Skip to main content

Full text of "The law of the Canadian constitution [microform]"

See other formats


'xr^,. 


^ 


THE     LAW- 


or 


The  Canadian  Constitution 


-  BY  — 

W.  H.  P.  CLEMENT,  B.  A.,  LL.B.  (Tw)k. 

OP  OSGOODE  HALL,  BARB18TEM-AT-LAWr 


TORONTO : 
The  cars  well  Co.  Ltd.,  LAW  PUBLISHERS,  Etc. 

1892. 


SS  99579 

J  5. 


/     jC 


Eir\  E NT,  UJ  H 


'*  : 


Entered  aCcordiiiR  to  Act  of  the  Parliament  of  Canada,  in  the  year  1802,  by 
WilmAm  }Iknuy  Popk  Clkment,  at  the  Departrment  of  Agriculture. 


CONTENTS. 


Page, 
Pbeface V 

Table  of  Cases  Cited    vii 

Index  to  Statotes xT 

ADDKNnA  ET  CoRItlOEKDA , XXii 

PART  T.— INTRODUCTORY. 

Chap.      I.  Our  Political  System — A  Comparative  Examination  ....       1 

"       II.  The  Pre-Confederation  Constitutions 25 

"     III.  What  became  of  the  Pre-Confederation  Constitutions  ?  . .     43 

PART  II.— THE   RESULTS   OF  OUR  COLONIAL  STATUS. 

Chap.      IV.  What  Imperial  Acts  affect  Us  ? 56 

"          V.  The  Sources  of  Our  Law 75 

VI.  The  Prerogatives  of  the  Crown 129 

"       VII.  Executive  Checks  on  Colonial  Legislation  145 

"      VIII.  The  Governor-General 150 

"         IX.  Colonial  Legislative  Power 176 

» 

PART  III.— THE  ORIGINAL  GROUP. 

Chap.       X.  The  Division  of  the  Field 199 

XI.  Our  Judicial  System 223 

"       XII.  The  B.  N.  A.  Act,  1867 241 

PART  IV.— SUBSEQUENT  GROWTH. 

Chap.  XIII.  The  North-West  Territories    549 

"      XIV.  Manitoba 586 

XV.  British  Columbia    COi 

"      XVI.  Prince  Edward  Island 617 

APPENDICES 628 


r»i      --i' 


PREFACE. 


In  this  work,  I  liave  emlcavorel  to  exhibit,  in  as  com- 
pact a  fonn  as  tlie  wide  scope  of  the  subject  permits,  the 
Law  of  the  Canadian  Constitution  in  reference  as  well  to 
our  position  as  a  Colony  of  the  Empire,  as  to  our  self- 
government  under  the  federal  scheme  of  the  B.  N.  A.  Act. 

No  work  upon  the  first  branch  of  the  subject  is  in 
existence.  The  works  of  Clark  and  Merivale  upon  the 
Colonies  pre  very  antiijuated,  and  since  their  pul)lication 
the  colonial  system  of  the  British  Empire  has  to  a  very 
great  extent  been  i-ecast.  In  collecting  the  authorities, 
therefore,  upon  this  branch  of  English  jurisprudence  into 
one  book,  I  shall,  at  least,  luive  done  something  to  lighten 
the  labor  of  those  who  have  occasi(m  to  deal  with  questions 
relating  to  our  connection  with  the  Mother  Country. 

Upon  the  second  branch — our  internal  self-government 
under  the  B.  N.  A.  Act — the  need  of  such  a  book  as  this 
has  been  felt  for  some  time.  Mr.  Doutre's  work  was  pre- 
pared at  a  time  when  judicial  leaning  was  very  largely 
toward  minimizing  the  sphere  of  provincial  aut(momy,  and 
the  decisions  since  that  date  have  not  only  been  numerous, 
but  those  of  the  Judicial  Counnittee  of  the  Privy  Council, 
particularly,  have  given  a  very  different  aspect  to  the  law 
governing  the  relations  of  the  i)rovinces  to  the  federal 
government. 


VI  PREFACE. 

I  have  also  endeavored  to  exhil)it  clearly  the  position  of 
the  provinces  and  territories  accjuired  since  LSfiT,  and  luive 
referred  as  freely  to  the  decisions  of  the  Courts  in  those 
more  recent  additions  to  the  Dominion  as  to  the  authorities 
in  the  older  provinces. 

A  glance  at  ohe  Table  of  Contents  will  suffice  to  dis- 
close the  general  mode  of  treatment  I  have  adopted,  and 
further  remarks  here  would  serve  no  good  purpose.  While, 
fully  sensible  of  many  defects  in  the  executitm  of  this  work, 
I  have  strong  hop^^s  that  it  may  prove  useful,  not  merely  to 
the  profession,  but  to  all  those  who  desire  information  in 
reference  to  our  rather  unique  form  of  government. 

W.  H.  P.  CLEMENT. 

Toronto, 

.    2Gth  Sept.,  1S92. 


tavAjK  of  cases  cited. 


A. 


Abraham  v.  Ret^.,Hri 

Adam,  lie,  400 

Aclamson,  Can.  Bank  of  Comni.  v., 

(iOO 
Aitcheson  v.  Mann,  23(5,  402 
Allen  V.  Hanson,  73,  Hi)4 
V.  Murray,  94 
Eedpath  v  ,  179,  195,  227 
Amer,  Reg.  v.,  143,   254,  259,  303, 

310 
Anderson  v.  Uougall,  112 
V.  Dunn,  204 
V.  Kilbourn,  112 
Reg.  v.,  1«5,  187 
V.  Todd,  90,  102,  112,  114, 
120,  248 
Andrew  v.  White,  39 
Angers  v.  Montreal,  351,  373 
Anglo  Can.  Mus.  Pub.  Co.  v.  Suck- 
ling, 403 
Apollo  Candle  Co.,  Powell  v.,  183 
Appleby  v.  Keg.,  93 
Arbitration   between    Ontario   and 

Quebec,  In  re,  543 
Armstrong  v.  McCutchin,  397 
Arnold  v.  Arnold,  185 
Arthur,  Trustees  R.  C.  Sep.  Schools 

v.,  494 
Atty.-Gcnl.   1*..  Col.  v.  Atty.-Genl. 
Can.,  307,  530,  610 
.  ,  Can.  V.  Atty.-Genl.  Ont. 

49,  129,  144,  173,  219, 
223,306,319,321,342, 
424,  4'31,  482,  489 
V.  Flint,  231 
V.  Montreal,  531 
V.  Toronto,  532 
Hong  Kong,  v.  Kwok-a- 

Sing,  180,  189 
N.  S.  Wales,  McLeod  v., 

218 
Ont.  V.  Inter  Bridge  Co. 
311 
V.  Mercer,  40, 219, 307, 

525,  528,  529 
V.  Niagara  Falls  Inter. 
Bridge  Co.,  311 


Atty.-Genl.  Quebec    v.    Col.    81dg. 
Ass.,    352,   449,    450, 
455,  404 
V.   Queen's    Ins.   Co., 

214,  432,  440 
V.  Reid.  213,  816.  428, 
433,  438 
V.  Richard,  001 
V.Stewart,  92, 103,  113, 

114 
V.  Rftdloff,  410 
Auchterurder  Case,  56 

B. 

Baldwin  v.  Roddy,  100 
Bank  N.S.,  Reg.  v.,  136,  151 

Toronto   v.  Lambe,  22,   142, 
201,  210,  213,  222,  250,  201, 
H28,  343,  348,  351,  304,  375, 
370,  380,  401,  425,  430,  433, 
43.-),  454 
of  Upper  Can.   v.   Bethu'ie, 
09,  124 
Barnes  v.  Reg.,  126 
Barrett,  Winnipeg  v.,  493,  495,  501, 

508 
Barton  v.  Taylor,  203,  320 
Bate,  Mousseau  v.,  311,  402 
Bayley,  Ganong  v.,  238,  315,  471 
Beacon  Ass.  Co.  Penley  v.,  57 
Beard  v.  Steele,  374,  387 
Bea^ley,  q.t.,  v.  Cahill,  124 
Beique,  Tarte  v.,  481 
Belford,  Smiles  v.,  07,  403 
Bclisle,  L'Union   St.    Jacques    v., 
202,  207,  211,  216,  350.  384,  392, 
401,  419,  485 
Bell,  Graham  v.,  91 

Keighley  v.,  161,  187 
Doyle  v.,  290,  465 
Reg.  v.,  117 

Teleph.  Co.,   In  re,  230,  236, 
312,  403 
Bennett  v.  Pharma.  Ass.  (Quebec), 
348,  373,  482,  487 
Reg.  v.,  471 
Thompeon  v.,  73 
Bentinck,  Oliver  v.,  150,  155,  160 
Bermuda,  The,  68 


vni 


TAULK    MK   CASKS   ('ITEI». 


Berry  v.  lJ<;rry,  i>0 

Bertrand,  He^.  v.,  142 

Bintie,  Hill  v.,  150,  1")5,  Md,  l')!) 

Birketl,  lleM-,  <';«;.  ''t'/.,  v.  McGuite, 

445 
Bittle,  Ren,,  v.,  415,  474    ' 
Black,  Dow  v.,  213,  420,  425,  433, 

452,  486 
Blain,  Kx  parte,  185 
Blake,  Church  v.,  52!) 
Blankard  v.  Gakly,  84 
Bleeker  v.  Meyers,  122 
Blouin  V.  Quebec,  3<)2,  482 
Boardnian,  Reg.  v.,  408,  412,  4Hl 
Booaey,  Jeffreys  v.,  185,  18(5 
Boucher,  Ite,  228 
Bourgoin  v.  M.  O.  &  O.  Ily.,  454 
Bowman  v.  Middleton,  51) 

Stuurtv.,  131 
Bradshaw,  Reg.  v.,  416,  409 
Brierly,  Reg.  v.,  191 
Briton,   Med.   &.   Genl.   Life  Abs., 

lie,  346,  401 
Brome,  Cooey  v.,  361,  441 
Brook  V.  Brook,  18() 
Brunean  v.  Massue,  231 
Brush,  lie  Ridsdale  and,  492 
Bullock,  Foote  v.,  124 
Burah.  Reg.  v.,  177,  182.  441,  481 
Burdel!,  Reg.  v.,  89 
Burslem,  Lopez  v.,  185 
Bustin,  Ex  parte,  94 
Bush,  Reg.  v.,  238 
Butland  V.  Gillespie.  116 

Cahill,  Beasley,  ./.(.,  v.,  124 
Calder,  Re,  581 
Caldwell  v.  Kinsman,  91 
Cameron  v.  Kyte,  150,  157,  159,  195 
Campbell  v.  Hall,  12,  30,  104,  131, 
140 

Jackson  v.,  89 
Can.  Bank  of  Comm.  v.  Adamson, 

600 
Canada  Cent.,  Jones  v.,  459,  462 
Can.  N.  W.  Land  Co.,  Lynch  v., 

386,  389,  425 
C.  P.  R.,  Re,  602 

V.  N.  P.  &  Man,  Ry.,  454 
C.  S.  Ry.,  Inter.  Bridge  Co.  v.,  184 

V.  Jackson, 376,  458 

V.Phelps,  121 
Cape  Breton,  In  re,  27 
Carson,  Kielley  v.,  263,  326 
Carr  v.  Fire  Ass  Co.,  121 
Carr,  Reg.  v.,  185 


Cent.  Vornioul  liy.  Co.  v.  St.  Johns, 
351,  :{H4 

Chamberlain,  Lawless  v.,  117 

Chandler,  Reg.  v.,  342,  39(),  398, 
47(i 

Chapleau,  Molson  v.,  312 

Chaveau,  Coto  v.,  473 

Chisholm,  Shey  v.,  90 

Choat,  Shea  v.,  99 

Church  V.  Blake,  529 

V.  Fenton,  404,  531 

Citizens  v.  Parsons,  96,  105,  206, 
207,  210,  213,  345,  351,  353,  356, 
381,  407.  420,  455,  460,  464,  467, 
511 

Clark,  Slioolbied  v.,  394,  459 

V.  Union  Fire  Ins.  Co.,  451 

Clarkson  v.  Ont.  Bank,  395,  397 
V.  Ryan,  51(5 
Re  Claxton,  582 

Cleveland  v.  Melbourne,  489 

Coll.  of  Phys.,  Reg  v.,  67 

Col.  Bklg.  Asa.  V.  Atty.-Genl.  (Que- 
bec), 353,  450,  455,  464 

Commercial  Bank,  Moulson  v.,  108 
Windsor  v.,  387 

Comyn  v.  Sabine,  152,  159 

Connolly  v.  Woolrich,  581 

Cooey  v.  Brome,  361,  441 

Coote,  Reg.  v.,  238,  470 

Cooper,  Smith  v.,  104 

Cope  v.  Doherty,  185,  186 

Corby  v.  McDaniel,  125 

Cote  V.  Chaveau,  473 
v.  Watson,  401 

Cowan  v.  Wright,  536 

Craw  v,  Ramsay,  56,  184,  192,  24  5 

Crawford  v.  Dufiield,  434 

C.  V.  Ry.  Co.  v.  G.  W.  Ry.  Co.,  455 

Crombie  v.  -Jackson,  .393 

Cronyn  v.  Widder,  125 

Curtis  V.  Hutton,  111 

Gushing  v.  Dupuy,  216,  237.  253, 
349,  391,  .^^99,  402,465 

I>. 

Danaher  v.  Peters,  360,  364,  366 
Dansereau,  Ex  parte,  327 
Dart,  The,  90 
Davidson  v.  Boomer,  112 

Queddy  Riv.  Driv.  Boom 
Co.  v.,  383,  489,  535 
De  Coste,  Reg.  v.,  416 
De  Grosbois,  Willard  v.  285 
Derbyshire,  Gabriel  v.,  65 
Despard,  Wilkins  v.,  155 
De  St.  Aubyn  v.  Lafrance,  362 


TABLE   OF   CASES  CITED. 


