free into each of the other Provinces. 

122. The Customs and Excise Laws of each Province shall, 
subject to the Provisions of this Act, continue in force until 
altered by the Parliament of Canada. 

123. Where Custom Duties are, at the Union, leviable on any 
Goods, Wares or Merchandises in any Two Provinces, those 
Goods, Wares and Merchandises may, from and after the Union, 
be imported from one of those Provinces into the other of them, 
on Proof of Payment of the Customs Duty leviable thereon in 
the Province of Exportation and on payment of such further 
amount (if any) of Customs duty as is leviable thereon in tbe 
Province of Importation. 

124. Nothing in this Act shall affect the right of New Bruns- 
wick to levy the Lumber Dues provided in Chapter Fifteen of 
Title Three of the Revised Statutes of New Brunswick, or in any 
Act amending that Act before or after the Union, and not in- 
creasing the Amount of such Dues; but the Lumber of any of 
the Provinces other than New Brunswick shall not be subject to 
ffuch Dues. 

125. No I^nds or Property belonging to Canada or any Pro- 
vince shall bo liable to Taxation. 

126. Such Portions of the Duties and Revenues over which 
the respective Ivegislatures of Canada, Nova Scotia and New 
Brunswick had before the Union, Power of Appropriation, as are 
by this Act reserved to the respective Government*? or Legis- 
latures of the Provinces, and all Duties and Revenues raised by 
them in accordance with the Special Powers conferred upon them 
by this Act, shall in each Province form One Consolidated Rev- 
enue Fund to be appropriated for the Public Service of the I?r<>- 
vince. 

IV. — MISCELLANEOUS PROVISIONS. 

Oeneral. 

127. If any Person, being at the passing of this Act, a Mem- 
ber of the Legislative Council of Canada, Nova Scotia or New 
Brunswick, to whom a Place in the Senate is offered, does not 



368 THE BRITISir NORTH AMERICA ACT. 

within Thirty Days thereafter, by Writing 'under his Hand, ad- 
dressed to the Governor-General of the Province of Canada or to 
the Lieutenant-Governor of Nova Scotia or New Brunswick (as 
the case may be), accept the same, he shall be deemed to have 
declined the same ; and any Person who, beinor at the passing of 
this Act a Member of the Legislative Council of Nova Scotia or 
New Brunswick, accepts a Place in the Senate, shall thereby va- 
cate his seat in such Legislative Council. (See sec. 24). 

128. Every Member of the Senate or House of Commons of 
Canada shall, before taking his Seat therein, take and subscribe 
before the Governor- General or some Person Authorized by him, 
and every Member of a Legislative Council or Legislative Assem 
bly of any Province shall, before taking his Seat therein, take 
and subscribe before the Lieutenant-Governor of the Province, 
or some Person authorized by him, the Oath of Allegiance con- 
tained in the Fifth Schedule to this Act; and every Member of 
the Senate of Canada and every Member of the Legislative Coun- 
cil of Quebec shall also, before taking his Seat therein, take and 
subscribe before the Governor-General, or some Person author- 
ized by him, the Declaration of Qualification contained in the 
same Schedule. 

129. Except as otherwise provided by this Act, all Laws in 
force in Canada, Nova Scotia, or New Brun^vick at the Union, 
and all Courts of Civil and Criminal Jurisdiction, and all Legal 
Commissions, Powers and Authorities, and all Officers, Judicial, 
Administrative, and Ministerial, existing therein at the Union, 
shall continue, in Ontario, Quebec, Nova Scotia, and New Bruns- 
wick, respectively, as if the Union had not been made ; subject 
nevertheless, (except with respect to such as are enacted by or 
exist under Acts of the Parliament of Great Britain or of the 
Parliament of the United Kingdom of Great Britain and Ire- 
land), to be repealed, abolished, or altered by the Parliament of 
Canada, or by the Legislature of the resi>eotive Province, accord- 
ing to the Authority of the Parliament or of that Legislature 
under this Act. 

130. Until the Parliament of Canada otherwise provides, all 
Officers of the several Provinces having Duties to discharge in 
relation to Matters other than those coming within the Classes 
of Subjects by this Act assigned exclusively to the Legislatures 
of the Provinces, shall be Officers of Canada, and shall continue 
to discharge the Duties of their respective Offices under the same 



THE BRITISH NORTH AMERICA ACT. 853 

Liabilities, Responsibilities and Penalties, as if the Union had 
not been made. 

131. Until the Parliament of Canada otherwise provides, the 
Governor-General-in-Council may from Time to Time appoint 
such Officerg as the Governor- Gkneral-in-Council deems neces-» 
sary or proper for the effectual Execution of this Act. 

138. The Parliament and Government of Canada shall have 
all Powers necessary or proper for performing the Obligations 
of Canada or of any Province thereof, as Part of the British Em- 
pire, tow-ards Foreign Countries, arising under Treaties between 
the Empire and such Foreign Countries. 

133. Either the English or the French Language may be 
used by any Person in the Debates of the Houses of the Parlia- 
ment of Canada and of the Houses of the Legislature of Quebec ; 
and both those languages shall be used in the respective Records 
and Journals of those Houses; and either of those Languages 
may be used by any Person or in any Pleading or Process in or 
issuing from any Court of Canada established under this Act, 
and in or from all or any of the Courts of Quebec. 

The Acts of the Parliament of Canada and of the Legis- 
lature of Quebec shall be printed and /published in both those 
Languages. 

Ontario and Quebec. 

134. Until the Legislature of Ontario or of Quebec otherwise 
provides, the Lieutenant-Governors of Ontario and Quebec may 
each appoint under the Great Seal of the Province, the following 
Officers, to hold office during Pleasure, that is to say, — the At- 
torney-General, the Secretary and Registrar of the Province, the 
Treasurer of the Province, the Commissioner of Crown Lands 
and the Commissioner of Agriculture and Public Works, and, in 
the case of Quebec, the Solicitor-General, and may, by Order of 
the Lieutenant-Governor-in-Council from Time to Time pre- 
scribe the Duties of those Officers and of the several Dcfpartments 
over which they shall preside, or to which they shall belong, and 
of the Officers and Clerks thereof, and may also appoint other and 
additional Offi^^rs to hold Office during Pleasure, and may from 
Time to Time prewrilie the duties of those Officers, and of the 
several Department* over which they shall preside or to which 
they shall belong, and of the Officers and Clerka thereof. 



254 THE BRITISH NORTH AMKRICA ACT. 

135. Until the Legislature of Ontario or Quebec otherwise 
provides, all Rights, Powers, Duties, Functions, Responsibilities, 
or Authorities at the passing of this Act vested in or imposed on 
the Attorney-General, Solicitor-General. Secretary and Registrar 
of the Province of Canada, Minist-er of Finance, Commissioner 
of Crown Lands, Commissioner of Public Works and Minister 
of Agriculture and Receiver-General, by any Law, Statute or 
Ordinance of Upper Canada, Lower Canada, or Canada, and not 
repugnant to this Act, shall be vested in or imposed on any 
officer to be appointed by the Lieutenant-Governor for the Dis- 
cliarge of the same or any of them; and the Commissioner of 
Agriculture and Public Works shall perform the Duties and 
Functions of the Office of Minister of Agriculture at the passing 
of this Act imposed by the Law of the Province of Canada, as 
well as those of the Commissioner of Public Works. 

136. Until altered by the Lieutenant-Governor-in-Council, 
the Great Seals of Ontario and Quebec, respectively, shall be the 
same or of the same Design, as those used in the Provinces of 
Upper Canada and Lower Canada respectively before their 
Union as the Province of Canada. 

137. Tlie words " and from thence to the End of the then 
next ensuing Session of the Legislature," or words to the same 
effect used in any temporary Act of the Province of Canada not 
expired before the Union, shall be construed to extend and ap- 
ply to the next Session of the Parliament of Canada, if the sub- 
ject-matter of the Act is within the powers of the same as defined 
by this Act, or to the next Sessions of the Legislatures of On- 
tario and Quebec respectively, if the subject-matter of the Act 
is within the powers of the same as defined by this Act. 

. 138. From and after the Union, the use of the words " Up- 
per Canada '' instead of " Ontario," or " Lower Canada " in- 
stead of " Quebec," in any Deed, Writ, Process, Pleading, Docu- 
ment, Matter or Thing, .shall not invalidate the same. 

189. Any Proclamation under the Great Seal of the Province 
of Canada, issued before the Union, to take effect at a time which 
is subsequent to the Union, whether relating to that Province or 
to Upper Canada, or to Lower Canada, and the several matters 
and things therein proclaimed, shall be and continue of like 
force and effect a^ if the Union had riot been made. 



THE BRITISH NORTH AMERICA ACT. 255 

140. Any Proclamation which is authorized by any Act of 
the Legislature of the Province of Canada, to be issued under 
the Great Seal of the Province of Canada, whether relating to 
that Province or to Upper Canada, or to Lower Canada, and 
which is not issued before the Union, may be issued by the Lieu- 
tenant-Governor of Ontario or of Quebec, as its subject-matter 
requires, under the Great Seal thereof; and from and after the 
issue of such Proclamation, the same and the several matters 
and things therein proclaimed, shall be and continue of the like 
force and effect in Ontario or Quebec as if the Union had not 
been made. 