IX 


De  Vebor.  lie,  398 

Dibleo,  Whittior  v.,  476 

Dickson,  Uniacke  v.,  77,  88,  90,  94, 

127 
Dillinfjham  v.  Wilson,  98 
Doane  v.  McKenaey,  90 
Dol)ie  V.  Tompocnlities  Board,  50, 

200,  258,  ;;i9,  159,  535 
Dolierty,  Copo  v.,  185,  18(> 
Donegani  v.  Done^ani,  106 
IJoiit^all,  Anderson  v.,  112 
Dow  V.   IJlack,  213,  420,  425,  433, 

452,  48(i 
Doyle  V.  Bell,  290,  465 

Fish  v.,  98 
Diidman,  Kinnev  v.,  390 
Duffield,  Crawfonl  v.,  434 
Duhnaf^e  v.  Douglas,  434 
Duncan,  Kx  parte,  472 
Dunn,  Anderson  v.,  264 

V.  O'Rielly,  122 
Diipuy,   dishing'  v.,  210,  237,  253, 

H 19,  391,  399,  402,  465 

E. 

ilden,  Le  Caux  v.,  83 

Eldorado  Union  Store  Co.,  Re,  394 

Eli,  Reg.  V.  415 

EWi^,  Kx  pa  lie,  4l1Q 

Enropean  &  N.  A.  Ky.  Co.  v. 

Thoraas,  452. 
Evans  v.  Hudon,  380 
Eyre,  Phillips  v.,  59,  140,  178,  195 

Re;,',  v..  07,  159 
Exchange  Bank  v.  Eeg.,  136,  138, 

141,  234,  245 

F. 

Fabrigas  v.  Mostyn,  152,  168,  155, 

159 
Fama,  The,  69 
Fanning,  Meisner  v.,  87 
Farewell,  The,  231,  250,  384 
Fenton,  Church  v.,  404,  531 
Ferguson  v.  Gibson.  113 
Fire  Ass.,  Carr  v.,  121 
Fish  V.  Doyle,  98 
Fisher,  Georgian  B.  Trans.  Co.  v., 

73 
Flanagan,  Gregory  v.,  100 
Flint,  Atty.-Geul.  v.,  231 
Footo  V.  Bullock,  124 
Ford,  Stark  v.,  116 
Fraser  v.  Morrow,  69 
Fredricton  v.  Reg.,  206,   349,  303, 

370,  407,  016 

Can.  Con.— b 


Free  v.  McHngh,  492 
Freeman  v.  Harrington,  91 

V.  Morton,  91 
Friends  Adventure,  The,  69 
Frontenac  v.  License  Com.,  436 
Fuller,  Gordon  v.,  50,  00 

Hambly  v.,  112 
Fulton  V.  James,  126 

G. 

Gabriel  v.  Derbyshire,  65 

Galdy,  Blankard  v.,  84 

Gamble  &   Boulton,    Reg.   v.,   113, 

327 
Ganong  v.  Bayley,  238,  315,  471 
Gardiner  v.  Gardiner,  61 
Garrett  v.  Roberta,  122 
Gaston  v.  Wald,  121 
Georgian  B,  Trans.  Co.  v.  Fisher,  73 
Gibson,  Ferguson  v.,  113 

V.  McDonald,  232,  315 
Gilbert  v.  Sayre,  93 
Gillespie,  Butland  v.,  116 

Mer.  Bank  v.,  395 
Glynn  v.  Houston,  155 
Gold  Commrs,  Reg.  v.,  616 
Goodall,  Hall  v.,  09 
Goodhue,  In  re,  59.  181,  189,   193, 

402 
Gordon  v.  Fuller,  50,  00 
Gore,  Wyatt  v.,  155 
G.  T.  R.,  Monkhouse  v.,  375,  457 
Graham  v.  Bell,  91 
Grainger  v.  School  Trustees,  494 
Grant  v.  Protection  Ins.  Co.,  91 
G.  W.  Ry.  Co.,  C.  V.  Ry.  v.,  455 
Green,  Holman  v.,  5.30 
Gregory  v.  Flanagan,  100 
(jriffith  v.  Rioux,  370 

Page  v.,  473 

Paige  v.,  482 

Pope  v.,  472 

H. 

Haldimand,  McBeth  v.,  159 
Hall,  Campbell  v.,   12,  30,  104,  131, 
140 

V.  Goodall,  69 
Hallook  V.  Wilson,  112 
Ilambly  v.  Fuller,  112 
Hanson,  Allen  v.,  73,  394 
Haningtoii  v.  McFadden,  90,  92 
Harding  v.  Mayville,  493 
Harrison  v.  Spencer,  58 
Harris  and  HGmilton,  Re,  372 
Hart  v.  Missisqnoi,  361 

V.  Meyers,  122 


TABLE  OF   CASES  CITED. 


Harrington,  Freeman  v.,  91 
Harvey  v.  Lord  Aylmer,  155 
Hasen  v.  Rector  St.  James,  93 
Hearle  v.  Ross,  122 
Htartly  v.  Hearns,  100 
Henderson,  Scott  v.,  88,  91 
Hesketh  v.  Ward,  93,  120 
Hewston,  Mercer  v.,  112 
Hill  V.  Bigge,  150,  155,  156,  159 
Hodge  V.  Reg..   182,  202,  213,  261, 

324,  358,  363,  364,  370,  425,  474, 

480,  481,  486 
Hodgins  v.  McNeil,  73,  118 
Holman  v.  Green,  530 
Holmes  v.  Temple,  350,  379 
Horner,  Reg.  i-.,  470, 538 
Houston,  Glynn  v.,  155 
Hudon,  Evans  v.,  380 
Hughes,  McDiarmid  v.,  456 
Hume,  "Whicker  v.,  114 
Hutton,  Curtis  v..  Ill 


Illidge,  Santos  v.,  57 

Inglis,  Reid  v.,  125 

Int.  Bridge  Co.  v.  C.  S.  Ry.,  184 

Atty.-Genl.  v.,  311 


Jackson,  C.  S.  Ry.  v.,  375,  458 
Crombie  v.,  393 
V.  Campbell,  89 
James,  i'ulton  v.,  126 

v.  McLean,  58,  94 
Jeffreys  v.  Boosey,  185,  186 
Johnson  v.  Poyntz,  398,  476 
Johnstone  v.  Parker,  117 
Jones  V.  C.  Cent.  Ry.,  459,  462 
Kelly  v..  93 
"Wilson,  v.  94  . 

K. 

Eavanagh  v.  Phelon,  93 

Keefe  v.  McLennan,  360,  361,  443 

Keefe,  Reg.  v.,  582 

Kelly  V.  Jones,  93 

Keighley  v.  Bell,  161,  187 

Kennedy,  O'Connor  v.,  119 

V.  Toronto,  631 
Keyn,  Reg.  v.,  57,  186,  187 
Kielley  v.  Carson,  263,  326 
Kilbourne  v.  Thompson,  264 

Anderson  v.,  112 
King's,  Justices  of,  Reg.  v.,  360,  443 
Kinney  v.  Dudman,  396 


Kinsman,  Caldwell  v.,  91 
Kwok-a-Sing,     Atty.-Genl.     Hong 

Kong  v.,  186,  189. 
Kyte,  Cameron  v.,  150, 157,  159, 195 


Lafrance,  De  St  Aubyn  v.,  362 
Lake,  Reg.  v.,  415 
Lambe,  Bank  Toronto  v.,  22,  142, 
201,   210.   213,    222,  250, 
261,   328,    313,    372,  383, 
386,  401,  425,  433,  454 
Molson  v.,  364 
Landers,  Woodworth  v.,  264 
Landry,  Theberge  v.,  171,  253,  28o, 

325,  336,  341,  404 
Langlois,  Valin  v.,   217,  231,   280, 

287,  445 
Lanty,  Miller  v.,  87 
Lawless  v.  Cliambex'Iain,  117 
Lawrence,  Reg.  v.,  411 
Law,  Sheldon  v.,  126 
Le  Caux  v.  Eden,  83 
Leith  V.  Willis,  100 
Lenoir  v.  Ritchie,  129,  317 
Lepvohon  v.  Ottawa,  220,  342,  380, 

414,  433,  434, 442 
License  Com.  v.  Frontenac,  436 
V.  Prince  Ed.,  436 
Lindo  V.  Lord  Rodney.  83 
Liquor  License  Act,  1883,  Re,  359 
Liscombe,  Whitby  v.,  113,  120 
Local  Option  Act,  Re,  361,  369,  370, 

414,  440,  442,  446 
Logan,  Winnipeg  v.,  501 
Longueuil  Navi.  Co.  v.  Montreal, 

383,  431 
Lopez  V.  Burslera,  185 
Low,  Routledge  v.,  67,  73,  186 
Lucas  &  McGlashan,  Re,  409 
L'Union  St.  Jacques  v.  B61isle,  202, 

207,  211,  213,  216,  350,  352,  384, 

392,  401,  419,  485 
Lynch  v.   Can.  N.  W.  Land  Co., 

386,  389,  425 
Lyons,  In  re,  73 

M. 

M.  falsely  called  S.  v.  S.,  615 
Machar,  McKilligan  v.,  474 
Maguire,  Tai  Sing  v.,  616 
Maher  v.  Portland,  500 
Mallette  v.  Montreal,  373 
Mann,  Aitcheson  v.,  236,  402 
Marbury  v.  Madison,  193 
Maritime  Bank  v.  Reg.,  136, 138, 142f 


TABLE  OF   CASES  CITED. 


XI 


Maritime  Bank  v.   Receiver- Genl. 
of    N.    B„   144, 
241,     245,     252, 
255,     261,     301, 
307,     318,     324, 
325,     342,    419, 
443,  529 
Maryland,  McCulloch  v.,  178,  194 
Massey  Manf.  Co.,  Re,  312 
Massue,  Bruneau  v,,  231 
May  villa,  Harding  v.,  493 
Mayor  and  Aid.  of  Norwich,  Reg. 

v.,  84 
Meisner  v.  Fanning,  87 
Melbourne,  Cleveland  v.,  489 
Mercer  v.  Atty.-Genl.  Ont.,  40,  219, 
307,  5'25,  528 
V.  Hewston,  112 
Reg.  V.  124 
Merchants  B.  v.  Smith,  387 

V.  Gillespie,  395 
Meth.  Church,  Smith  v.,  116 
JJeyers,  Bleeker  v.,  122 

Hart  v.,  122 
Middleton,  Bowman  v.,  59 
Milford,  Reg.  v.,  126 
Miller  v.  Lanty,  87 
Mississquoi,  Hart  v.,  361 
Mohr,  Reg.  v.,  351,  449 
Molson  V.  Chapleau,  312 

V.  Lambe,  364,  430 
Monkhouse  v.  G.  T.  R.,  375,  457 
Montreal,  Longueuil  N.  Co.  v.,  383, 
431 
O.  &0.  Ry.,  Bourgoinv., 

454 
Atty.-Genl.  Can.  v.,  531 
Angers  v.,  351,  373 
Ware.  Co.,   Royal    Can. 
Ins.  Co.  v.,  389 
Moodie,  Reg.  v.,  124 
Moore  v.  Moore,  91 
Morrow,  Fraser  v.,  69 
Morrison,  Wheelock  v.,  91 
Morton,  Freeman  v.,  91 
Mostyn,  Fabrigas  v.,  161,  153,  155, 

159 
Moulson  V.  Coram.  Bank,  108 
Mount  &  Morris,  Reg.  v.,  72 
Mosseau  v.  Bate,  311,  402 
Mowat  v.  MoPhee,  73 
Mulligan    Sinclair  v.,  581,  598 
Murdoch  v.  Windsor  &  Ann.  Ry.. 

390 
Murray,  Allen  v.,  94 
Musgrave  v.  Pulido,  150,  158 
Muskoka  Mill  Co.  v.  Reg.,  312 
'  Munn  v.  McCannell,  399,  537 


Mc. 

Macdonell  v.  Macdonald,  335 
Macmillan  v.  S.  W.  Boom  Co.,  382 
Macnamara,  Wall  v.,  155 
McAlmon  v.  Pine,  397 
McArthur  v.  N.  &  P.  June.  Ry.,  458 
McBeth  V.  Haldimand,  1,59 
McCannell,  Munn  v.,  399,  537 
McClanagan  v.  St.  Ann's  Mut.  Bldg. 

Soc,  401 
McCormick,  Reg.  v.,  122 
McCulloch  v.  Maryland,  178,  194 
McDaniel,  Corby  v.,  125 
McDiarmid  v.  Hughes,  456 
McDonald,  Gibson  v.,  232,  315 

I  V.  McDougall,  109 

I  V.  Ronan,  89 

i  Smyth  v.,  88 

McDonell  v.  Smith,  335 
McDougall,  Reg,  v.,  365 

V.  Union  Navi.  Co.,  382 
McFadden,  Hanington  v.,  90 

Reg  v.,  89 
McGowan,  Smith  v.,  65 
McGuire  v.  Reg.,  ex  rel.  Birkett,  445 

Wilson  v.,  232 
McHugh,rree  v.,  499 
McKenny,  Doane  v.,  90 
McKeow'n,  Wheelock  v.,  87 
McKilligan  v.  Machar,  474 
McLaughlin,  Rex  v.,  79,  92 
McLean,  James  v.,  58,  94 
McLennan,  Keefe  v.,  360,  361,  443 
McLeod  V.  Atty.-Genl.  N.  S.  W.. 

192,  218 
McNeil,  Hodgins  v.,  73,  118 

N. 

Nan-e-quls-a  Ka,  Reg.  v.,  580 
Natal,  In  t-.  Lord  Bishop  of,  30, 135. 

141 
Neville,  Union  Bank  v.,  396 
New  B.  Receiver  Genl.,  Maritime 

Bank  v.,  144,  241,  252,  255,  261, 

301,  307,  318,  324,  342,  419,   443, 

529 
Niagara  Falls  Inter.    Bridge  Co., 

Atty.-Genl.  v.,  311 
Niboyet  v.  Niboyet,  57,  186 
Noel  V.  Richmond,  362 
Normand  v.  St.  Lawrence  Navi.  Co., 

382 
North  Perth,  In  re,  240,  286,  463, 

465 
North.  &  Man.  Ry.,  C.  P.  R.  v.,  454 
N.  &  P.  June.  By  ,  McArthur  v., 

458 


Xll 


TABLE   OF   CASES   CITED. 


0. 