141. The Penitentiary of the Province of Canada shall, un- 
til the Parliament of Canada otherwise provides, be and con- 
tinue the Penitentiary of Ontario and of Quebec. 

142. The Division and Adjustment of the Debts, Credits, 
Liabilities, Properties and Assets of Upper Canada and Lower 
Canada shall be referred to the Arbitrament of Three Arbitra- 
tors, One chosen by the Government of Ontario, One by the 
Government of Quebec, and One by the Government of Canada ; 
and the Selection of the Arbitrators shall not be made until the 
Parliament of Canada and the Tx?gislatures of Ontario and Que- 
bec have met; and the Arbitrator chosen by the Government of 
Canada shall not be a resident either in Ontario or in Quebec. 

143. The Governor-General-in-Council may from Time to 
Time, order that such and so many of the Records, Books, and 
Documents of the Province of Canada as he thinks fit shall be 
appropriated and delivered either to Ontario or to Quebec, and 
the same shall thenceforth be the property of that Province ; and 
any copy thereof or extract therefrom, duly certified by the offi- 
cer having charge of the original thereof, shall be admitted as 
Evidence. 

144. The Lieutenant-Governor of Quebec may from Time to 
Time, by Proclajnation under the Great Seal of the Province, 
to take eflfect from a day to be appointed therein, constitute 
Townsliips in those Parts of the Province of Quebec in which 
'I'ownships are not then already constituted, and fix the Metofl 
and Bounds thereof. 

X. — INTERCOLONIAL RAILWAY. 

145. Inasmuch as the Provinces of Canada, Nova Scotia, and 
Nfew Brunswick have joined in a Declaration that the Construe- 



256 THE BRITISH NORTH AMERICA ACT. 

tion of the Intercolonial Railway is essential to the Consolida- 
tion of the Union of British North America, and to the Assent 
thereto of Nova Scotia and New Brunswick, and have conse- 
quently agreed that Provision should be made for its immediate 
construction by the Government of Canada: Therefore, in 
order to give effect to that Agreement, it shall be the Duty of the 
Government and Parliament of Canada to provide for the Com- 
mencement, within Six months after the Union, of a Railway 
connecting the River St. Lawrence with the City of Halifax in 
Nova Scotia, and for the Construction thereof without Inter- 
mission, and tlie Completion thereof with all practicable Speed. 

XI. — ADMISSION OF OTHER COLONIES. 

146. It shall be la\vful for the Queen, by and with the Ad- 
vice of Her Majesty's Most Honourable Privy Council, on Ad- 
dresses from the Houses of the Parliament of Canada, and from 
the Houses of the respective Ijegislatures of the Colonies or Pro- 
vinces of Newfoundland, Prince Edward Island, and British 
Columbia, to admit those Colonies or Provinces, or any of them,. 
into the Union, and on Address from the Houses of the Parlia- 
ment of Canada, to admit Rupert's Land and the North-western 
Territory, or either of them, into the Union, on such Terms and 
Conditions in each Case' as are in the Addresses expressed and 
as the Queen thinks fit to approve, subject to the Provisions of, 
this Act; and the Provisions of any Order-in-Council in that 
Behalf shall have effect as if they had been enacted by the Par- 
liament of the United Kingdom of Great Britain and Ireland. 

(See 34 & 36 Vict. c. 28, s. 2, infra). 

[Upon the admission of Rupert's Land no conditions were 
expressed in the address, and apart from this it was very doubt- 
ful whether the Dominion Government could legislate for the 
rest of the territory of the Hudson's Bay Co. To remedy this 
the Act of 1871 (infra) was passed. In the Act of 1870 pro- 
vision vns made for the government of that part of Rupert's 
Ijand and North-West Territories not included in Manitoba, by 
means of a Lieutenant-Governor and a nominated council. In 
1876 apart of the I^egislative Council was allowed to be elected, 
and in 1888 a Legislative Assembly was substituted for the 
Council, the judges being advisory members but not entitled to 
vote; there was also an advisory fi"nance council holding office 
during pleasure. In 1891 (c. 22) further powers were given to 



THE BRITISH NORTH AMERICA ACT. 257 

the Legislature, an<i in 1897 (c. 28) a responsible executive was 
granted, and by legislation in 1898 (c. 5) and 1900 (c. 44), the 
powers were extended so as to amount to almost provincial 
powers; there was a Lieutenant-Governor nominally holding 
office during pleasure, but, practically, for* fiVe years, a council 
nominated from the Assembly, and an elective assembly of 31 
members sitting for four years. In 1905 Saskatchewan and 
Alberta were created and given practically complete provincial 
rights, but not the control of Cro\\ni lands. In the Act also 
were inserted provisions designed to secure to Catholics, or 
others, their denominational or separate schools. 

The rest of the North- Western Territories are now governed 
under R. S. C. 1906, p. 62, by a Commissioner, assisted by a 
small council with powers of legislation practically equivalent 
to the old powers, if conceded by the Governor-General in 
Council. The laws of Canada a;pply to the North- Western Ter- 
ritories, unless otherwise specified. 

The Yukon Territory was separated from the N, W. T. in 
1895. There is, since 1909, an elective council of ten members 
sitting for three years, and a Commissioner. The po\^-ers of 
legislation arQ similar to the old powers of the North- Western 
Territories, the Governor- General in Council having power to 
make temporary Ordinances.] 

147. In case of the Admission of Newfoundland and Prince 
Edward Island or either of them, each shall be entitled to a Rep- 
resentation, in the Senate of Canada, of Four Members, and 
(notwithstanding anything in this Act) in case of the Admis- 
sion of Newfoundland, the Normal Number of Senators shall be 
Seventy-six and their Maximum Number shall be Eighty-two; 
but Prince Edward Island, when adimitted, shall be deemed to 
be comprised in the third of the three Divisions into which Can- 
ada is, in relation to the Constitution of the Senate, divided by 
this Act, and accordingly, after the admission of Prince Edward 
Island, whether Newfoundland is admitted or not, the Repre- 
sentation of Nova Scotia and New Bruns>vick in the Senate 
shall, as Vacancies occur, be reduced from Twelve to Ten Mem- 
bers respectively, and the Representation of each of those Pro- 
vinces ghall not be increased at any Time beyond Ten, except 
under the Provisions of this Act, for the Appointment of Three 
or Six additional Senators under the Direction of the Queen. 

C.C.— 17 



258 THK BRITISH NORTH AMERICA ACT. 

SCHEDULES. 

THE PIBST SCHEDULE. 

Electoral Districts of Ontario. 

A. 

EXISTING ELECTORAL DIVISIONS. 

COUNTIES. 

1. Prescott. 6. Carleton. 

2. Glengarry. 7. Prince Edward. 

3. Stormont. 8. Halt»n. 

4. Dundas. 9. Essex. 

5. Bussell. 

RIDINGS OF COUNTIES. 

10. North Eiding of Lanark. 

11. South Riding of Lanark. 

12. North Riding of Leeds and North Riding of Grenville. 

13. SQuth Riding of Leeds. 

14. South Riding of Grenville. 

16. East Riding of Northumberland. 

16. West Riding of Northumberland (excepting therefrom 

the Township of South Monaghan). 

17. East Riding of Durham. 

18. West Riding of Durham. 

19. North Riding of Ontario. 

20. South Riding of Ontario. 



THE BRITISH NORTH AMERICA ACT. 259 

21. East Riding of York. 

22. West Riding of York. 

23. North Riding of York. 

24. North Riding of Wentworth. 

25. South Riding of Wentworth. 

26. East Riding of Elgin. 

27. West Riding of Elgin. 

28. North Riding of Waterloo. 

29. South Riding of Waterloo. 

30. North Riding of Brant. 

31. South Riding of Brant. 

32. North Riding of Oxford. 
33'. South Riding of Oxford. 

34. East Riding of Middlesex. 

CITIES, PARTS OF CITIES AND TOWNS. 

35. West Toronto. 

36. East Toronto. 

37. Hamilton. 

38. Ottawa. 

39. Kingston. 

40. Tx)ndon. 

41. Town of Brockville, with the Township of Elizabeth town 

thereto attached. 

42. Town of Niagara, with the Township of Niagara thereto 

attached. 

48. Town of Cornwall, with the Township of Cornwall there- 
to attached. 



260 THE BRITISH NORTH AMERICA ACT. 

B. 

NEW ELECTORAL DIVISIONS. 

44. The Provisional Judicial District of Algoma. 

The County of Bruce, divided into Two Ridings, to be called 
respectively the North and South Ridings: — 

45. The North Riding of Bruce to consist of the Townships 

of Bury, Lindsay, Eastnor, Albemarle, Amabel, Arran, 
Bruce, Elderslie, and Saugeen, and the Village of 
Southampton. 

46. The South Riding of Bruce to consist of the Townships 

of Kincardine (including the Village of Kincardine), 
Greenock, Brant, Huron, Kinloss, Culross, and Carrick. 

The County of Huron, divided into Two Ridings, to be 
called respectively the North and South Ridings :- 

47. The North Riding to consist of the Townsliips of Ash- 

field, Wawanosh, Turnberry, Howick, Morris, Grey, 
Colborne, Hullett (including the Village of Clinton), 
and McKillop. 

48. The South Riding to consist of the Town of Goderich, 

and the townships of Goderich, Tuckersmith, Stanley, 
Hay, Usborne, and Stephen. 

The County of Middlesex, divided into Three Ridings, to be 
called respectively the North, West and East Ridings : — 

49. The North Riding to consist of the Townships of Mc- 

Gillivray and Biddulph (taken from the County of 
Huron), and Williams East, Williams West, Adelaide 
and Lobo. 

60. The West Riding to consist of the Townships of Dela- 
ware, Caradoc, Metcalfe, Mosa and Ekfrid, and the 
Village of Strathroy. 

[The East Riding to consist of the Townships now embraced 
therein, and be bounded as it is at present.] 



THE BRITISH NORTH AMERICA ACT. 261 

51. The County of Lambton to consist of the Townships 

of Bosanquet, Warwick, Plynipton, Sarnia, Moore, 
Enniskillen and Brooke, and the Town of Sarnia. 

52. The County of Kent to consist of the Townships of 

Chatham, Dover, East Tilbury, Romney, Raleigh and 
Harwich, and the Town of Chatham. 

53. The County of Both well to consist of the Townships 

of Sombra, Dawn and Euphemia (taken from the 
County of Lambton), and the Townjships of Zone, 
Camden with the Gore thereof, Orford and Howard 
(taken from th^ County of Kent). 

The County of Grey, divided into Two Ridings, to be called 
respectively the South and North Ridings : — 

64. The South Riding to consist of the Townships of Ben- 
tinck, Glenelg, Artemesia, Osprey, Normanby, Elgre- 
inont, Proton and Melanctlion. 

55. The North Riding to consist of the Townships oi Colling- 
wood, Euphrasia, Holland, St. Vincent, Sydenham, 
Sullivan, Derby and Keppel, Sarawak and Brooke, and 
the Town of Owen Sound. 

The County of Perth, divided into Two Ridings, to be called 
respectively the South and North Ridings: — 

66. The North Riding to consist of the Townships of Wal- 

lace, Elma, Logan, Ellire, Mornington, and North 
Easthope, and the Town of Stratford. 

67. The South Riding to consijrt of the Townships of Blanch- 

ard, Downie, South Easthope, Fullarton. Hibbert, and 
the villages of Mitchell and St. Marys. 

The County of Wellington, divided into Throe Ridings, to 
be called respectively North, South and Centre Ridings : — 

68. The North Riding to consist of the Townships of Amar- 

anth, Arthur, Luther, Minto, Maryborough, Peel, and 
the Village of Mount Forest. 

69. The Centre Riding to consifft of the Townships of Gara- 

fraxa, Erin, Eramosa, Nichol and Pilkington, and the 
Villages of Fergus and Elora. 



262 THE BRITISH NORTH AMERICA ACT. 

60. The South Riding to consist of the Town of Guelph and 

the Townships of G-uelph and Puslinch. 

The County of Norfolk, divided into Two Ridings, to 
be called respectively the South and North Ridings: — 

61. The South Riding to consist of the Townships of 

Charlotteville, Houghton, Walsingham and Wood- 
house, and with the Gore thereof. 

62. The North Riding to consist of the Townships of Mid- 

dleton, Townsend and Windham, and the Town of 
Siincoe. 

63. The County of Haldimand to consist of the Townships 

of Oneida, Seneca, Cayuga North, Cayuga South, 
Rainham, Walpole and Dunn. 

64. The County of Monk3K to consist of the Townships of 

Canborough and Moulton, and Sherbrooke, and the 
Village of Dunnville (taken from the County of 
Haldimand), the Townships of Caister and Gains- 
borough (taken from the County of Lincoln), and the 
Townships of Pelham and Wainfleefc (taken from the 
County of Welland). 

65. The County of Lincoln to consist of the Townships of 

Clinton, Grantham, Grimsby and Louth, and the 
Town of St. Catharines. 

66. The County of Welland to consist of the Townships 

of Bertie, Crowland, H'umberstone, Stamford, Thor- 
old and Willoughby, and the Villages of Chippewa, 
Clifton, Fort Erie, Thorold and Welland. 

67. The County of Peel to consist of the Townships of 

Chinguacousy, Toronto, and the Gore of Toronto, and 
the Villages of Brampton and Streetsville. 

68. The County of Cardwell to consist of the Townships 

of Albion and Caledon (taken from the County of 
Peel), and the Townships of Adjala and Mona (taken 
from the County of Simcoe). 



THE BRITISH NORTH AMERICA ACT. 263 

The County of Simcob, divided into T'wo Ridings, to be 
called respectively the South and the North Ridings: — 

69. The South Riding to consist of the Townships of West 

GwiUimbury, Tecumseth, Innisfil, Essa, Tossorontio, 
Mulmur, and the Village of Bradford. 

70. The Xorth Riding to consist of the Townships of Not- 

tawasaga, Sunnidale, Vespra, Flos, Oro, Medonte, 
Orillia and Matchedash, Tiny and Tay, Balaklava 
and Robinson, and the Towns of Barrie and Colling- 
wood. 

The County of Victoria, divided into Two Ridings, to be 
called respectively the South and North Ridings : — 

71. The South Riding to consist of the Townships of Ops, 

Mariposa, Emily, Verulam, and the Town of Lindsay. 

72. The North Riding to consist of the Townships of 

Anson, Bexley, Garden, Dalton, Digby, Eldon, Fene- 
lon, Hinden, Laxton, Lutterworiih, Macaulay, and 
Draper, Sommerville and Morrison, Muskoka, Monck 
and Watt (taken from the County of Simcoe), and 
any other surveyed Townships lying to the North of 
the said North Riding. 

The County of Peterborough, divided into Two Ridings, 
to be called respectively the West and East Ridings: — 

73. The West Riding to consist of the Townships of South 

Monaghan (taken from the County of Northumber- 
land), North Monaghan, Smith and Ennismore, and 
the Town of Peterborough. 

74. The East Riding to consist of the Townships of Aspho- 

del, Belmont and Methuen, Douro, Dummer, Galway, 
Harvey, Minden, Stanhope and Dysart, Otonabee and 
Snowden, and the Village of Ashburnham, and any 
other surveyed Townships lying to the North of the 
said East Riding. 

The county of Hastings, divided into Three Ridings, to be 
called respectively the West, East and North Ridings: — 

75. The West Riding to consist of the Town of Belleville, 

the Township of Sydney, and the Village of Trenton. 



864 THE BRITISH NORTH AMERICA ACT. 

76. The East Riding to consist of the Townships of Thnr- 

low, Tyendinaga and Hungerford. 

77. The North Riding to consisrt of the Townships of Raw- 

don, Huntingdon, Madoc, Elzevir, Tudor, Marmora 
and Lake, and the Village of Stirling, and any other 
surveyed Townships lying to the North of the said 
North Riding. 

78. The County of Lennox to consist of the Townships 

of Richmond, Adolphustown, North Fredericksburgh, 
South Fredericksburgh, Ernest Town and Amherst 
Island, and the Village of Napanee. 

79. The County of Addington to consist of the Townships 

of Camden, Portland, Sheffield, Hinchinbrooke, Kala- 
dar, Kennebec, Olden, Oso, Anglesea, Barrie, Claren- 
don, Palmerston, Effingham, Abinger, Miller, Can- 
onto, Denbigh, Loughborough and Bedford. 

80. The County of Frontenac to consist of the Townships 

of Kingston, Wolfe Island, Pittsburgh and Howe 
Island and Storrington. 

The County of Renfrew, divided into Two Ridings, to be 
called respectively the South and North Ridings : — 

81. The South Riding to consist of the Townships of McNab, 

Bagot, Blithfi'eld, Brougham, Horton, Admaston, Grat- 
tan, Matawatchan, Griffith, Lyndoch, Raglan, Rad- 
cliffe, Brudenell, Sebastopol, and the Villages of Arn- 
prior and Renfrew. 

82. The North Riding to consist of the Townships of Ross, 

Bromley, Westmeath, Stafford, Pembroke, Wilberforce, 
Alice, Petawawa, Buchanan, South Algona, North Al- 
gona. Eraser, McKay, Wylie, Rolph, Head, Maria, 
Clara, Haggerty, Sherwood, Burns, and Richards, and 
any other surveyed Townships lying North-westerly 
of the said North Riding. 

Every Town and incorporated Village existing at the Union, 
not specially mentioned in this Schedule, is to be taken as part 
of the County or Riding within which it if? locally situate. 