O'Brien  v.  Reg.,  312 
O'Connor  v.  Kennedy,  119 
Oliver  v.  Bentinck,  150,  155,  160 
Ont.  Bank,  Clarkson  v.,  395,  397 
Ordnance  H.  M.  Officers,  TuUy  v., 

184 
O'Regan  v.  Peters,  806 
O'Rielly,  Dunn  v.,  122 
Orillia,  Slavin  v.  359,  439,  443.  487 
O'Rourke,  Reg.  v.,  202,  417 
Ottawa,  Leprolion  v.,  220,  342,  380, 

414,  433, 442 


Page  y.  Griffiuli,  473 
Paige  V.  Griffith,  482 
Papin,  Ex  parte,  482 
Parker,  Johnstone  v.,  117 
Parsons,  Citizens  v.,  96,   105,  200, 

207,  210,  213,  349,  353,  407,  420, 

455,  400,  464,  407,  511 
Pattee,  Reg.  v.,  402 
Peake  v.  Shields,  189.  235,  394 
Penley  v.  Beacon  Ass.  Co.,  57 
Pennock,  Stinson  v.,  121 
Perkins,  Ex  parte,  471 
Peters,  Danahers  v.,  300.  304,  306 

O'Regan  v,,  366 
Pharma.  Ass.  Quebec,  Bennett  v., 

348,  373,  482,  487 
Phelon,  Kavanagh  v.,  93 
Phelps,  C.  S.  Ry  v.,  121 
Phillips  V.  Eyre,  59,  140,  155,  178, 

195 
Picton,  The,  230,  384 

Reg.  v.,  139 
Pigeon   V.   Recorder's   Court,    373, 

447 
Pillow,  Ex  parte,  373,  487 
Plante,  Reg.  v.,  417 
Plummer  Wagon  Co.  v.  Wilson,  433 
Pope  V.  Griffith,  472 
Porter,  Reg.  v.,  89 
Portland,  Maher  v.,  500 
Poulin  V.  Qneheo,  302 
Powell  V.  Appollo  Candle  Co.,  183 
Foyntz,  Johnson.v.,  398,  470 
Prince  Ed.,  License  Com.  v.,  436 
Protection  Ins.  Co.,  Grant  v.,  91 
Providence,  The,  68 
Pulido,  Musgrave  v.,  150,  158 
Pnrdy,  q  t„  v.  Ryder,  124 


Q. 


Quebec,  Blouin  v.,  362,  482 

Queddy  Riv.  Driving  Boom  Co.  v. 
Davidson,  383,  459,  535 

Queen's  Ins.  Co.,  A.tty.-Genl.  Que- 
bec v.,  214,432,446' 

Quirt  v.  Reg.,  354,  392,  464,  531 


R. 


Radloff,  Atty.-Genl.  v.,  410 
Ramsay,  Craw  v.,  56, 184.  192,  245 
Ransom,  Richardson  v.,  471 
Raphael  v.  Verelst,  loO 
Recorder's  Court,  Pigeon  v.,  373,  447 
Rector  St.  James.  Hasen  v.,  93 
Receiver  G.  of  N,  B.,  Maritime  B. 
v„  141,  241,  245,  25ii,  255,  261,  301, 
307,  318,  324,  325,  342,  419,  443, 
529 
Redfield  v.  Wickham  Corp.,  459 
Redpath  v.  Allen,  179,  195,  227 
Reed   v.  Atty.-Genl.   Quebec,    213, 

316,  428,  433,  438 
Reg.  v.  Araer,    143,  254,  259.  303, 
316 

V.  Anderson,  57,  185,  187 

V.  Appleby,  93 

V.  Bank  N.  S.,  136,  151,  303 

V.  Barnes,  126 

V.  Bell,  117 

V.  Bennett,  471 

V.  Bertrand,  142 

V.  Bittle,  415,  474 

V,  Boardman,  408, 410, 412,  481 

V.  Bradshaw,  416,  469 

V.  Brierly,  191,  193,  195 

V,  Burah,  177,182,441,481 

V.  Bush,  238 

V.  Carr,  185 

V.  Chandler,  342,  396,  398,  470 

V.  Coll.  of  Phys.,  67 

V.  Coote,  238,  470 

V.  De  Coste,  416 

V.  EH,  415 

V.  Eyre.  07,  159 

V.  Foley,  418 

V.  Gamble  &  Boulton,  113,  327 

V.  Gold  Coramrs.,  016 

V.  Horner,  470,  538 

V.  Justices  of  Kings,  300.  44'< 

V.  Keefe,  582 

V.  Keyn,  57,  180,  187 

V.  Lake,  415 

V.  Lawrence,  411 

V.  Mayor  and  Aid.  of  Norwich, 
84 


TABLE   OF   CASES  CITED. 


Xlll 


Re^.  V.  McCormick,  122 

V.  McDouKall,  365 

V.  McFadden,  89 

V.  Mercer,  124,  125 

V.  Milford,  12(1 

V.  Mohr,  351,  449 

V.  Moodie,  124 

V.  Mount  &  Morris,  72 

V.  Nan-e-quis-a  Ka,  580 

V.  O'Rourke,  202,  417 

V.  Pattee,  402 

V,  Picton,  139 

V.  Plante,  417 

V.  Porter,  89 

V.  QuJrt,  354,  392,  464,  631 

V.  Reno,  471,  537 

V.  Robertson,  351,  385,  414, 
474,  480,  488,  531 

V.  Roblin,  117 

V.  Roddy,  408,  409,  415 

V.  Row,  122 

V.  Schram  &  Anderson,  65, 379 

V.  Seeker,  117 

V.  Severn,  194,  364,  430,  448 

V.  Shaw,  161,  412 

V.  Sherman,  60 

V.  Slavin,  60 

V.  Taylor,  67,  214,  229,  374,  432 

V.  Toland,  228,  236,  469 

V.  Wason,  217,  410,  413,  415, 
474,  478,  487 

V.  Wellington,  354,  388,  531 

V.  Wing  Chong,  616 

Abraham  v.,  312 

Exchange  B.  v.,  136,  138,  141 

Fredricton  v.,  206,  349,  363, 
370,  407,  616 

Hodge  v.,  182,  202,  213,  216, 
324,  358,  363,  364,  370,  425, 
474,  480,  481,  486 

Maritime  B.  v.,  136,  138,  142 

Muskoka  Mill  Co.  v.,  312 

O'Brien  v.,  312 

Riel  v.,  183,  347,  555 

Sproule  v.,  615 

St.  Cath.  Milling  Co.  v.,  307, 
404,  438,  524,  526 
Reid  V.  Inglis,  125 
Renand,  Kx  parte,  350,  496,  509 
Rex.  V.  McLauglin,  79,J)2 

V.  Vanghan,  58 
Reynolds  v.  Vaughan,  615 
Richard,  Atty.-Genl.  v.,  601 
Richmond,  Noel  v.,  362 
Richardson  v.  Ransom,  471 
Ridsdale  &  Brush,  lie,  492 
Ritchie,  Ex  parte,  94 

Lenoir  v..  129,  317 
Roberts,  Garrett  v.,  122 


Roddy,  Baldwin  v.,  100 
Rodney  Ld.,  Lindo  v.,  83 
Ronan,  McDonald  v.,  89 
Ross,  Hearle  v.,  122 

V.  Torrance,  388 
Routledge  v.  Low,  57,  73.  186 
R.  C.  Sep.  Schools,  In  re,  223,  494 
Trustees  of,   v. 
Arthur,  494 
Royal  Can.  Ins.  Co.  v.  Mont.  Ware. 

Co.,  389 
Russell  V.  Reg.,  202,  210,  213,  216, 

345,  348,  358,  363,  414,  431,  445, 

465,  486 
Ryan,  Clarkson  v.,  516 
Ryder,  Purdy,  q.t.,  v.,  124 


s. 


Sabine,  Comyn  v.,  151,  159 
Santos  V.  lUidge,  57 
Sawyer,  Tarratt  v.,  91 
Sayre,  Gilbert  v.,  93 
Schram  &  Anderson,  Reg.  v.,  65,  379 
Bchultz  V.  Winnipeg,  388 
School  Trustees,  lioard  of,  v.  Grain- 
ger 494 
Scott  V.  Henderson,  89,  91 
Seeker,  Reg.  v.,  117 
Sep.  Schools,  In  re  R.  C,  223,  494 
Severn  v.  Reg.,  194, 364,  430,  448 
Shaw,  Reg.  v.,  161,  412 
Shea,  V.  Choate,  99 
Sheldon  v.  Law,  126 
Sherman,  Reg.  v.,  60 
Shey  V.  Chisholm,  90 
I  Shields,  Peak  v.,  189.  235,  394 
Shoolbred  v.  Clark,  394,  459 
I  Simmons  &  Dalton,  In  re,  240,  286 
Sinclair  v.  Mulligan,  581,  598 
Slavin  v.  Orillia,  359,  439,  443,  487 

Reg.  v.,  60 
Smiles  v.  Belford,  67,  403 
Smith,  Ex  parte,  232,  346 

V.  Cooper,  114 

McDonell.  v.  335 

V.  McGowan,  65 

V.  Meth.  Church,  116 

Merchants  B.  v  ,  387 

Torrance  v.,  122 
Smyth  V.  McDonald,  88 
S.  W.  Boom  Co.,  McMillan  v.,  382 
Spencer,  Harrison,  v.,  ,58 
Sproule  V.  Reg.,  615 
Squier,  R*-,  73,  514 
St.  Catherines  Mill  Co.  v.  Reg.,  307, 

404,  438,524,526 
Stark  V,  Ford,  116 


XIV 


TABLE  OF   CASES  CITED 


St.  Ann's  Mut,  Eld.  Soc,  McClana- 

gan  v.,  401 
St.  Johns,  Cen.  Ver.  Ry.  v.,  351,  384 
St.  Lawr.Nav.  Co.,  Normand  v.,  382 
Steele,  Beard  v.,  374,  387 
Stewart,  Atty.-Genl.  v.,  94,  103,111, 

113, 114 
StinRon  v.  Pennock,  121 
Stuart  V.  Bowman,  131 
Suckling,  Anglo  Can.  Mus.  Pub.  Co. 

V.  403 
Suite,  Three  Rivers  v.,  362, 364,  439, 

443, 445 
Sussex  Peerage  Case,  57,  136 

T. 

Tai  Sing  v.  Maguire,  61G 
Tarratt  v.  Sawyer,  91 
Tarte  v.  B^ique,  481 
Taylor,  Barton  v.,  263,  326 

Reg.  v.,  67, 214,  229,  374, 432 
Temple,  Holmes  v.,  350,  379 
Temporalities  Board,  Dobie  v.,  50, 

200,  258,  319,  459,  535 
Theberge  v.  Landry,  171,  253,  286, 

289,  325,  336,  341, 464 
Thomas,  European  &  N.  A.  Ry.  v., 

452 
Thompson  v.  Bennett,  73 

Kilbourn  v.,  264 
Thrasher  Case,  616 
Three  Rivers  v.  Suite,  362,  364,  439, 

443 
Todd,  Anderson  v.,  96, 102, 112,  114, 

120,  248 
Toland,  Reg.  v.,  228,  236,  469 
Toronto,  Atty.-Genl.  Can.  v.,  532 

Kennedy  v.,  531 
Torrance,  Ross  v.,  388 
V.  Smith,  122 
Tully  V.  Officers  H.  M.  S.  Ordnance, 

184 

u. 

Uniacke  v.  Dickson,  77,  88,  90,  94, 
127 

Union  Bank  v.  Neville,  396 

Fire  Ins.  Co.,  Clarke  v.,  451 
Nav.  Co.,  McDougall  v.,  382 

V. 

Valin  V.   Langlois,   217,   231,   232, 

280,  287,  288,  445 
Vaughan,  Rex  v..  58 
Vaughan,  Reynolds  v.,  615 
Verelst,  Raphael  v.,  150 


w. 

Wald,  Gaston  v.,  121 
Wall  V.  MacNamara,  155 

Reg.  v.,  161 
Wallace- Huestis  Grey   Stone   Co., 

Re,  400 
Ward,  Hesketh  v.,  93,  120 

V.  Reid,  416 
Wason,  Reg.  v.,  217,  410,  474,  478, 

487,  582 
Watson,  Cot6  t.,  401 
Way  V.  Yally,  152 
Wellington,  Reg.  v.,  354,  388,  531 
Western  Counties  Ry.  Co.  v.  Wind- 
sor &  Ann.  Ry,,  531 
Wetherell  &  Jones,  In  re,  282,  346 
Wheelock  v.  Morrison,  91 
V.  McKeown,  87 
Whicker  v.  Hnme,  114 
Whitby  V.  Liscombe,  113,  120 
White,  Andrew  v.,  39 
Whittier  v.  Diblee,  476 
Wickham  Corp.,  Redfield  v.,  459 
Widder,  Cronyn  v.,  125 
Wilcox  V.  Wilcox,  131 
Wilkins  v.  l^^spard,  155 
Willett  V.  De  Grosbois,  285 
Williams,  In  re,  5S8 
Williamson,  Ex  parte,  471 
Willis,  Leith  v.,  100 
Wilson,  Dillingham  v.,  98 
Hallockv..  U2 
V.  Jones,  94 
v.  McGuire,  232 
Plummer    Wagon    Co.    v., 
433 
Windsor  &  Ann.  Ry.,  Murdoch  v., 

399 
Co.,  Re,  400 
West.  Coun- 
ties v.,  531 
v.  Com.  Bank.  387 
Wing  Chong,  Reg.  v.,  616 
Winnipeg  v.  Banrett,  493,  495,  501, 
508 
v.  Logan,  501 
Schultz  v.,  388 
Woodworth  v.  Landers,  264 
Woolrich,  Connolly  v.,  581 
Worms,  Ex  parte,  538 
Wright,  Cowan  v.,  536 
Wyatt  v.  Gore,  155 


Yally,  Way  v.,  152 


INDEX  TO  STATUTES. 


(«)  IMPEMIAL  STATUTES. 