THE BRITISH NORTH AMERICA ACT. 265 

THE SECOND SCHEDULE. 

Electoral Districts of Quebec specially fixed. 

COUNTIES OF 



Pontiac. 

Ottawa. 

Argenteuil. 

Huntingdon. 

Missisquoi. 

Brome. 



Shefford. 

Stanstead. 

Compton. 

Wolfe and Richmond. 

Megantic. 

Town of Sherbrooke. 



THE THIRD SCHEDULE. 

Provincial Public WorJcs and Property to be the Property of 

Canada. 

1. Canals with Lands and Water Power connected there- 

with. 

2. Public Harbours. 

[''It must depend, to some extent, at all events upon the 
circumstances of each particular harbour, what forms a part 
of that harbour.". . . .It does not follow that because the fore- 
shore on the margin of a harbour is Crown property, it neces- 
sarily forms part of that harbour. It may or may not do, 
according to circumstances. If, for example, it had actually 
been used for harbour purposes, it would no doubt form part 
of the harbour; but there are other cases in which, in their 
lordships' opinion, it would be equally clear that it did not 
form part of it" The Fisheries Case, [18981 A. C. 700.] 

3. Lighthouses and Piers, and Sable Island. 

4. Steamboats, Dredges, and Public Vessels. 

5. Rivers and Lake Improvements. 

[This meang river 'improvements and lake improvements.* 
The Fisheries Case, supra.] 

6. Railways and Railway Stocks, Mortgages and other 
Debts due by Railway Companies. 



266 THE BRITISH NORTH AMERICA ACT. 

7. Military Eoads. 

8. Custom Houses, Posrt Offices, and all other Public 
Buildings, except such as the Government of Canada 
appropriate for the use of the Provincial Legislature«r 
and Governments. 

9. Property transferred by the Imperial Government, and 
known as Ordnance Property. 

10. Armouries, Drill Sheds, Military Clothing and Muni- 
tions of War, and Lands set apart for General Public 
Purposes. 



Ix)wer Canada. 



THE FOURTH SCHEDULE. 

Assets to he the Property of Ontario and Quebec conjointly. 

Upper Canada Building Fund. 

Lunatic Asylums. 

Normal Schools. 

Court Houses in : 

Aylmer. 

Montreal. 

Kamouraska. 

Law Society, Upper Canada. 

Montreal Turnpike Trust. 

University Permanent Fund. 

Royal Institution. 

Consolidated Municipal Loan Fund, Upper Canada. 

Consolidated Municipal Loan Fund, Lower Canada. 

Agricultural Society, Upper Canada. 

Lower Canada I^egislative Grant. 

Quebec Fire Loan. 

Temiscouata Advance Account. 

Quebec Turnpike Trust. 

Education — East. 

Building and Jury Fund, Lower Canada. 

Municipalities Fund. 

Lower Canada Superior Education Income Fund. 



THE BlJITlSll J^ORTIl AMERICA ACT. 267 

THE FIFTH SCHEDULE. 
OATH OF ALLEGIANCE. 

I, A, B., do swear that I will be faitliful and bear true Alle- 
giance to Her Majesty Queen Victoria. 

Note. — The Name of the King or Queen of the United 
Kingdom of Great Britain and Ireland for the Time being is 
to be substituted from Tim^ to Time, unth proper Terms of 
Reference thereto. 

DECLARATION OF QUALIFICATION. 

I, A. B., do declare and testify, That I am by Law duly 
qualified to be appointed a Member of the Senate of Canada 
[or as the case may be], and that I am legally or equitably 
seized as of Freehold for my own Use and Benefit of Lands 
or Tenements held in Free and Common Socage [or seized or 
possessed for my own Use and Benefit of Lands or Tenements 
held in Franc-alleu or in Roture (as the case may be), in the 
Province of Nova Scotia [or as the case may be], of the Value 
of Four Thousand Dollars over and above all Rents, Dues, 
Debts, Mo? tgages. Charges, and Incumbrances, due and pa}able 
out of or charged on or affecting the same, and that T have 
not collusively or colourably obtained a title to or become pos- 
Fessed of the said Lands and Tenements or any Pa«t thereof 
for the Purpose of enabling me to becoine a Memb»\.' of the 
Senate? of Canada [or as the case may hr]. and that my Real 
and Personal Property are together worth Four Thousand Dol- 
lars over and above my Debts and Liabilities. 



B. 

34-35 VICTORIA, 

CHAP. XXVIII. 

An Act respecting the establishment of Provinces in the Domin- 
ion of Canada. 

[29th June, 1871.1 
Whereas doubts have been entertained respecting the pow- 
ers of the Parliament of Canada to establish Provinces in Terri- 
tories admitted, or which may hereafter be admitted into the 



268 THE BRITISH NORTH AMERICA ACT. 

Dominion of Canada, and to provide for the representation of 
such Provinces in the said Parliament, and it is expedient to 
remove such doubts, and to vest such powers in the said Parlia- 
ment : — 

Be it enacted by the Queen's most excellent Majesty, by and 
with the advice and consent of the Jjords Spiritual and Tem- 
poral and Commons, in this present Parliament assembled, and 
by the authority of the same, as follows: 

1 . This Act may be cited for all purposes as " The British 
Nortli America Act, 1871/' 

. • 2. The ■ Parliament of Canada may from Time to Time 
establish new Provinces in any Territories forming for the 
time being part of the Dominion of Canada, but not included 
in any Province thereof, and may, at the time of such estab- 
lishment, make provision for the constitution and adminis- 
tration of any such Province, and for the passing of Laws for 
the peace, order and good government of such Province, and 
for its representation in the said Parliament. (See Man. Act, 
B. 146). 

3. The Parliament of Canada may from Time to Time, 
with the consent of the Legislature of any Province of the 
said Dominion, increase, diminish, or otherwise alter the limits 
of such Province, upon such terms and conditions as may be 
agreed to by the said Legislature, and may, with the like con- 
sent, make provision respecting the effect and operation of any 
such increase or diminution or alteration of Territory in re- 
lation to any Province affected thereby. 

4. The Parliament of Canada may from Time to Time 
make provision for the administration, peace, order, and good 
government of any Territory not for the time being included 
in any Province. 

5. The following Acts passed by the said Parliament of 
Canada, and intituled respectively: "An Act for the tempor- 
ary government of Rupert's Land and the North Western 
Territory when united with Canada," and " An Act to amend 
and continue the Act thirty-two and thirty- three Victoria, 
chapter three, and to establish and provide for the government 
of the Province of Manitoba," shall be and be deemed to have 



THE BRITISH NORTH AMERICA ACT. 269 

been valid and effectual for all purposes whatsoever from the 
date at which they respectively received the assent, in the 
Queen's name, of the Governor-General of the said Dominion 
of Canada. 

6. Except as provided by the third section of this Act, it 
shall not be competent for the Parliament of Canada to alter the 
provisions of the last mentioned Act of the said Parliament, 
in so far as it relates to the Province of Manitoba, or of any 
other Act hereafter establishing new Provinces in the said Do- 
minion, subject always to the right of the Legislature of the 
Province of Manitoba to alter from Time to Time the provi- 
sions of. any law respecting the qualification of electors and 
members of the Legislative Assembly, and to make laws re- 
specting elections in the said Province. 



C. 

38-39 VICTORIA. 

CHAP. XXXVIII. 

An Act to remove doubts with respect to the powers of the 
Parliament of Canada under Section Eighteen of the 
British North America Act, 1867. 

[19/^ July, 1875. 

Whereas by Section Eighteen of the British North America 
Act, 1867, it is provided as follows: — 

** The privileges, immunities and powers to be held, enjoyed 
and exercised by the Senate and by the ITouse of Commons, 
and by the Members thereof respectively, shall be such as are 
from time to time defined by Act of the Parliament of Canada, 
but so that the same shall never exceed those at the passing of 
this Act, held, enjoyed and exercised by the Commons House 
of Parliament of the ITnited Kingdom of Great Britain and 
Ireland and by the members thereof.'' 

And whereas doubts have arisen with regard to the power 
of defining by an Act of the Parliament of Canada, in pursu- 
ance of the said section, the Raid privileges, powers, or immuni- 
ties : and it is expedient to remove such doubts : 



270 THE BRITISH NORTH AMERICA ACT. 

Be it, therefore, enacted by the Queen'a Most Excellent 
Majesty, by and with the advice and consent of the Ijords 
Spiritual and Temporal, and Commons, in this present Parlia- 
ment assembled, and by the authority of the same, as follows : — 

1. Section eighteen of the British North America Act, 
1867, is hereby repealed without prejudice to anything done 
under that section, and the following section shall be substi- 
tuted for the section so repealed. 

The privileges, immunities and jwwers to be held, enjoyed 
and exercised by the Senate and by the House of Commons, 
and by the Members thereof, respectively, shall be such as are 
from time to time defined by Act of the Parliament of Canada, 
but so that any Act of the Parliament of Canada defining such 
privileges, immunities and powers shall not confer any privi- 
leges, imimunities or powers exceeding those at the passing of 
such Act, held, enjoyed and exercised by the Commons House 
of Parliament of the United Kingdom of Great Britain and 
Ireland and by the Members thereof. 

2. The Act of the Parliament of Canada passed in the 
thirty-first year of the Reign of Her present Majesty, chapter 
twenty-four, intituled "An Act to provide for oaths to witnesses 
being administered in certain cases for the purposes of either 
House of Parliament,'' shall be deemed to be valid, and to 
have been valid as from the date at which the Royal assent was 
given thereto by the Governor-General of the Dominion of 
Canada. 

3. This Act may be cited as "The Parliament of Canada 
Act, 1875." 



D. 

49-50 VICTORIA. 
Chap. xxxv. 

An Act respecting the Representation in the Parliament of 
Canada of Territories which for the time being form part 
of the Dominion of Canada, but are not included in any 
Province. 

[25th June, 1886.] * 
Whereas it is expedient to empower the Parliament of Can- 
ada to provide for the representation in the Senate and House 



THE BRITISH NORTH AMERICA ACT. 271 

of Commons of Canada or either of them, of any Territory 
which for the time being forms part of the Dominion of Can- 
ada, but is not included in any province. 

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 Parlia- 
ment assembled, and by the authority of the same, as follows : — 

1. The Parliament of Canada may, from time to time, 
make provisions for the representation in the Senate and House 
of Commons of Canada, or in either of them, of any Territories 
which for the time being form part of the Dominion of Canada, 
but are not included in any province thereof. 

2. Any Act passed by the Parliament of Canada before the 
passing of this Act for the purpose mentioned in this Act shall, 
if not disallowed by the Queen, be, and shall be deemed to have 
been, valid and effectual from the date at which it received the 
assent, in Her Majesty's name, of the Governor-General of 
Canada. 

It is hereby declared that any Act passed by the Parliament 
of Canada, whether before or after the passing of this Act, for 
the purpose mentioned in this Act or in the British North 
America Act, 1871, has effect, notwithstanding anythincr in the 
British North America Act, 1867, and the number of Senators 
or the number of members of the House of Commons specified 
in the last mentioned Act is increased by the number of Sena- 
tors or of members, as the case may be, provided by any such 
Act of the Parliament of Canada for the representation of any 
provinces or territories of Canada. 

3. This Act may oe cited as the British North America 
Act, 1886. 

This Act and the British North America Act, 1867, and the 
British North America Act, 1871, shall be construed together 
and may be cited together as the British North America Acts, 
1867 to 1886. 



272 TRIAL BY JURY. 

» 

CHAPTER XIX. 
Trial by Jury. 

There can be but little doubt that the origin of our modern 
civil jury is to be found in the system of recognition which was 
introduced from Normandy at the time of William I. This 
system of recognition by sworn inquest consi^d in questions 
of fact relating to fiscal or judicial business being submitted 
by the officers of the Crown to sworn witnesses in the local 
Courts. A notable instance of its employment is the Doomsday 
inquest. To prepare the Doomsday Book the King sent out 
barons who made a survey of property on the oath of the sheriff, 
and all the barons and Norman landowners of the shire, and 
of the priest, reeve and six villagers from every township. 
Gradually this inquest by recognition, originally used to as- 
certain facts in the interests of the Crown or the Exchequer, 
was gradually allowed as between subjects. The reason for 
this extension was probably the desire of the King that litigants 
should adopt this royal process, rather than compurgation, or- 
deal or trial by battle. It was better f»or the King that he 
should become the fountain of justice, and indeed it was also 
probably better for the litigant, who was by no means sure of 
justice in the Lord's Courts or in the communal Courts. 

This inquisition is first used in the Assize of novel disseisin 
which protected the possession of freeholders. A writ is directed 
to the sheriff ordering the summoning of a body of neigh- 
bors who shall declare on their oath whether the defendant un- 
justly and, without judgment disseised the plaintiff. This was 
followed by the Grand Assize which was applicable to cases 
where the title to the freehold as distinct from the right to pos- 
session, was involved. In the case of the possessory Assizes the 
twelve recognitors were chosen directly by the sheriff; whilst 
in the case of the Grand Assize four knights were elected by the 
parties and they in turn elected the twelve recognitors. "If 
they all knew the facts and were agreed as to their verdict, 
well and good; if some or all were ignorant, the fact was cer- 
tified in court and new knights were named, until twelve were 



TRIAL BY JURY. 273 

found to be agreed. The same course was followed when the 
twelve were. New knights were added until the twelve were 
agreed. This was called aiforcing the assize. At this time the 
knowledge on which the jurors acted was their own personal 
knowledge, acquired independently of the trial. " So entirely," 
says Forsyth, " did they proceed upon their own previously 
formed view of the facts in dispute that they seem to have con- 
sidered themselves at liberty to pay no attention to evidence 
offered in court, however clearly it might disprove the case 
which they were prepared to support." The use of recognition 
is prescribed by the constitutions of Clarendon (1166) for 
cases of dispute as to lay or clerical tenure. 

This procedure by the assize was confined to real actions (in 
general, those actions having to do with real property or free- 
holds) and while it preceded it is not identical with the modern 
jury trial in civil cases, which was gradually introduced by con- 
sent of the parties and on pressure from the judges. Jury 
trial differs from the grand and petty assizes in that the assizes 
were summoned at the same time as the defendant to answer 
a question formulated in the writ; whereas in the ordinary jury 
trial no order for a jury could be made till the parties by their 
pleadings had come to an issue of fact and had put themselves 
on the country, posuerunt se super patriam (Pollock and Mait- 
land, i., 119-128, ii., 601, 615, 621; E. B. v. 15, 588). An 
assisa decides a question formulated in the original writ, a jurata 
decides a question which has arisen out of the pleadings. 

In the reign of Henry II. by the Assizes of Clarendon 
(1166) and Northampton (1176) the presentment of crimes 
by twelve men representing each hundred was made a regular 
permanent procedure. It is not clear whether this jury is a 
lineal successor of the twelve senior thegns who under an ordin- 
ance of Aethelred II. were sworn in the county court that they 
would accuse no innocent man and acquit no guilty one. It 
.seems to be the better opinion that there is no direct connection 
between the two. Maitland considers this new grand jury to 
be another offshoot of the royal and fiscal inquisition : " To as- 
certain and protect the rights of the Crown is the main object, 
and it f«ems almost a by-end that incidentally crime may thus 
be discovered and suppressed." The itinerant judges are sup- 

C.C.--18 



274 TRIAL BY JURY. 

plied with lists of inquiries which they are to lay before juries 
representing the various hundreds which they visit. These 
lists of inquiries are known as articles of the eyre, capitula 
itvneris, and in the main they are fiscal inquiries; the royal 
revenue is the chief end in view. The jurors are to swear as to 
what profits have fallen to the Crown, as to escheats, forfeitures, 
marriages, wardships, widows, Jews, treasure trove and other 
sources of income; also as to the misdoings of the sheriff and 
his bailiffs; also as to murders, robberies and so forth, for crime 
also brings money to the royal exchequer — for instance there 
are murder fines to l^e collected. It is not improbable that our 
Norman Kings occasionally directed inquisitions of this sort. 
In Henry II.'s reign, under the Assizes of Clarendon and North- 
ampton, the presentation of crimes by twelve men representing 
each hundred was made a regular permanent procedure. The 
twelve sworn hundredors are to present crimes; the persons 
whom they accuse are to go to the ordeal; if they fail at the 
ordeal, they are to be punished by mutilation. What is more, 
the Assize of Northampton betrays some mistrust of the effi- 
cacy of the ordeal as a means of eliciting the truth, for even if 
a person thus accused satisfies the test, and thus has the judg- 
ment of God in his favour, he is to abjure the realm, that is, he 
is to leave the realm swearing never to return. It was directed 
by the Assize of Clarendon that the justices in eyre and the 
sheriffs (in the county courts) should inquire by twelve lawful 
men of the hundred, and by four lawful men from each of the 
four vills nearest to the scene of the alleged crime, as to whether 
in the hundred or vill there was any man accused as a robber 
or murderer, or thief, or receiver of such. (To these crimes 
the Assize of Northampton added forgery of coin or charters 
and arson). "Henceforward," says Maitland, "English law 
has two criminal procedures; there is the appeal — a private 
accusation brought by the person primarily wronged by the 
crime, the person, e.g., whose goods have ])een stolen, or the 
nearest kinsman of the murdered man; then there is the in- 
dictment — the sworn accusation of twelve men who have sworn 
to present the crimes committed within their hundred." 

About the reign of Henry II. it became possible for a pers-on 
who had been appealed of some crime to avoid the trial by 
battle by purchasing from the King the right of having tlv^ 



TRIAL BY JURY. 275 

question tried by an inquest of his neighbors. By Magna 
Charta an accused perf?on received this right, without havinij 
to purchase it. 