Magna  Charta,  87,  90 
Hen.  III.  (Charters  of),  87 
13  Ed.  I.  c.  IS  (Elegit),  91 

27  Ed.  HI.  c.  17  (Stat,  of  Staples),  90 

28  c.  3;   89 

1  Rich.  II.  c.  12  (Escape),  94 

2  Hen.  IV.  c.  7  (Nonsuit),  91 
8  Hen.  VI.  c.  29  ;  89 

7  Hen.  VIII.  c.    4  (Damages  in  Replevin),  91 

8  c.  16  ;  87,  88 
18  c.    6 ;  87,  88 

25  o.  22  (Marriage),  118 

27  c.  10.(Statute  of  Uses),  PO,  92 

28  c.    7  "  118 

28  c.  16         "  118 

31  c.    1  (Partition),  90 

32  c.    9  ;  91,  124 

32  c.  82  (Partition),  90 

32  c.  38  (Marriage),  118 
?2  c.  39 ;  93 

33  c.  23  ;  161 

33  c.  39  ;  (Crown  Debts),  78 

5-6  Ed.  VI.  c.  16  (Sale  of  Offices),  124 
5  Eliz.  c  4  (Apprenticeship),  98 
13  c.  4  (Crown  Debts),  78 

13  c.  5  (Fraudulent  Conveyances),  91,  97 

18  c.  5  (Actions  by  Informers),  122 

29  c.  4  (Sheriffs'  Fees),  93 
43  c.  6  (Costs),  93,  121 

21  Jac.  I.  c.  14  ;  88 

16  Car.  I.  c.  10  (Star  Chamber),  116 

12  Car.  II.  c.  18  (Navigation  Act),  68 

13  c.    2  (Costs),  93,  121 
25                 c.    7;  35 


XVI  INDEX   TO   STATUTES. 

1  Wm.  &  Mary,  c.  18 ;  125 

1  St.  2,  c.  2  (Bill  of  Rights),  133,  244 

11-12  Wm.  III.  c.  12  (Governors),  152,  160 
12-13  c.    2  (Act  of  Settlement),  244 

1  Anne,  st.  2,  c.    6  (Escape),  120 

4  c.  16  (Bail  BondsJ,  93 
6      .             ■  c.    9  (Escape),  120 

6  c.    7  (Succession  Act),  134,  244 

6  c.  11  (Union  Act,  Scot.),  212,  357 

2  Geo.  IT.  c.  23;  58 

.'•.  c.    7;  60-5 

9  c.    5  (Fortune  Telling),  126 

9  c.  36  (Mortmain),  93,  101-116 

13  c.  18  (Certiorari),  89,  94 

14  c.  17  (Nonsuit),  93 

14  c.  37  (Bubble  Act),  69-72 

20  c.  19  (Apprenticeship),  99 
22  c.  40  ;  100 

22  c.  46  (Attorneys),  122 

26  c.  33  (Marriage),  116-9,  680 

9  Geo.  III.  c.    16  ;  122 
14  c.    78;  121 

14  c.    83  (Quebec    Act,  1774),  34.  65,  69,  70,  95,  96,  104,  105, 

106,  122,  123.  212,  408,  4()1 
14  c.    88  (Duty  on  Hum,  etc.).  34,  36,  39 

18  c.    12  (Renunciation  Act),  36,  67 

19  c.    70  (Certiorari),  100 

21  c.    49  (Lord's  Day  Act),  126 

22  c.    75  (Removal  of  Colonial  Officers),  73,  614 
26  c.    86;  122 

28  c.    49;  122 

31  c.    31  (Constitutional   Act,  1791),  28,  34,  39,  60,  61,  66,  94, 

105,  123,  257 
39-40  c.      9  (Thelluseon  Act),  58 

42  c.    85  (Colonial  Officers),  160 

49        "  c.  123 ;  68 

49  c.  126  (Sale  of  Offices),  124 

69  c.    69;  (15 

59  c.    96  (Apprenticeship)  98 

C.  Geo.  IV.  c.    91 ;  69 

G  c.  114  (Repugnancy),  63,  64,  65 

11  Geo.  IV.  &  1  Wm.  IV.  c.  60 ;  73       \ 

1-2  Wm.  IV.  c.  23 ;  .39,  40  .  . 

6-6  c.  64;  73 

3-4  Vic.   c.    35  (Union  Act,  1840)  28,  40,  41,  54,  CO,  247,  257,  298,  525 

5  c.    11;  81 


INDEX   TO  STATUTES.  xvii 

5-6  Vic.  c.    45  (Copyright),  73 

5-6  c.    76  (New  South  Wales),  54 

5-6  c.  120  (Newfoundland),  54 

6-7  c.    29;  40 

7-8  c.    74  (New  S.  Wales),  54 

y-10  c.    94;  40,  56 

10-11  c.    44  (Newfoundland),  54 

10-11  c.    71  (Civil  List),  40,  526 

12-13  c.    29;  40 

12-13  c.    96;  72 

12-13  c.  106  ;  69 

13-14  c.    59  (New  South  Wales),  54 

15-16  c.    39;  40 

17-18  c.  104  (Merchants  Shipping),  73,  187 

17-18  c.  118  ;  40,  356,  421,  526 

18-19  c.    55  (Victoria),  54 

lS-19  c.    67  (Bills  of  Exchange),  600 

18-19  c.    90;  601 

24-25  c.    44  (Queensland),  54 

26-27  c.    84  (Colonial  Constitutio.ia),  421 

28-29  c.    63  (Colonial   Laws  Validity  Act,  1865),  7,  57,  59,  65,  67,  75 
148,  176,  179,  186,  192,  264,  280,  327,  350,  379,  422,  627 

30-31  c.      3  (B.  N.  A.  Act,  1867),  241-546 

31-32  c.  105  (Rupert's  Land  Act,  186«),  651 

33-34  c.    52  (Lixtradition),  538 

34-35  c.    28  (B.  N.  A.  Act,  1871),  183,  271,  272,  347,  5.55,  585 

34-35  c.    83;  262 

38-39  c.    38  (Parliament  of  Canada  Act,  1875),  244,  262 

49-50  c.    35  (B.  N.  A.  Act,  1886),  244,  272,  282,  582 


(b)  DOMINION  OF  CANADA. 

31  Vic.   c.  17  (Bank  of  U.  C),  354 

0.  40  (Militia),  379 

c.  58  ;  382 

c.  76  (Evidence  on  Commission),  232,  346 
31-32  c.  24  ;  262 

32-33       _    c.    3  (Rupert's  Land  Act),  552,  555,  580,  597 

c.  23  (Perjury),  189 

c.  31  (Actions  against  Justices),  416 

c.  39  ^Costs  in  Actions  against  Justices),  47»j 

33  c.    3  (Manitoba  Act),  500,  508,  553,  555,  588,  et  scq. 
c.  26  (Perjury],  189 

c.  40  (Bank  of  U.  C),  354 

34  c.    5  (Banking),  387 


xvill  INDEX   TO   STATUTES. 

34  Vic.  c.  16  (N.  W.  T.),  554 

35  c.  2d  (Patent  Act),  230,  402 

36  c.  37  (British  Columbia),  609 
.36  c.    1  ;  262  . 

c.    5  (N.  W.  T.),  555 

36  c.  28  (Controverted  Elections),  232,  289,  290 
c.  34  (N.  W.  T.),  556 

c.  35  "  557 

c.  41 ;  531 

37  c.    9  (Elections),  286 

c.  10  (Controverted  Elections),  2i7,  232,  289 

38  c.  11  (Supreme  Court  Act),  229 

c.  16  (Intolvent  Act,  1875),  190,  394 
c.  49  (N.  W.  T.),  557,  562 
40  c.    7  (N.  W.  T.j,  558,  559 

40  c.    6  (Manitoba),  587 

41  c.  16  (Canada  Temp.  Act),  363,  369,  415,  436,  444,  445,  465,  4  6 
43  c.  25  (N.  W.  T.),  561 

43  c.  67  ;  450 

44  c.  14  (Manitoba),  587,  602 
46           c.  28  (N.  W.  T.),  561 

46  c.  30  (Dom.  Liquor  License  Act,  1883),  359,  366 
4.7  c.     '  (Evidence),  474 

47  c.        (N.  W.  T.)  561 

48-49  c.    1  (Deputy  Speaker),  293. 

48-49  c.  51  (N.  W.  T.),  51 

R.  S.  C.  (1886)  c.      5  (Electoral  Franchise),  230,  240,  285,  286 

c.      8  (Dominion  Elections),  170,  285 

c.      9  (Controverted  Elections),  285 

c.    10  (Election  Enquiry),  285 

c.    11  (Parliament),  264-7,  279,  285,  292 

c.    12  (Manitoba),  589 

cc.  21-41  (Ministers),  167 

cc.  28-29  (Finance),  377 

c.    30  (Currency),  386 

cc.  32-34  (Customs,  etc.),  377 

c.    41;  260 

c.    47  (Manitoba),  589,  602 

c.    50  (N.  W.  T.),  510,  562,  et  seq. 

c.    53  (Keewatin),  563 

c.    70;  355 

c.  109  (Railway  Act),  458 

c.  120  (Banking),  387  ' 

c.  127  (Interest),  389 

c.  129  (Winding-up),  394 

c.  135  (Supreme  Court),  223,  229 


INDEX   TO   STATUTES.  xix 

R.  S.  C.  (1886)  c.  139  (Evidence),  474 

c.  144  (English  Criminal  Law),  97,  128,  616 
c.  158 ;  413 
c.  161  (Bigamy),  191 
c.  174  (Crim.  Procedure),  417,  473 
51  c.  19  (N.  W.  T.),  564,  et  snq. 

51  c.  33  (Manitoba),  600-1 

53  c.  33  (Bills  and  Notes)  388 

54-55  c.  22  (N.  W.  T.),  564,  et  seq. 

55-56  c.  11  (Redistribution,  1892),  283,  285,  297,  590 

(c)  UPPER  CANADA  (1791-1840). 

32  Geo.  III.  c.    1  (Introduction  of  English  Law),  61,  62,  63,  69,  96, 

100,  101,  102,  105,  106,  108,  109,  111,  113,  114,  117. 
118,  119,  121,  125 

33  c.    5  (Marriage),  118 
38  c.    4  "  118 

40  c.    1  (English  Criminal    Law),  69,  70,  VI,  96,  106,  118, 

123,  125,  126 

2  Geo.  IV.  c.  11  (Marriage),  118 
11  c.  30;  118 

3  Wm.  IV.  c.    1;  101 

3-4  Vic.  c.  78  (Church  Temporalities  Act),  110 


{d)  PROVINCE  OF  CANADA   (1840-1867). 

6  Vic.  0.    31 ;  40 

9  c.  114  ;  40 

23  c.    17  (Elections),  285 

26  c.      5  (R.  C.  Separate  Schools),  491 

27-28  c.    18  (Dunkin  Act,  1864).  361,  369,  436 


(e)  ONTARIO. 

C.  S.  U.  C.  c.  14  (Court  of  Impeachment),  514 
34  Vic.  c.    C  ^Controverted  Elections),  290 
R.  S.  0.  (1877)  c.    42  (Grouping  Act),  232-3 

c.  181  (Liquor  License  Act),  358 
49  Vic.  c.  28  (Workmen's  Compensation  for  Injuries),  458 
R.  S.  0.  (1887)  c.      7  (Representation),  329 
c.    11  (Assembly),  328,  334 
c.    44;  223 
0.    61  (Evidence  in  Prosecutions),  474 


XX  INDEX   TO   STATUTES. 

R.  S.  O.  (1887)  c.    67  (Arrest  for  Debt),  190 
c.    93  (English  Law),  97,  127 
c. 124 ;  395 
c.  12« ;  225 

53  Vic.  c.  13  ;  309 

c.  18  (Trial  of  Forj^ery  Cases),  23G,  4f)9 
0.  56  (Local  Option),  361,  369,  370,  414,  442 

54  c.  46       "  "         369 


(J)  QUEBEC. 

C.  S.  L.  C.  (1859)  c.  109  ;  316 
34  Vic.  c.    2  ;  472 
86  c.    5  (Controverted  Elections),  253,  288,  290 

88  c.  64  (Temporalities  Fund),  536 
c.  74 ;  362 

89  0.        (Pharmacy  Act),  373,  483,  487 

c.        (Controverted  Elections),  253,  288 
c.    7  (Insurance  Licenses),  429,  446 
43-44  c.    9  (Stamps),  316 

R.  S.  Q.  (1888)  Art.  124  (Assembly).  .H28 
Art.  136-144  ;  334 
53  Vic.  c.  3  (Representation),  332 


(i/)  NOVA  SCOTIA. 

33  Geo,  II.  c.  3 ;  26,  77 
1  Geo.  III.  c.  8;  68 
12-13  Vic.  c.         ;  40 

38  c.  25  (Controverted  Elections),  290 

R.  S.  N.  S.  c.  139;  90 

(1884)  c.  3  (Assembly),  328 


(/()  NEW  BRUNSWICK. 

8  Wm.  IV.  c.  1 ;  40 
21  Vic.  c.      9  (Parish  Schools),  497 
32  c.    32  (Controverted  Elections),  290 

88  c.    33  (Assembly),  328. 

84  c.    21  (Common  Schools),  496 

36  c.    10;  360 

87  c.  107 ;  382 

50  c.      4  (Liquor  License  Act),  366 


INDEX   TO  STATUTES.  XXi 

(J)  PIUNCH  EDWARD  ISLAND. 

26  Vic.  c.  15  (Assembly),  328 

37  c.  21  (Controverted  Elections),  2U0 

(j)  BRITISH  COLUMBIA. 

34  Vic.  No.  70  (English  Law),  015 

34  No.  147  ;  (514 

Con.  Stat.  B.  C.  c.  40  (Controverted  Elections),  290 

R.  S.  B.  C.  (1888)  c.  22  (Provincial  Constitution), ;,Ci5 

fk)  MANITOBA. 

34  Vic.  c.    2  ;  598-9 

35  c.    3  ;  599 

35  c.  10  (Controverted  Elections),  290 

38  c.  12  (Introducing  English  Law),  599 

39  c.  29  (Leg.  Council  abolished),  326,  591 
R.  S.  M,  (1880)  c.  5  (Assembly),  328 

49  Vic.  c.  11  (Mortmain),  C02 
49  c.  51  (Stamps),  434 

53  c.  23  (Mortmain),  002 

53  c.  38  (Public  Schcols),  505 

(0  NORTH-WEST  TERRITORIJiS- 
Rev.  Ord.  (1888)  c.  5  (Controverted  Elections),  290 


ERKATA  ET  CORRIGENDA. 


Pa<{e    40,  line  19 — for  "clearly  "  read  "  equally." 

"     126,    "     12 — "  "we  have  enumerated''^  read  "enunciated.^' 

"     187,    "     32—"  "on''  read  "no:' 

"     194,  What  is  said  in  the  note  (c)  is  subsequently  qualified ;  see 

pp.  348-9. 
"     228,  The  sentence  beginning  on  line  4,  is  subsequently  qualified. 
"     289,  line  18— for  "  1875  "  read  "  1874," 
"     297,    "      5—  ""  distribution"  TQ&dL  "  re-distribution." 
"     —       "    19—  ""  1892  "  read  "  1891," 

'*     406,  Reference  should  be  made  to  the  decisions  in  British  Colum- 
bia ;  see  p,  — 

"  429,  head-line— for  "  sec.  91 "  read  "  see.  92." 

"  444,  line  18 — for  "majorities  "  read  "  majority." 

"  469,    "    18— "  "55  Fic."  read  "53  F/c." 

"  479,  line  4— for  "  milked  "  read  "  milk." 

"  538,  note  (/)— supply  reference  to  p.  470. 


PART  I. 

INTRODUCTORY. 


THE 


Law  of  the  Canadian  Constitution. 


CHAPTER  I. 


OUR   POLITICAL    SYSTEM— A    COMPARATIVE   EXAM- 
m  INATION. 

By  virtue  of  a  certain  Act  (^'),  passed  l)y  tlie  Parliament 
of  tlie  United  Kint;doni,  and  Her  Majesty's  proclamation 
pursuant  thereto  (h),  the  Dominion  of  Canada  became  "a 
new  thino-  under  the  sun"  of  the  tiret  day  of  July,  1M(J7. 
The  Imperial  Act  provides  for  its  own  citation  as  ''The 
British  North  America  Act,  1(S()7,"  hut  we  shall  not  only 
save  space,  but  coviform  also  to  usa^e  on  this  side  of  the 
Atlantic,  by  using  thi'oughout  the  shorter  title  of  "The 
B.  N.  A.  Act"  (c).  For  a  (piarter  of  a  century  our  form  of 
political  organization  has  been,  imder  that  Act,  a  "general" 
govermnent  (of  which  we  shall  always  sp'^ak  as  the 
"Dominion"  government),  charged  with  matters  of  connnon 
interest  to  the  wdiole  country,  and  "local"  governments 
(to  be  spoken  of  as  "Provincial"  governments),  charged 
with  the  control  of  local  matters  in  their  respective  sections. 

{(()  30  &  31  Vic.  c.  3  (Imp).  (h)  Sec.  3. 

(c)  Subsequent  amendments  are  similarly  entituled,  but  whenever  it 
becomes  necessary  to  refer  to  any  one  of  them,  we  shall,  by  way  of  dis- 
tinction, add  the  year. 

Can.  Con.— 1 


2  THE   CANADIAN   CONSTITUTION. 

The  spliere  of  political  activity,  assigned  to  each  of  these 
two  sorts  of  goveruinent,  is  carefully  mapped  out  in  the 
B.  N.  A.  Act;  taken  together,  they  comprise  the  most 
extensive  field  of  colonial  self-government  in  the  British 
Empire  to-day.  The  constitution,  too,  of  each  of  those 
governments  is  provi<led  for,  either  expressly,  as  in  the 
case  of  the  Dominion  government,  or  by  the  incorporation 
into  the  Act  of  previously  existing  constitutions,  as  in  the 
case  of  some,  at  least,  of  the  Provincial  governments. 

In  the  preamble  to  the  B.  N.  A.  Act,  it  is  recited  that 
the  provinces  of  Canada,  Nova  Scotia  and  New  Brunswick, 
had  expressed  their  desire  f(»r  a  federal  union  into  one 
Dominion,  "with  a  constitation  .siniUdv  in  principle  to 
that  of  the  United  Kingdom,"  and  the  opinion  is  ventured 
that  such  a  union  would  conduce  to  the  welfare  of  the 
provinces,  and  promote  the  interests  of  the  British  Empire. 
"Be  it  there/ore  enacted,"  etc. 

A  clearer  indication  that  the  design  of  the  B.  N.  A.  Act 
was  to  establish  in  Canada  such  a  union  with  such  a  con- 
stitution as  was  desired  by  the  petitioning  provinces,  could 
hardly  have  been  given.  The  expression  of  desire  to  which 
the  Act  refers  in  the  lecital  above  ({Uoted,  is  to  be  found  in 
the  third  and  fourth  of  the  resolutions  passed  at  the  Con- 
ference, at  Quebec,  of  delegates  from  the  various  provinces  : 

"III.  In  framing  a  Constitution  for  the  General  Govern- 
ment, the  Conference,  with  a  view  to  the  perpetua  ion  of  our 
connection  with  the  Mother  Country,  and  the  promotion  of  the 
best  interests  of  the  people  of  these  provinces,  desire  to  follow 
the  model  of  the  British  Constitution  so  far  as  our  circumstances 
will  permit. 

"IV.  The  Executive  authority  or  Government  shall  be 
vested  in  the  Sovereign  of  the  United  Kingdom  of  Great  Britain 
and  Ireland,  and  be  administered  according  to  the  well-under- 
stood principles  of  the  British  Constitution,  by  the  Sovereign 
personally,  or  by  the  representative  of  the  Sovereign,  duly 
authorized." 


OUR   POLITICAL  SYSTEiM.  3 

It  slic-ild,  perhaps,  be  noticed  that  these  resolutions 
make  reference  to  the  constitution  of  the  "general" 
government  only,  and  the  preamble  to  the  B.  N.  A.  Act  is 
capable  of  a  similarly  limited  interpretation.  The  obser- 
vation applies,  too,  to  the  additional  recital  in  the 
preamble,  that  "it  is  expedient  not  only  that  the  con- 
stitution of  the  legislative  authority  in  the  Dominion  be 
provide*!  for,  but  also  that  the  nature  of  the  executive 
government  therein  be  declared."  A  perusal  of  the  next 
chapter,  however,  and  of  what  is  there  said  in  reference  to 
the  survival  of  the  pre-Confederation  provinces, — the  con- 
tinuity (so  to  speak)  of  their  legislatures  and  their  execu- 
tive authority, — will,  as  we  proceed,  suffice  to  show  that  our 
present  argument  applies  a  fortiori  to  the  Provincial  Con- 
stitutions. 

Reverting  then  to  the  preamble  to  the  B.  N.  A.  Act, 
one  would  naturally  expect  that  the  design  so  clearly 
announced,  would  be  effectually  carried  out  in  the  enacting 
clauses  of  the  Act.  There  have  not  been  wanting,  however, 
those  who  have  contended  that  the  performance  has  fallen 
far  short  of  the  promise ;  that  the  B.  N.  A.  Act  is  in  its  pre- 
amble a  notable  instance  of  "official  mendacity"  {d)\  and 
that  the  effect  of  its  enactment  has  been,  the  establishment 
in  Canada  of  a  system  of  government  presenting  features 
jinalagous  rather  to  those  of  the  government  of  the  United 
States  than  to  those  of  the  British  constitution.  This  view 
of  the  Canadian  constitution  is  quite  erroneous,  founded 
u'poii  a  very  superficial  ol)servation  of  the  structure  of 
govt-rument  in  this  Dominion,  and  wanting  in  a  proper 
regard  for  the  underlying  principle,  in  conformity  to  which 

((/)  Dicey  (Prof.  A.  V.)— "The  Law  of  the  Constitution,"  Srd  ed.,  p.  155. 
As  the  Professor  himself  would  eay,  "  it  is  worth  noting  "  that  the  criti- 
cism of  this  preamble,  in  which  he  indu'ges,  is  inaccurate.  The  provinces 
had  expressed  their  desire  for  a  constitution  "  similar  in  principle,"  etc., 
as  a  perusal  of  the  Resolutions,  above  quoted,  will  show,  and  the  pre- 
amble tlierefore  is  literally  true.  We  waive,  however,  this  verbal  criticism 
of  the  Professor's  statement,  and  treat  it  as  indicative  merely  of  his  view 
of  the  effect  of  the  B.  N.  A.  Act. 


4  THE  CANADIAN   CONSTITUTION. 

the  pre-Confederation  provinces  luul  been  governed,  and 
the  Dominion  and  its  federated  provinces  have  since  been 
governed, — the  principle,  as  we  shall  endeavor  to  show, 
which  is  the  chief  distinguishing  feature  of  the  British 
form  of  {government,  the  Empire  over,  as  contrasted  with 
the  constitution  of  the  United  States.  Because  the  union 
of  the  B.  N.  A.  provinces  is  federal,  indicating,  vx  necessl- 
tiiie,  some  sort  of  a  division  of  the  field  of  governmental 
action,  an  allotment  of  some  part  of  that  field  tq^i  "centi'al" 
government,  the  conclusion  is  rashly  arrived  at,  that  these 
mattei-s  of  outward  and  superficial  resend)lance  between 
(mr  system  of  government  and  tliat  of  the  neighboring 
Republic,  are  sufficient  to  stamp  them  as  essentially  alike. 
A  closer  examination  of  the  B.  N.  A.  Act  itself,  coupled 
with  some  slight  knowledge  of  the  pre-existing  provincial 
corstitations,  and  their  practical  working,  \vould  have 
sufficed  to  show  that,  in  essentials,  we  have  a  constitution 
not  like  the  constitution  of  the  United  States,  but  "similar 
in  principle  to  that  of  the  United  Kingdom."  In  this 
instance,  at  least,  the  Imperial  parliament  has  not  laid 
itself  open  to  the  reproach  addiessed  in  Holy  Writ  to  cer- 
i;ain  unnatural  parents.  We  in  Canada  lal)or  under  tlie 
impression  that  we  have  got  what  we  asked  for ;  whethei' 
it  is,  or  is  not,  good  for  us,  is  not,  perhaps,  matter  for  dis- 
cussion in  a  work  of  this  kind. 

To  arrive  at  an  intelligent  conclusion  upon  this  much 
discussed  (juestion — to  which  form  of  government,  tlu' 
British  or  the  American,  does  our  government  in  principle 
conform  I — one  must  necessarily  first  formulate  in  his  own 
mind  some  definite  notion  of  the  difference  in  principle 
between  these  two  systems,  wdth  which  in  turn  we  desire 
to  compare  or  contrast  ours.  It  may,  perhaps,  turn  out 
that  a  candid  compari.son  will  <lisclose  that  the  difference 
between  them  should  hardly  be  characterized  as  a  differ- 
ence in  principle, — that  in  each  the  same  motive  power  is 
applied  to  the  same  end,  with  only  some  difference  in  tlie 
mode  of  application. 


OUR    POLITICAL   SYSTEM.  6 

The  Britisli  Empire  and  the  American  Union  consist, 
each  of  a  central  or  "  national "  government,  with  suljor- 
ilinate  "  local "  governments.  The  central  j(ovei"nment  in 
eacli  is  the  only  or<>^anization  entitled  to  internati(jnal 
rt'e()(:;nition  as  the  embodiment  of  the  national  will;  l>ut  it 
is,  at  the-  same  time,  the  compi'ehensive  organism  which 
overlies  and  binds  to^'ether  the  various  "local"  ^overn- 
ments  existin*;'  within  the  borders  of  the  Empire  or  Union. 
In  tlu'  case  of  the  United  States,  the  central  or  Federal 
government  has  always  I'eceived  treatment  as  a  tangible 
"national"  o;overnment  over  one  compact  territoiy ;  Imt 
the  British  Constitution  has,  as  a  rule,  l)een  looked  at 
as  the  constitution  rathei-  of  Great  Britain,  than  as  an 
Imperial  constitution.  The  reason  is  partly  geof^rapliical, 
])artly  historical.  The  Imperial  constitution,  as  it  to-day 
exists,  is  the  result  of  the  gradual  application  to  the 
government  of  an  expanding  empire,  of  those  principles 
of  local  self-government  which  were  adopted,  at  the  start, 
as  the  basis  of  the  fedei'al  union  of  the  American  colonies 
liut  this  Iraperial  phase  of  the  British  constitution  has 
been  rather  overlooked.  If  we  can,  in  imagination,  place 
ourselves  in  the  world  of  (say)  ]77(),  and  try  to  appreciate 
just  to  what  stage  the  British  constituti<m  had  arrived,  it 
will  be  found  that  the  struou-le  in  Great  Britain  to  that 
date,  had  been  a  struii'ii'le  between  "the  individual"  and  "the 
State.'  That  (|uestion  ha<l  been  finally  settled,  and  the 
individual  was  protected  by,  and  subject  only  to,  the  law 
of  the  land,  and  the  despotism  of  discretionary  govern- 
ment was  forever  abolished.  Next  in  order  came  the 
(jUestion  of  "local"  self-government  (f).     In  compact  Eng- 

It')  The  federal  idea  is  I'eally  nothing  more  than  the  logical  outcome 
of  tlie  "  individualistic  "  idea,  which  lies  at  the  bottom  of  self-govern- 
ment ;  and  it  would  bj  an  interesting  task  to  trace  the  growth  of  tha 
idea  from  it8  root  in  the  belief  that  man  has  certain  *'  natural  rights,"  and 
that  society  controls  his  exercise  of  those  rights,  only  to  the  extent  neces- 
sary to  give  proper  play  to  the  like  rights  of  his  fellow-men,  up  through 
the  growth  of  municipal  self-government  to  tiie  establishment  of  a  federal 
svstem  of  government,  logical  from  root  to  topmost  branch. 