The ordeal itself fell into di.<iiso owing to the decree of the 
fourth Lateran Council, 1219, which proliibited clergy from 
taking part in it. Thereafter, it became the larw that an accused 
person must put himself upon his country, or else stay in gaol. 
Tie certainly could not be tried unless he put himself upon hi>? 
country, but he could be pressed or starved to death unless he 
did so (peine forte et dure) in that he * stood mute of malice.' 
Less than two hundred years ago, an accused person was actu- 
ally pressed into pleading. 

Originally, the jury were chosen because they had actual 
knowledge of the facts of the case, but about the reign of 
Henry IV. it became the practice to hear evidence in open 
court, and about the reign of Queen Mary the jury were not 
summoned on account of any special knowledge of the facts 
that they might possess. 

In the reign of Edward III. it was? held that the verdict 
of a jury must be unanimous, and so it came to be thoughi^ 
that a want of unanimity amounted to perversit}% hence the old 
rule that a jury should not be allowed either fire or food whilst 
considering the verdict. 

Juries also might be fined or imprisoned for giving a wrong 
verdict, which might have been proper enough Avhen they were 
actual witnesses, but was scarcely sustainable when they ceased 
to be so. In such cases, the jury was put upon its trial by a 
jury of attaint and were heavily punished if found guilty. 
The object of an attaint was sufficiently secured by a motion 
for a new trial and it was, after long disuse, abolished in the 
reign of George IV. The entire immunity of juries from 
punishment for giving a false verdict was settled in 1070 by 
Busheirs Case. Bushell was foreman of the jur}' which ac- 
quitted Wm. Penn and Wm. Mead, the Quakers, on a charge 
of street preaching in contravention of the Conventicle Act. 
The Recorder fiVied the jury 40 marks each, and Bushell on 
refusing to pay was committed to prison. He sued out a 
habeas corpus, to which a return was made that he had been 
committed for finding a verdict "against full and manifest 



v>76 TRIAL BY JURY. 

evidence and against the direction of the Court." This re- 
turn was held to be insuflBcient by Chief Justice Vaiighan 
and Bushell was discharged from custody. 

Upon the question as to whether a jury in criminal trials 
may return a '^ general verdict/' i.e., whether they miglit re- 
turn a verdict of guilty or not guilty, instead of determining 
merely the facts. This was settled in general by Bushell's 
Case, but Lord Mansfield reawakened the question as to 
cases of libel upon the trial of the printers of the " North 
Briton" in 1764, by ruling that it was the province of the 
Court alone to judge of the criminality of the libel. The 
question was fi'nally set to rest in favour of the jury by Fox's 
Libel Act in 1792. 



TAXATION AND EXPENDITURE. 277 



CHAPTER XX. 



Taxation and Expenditure. 

Taxation. 

There can be but little doubt that prior to the Norman 
Conquest, the consent of the Witan to extraordinary taxation 
was necessary, but after the conquest there does not appear to 
have been any necessity for the consent of the National Council. 
The necessary consent seems to liave been regarded as a con- 
sent on the part of the tax-payer rather than of any assembly. 

Amongst the sources of national revenue there must be 
mentioned the right to tallage or tax the tenants on the de- 
mesne land of the King. Then again there were the ancient 
and right customs {antiquae et rectae consuetudines) payable 
by merchants. These customs duties fell on imported wine 
and exported wool, woolfells and leather. The toll on wine 
was called prisago, butlerage or tunnage, and amounted to one 
in every ten tuns. These were confirmed in Magna Charta, which 
forbade the imposition of unjust (presumably any other ex- 
actions), tolls, evil tolls or maletolts. The custom dutie.«f 
granted to Edward I. in 1275 were known as the antiqua cus- 
tuma, or ancient cuFrtoms. Additional customs taken by Edward 
I. by agreement with foreign merchants in 1302 were known 
as the nova sive parva custuma (new or small customs), and 
still further duties were granted to Richard II. for life under 
the name of tunnage and poundage. These taxes were gener- 
ally granted by Parliament to the King for life, but from the 
accession of the House of Lancaster (1399) up to the reign of 
Mary (1553) the King never imposed any duty upon his own 
authority. In 1557 Mary placed customs duties on ex']X)rted 
cloths and imported French wines. Queen Elizabeth added a 
duty on sweet wines and James I. imposed an additional duty 
on currants. This last. John Bates, a Ijcvant merchant, re- 
fused to pay and an information was exhibited against him in 
the Court of Exchequer, with the result that the unanimous 
opinion of the four barons went in favour of the King. The 
decision seems to have been based on the grounds that customs 
were matters of commerce and that commerce Avas a matter 
for the King's absolute power (as distinguished from his ordi- 



278 TAXATION AND EXPENDITURE. 

nary power) for the safety of his people. " The King may 
shut the ports altogether; therefore he may take toll at the 
ports." This victory encouraged the King to publish in 1608 
a Book of Rates imposing heavy duties on almost all articles 
of (ommerco. 

In 1040 the Ijong Parliament passed an Act which, whilst 
granting tunnage and poundage to the King) for less than two 
months, '^' declared and exacted that it is, and hath been, the 
ancient right of the ^ubjetts of the realm that no subsidy, 
custom impost, or other charge whatsoever, ought or may be 
laid or imposed upon any merchandise exported or imported 
by subjects, denizens or. aliens, without common consent in 
Parliament." 

There never lias been the same contest over excise duties as 
over custom duties, as the former were first imposed by parlia- 
mentary authority, viz., by an ordinance of the Long Parliament 
in 1643, when duties were imposed on beer, ale, cider, perry, 
wine and tobacco. Excise licenses were first invented in 17^4. 

Danegeld was a tax of two shillings on every hide of land 
(about 38 acres) which was originally imposed by Ethelrod IT. 
to raise the Danish tribute, and was paid down to the twentieth 
year of the reign of Henry IT. It was revived in the reign of 
Richard I. under the thin disguise of a carucage or tax upon 
ploughland. 

The Saladin tithe granted to Henry II. in 1188 to defray 
the expenses of the Crusade appears to have been the first at- 
tempt to tax personal or movable property. The assessment of 
the tax was effected by means of a jury of neighbors. 

From the beginning of the 14th century it may be said 
that direct taxation, at any rate, could not be imposed without 
the common consent of the realm. The Confirmatio Char- 
tarum of 1897 runs as follows: *' Moreover we have granted 
for us and our heirs, as well to archbishops, bishops, abbots, 
priors and other folk of holy Church, as also to earls, barons 
and to all the commonalty of the land, that for no business from 
hencefortli will we take such manner. of aids, tasks, nor prises., 
but by the common consent of the realm, and for the common 
profit thereof, saving the ancient aids and prises due and accus- 
tomed." 



TAXATION AND EXPENDITURE. 279 

Edward I. tallaged his demesne lands in 1304, but this may 
not have offended against the letter of the law, as the taxation 
may have l)eon regarded as imposed rather by a landlord, than 
by a King. 

Control over Expenditure. 

Although it is true that as early as Magna Charta, the 
principle was established that consent of the National Assembly 
was a condition precedent to taxation, yet the control of the 
House of Commons over the expenditure of the money raised 
by taxation or over any of the royal revenue was ineffectual. 
" The Crown,' ' says Sir William Anson, " had an hereditary 
revenue from various sources which satisfied many of the needs 
of government. If ihe King wanted more, he asked for and 
obtained a grant of a tenth or a fifteenth on real or per.^nal 
property. No means existed of assigning portions of the grant 
to particular services, or indeed of providing that the Kins; 
should not spend the entire subsidy on purposes quite differ-. 
ent from those for which it was asked. So when their grant 
was made the virtue had gone out of the Commons, they could 
exercise no control over policy till money was wanted again *' 
(Anson, vol. I., ;iO). 

Prior to the time of Charles IT. there had been sporadic 
attempts at exacting accounts from the King or, as in 1621, in 
the case of money voted for the relief of the Palatinate, ap- 
propriation of supplies, but the attempt is not continuous until 
the reign of Charles II. In that reign a clause was introduced 
into the bill granting money for the prosecution of the Dutch 
war, providing that the money was to be applied only to the pur- 
})oses of the war, and iho precedent was followed in other cases 
during that reign. Even here the appropriation only extends 
to the expenditure of what might be termed extraordinary 
revenue. After the devolution the practice was uniformly 
followed and money raised by taxation was appropriated t<> a 
specific purpose. In the reign of William III., a definite 
annual sum was assigned to the King for his own use, as dis- 
tinct from national ex7)enditure, while at the same time the 
burden of providing for the latter was lifted from his shoulders. 
This sum of money was known as the King's " Civil List " and 
had to meet the perronal expenses of the King, the support 



280 TAXATION AND KXPENDITUltE. 

I ( • 

of the Eojal Household and also the pa,yineiit of civil officers 
and pensions. The direct control of Parliament over the 
King's personal expenses was first gained on the accession of 
George III., who surrendered to the nation his life interest 
in his hereditary revenues (demesne lands, forfeitures, bona 
vacantia, treasure trove, wrecks, legal fees, fines, etc., and all 
e^heat, etc.), and all surplus which might accrue from them 
and received a fixed civil list of £800,000 for the support of 
his household, and the honour and dignity of the Cro^vii. The 
present civil list amounts to about £500,000, inasmuch as one 
of the most important effects of the establishment of the prin- 
ciple of appropriation of supplies is that it becomes necessary 
for Parliament to assemble every year, as with regard to a 
great portion of the national expenditure no money can be 
legally paid out until it is embodied in an Appropriation Act. 