6  THE  CANADIAN   CONSTITUTION. 

land,  the  question  had  not  become  one  of  practical  politics 
(the  Irish  (|uestion  was  not  then  on  the  carpet),  hut  as  to 
the  government  of  the  cok)nies,  it  loomed  up  larg'er  and 
larjrer  as  the  colonies  increased  in  population  ;  and  the  loss 
of  the  Southern  half  of  this  continent  is  standing  proof  of 
the  failure  of  English  statesmen  of  those  days,  to  grapple 
with  the  problem.  The  thirteen  colonies,  mutually  inde- 
pendent, having  joined  to  destroy  the  connnon  tie  of  sub- 
jection to  Great  Brittiin,  but  desiring  still  to  perpetuate 
their  union  of  race  and  connnon  interest,  had  to  face  the 
task  of  forming  a  central  or  union  government,  in  such 
fashion  as  to  reconcile  national  unity  with  those  ideas  of 
the  right  of  local  self-government  which  had  been  the 
cause  of  their  separation  from  the  Empire.  Schooled  by 
the  failure  of  the  "  Articles  of  Confederation  "  to  work  this 
result,  they  formulated  the  "  Constitution  of  the  United 
States,"  under  which  they  have  lived  and  thrived  for  over 
one  hundred  years  (/').  That  which,  by  revolution  and  a 
formal  written  convention,  they  accomplished,  is  now 
working  its  way  out  in  the  colonial  system  of  the  British 
Empire.  To-day,  the  right  of  local  self-government  in 
the  British  colonies  depends  on  the  "  conventions,  usages 
and  undei-standings,"  recognized  anil  acted  upon  by  the 
statesmen  who,  throughout  the  Empire,  are  at  the  head  of 
public  affairs.  The  maintenance  of  national  unity  is 
legally  with  the  government  of  the  United  Kingdom,  but 
there  are  not  wanting  signs  of  a  desire  for  a  system  of 
true  Federal  government,  in  which,  as  to  matters  of 
Imperial  concern,  the  whole  shall  govern  the  parts,  and 
not  one  of  the  parts  the  whole. 

Viewed  then  as  an  Imperial  system,  the  British  constitu- 
tion does  not  differ  in  principle  from  the  constitution  of  the 

(/)  "  I  think  and  believe  that  it  is  one  of  the  most  skilful  works 
which  human  intelligence  ever  created  ;  is  one  of  the  most  perfect  organ- 
izations that  ever  governed  a  free  people.  To  say  that  it  has  some 
defects  is  but  to  say  that  it  is  not  the  work  of  Omniscience,  but  of 
human  intellects." — Sir  John  A.  Macdonald,  Confed.  Deb.  p.  32. 


OUR   POLITICAL   SYSTEM.  7 

United  States.  In  tlie  one,  by  tlie  written  hnv  of  the  consti- 
tution, in  tlie  other  by  tlie  unwritten  "  covventiom^"  of  the 
constitution,  the  field  of  governmental  action  is  divided, 
and  in  each  there  exists  a  "national"  government,  charged 
with  matters  of  common  concern  to  the  whole  nation,  and 
"  local  "  governments,  charged  with  matters  of  local  concern 
to  the  inhabitants  of  each  of  the  territorial  divisions 
of  which  that  nation  is  composed.  The  fact  that  the 
"  national "  goveniment  of  the  British  Empire,  is  also  the 
"  local "  government  of  one  of  the  territorial  divisions  of 
the  Empire,  is  an  anomaly  which  will  no  doubt  disappear, 
but  which  makes  no  difference  in  principle.  Although  the 
parliament  of  the  United  Kingdom  is  the  supreme  power 
in  go\ernnient  under  the  British  constitution,  there  is  a 
clear  and  even  legal  distinction  between  the  exercise  of  its 
authority  as  an  Imperial  parliament,  and  the  exercise  of 
its  authority  as  the  parliament  of  the  United  Kingdom. 
Prima  facie,  it  acts  as  the  latter,  and  there  must  be  "express 
words  or  necessary  intendment "  in  order  to  make  its  acts 
truly  imperial — it  must,  in  other  words,  act  deliberately 
and  with  intent,  when  it  would  convert  itself  (so  to  speak) 
into  the  legislative  organ  of  the  Empire  (g).  So  that  if 
it  be  said  that  the  parliament  of  the  United  Kingdom  is 
supreme  throughout  the  Empire,  it  can  with  equal  truth 
be  said,  that  in  affairs  truly  Imperial,  that  parliament 
speaks  the  will,  or  what  it  deems  to  be  the  will,  of  the 
whole  body  of  the  people  of  the  Empire. 

The  British  Empire  is  scattered  over  the  whole  earth, 
and  in  the  practical  work  of  government,  matters  of  common 
concern  are  few  and  far  between — much  more  so  in  fact 
than  is  commonly  imagined.  Take,  for  example,  all  that 
class  of  mattei's  dealt  with  by  the  British  government 
under  the  head  of  Foreign  A  ffairs.  The  vast  majority  of  these 
mattei's  cannot  be  said,  in  any  practical  sense,  to  be  Imperial 
— of  common  concera  to  the  Empire — relating  largely,  as 

{g)  See  post,  Chap.  IV. ;  28  &  29  Vic.  c.  63  (Imp.) ;  also  Chap.  IX.,  post. 


^"^  THE   CANADIAN   COXSTITUTIOX, 

they  do,  to  the  intercourse  between  Great  Britain  and  her 
Kuropean  neij^hhors  (li):  and,  as  to  these,  the  British  Govern- 
ment can  hardly  be  said  to  act  as  an  Imperial  government. 
Their  recoo-nition  as  matters  lar^^ely  of  "local"  concern  to 
Great  Britain,  is  made  apparent  in  the  case,  for  instance, 
of  many  British  treaties,  by  the  reservation  to  the  colonies, 
in  a  numl)er  of  modern  instances,  of  the  riyht  to  share,  or 
to  decline  to  share,  the  1)enetit  and  burden  of  these  treaties 
just  as  each  colony  may  see  fit  to  determine  for  itself. 
Mcjdern  constitutional  usaj^e  in  the  British  Em})ire  is  raj)- 
idly  approaching-  the  point  where,  in  matters  concerning 
the  colonies  in  their  j^eneral  relations  between  tiiemselves 
(i),  or  the  relations  of  the  colonies  ^-enerally  with  forcioii 
powers,  the  will  of  the  colonies  concerned  is  «;iven  effect 
to,  unless  the  will  of  the  Emjiire  as  a  whole  should  differ 
therefrom,  and  where  in  matters  concernin<i^  the  relations  of 
the  colonies  to  the  ]\Iother  Counti'v,  those  relations  arc 
settled  by  agreement  as  between  independent  negotiators. 

In  truth,  the  constitution  of  the  Empire  is  as  truly 
federal  as  is  the  constitution  of  the  United  States.  Owing 
to  the  historical  accident  that  the  Empire  is  but  the  expan- 
sion of  the  population  of  the  United  Kingdom,  the  "local" 
government  of  the  original  parent  stem  has  hitherto  con- 
tinued to  be,  as  we  liave  said,  the  "national"  government  of 
the  Empire,  but  by  gradual  modification,  by  conventions 
and  usages,  the  functions  of  the  British  Parliament,  so  far 
as  it  controls  the  "national"  government  of  the  Empire,  are 
performed  according  to  the  will  of  the  Enjpire.  The  true 
feileral  idea  is  clearly  manifest — to  recoiucile  national  unitv 

(h)  The  very  fact  that  different  jiarts  of  the  Empire  lie  contiguous  to 
different  foreign  powers  will,  perhaps,  necessitate  the  enlargement  of  tlie 
sphere  of  local  self-j^overument  in  the  units  of  the  British  Confedera- 
tion that  is  to  be  ;  or,  from  the  other  view,  the  matters  of  common  con- 
cern will  necessarily  be  fewer,  and  the  sphere  of  the  "central  "  j^overn- 
ment  narrower  than  is  the  case  in  a  compact  territory  like  that  of  the 
United  States. 

(j)  The  B.  N.  A.  Act  deals  with  such  matters. 


oril    POLITICAL   SYSTEM.  <) 

with  the  n;;ht  of  local  .self-<;oveniment — the  very  same 
idea  that  is  stamped  on  the  w)'itteii  constitution  an;ree(l 
upon  l»y  the  people  of  the  United  StJites.  The  diHorenee 
of  position  historically  is  (piite  sufficient  to  account  for 
the  difference  of  position  legally.  Given  the  indepen- 
dent self-<;overninj;  communities,  which  made  up  the 
Amei'ican  Commonwealth,  the  "national"  o()vernment 
was  super-imposed  to  secure  unity,  hut  upon  conditions 
presei'vative  of  local  autonomy.  With  us,  <»n  the  othei- 
hand,  the  central  fj^overnment  stands  historically  first, 
hut  the  various  connnunities  which  j^rew  out  of  it  have, 
l»v  irradual  concession,  secured  at  least  as  full  a  measuiv 
of  the  I'i'dit  of  local  self-iiovernment  as  is  enioved  hv  the 
individual  States,  which  to(;ether  form  the  neit^'hhoi-in^ 
Kei)ul)lic.  The  sum  total  of  conceded  power  at  any  <>;iven 
period,  will  he  found  to  he  commensurate  with  the  opinion 
pi'evalent  at  such  period  jis  to  the  proper  line  of  division 
between  Impei-ial  and  local  concerns. 

It  may,  pei'haps,  he  contended  that  the  "national" 
j;»)verinnent  of  the  British  Empire,  haviiifi^  the  power  to 
lav  down  the  line,  which  is  to  he  the  le^al  line  of  division 
between  matters  of  connnon  and  matters  of  local  con- 
cern, at  just  such  a  point  as  to  it  seems  proper,  differs  in 
this  respect  from  the  "national"  jrovernment  of  the  United 
States.  The  common  description  of  the  Federal  *;overn- 
ment  of  the  United  States,  as  a  ^-ovei-nment  possessed  of 
specially  <lele<;ated  })owers  only,  would  seem  to  support 
this  <listinction.  But,  in  truth,  this  special  delegation  is,  foi- 
all  jn-actical  purposes  of  government,  a  dele<^ation  of  powei' 
sutHcientlv  wide  to  enable  the  Federal  mnei'nment  to  be 
itself  the  regulator  of  its  own  sphere  of  authority.  The 
suhjeet  matters  are  themselves  comjirehensive  in  .scope,  and 
the  "implied  power"  which  Cono-ress  po.ssesses  to  choose 
sucii  means  as  it  may  deem  necessary  and  proper  for 
cari-yin^^  out  the  designed  end  of  the  "national"  govern- 
ment, leaves  the  decision  as  to  the  line  of  division  Itetween 
Federal  and  State  matters  very  much  in  Congress'  hands : 


10  THE   CANADIAN    CONSTITUTION. 

ami  tliouf^htt'iil  Aiiiericnn  writers  are  not  slow  in  asserting 
that  CongrusH  is  as  fully  the  supreme  powei  in  the  American 
political  system  as  is  the  British  Parliament  in  our  Im})e- 
rial  system  (j).  But  however  this  may  he,  and  even  if  we 
must  go  back  to  "We,  the  people  of  the  United  States"  as 
the  supreme  power  in  the  American  system,  we  shall  find, 
as  mijfht  be  expected,  that  the  people,  as  a  whole,  are 
lej^ally  the  rulers  of  the  people  in  parts,  and  that  the  line 
of  division  which  shall,  at  any  moment,  separate  the  fields 
of  Federal  and  State  action,  depends  not  on  the  will  of  the 
individual  States,  but  on  the  will  of  "the  people  of  the 
United  States" — the  authors  of  the  "Constitution"  as  it 
exists  to-day — who  can  alter  it  at  any  time  and  make  it 
conform  to  their  will.  Cund)ersome  we  may  think  the 
machinery  provided  for  etfectin*^  any  desired  amendment ; 
but  it  is  there;  and  no  one  can  say  that  the  next  amend- 
ment will  not  be  a  simplitication  of  the  machinery  for 
amendment. 

Having  shown  the  presence  of  the  Federal  principle  in 
the  British  constitution,  it  must  be  admitted  that  the  con- 
stitution of  the  United  States,  century-old  as  it  is,  carries 
that  principle  into  action  nmch  more  logically  than  does 
the  British  constitution  of  to-day.  Were  it  not  for  the 
fact  to  which  we  have  alluded,  namely,  that  the  matters  of 
c -mmon  concern,  requiring  governmental  action,  are  few, 
the  British  Empire  would  not  long  hang  together  in  its 
present  hap-hazard  form  of  federal  government.  The 
want  of  legal  limit  to  the  power  of  the  "national"  govern- 
ment, does  not  make  itself  seriously  felt,  owing  to  this 
scarcity  of  matters  of  common  concern,  and  to  this  further 
fact,  that  the  statesmen  at  the  head  of  the  British  govern- 
ment have,  in  the  main,  carefully  observed  the  "conven- 

(j)  Prof.  Woodrow  Wilson,  in  "Congressional  Government  "  4th  ed.: 
"  For  all  practical  purposes,  the  National  Government  is  supreme  over 
the  State  Governments,  and  Congress  predominant  over  its  so-called  co- 
ordinate branches" :  p,  52.  See,  however,  a'  criticism  of  this  work  by  Mr. 
A.  Lawrence  Lowell  in  his  "  Essays  on  Government,"  p.  ■16  et  seq. 


OUR    POLITICAL  SYSTEM.  11 

tional"  limitH,  and  have,  in  thoso  tow  niattei-s  of  connnon 
concei-n,  endeavoied  to  carry  on  tlie  Inip»'rial  ^(ovei-ninent 
in  accordance  with  the  wishes  of  the  Empire  as  a  whoU?, 
so  far  as,  under  our  illogical  system,  those  wishes  are 
capable  of  Iteing  ascertained. 

We  have  spoken  of  the  want  of  legal  limit  to  the  power 
of  the  "national"  governu'.ent  under  the  British  Imperial 
system.  The  expression  is  perhaps  hardly  accurate— the 
want  which  really  exists  is  the  want  of  legal  limit  to  the 
l('(/ish(tife  jxnver  of  the  Brlfis/i,  pnrHament.  The  result 
is  that  the  legal  line  of  division  between  the  fields  of 
Imperial  and  colonial  government,  is  a  most  uncertain 
one,  although  becoming  less  so.  But  although  one  must 
ransack  both  British  and  colonial  statutes  to  ascertain  this 
line,  it  is,  when  ascertiiined,  and  at  any  given  moment  of 
time,  a  legal  line  of  division,  and  governmental  action  will 
be  kept  by  the  courts  within  its  proper  sphere.  No  judge 
within  the  Empire  can  legally  limit  the  British  Parliament 
as  a  legislative  body,  or  treat  its  enactments  as  altra  vires ; 
but  the  very  same  thing  may  be  said  of  that  "amended 
Act"  of  the  supreme  legislative  authority  of  the  Unite<l 
States — its  present  "Constitution" — or  of  any  future  amend- 
ment thereof.  But  under  both  the  British  and  the  United 
States  .systems — systems  of  government-according-to-law — 
the  courts  charged  with  the  enforcement  of  law  nmst 
decline  to  recognize  the  validity,  the  lawfulness,  of  any 
governmental  act,  done  by  any  peraon  or  body  of  peraons, 
beyond  the  limits  to  which  they  are  legally  subject. 

The  enforcement  by  the  courts,  colonial  and  British,  of 
the  legal  limitations  upon  colonial  legislative  power,  is 
matter  of  legal  notoriety  (k),  apart  altogether  from  the 
cases  which  have  arisen  relative  to  the  division  of  the 
field  of  Canadian  government  between  the  Dominion  and 
Provincial  legislatures;  and  no  less  notorious  is,  or  should 
be,  the  enforcement  by  the  courts,  of  the  legal  limits  set  to 

[k    See  post,  Chap.  IX.  , 


12  THE   CANADIAN   C()NSTrrrTI(>X. 

^'ovcnniiental  interference  (otlier  than  })y  Imperial  law- 
niai\in^)  on  tlu'  part  of  tin;  "  national  "  anthoritie.s  with 
colonial  rij^hts  of  self-j^ovei'innent  (/).  The  "sphere  of 
authority" of  the  British  })arlianu'nt,  </>*  </  luiv-rinik'nuilnuhi 
for  the  Kinpire,  is  legally  unlimited,  and  within  that 
unlimiteil  sphere  it  may  exercise  its  law-making  })owers  in 
whatever  fashion  may  appear  proper  to  it.  'Die  "sphere 
of  authority"  of  Congress  as  a  law-makinn"  hody  is  not 
unlimited,  hut  ovur  matters  within  that  sphere  (he  it  wide 
or  narrow),  the  power  of  legislation  is  plenary,  and  suhject 
to  no  limitations  cjipahle  (if  judicial  enforcement. 

We  have  not  therefore  discovered  yet  the  dift'erence  in 
])rinciple  hetween  the  British  and  the  American  systems  of 
government.  It  is  not  in  resju'ct  of  the  federal  idea — 
that  is  connnon  to  Ijoth  :  nor  in  respect  of  the  rule  of  hiir, 
the  enforcement  hy  the  courts  of  the  law  of  the  constitution 
— that,  too,  is  connnon  ground.  We  are  driven,  therefore, 
to  examine  the  rmichlvcn)  of  ^-overinnent ;  and  here  we 
shall  tind  a  difference  which  runs  th.rou{:;h  the  "national" 
and  "  local  "  governments  alike  of  these  two  systems.  The 
difference  in  principle  is  not  in  those  pai'ts  of  the  hody 
politic  which  exercise  legislative  functions,  nor  in  those 
which  are  executive,  l»ut  in  the  connection  hetween  the  two 
— the  connection  between  the  law-makin<;"  and  the  law- 
executing  departments  of  government. 

It  nmst  appear  clear,  upon  considerati(m,  that  in  any 
country  under  the  rule  of  law,  the  body  to  which  by  the 
constitution  is  entrusted  the  power  to  make  law,  must 
necessarily  be  the  supreme  power  in  government.  The 
body  to  which  the  executive  functions  of  government  are 
entrusted  must  obey  the  law,  and  the  extent  of  its  power 
to  exercise  its  own  volition  entirely  depends  on  the  legisla- 
tive body.  That  body  may  content  itself  with  enacting 
general  laws,  laying  down  broad  principles,  or  giving  gen- 
eral dii-ections  in  reference  to  government,  and  in  such  case 

(0  Campbell  v.  Hall,  Cowp.  209. 


OUR    POLITICAI.   SYSTEM.  13 

the  choice  of  incans,  manner,  and  time,  left  with  the  execu- 
tiv»',  con.stitutes  that  executive  a  power  capaltK'  of  exhihit- 
in<'"  the  imprint  of  its  own  illncrcfion  in  the  actual  carrying 
on  of  i)ul»lic  afiiiirs.  On  the  other  hand,  the  legislature 
may  ^o  to  such  length  of  lei^islative  detail,  nuiy  so  specifi- 
cally provide  the  means,  manner,  and  time,  for  the  perform- 
ance of  any  work  of  government,  that  the  executive  may 
sink  to  the  level  of  a  purely  loutine  office,  and  the  power 
of  any  member  of  the  executive  staff  to  exercise  discretion, 
as  to  how  or  when  he  shall  perform  his  duties,  be  entirely 
taken  away.  The  history  of  constitutional  prt)^ress  in 
England  is  the  history  of  the  steps  by  which  the  Legisla- 
ture compelled  the  Executive  to  recognise  the  supremacy 
of  law — in  other  words,  the  supremacy  of  the  Lej^islature : 
and  so  lonj^  as  the  Executive  withheld  this  full  recognition, 
legislation  continued  to  be  more  and  more  specific  in  its 
provisions,  more  of  a  curb  and  fetter  upon  executive  dis- 
cretion. But  now  that  the  principle  of  executive  responsi- 
bility is  recoj;-nized  to  the  full,  the  tendency  of  legislation 
is,  in  many  matters,  rather  the  other  way;  an»l  many  de- 
tails of  t^overinnental  action  are  left  to  be  provided  for  by 
or^ler  in  council  or  departmental  regulation,  or  even  left  to 
the  discretion  of  the  ofHcial  who  has  char<;'(>  of  the  particu- 
lar work. 

It  nuist  be  observed,  too,  that  this  supremacy  of  the 
legislative  department  of  government  is  just  as  clearly 
api)arent  under  a  federal  system  where  the  government  is 
a  <4-overnment-according-to-law,  as  under  what  has  been 
called  a  "  unitarian  "  system,  under  the  like  rule  of  law. 
The  federal  idea  has  no  more  necessary  relation  to  the 
separation  of  the  spheres  of  authority  of  the  legislative  and 
executive  departments  than  has  the  "unitarian"  idea.  The 
Englisli  constitution  (view^ed  as  the  constitution  of  the 
United  Kingdom  merely)  and  the  French  constitution  are 
manifestations  of  the  "  unitarian  "  idea  in  government ;  but, 
in  the  former,  the  supremacy  of  the  legislature  over  the 
executive  is  a  dominant  principle ;  while,  in  the  latter,  the 


14  THE   CANADIAN   CONSTITUTION. 

executive  is,  in  many  respects,  recognized  as  above  the  law, 
as  having  a  law  peculiar  to,  and  moulded  by  itself — the 
droit  mhninistratif — and  somewhat  the  same  distinction 
may  be  drawn  between  the  two  representative  federal  con- 
stitutions, that  of  the  United  States  and  that  of  tlie  Swiss 
Republic. 

Reasoning,  a  priori,  therefore,  one  would  say,  that,  in 
both  the  British  and  the  American  systems,  the  body  which 
makes  the  law  must  necessarily  be  supreme  over  the  body 
which  simply  carries  out  the  lav;  when  made ;  and  it  is*  not 
surprising,  therefore,  to  find  that  in  the  British  system,  not 
only  is  this  supremacy  recognized,  but,  by  a  certain  arrange- 
ment of  the  machinery  of  government,  the  will  of  the  law- 
making body  is  made  to  sympathetically  affect  and  control 
the  will  of  the  executive  in  the  administration  of  public 
affairs:  and  the  administrative  knowledge  of  the  executive 
is  utilized  to  the  full  in  the  work  of  legislation.  The  same 
supremacy  necessarily  exists  in  the  United  States  system  ; 
that  is,  the  executive  department  of  the  Federal  govern- 
ment, or  of  any  one  of  the  State  governments,  must 
administer  public  affairs  according  to  law.  But,  in  their 
system,  there  seems  apparent  a  determined  effort  to  prevent 
co-operation  and  sympathy. 

What  then  is  this  arrangement  of  machinery  to  which 
we  have  referred  as  existing  in  the  British  system  ? 

Of  late  years  it  has  been  found  necessary  to  revise  some- 
what our  ideas  concerning  the  British  constitution.  The 
older  authorities  dwell  upon  the  division  of  power  between 
the  legislative  and  executive  departments  of  government, 
and  the  subdivision,  in  turn,  of  the  legislative  department 
into  King,  Lords,  and  Commons ;  and  they  (m)  dilate  with 
<|uiet  enthusiasm  upon  the  "checks  and  balances"  provided 
in  and  by  such  a  division  and  subdivision  of  power. 
Gradually,  however,  this  "literary  theory,"  safe-guarding 
the  ark  of  the  constitution  with  its  supposed  division  of 

(m)  c.  g.  Chitty  On  the  Prerogatives  of  the  Crown,  at  p.  2. 


OUR   POLITICAL   SYSTEM.  16 

soverei^mty  into  departments,  each,  as  it  were,  checking 
whatever  of  evil  there  might  be  in  the  uncontrolled  action 
of  the  others,  and  yet  each  supposed  to  be  in  a  sense  inde- 
pendent of  the  others— gradually,  we  say,  this  theory  came 
to  be  seen  to  be  an  incomplete,  and,  in  truth,  wholly  errone- 
ous explanation  of  the  working  of  the  constitution.  The 
rising  spirit  of  democracy  had  silently  permeated  the 
system  of  government,  without  any  apparent  disintegration 
of  parts,  but  with  a  difference  in  the  practical  "residence" 
of  power,  which  at  length  challenged  recognition  at  the 
hands  of  those  who  would  expound  the  constitution  and 
its  law. 

Of  comparatively  recent  writers,  the  late  Walter  Bage- 
hot,  in  his  most  valuable  essays,  attacks  with  vigor  this 
"literary  theory,"  with  its  supposed  checks  and  balances, 
and  as  a  result  of  an  interesting  study  of  constitutional 
dynamics,  arrives  at  this  conclusion  : 

"  The  efficient  secret  of  the  English  constitution  may  be 
described  as  the  close  union,  the  nearly  complete  fusion  of  the 
executive  and  legislative  powers.  No  doubt  by  the  traditional 
theory,  as  it  exists  in  all  the  books,  the  goodness  of  our  consti- 
tution consists  in  the  entire  separation  of  the  legislative  and 
executive  authorities,  but  in  truth  its  merit  consists  in  their 
singular  approximation.  The  connecting  link  is  the  Cabinet. 
By  that  new  word  we  mean  a  committee  of  the  legislative  body 
selected  to  be  the  executive  body.  The  legislature  has  many 
committees,  but  this  is  its  greatest.  It  chooses  for  this,  its  main 
committee,  the  men  in  whom  it  has  most  confidence.  It  does 
not,  it  is  true,  choose  them  directly ;  but  it  is  nearly  omnipotent 

in   choosing   them   indirectly The  Cabinet,  m  a 

word,  is  a  Board  of  Control,  chosen  by  the  legislature,  out  of 
persons  whom  it  trusts  and  knows,  to  rule  the  Nation.  .  .  . 
A  cabinet  is  a  combining  committee — a  hyphen  which  joins,  a 
biiclde  which  fastens,  the  legislative  part  of  the  State  to  the 
executive  part  of  the  State.  In  its  origin,  it  belongs  to  the  one, 
in  its  functions,  it  belongs  to  the  other." 

and  he  proceeds  further  to  show  how,  by  this  practical 
fusion,  this  result  is  clearly  attained — that  the  will  of  the 


16  THE   CANADIAN   CONSTITUTKJN. 

people  constitutionally  expressed  through  their  elected 
representatives  in  the  House  of  Commons,  controls  both 
the  law-making  and  the  law-executing  power,  and  is,  in 
vary  fact,  the  ultimate  power  in  government. 

Mr.  Dicey,  in  a  work  to  which  reference  has  already 
been  made,  treats  of  'the  luiv  of  the  constitution,'  and 
insists  on  this  as  the  legal  principle  discernible  throughout, 
namely,  the  supr<nu<i<-i/  of  Parllurueiif.  Viewed  as  a  legal 
((uestion,  the  solution  of  the  problem  stops  short  at  tlie 
expression  (in  Act  of  Parliament)  of  the  will  of  Parlia- 
ment, and  from  that  standpoint  we  may  summarize  the 
result  thus :  The  Imperial  Parliament  is  supreme  over  tlie 
Executive.  By  the  legal  expression  of  its  will  in  statutory 
form,  it  controls  the  exercise  of  executive  authority :  may 
add  to,  or  take  from,  the  power  of  that  department  of  go\- 
Lniiiient,  or  may  subject  the  exercise  of  executive  power  to 
such  conditions  of  time,  place,  or  manner  of  action,  as  to 
Parliament  may  seem  proper.  The  law  of  the  constitution 
does,  however,  take  this  cognizance  of  the  "power  behind 
the  throne,"  that  the  method  of  electing  the  House  of 
Connnons  is  pro\'ided  for  by  Act  of  Parliament. 

Viewed  in  the  liijht  of  the  "conventions  of  the  cimstitu- 
tion,"  the  responsibility  of  the  executive  to  the  legislatuiv 
for  the  proper  performance  of  its  functions,  is  guaranteed 
by  those  usages  and  precepts,  that  code  of  "conventions" 
which  provide  tiiat,  ui)on  losing  the  contidence  of  the  House 
of  Commons,  the  Cabinet  must  resign,  and  give  place  to  an 
executive  whicli  will  command  that  confidence  (>j). 

This  responsibility  of  the  executive  to  the  people, 
through  the  House  of  Connnons — the  elective  branch  of 
})arliament — is   the   principle  of   the   British  constitution. 

()i)  The  last  chapter  in  Prof.  Dicey's  book  is  a  very  interesting  effort 
to  show  that  the  "  conventions"  of  the  British  constitution  rest  upon  a 
basis  of  legal  sanction — that  the  violation  of  most,  if  not  all,  of  those 
conventions,  will  speedily  place  the  offender  in  the  position  of  a  Jaw- 
breaker. This  idea  could  hardly  ba  worked  out  in  the  matter  of  the 
"  conventions"  as  to  colonial  self-government. 