INDEX 



Access to King, right of, 112. 

Action de nativo habendo, 63. 

Act of Settlement, 208. 

Acts of Parliament, disallowance of, 118. 

Adjournment of Parliament, 109. 

Administration by Ordinary, 176. 

Aids, 67. 

Aliens, laws as to, 26. 

Allod, 63. 

Allodial property, 61. 

Alteration of Colonial Constitution, 18. 

Amendment of Constitution of Province, 238. 

America, characteristics of Presidential Government of, 

Amercement, 175. 

Anderson's Case, 194. 

Antiqua custuma, 277. 

Antiquse et rectae consuetudines, 277. 

Appeal or appellum, 183. 

Appeals to Privy Council, 130. 

Army, standing, 197. 

Arrest, freedom from, 111. 

Articles of the Eyre, 274. 

Assize, commission of, 70. 

Assizes, 174. 

Assize of Clarendon, 273. 

Assize of Northampton, 70, 273. 

Assize of Northumberland, 169. 

Assize of novel disseisin, 272. 

Assize of Woodstock, 184. 

Attaint, jury of, 275. 

Australian view of extra-territorial legislation. 12, 113 

Baldwin, 81. 

Banking, meaning of, 236. 

Bankruptcy law, 24. 

Baro, 172. 

Barons, greater, 172. 

Barony, meaning of, 172. 

Bates' Case, 277. 

Battle, trial by, 183. 

Beneflcium, 63. 

Benevolence, 193. 

Bill, assent to, 192. 

Bills, money, amendment of, 225. 

Bills, origin of. 107. 

Bills, provincial, dlsaliowance of. 233. 

Bills, reservation of, 233. 

Bocland. 61. 

Bonanza Creek Case. 41. 

Bona vacantia. 134. 



282 INDEX. 

Borough English, 180. 
Bradlaugh's Case, 113. 
Bridges, making of, 175. 
British North America Act, 214. 
Burg, 62. 
Burgage. 180. 
Burgage tenure, 68. 
Bushell'a Case, 275. 
Butlerage, 277. 

Cabinet. ' efficient." 124. 

Cabinet, historical sketch, 121. 

Cabinet, increase of power of, 3 4. 

Cabinet meetings, 128. 

Cabinet Ministers, re-election of, 127. 

Cameron v. Kyte, case of, 146. 

Campbell v. Hall, 91. 

Canada Trade Act, 77. 

Canadian Parliaments, sovereignty of, 3. 

Capitula itineris, 274. 

Carucage, 278. 

Castleward, 178. 

Ceded colonies, 73. 

Ceorls, 62. 

Cession of territory, 133. 

Cinque ports, 197. 

Civil List, 279. 

Clarendon, Assize of, 273. 

Clarendon, Constitutions of, 273. 

Clergy lands, 76. 

Closure, 117. 

Coinage, 133, 136. 

Colonial Constitution, alteration of, 18. 

Colonial Laws Validity Act, 15. 

Colonies, ceded, 73. 

Colonies, conquered, 73. 

Colonies, settled, 73. 

Colony, Imperial law extending to a, 16. 

Colony, limitations upon legislative power of, 8. 

Colony, meaning of, in Imperial Acts, 15. 

Commission distinguished, 165. 

Commission of Governor, 152. 

Commissioners of Musters, 192. 

Commissions of Judges, 70. 

Common Pleas, Court of, 69. 

Common Pleas not to follow King, 173. 

Commune Concilium, 103. 

Company, Bonanza Creek Case, 41. 

Company, Insurance Companies Case, 55. 

Company, John Deere Plow Case, 32. 

Compurgation, trial by, 180. 

Compurgators, 65. 

Concilium Ordinarium, 103. 

Concilium Regis, 121. 

Concurrent legislation, 244. 

Confederation, meaning of, 3. 



INDEX. 283 

Confirmatio Cartarimi, 187. 

Conflict between Dominion and Provincial legislative powers, 23. 

Conquered colony, propositions as to, 95. 

Constitution, alteration of colonial, 18. 

Constitution of Province, amendment of. 238. 

Constitutional Act 1791, 75. 

Constitutional Law, definition of, 1. 

Constitutional Law, guiding principles of study of, 1. 

Constitutions of Clarendon, 273. 

Contenement, 175. 

Continual Council, 103. 

Contract, liability of Governor in, 141. 

Conventions, dependence of, upon Constitution, 7. 

Conventions of Parliament (Imp.) embodied in statute (Can.), 109. 

Copyhold, 68. 

Com Laws, Repeal of, 84. 

Coronation Oath, 204. 

County Court, writ for assembling, 70. 

Court, hundred, 65. 

Court of High Commission, 196. 

Court of Requests, 122, 

Courts, creation of, by Province, 31. 

Courts, establishment of, 18. 

Courts, forest, 182. 

Criminal Law, 242. 

Crown as parens patriae, 134. 

Crown, demise of, 109. 

Crown, prerogative of, 132. 

Curia Regis, 68. 

Curia Regis, different meanings of, 103. 

Customs, ancient and right, 277. 

Danegeld, 69, 277. 

Darnel's Case, 193. 

Darrein presentment, assize of, 174. 

Definition of constitutional law, 1. 

Delegation of powers by Parliaments, 116. 

Demise of Crown, 109. 

De odio et atla, writ of, 179. 

De Religiosls. statute of, 185. 

Direct tax, 239. 

Disallowance of Acts of Parliament, 118. 

Disallowance of Provincial Bills, 233. 

Disparagement, 169. 

Dispensing power, 205, 206. 

Dis<]ualifications for membership of Parliament, 110. 

Dissolution of Parliament, 109. 

Divorce. 237. 

Dominion legislation, powers of, 23. 

Doomsday book, 272. 

Dower, 170. 

Droit admin istratif, 6. 

Durham's report, 85. • 

Kaldorman, 62. 

Earl Grey, instructions of, 82. 

E:fl[icient cabinet. 124. 



284 INDEX. 

E^ngllsh and Canadian Constitutions, differenco. 1. 

English Law, introduction of, into Canada, 20. 

BiBcheat. 67. 134 247. 

Exchequer. 69. 

Exchequer of Jews, 171. 

"Exclusive" (B. N. A. Act), meaning, 16. 

Excise duties, 278. 

Executive Councils, 128, 129. 

Expenditure, control of Parliament over, 279. 

" Extending " to a colony, meaning, 16. 

Extra-territorial legislation, 8. 

Extra-territorial legislation, Australian view of, 12. 

Ejrre, articles of the, 274. 

Eyre, Justices in, 70. 

Fealty, oath of, 67. 

Federal, meaning of, in B. N. A. Act, 47. 

Federation, leading characteristics of, 5. 

Federation, meaning of, 3. 

Fee-ferm, 180. 

Feudal system, 66. 

Financial action, general principles governing, 118. 

Firma comitatus, 176. 

Floyd's Case, 122. 

Folcland, 61. 

Forced loans, 193. 

Forest Courts, 182. 

Frank pledge, 65. 

Freedom from arrest, 111. 

Freedom of discussion, right of, 6. 

Freedom of speech. 111. 

Free socage, 67. 

Gaol delivery, commission of, 70. 

General verdict, 276. 

Gerefa, 61. 

Gesiths, 62. 

Governor, appointment of, 140. 

Governor, commission of, 152. 

Governor-General, deputy of, 140. 

Governor-General not a viceroy, 216. 

Governor, instructions of, 161. 

Governor, liability to suit of, 140. 

Governor, mandamus not lying against, 141. 

Governor of Colony, meaning of, in Imperial Acts, 142. 

Governor, prerogative of, 134. 

Governor, prerogatives not delegated to, 136. 

Governor, presents to, 142. 

Grand Assize, 174, 272. 

Grand jury, 273. 

Guillotine, 117. 

Habeas Corpus, 193. 
Haberject, 179. 
Hales' Case, 207, 
Harbour, nature of, 265. 



INDKX. 285 



Heriot, 168. 

High Commission, Court of, 196. 

Hill V. Bigg, case of, 144. 

Honorary cabinet, 124. 

House of Commons, privileges of, 111. 

House of Lords, right to sit in, 173. 

Howe, Joseph, 84. 

Hundreds, 61. 

Hundred Court, 65. 

Immigration, 236. 

Indian rights, 247. 

Indirect tax, 239. 

Inquest by recognition, 272. 

Inspeximus, 167. 

Instructions distinguished, 165. 

Instructions of Governor, 161. 

Insurance Companies Case, 55. 

Intendment, meaning of necessary, 16. 

* Interest " in B. N. A. Act, meaning, 236. 

Introduction of English Law into Canada, 20. 

Itinerant Judges, 70. 

Jews, Exchequer of, 171. 

John Deere Plow Case, 32. 

John Doe, 181. 

Jointure, 170. 

Judges, exemption from suit of, 245. 

Judicial Committee of Privy Council, 125. 

Judicial prerogatives of Crown, 134. 

Jury of Attaint, 275. 

Jury, trial by, 272. 

Justices in Eyre, 70. 

Justices of the Peace, 193. 

King, right of access to, 112. 
King's Bench, Court of, 70. 
Knights' fee, meaning, 67. 

Lafontaine, 81. 

Lateran Council, 181. 

Law, Introduction of English, 20. 

Law, rule of, meaning, 5. 

Legislation by ordinance, 106. 

Legislation by proclamation, 205. 

Legislation, extra-territorial, 8. 

Legislation, repugnancy of, to Imperial law, 15. 

Legislative power of colony, limitations upon. 1 

Legislative Sovereignty of Parliament, 2. 

Letters patent, 139, 165. 

Letters patent distinguished, 165. 

License, taxation by, 240. 

Lieutenant-Governor, appointment of, 48. 

Lieutenant-Governor, executive powers of, 136. 

Life peerages. Crown's creation of, 173. 

Limitations upon legislative power of colony. 8. 



286 INDEX. 

Limits of sovereign power, 2. 
Liquor laws, 25. 242. 
Lord Durham's Report, 85. 
Lord's Day legislation, 242. 
Lynch's case, 112. 

Masna Charts. 167. 

BCbgnum Concilium, 103. 

Mala in se. 207. 

Maletolts. 277. 

Biansfield, judgment of, in Campbell v. Hall, 91. 

Marks of Parliamentary Sovereignty, 3. 

Mark System, 61. 

Marriage. 67. 

Marriage and divorce, 23T. 

Marriage of heirs, 169. 

MarUal law, 194. 

Mesne lords, 66. 

Metcalfe, Sir Charles, 81. 

Miles. 172. 

BiJlitia. 217. 

Minister of Justice, reports of, 233. 

AKnisters, re-election of, 127. 

Ministers without portfolio, 128. 

»roney bills. 109. 

Money bills, amendment of, 54. 

Money grants, 108. 

Aflort d'Ancester, assize of, 174. 

Mortmain, gift of land in, 185. 

Mostyn v. Fabrigas, case of, 145. 

National Council, 103. 
Nativus, 63, 64. 

Naturalization and aliens, 236. 
Navigation Acts, repeal of, 84. 
Necessary intendment, meaning of, 16. 
Non-obstante clause, 207. 
Northampton, assize of, 70, 273. 
Nova Scotia, second chamber of, 232. 
Nova sive parva custuma, 277. 
Novel disseisin, assize of, 174, 272. 

Oath, coronation. 204. 

Oath helpers, trial by, 180. 

Oath of fealty. 67. 

Oath of Salisbury, 66. 

Ordeal, 66, 181. 

Orders in Council, 126. 

Ordinance, legislation by, 106. 

Ordinary, administration by, 176. 

Ousterlemain, 169. 

Oyer and terminer, commission of, 70. 

Pardon, 136, 157, 166. 
Parliament, adjournment of, 109. 
Parliament, closure, 117. 



INDEX. 287 

Parliament, control of, over expenditure, 279. 

Parliament, disqualifications for membership, 110. 

Parliament, dissolution of, 109. 

Parliament, historical sketch, 103. 

Parliament, legislative Sovereignty of, 2. 

Parliament, original meaning of, 118. 

Parliament, principles governing financial action of, 118. 

Parliament, prorogation of, 109. 

Parliament, reports of proceedings of, 112. 

Parliament, resignation of seat in, 225. 

Parliamentary Sovereignty, marks of, 3. 

Peace, commission of the, 70. 

Peine forte et dure, 275. 

Personal prerogatives of King, 133. 

Personal property, tax on, 186. 

Petition, assent to, 192. 

Petition of right, 134, 189. 

Petitiones foormam actuum In se cotttinentes. 108. 

Petitions, reference of, to Chancellor, 122. 

Pledgers of prosecution, 181. 

Ploughland, tax on, 278. 

Police Afagistrates, appointment by province, 31. 

Political prerogatives of Crown, 133. 

Possessory assizes, 174, 272. 

Praecipe in capite, 179. 

Praecipe, writ of, 71. 

Prerogative of Crown, 132. 

Prerogative of Governor, 135. 

Prerogative of pardon, 136. 

Prerogatives not delegated to Governor, 136. 

Presidential Government, characteristics of, 4. 

Prime Minister, term unauthorized, 123. 

Primer seisin, 67. 

Principles of study of Constitutional Law, 1. 

Prisage, 277. 

Privileges of House of Commons, 111. 

Privy Council, appeals to, 130. 

Privy Council, Judicial Committee of, 125. 

Privy Council, composition of, 125. 

Privy Councillor, appointment, etc., of, 125. 

Privy Council, historical sketch, 121. 

Privy Council, appellate jurisdiction of, 103. 

Proclamation, form of, 126. 

Proclamation, legislation by, 205. 

Prohibition liquor laws, 242. 

Prorogation of Parliament, 109. 

Province, amendment of Constitution of, 238. 

Provincial legislation, powers of, 23. 

Public meeting, right of, 6. 

Pulido V. Musgrave, case of, 142. 

Quarantine, 170. 

Quebec Act, 74. 

Quia Emptores. Statute of. 183. 



288 ixuKx. 

Railways, legislation as to. 241. 

Ransom, 67. 

Real actions, 273. 

Reasonable part of wife, 177. 

Rebellion Losses Bill. 83. 

Reciprocity Treaty 1854, 84. 

Recognition, inquest by, 272. 

Reeve, 61. 

Relief, 67, 168. 

Regraters, 206. 

Regulation of trade and commerce, 235. 

Report of Lord Durham, 85. 

Reports of Minister of Justice, 233. 

Reports of proceedings of Parliament, 112. 

Representative government, responsible distinguished from, 72, 

Representative institutions, Crown cannot withdraw, 73. 

Repugnancy of legislation to Imperial law, 15. 

Requests, Court of, 122. 

Resignation of seat in Parliament, 224. 

Responsible Government, rise of, 72. 

Richard Roe, 181. 

Riding, 176. 

Rivers and lake improvements, 265. 

Royalties, 247. 

Rule of law, meanings of, 5. 

Saladin tithe, 69, 105, 278. 

Scire facias, 134. 

Scirgerefa, 62. 

Scutage, 69, 173. 

Second Chambers, 232. 

Senators, creation of new, 220. 

Settled colonies, 72. 

Shiremoot, 65. 

Sheriff. 62. 

Sheriff's tourn, 184. 

Shires, 62. 

gmith, C. J., plan of, 75. 

Speaker, election of. 224. 

Speech, freedom of, 111. 

Socage, 67. 

Socage, town. 68. 

Sources of Canadian Constitutional Law, 1. 

Sovereignty power, limits of. 2. 

Sovereignty of Canadian Parliaments, 3. 

Sovereignty of Parliament, 2. 

Standing army, 197. 

Statute De Religiosis, 185. 

Statute of Quia Emptores. 183. 

Statute of Westminster, 70. 

Statute of Westminster II.. 177. 

Strachan. Archbishop, 78. 

Sub-infeudation, 183. 

Suspending power, 207. 

Supreme Court of Canada, 245. 

Sydenham, views of, 80. 



INDEX. 289 



Tallage, 69, 279. 

Taxation, 277. 

Taxation by license, 240. 

Taxation, direct, 239. 

Taxation, imposition of, principles governing, 118. 

Tenants in capite, 66. 

Teutonic Constitution, primitive, 60. 

Thegn, 61, 162. 

Thirding. 176. 

Tithing, 65. 

Titles, power of conferring, 133. 

Tolt, writ of, 174. 

Tort, liability of Governor in, 141. 

Townships, 61. 

Trade and Commerce, regulation of, 235. 

Train bands, 192. 

Treaties, power of making, 137. 

Trial by battle, 183. 

Trial by jury, 272. 

Trinoda necessitas, 67. 

Tunnage, 277. 

Union Act 1840, 78. 

Verdict, general, 276. 

Veto of Crown, 133. 

Viceroy, Governor-General not a, 216. 

Vicus, 61. 

Villeinage, tenure in, 68. 

Villeins, 63. 

Wages of law, 180. 

Wainage, 175. 

Wapentake, 176. 

Wardship, 67. 

Wardship of heir, 168. 

Weights and measures, 133. 

Westminster, Statute of, 70. 

Wilmot, Lemuel Allan, 84. 

Witenagemot, 64. 

Wood worth's Case, 113. 

Writ de odio et atia, 179. 

Writ for assembling County Court, 70. 

Writ of inquisition, 179. 

Writ of tolt, 174. 

Writ praecipe, 71. 



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