OUR    POLITICAL   SVSTEM.  17 

•and  is  worked  out  in  o-overnnient  somewhat  upon  tlie  prin- 
ciple of  the  endless  chain.  Travellin*;'  in  one  direction 
alonir  the  links  of  this  cliain,  we  tind  an  executive  connnit- 
tee,  practically  app(jinted  l>y,  and  subject  to  deposition  at 
the  hands  of  the  Coniinons,  executing;  upon  and  over  the 
governed  those  laws  of  the  land  which  are  made,  or  allowed 
to  remain  such,  l>3'  that  hranch  of  riarliament  which  is  elected 
by  the  people  through  certain  ecutive  machinery  ap- 
pointed by  pai-liament,  and  pr.t  in  motion  l)y  the  executive 
committee.  A  revei-sal  of  the  process  leads  to  the  same 
result — the  discover}^  that  the  motive  po'wer  in  o-overnment 
is  the  will  of  the  people,  and  that  this  power  works  always 
and  only  fliro(i(/h  puii'inmcvf,  but  that,  through  the  con- 
trolling bi'ancli  of  parliament,  the  governed  make  their  own 
laws,  and  provide  the  means,  and  regulate  the  manner,  l)y 
and  ai  which  they  are  to  be  governed  by  those  laws. 

k  Turning  now  to  the  syst^-m  of  government  across  the 
)order,  we  tin<l  the  same  principle  of  ultimate  responsibility 
_  ,0  tiie  people  :  but  it  is  worked  out  in  a  very  ditt'erent  and 
much  less  satisfactory  way.  We  have  referred  to  the 
'literarv  theorv"  of  the  English  constitution.  It  is  not 
c'erv  far  from  the  truth  to  sav  that  the  United  States 
system  is  an  attempt  to  work  out  that  very  theory  in  actual 
practice.  We  may  take  as  our  example  the  "  national  " 
ifovern.iunt  at  \\'ashington,  for,  as  we  have  already  said, 
the  type  is  persistent  throughout  both  the  "national"  and 
the  "  local  '■  governments  of  the  American  Union,  just 
as  the  British  type  is  persistent  throughout  l)()th  the 
'  national "  and  "  local "  governments  of  the  British  Em- 
:)ire.  How  it  came  about  that  the  "  literary  theory  "  of  the 
English  Constitution  was  emljodied  in  the  Constitution  of 
the  United  States  lias  been  the  subject  of  fre(|uent  euipiiry, 
and  we  venture  to  (|Uote  from  a  recent  American  work  of 
great  merit :  •       . 

"  The  Convention  of  1787  was  composed  of  very  able  men 
of  tl  e  English-speaking  race.  They  took  the  system  of  govern- 
ment with  which  th'^y  had  been  familiar,  improved  it,  adapted  it 
C.vx.  Con.— 2 


18  THE  CANADIAN   CONSTITUTION. 

to  the  circnmstances  with  which  they  had  to  deal,  and  put  it 

into  successful  operation It  is  needful,  however,  to 

remember  in  th's  connection,  what  has  already  been  alluded  to, 
that  when  that  Convention  was  ^copying  the  English  constitu- 
tion, that  constitution  was  in  a  stage  of  transition,  and  had  by 
no  means  fully  developed  the  features  which  are  now  recogni/cij 
as  most  characteristic  of  it The  English  consti- 
tution of  that  day  had  a  great  many  features  which  did  not  invite 
republican  imitation.  It  was  suspected,  if  not  known,  that  the 
ministers  who  sat  in  parliament  were  little  more  than  the  tools 
of  a  ministry  of  Royal  favorites,  who  were  kept  out  of  siglit 
behind  the  strictest  confidences  of  the  Court.  It  was  notorioiu 
that  the  subservient  parliaments  of  the  day  represented  the 
estates  and  the  money  of  the  peers  and  the  influence  of  tbe 
King,  rather  than  the  intelligence  and  purpose  of  the  Nation. 
.  .  .  It  was  something  more  than  natural  that  the  con- 
vention of  1787  should  desire  to  erect  a  Congress  which  would 
not  be  sub.servient,  and  an  executive  which  could  not  be  despotic  : 
and  it  was  equally  to  have  been  expected  that  they  should  reganl 
an  absolute  separation  of  these  two  great  branches  of  the  system 
as  the  only  effectual  means  for  the  accomplishment  of  that  mucli 
desired  end  "  ('<). 

Prof.  Wilson,  indeed,  shows  very  clearly,  as  one  anouM 
expect,  that  Congress  is  ikjw  supreme  over  the  executixe 
of  the  federal  <j;overnnient,  and  "  sul)jects  even  the  details 
of  administration  to  the  constant  supervision,  and  all  policy 
to  the  watchful  intervention  of  the  Standing  Connnittecs 
of  Congress";  but  he  laments  the  lack  of  executive  responsi- 
bility to  Congress.  The  President  and  the  heads  of  tin,' 
cliief  executive  departments  of  governnierit  stand  apnii. 
isolated  from  Congress;  bound  to  execute  its  laws,  liut 
with  no  greater  influence  in  securing  the  passage  of  laws 
ir*  aid  of  eflective  administration,  or  in  preventing  the 
passage  of  laws  which  may  hamper  administration,  than  is 
possessed  by  any  other  private  citizen.  By  the  terms  of 
the  "  Constitution  "  itself,  they  are  debarred  from  seats  in 

(o)  Wilson's  Congre33ional  Government,  p.  307. 


OUU    POLITICAL   SYSTEM.  19 

('(in^a'oss  (p),  and  so  have  no  initiative  in  loj^nslation.  On 
the  other  liand,  Conj^jress  ninst  <^<)  to  the  full  extent  of  law- 
iiiakini^  in  order  to  exercise  its  supremacy  over  the  execu- 
tive: hut  the  trouhle  may  he,  not  in  the  law,  l)ut  in  the 
t'Xt'cution  of  that  law,  and  no  matter  to  what  extent  of 
di'tail  the  law  may  make  provision,  one  may  expect  that  an 
executive,  perhaps  completely  (ait  of  sympathy  with  tlie  law, 
will  not  he  a  very  satisfactory  administi'ator  of  that  law. 
In  short,  there  is  no  guarantee  of  that  harmony  ])etween 
tile  le;;'islative  and  executive  departments,  that  sympatliy 
and  co-operation,  without  which  there  must  necessarily 
arise  constant  friction,  lack  of  continuity  in  policy,  and 
even  a  deadlock  in  the  administration  of  puhlie  ati'airs. 
C'on<^ress  and  the  executive  are  responsilde,  each  directly 
to  the  people:  hut  the  retention  of  the  confidence  of  Con- 
gress is  in  no  way  a  condition  to  the  retenti')n  of  office 
Con^^ress  has  no  such  pt)wer  to  depose  the  executive  as 
has  the  House  of  Commons  in  the  En<;-Iish  constitutional 
system.  M(jreovcr,  the  constant  possihility  of  party  diver- 
sity between  the  Executive  and  Cone-ress,  renders  it  very 
difKcult  to  fasten  responsibility  upon  either.  This  difficulty 
is  thus  stron^dy  put  by  Prof.  Wilson,  in  the  work  from 
which  we  have  already  (pioted: 

"  Is  Congress  rated  for  corrupt,  or  imperfect,  or  foolish  legis- 
lation ?     .     .     .     .     Does  administration  blunder  and  run  itself 
into  all  sorts  of  straits  ?     The  Secretaries  hasten  to  plead  the 
unreasouahle  or  unwise  connnands  of  Congress,  and  Congress 
falls  to  blaming  the  Secretaries.     The  Secretaries  aver  that  the 
whole  mischief  might  have  been  avoided,  if  they  had  only  been 
I  allowed  to  suggest  the  proper   measures ;    and    the   men   who 
:  framed  the  existing  measures,  in  their  turn,  avow  their  despair 
[  of  good  government,  so  long  as  they  must  entrust  all  their  plans 
to  the  bmigling  incompetence  of  men  who  are  appointed  by,  and 
responsible  to  somebody  else.     How  is  the  school-master,  the 
nation,  to  know  which  boy  needs  the  whipping?  "  (7). 

(p)  Art.  I.,  sec.  6.  {q)  Congressional  Government,  p.  283. 


20  THE  CANADIAN   CONSTITrTlON. 

In  tlu'  preface  to  the  Hame  work,  the  distinction  between 
the  British  and  the  America)!  svstenis  of  m)Verinnent  is 
shortlv  stated,  in.  lanmia<;e  which  we  have  no  liesitation  in 
adopting'. 

"It  is  our  legislative  and  administrative  machinery  which 
makes  our  government  essentially  different  from  all  other  great 
governmental  systems.  The  most  striking  contrast  in  modern 
politics  is  not  between  Presidential  and  Monarchial  governments, 
but  between  Congressional  and  Parliamentary  governments. 
Congressional  government  is  ( 'ommitU'c  government ;  Parliamen- 
tary government  is  government  by  a  responsible  ( 'dhinet  ininiHtri/. 

"  These  are  the  two  principal  types  which  present  them- 
selves for  the  instruction  of  the  modern  student  of  the  practical 
in  politics  :  administration  by  semi-independent  executive  agents, 
who  obey  the  dictation  of  a  legislature  to  which  they  are  not 
responsible;  and  administration  by  executive  agents,  who  are  the 
accredited  leaders  and  accountable  servants  of  a  legislature 
virtually  supreme  in  all  things." 

Neither  need  we  hesitate  to  oive  expression  to  onr 
decided  preference  for  the  system  of  cahinet  o-overnment 
which  obtains  in  En^'land,  when  we  find  so  tliouyhtfnl  a 
writer  as  Prof.  Wilson — a  citizen  of  the  Republic  at  that — 
doino-  the  like. 

After  tliis  comparison  of  the  tw(^  leadin<;"  types  of 
Anglo-Saxon  self-government,  it  is  easy  to  decide  to  which 
the  Canadian  constitution  conforms. 

Wo  sliall  liave  occasion  to  again  refer  to  the  limits  set 
to  our  right  of  self-goverinnent,  l)y  reason  of  our  colonial 
subjection  to  the  ultimate  supremacy  of  the  Imperial 
parliament.  In  this  chapter,  we  have  endeavored  to  show 
that  this  subjection  is  but  that  subordination  of  a  "local 
to  a  "national"  government,  essential  in  any  truly  federal 
scheme  of  government.  If,  indeed,  to  establish  our  position, 
we  must  show  that  some  one  parliamentary  body,  elected 
by  a  Canadian  electorate,  is  possessed  of  the  ultimate 
sovereignty   in   Canada  •  over    every    conceivable    subject 


OUR    POLITICAL   SYSTEM.  21 

inattcr  of  {^^ovenunentnl  action,  the  discussion  need  f(o  no 
further;  for,  achiiittedly,  we  are  a  colony  of  Great  Britain, 
and  in  the  ultimate  le<;al  analysis  our  ^^overnnient  is  from 
without.  This,  however,  is  not,  we  take  it,  the  point  of 
distinction. 

I  If  we  can  slunv  that  so  far  as  the  ri^dit  of  local  self- 
'  irovernment — the  riy-ht  to  make  the  laws  by  which  we  are 
to  he  governed,  and  to  execute  those  laws  as  suits  ourselve.s 
— has  heen  conceded,  our  power  is  exercisable,  the  law- 
makin<r  i>ower  with  the  same  efficacy,  and  the  law-execut- 
iii*.'^  power,  un<ler  the  same  principle  of  responsiljility  to 
parliament,  and,  through  parliament,  to  the  electorate,  as  in 
the  United  Kino-dom,  we  shall  have  established  our  propo- 
sition. 

I  To  any  one  who  has  knowledjj^e  of  the  con.stitutions  of 
the  provinces  prior  to  confederation,  it  is  unnecessary  to 
point  out,  that  since  the  conce.ssion  of  "  Respon.sible  Govern- 
l  meiit,"  and  up  to  bS(j7,  those  constitutions  were  "similar  in 
\  principle  to  that  of  the  United  Kintifdom,"  and  that  all  that 
I  has  been  said  in  reference  to  the  British  constitution 
I  might  be  repeated  in  reference  to  (old)  Canada,  Xov^t 
I  Scotia,  and  New  Brunswick. 

Nor  will  it  bo  contended  that,  under  the  B.  N.  A.  Act, 
the  sum  total  of  our  rights  of  .self-government  has  been 
lessened  ;  in  fact,  as  we  shall  have  occasion  to  show,  that 
sum  total  has  been  largely  increased,  both  legally  and  by 
"conventions."  And  no  one  who  knows  the  actual  work- 
ing of  the  machinery  of  government  in  Canada,  will  con- 
tend that  we  have,  either  in  the  Dominion  government,  or 
the  government  of  the  various  provinces,  other  than  a 
liarliamentary  government. 

It  has  been  usual  to  speak  of  "the  division  of  power" 
under  a  fe<leral  system.  In  truth,  this  form  of  expre.ssion 
is  most  inapt,  and  very  inaccurately  describes  the  division 
of  labor  which  really  exists.  Its  thoughtless  use  has  l)een 
fruitful  of  nuich  misconception  of  the  true  line  or  principb^ 


22  THE   CAXADIAX   COXSTITITIOX. 

of  division.  Bearinj^  in  njin<l  what  is  involved  in  the  term 
jrovernnient — lii\v-niakin<;'  and  la\v-execntin<;' — and  the  co- 
extensive and  coHiplenientaiy  splieres  ot"  action  of  those 
two  cliief  departments  of  n()vernnient,  we  shall  find  that 
there  is,  in  our  system,  no  "division  of  p(nrct'"  in  the  sense 
in  which  such  division  was,  by  the  older  writers,  errone- 
ously assumed  to  exist  under  the  British  form  of  ^ovei'ii- 
ment ;  and  certaiidy  none  in  the  sense  in  which  such 
division  does  actually  exist  in  the  individual  systems  of 
the  United  States.  Our  simile  of  the  endless  chain  may. 
perhaps,  serve  to  impress  the  true  i)rinciple  of  our  form  of 
government  upon  the  reader,  and  that  principle  underlies 
the  practical  working  of  each  and  eveiy  of  our  govern- 
mental organizations.  Dominion  and  Provincial. 

The  true  line  of  division  is  this:  The  various  suhject 
matters,  with  which  government  can  he  supposed  to  have 
anything  to  do,  are  divided  into  two  gn.'at  divisions  (rj 
— matters  of  general  and  matters  of  local  concern — l)ut  to 
each  of  such  divisions,  the  full  e(]uipment  of  powei',  legisla- 
tive and  executive,  is  given.  There  is  no  di\'isioi.\  of  function 
in  the  sense  that  as  to  any  given  subject  matter,  legislative 
})ower  resides  in  one  organization  or  government,  and  execu- 
tive power  in  another;  as  to  any  given  suliject  matter,  the 
full  power  of  government  rests  in  one  and  the  same  govern- 
mental Ijody.  Tlie  Dominion  government  and  the  Provincial 
governments  are  (each  within  the  sphere  of  its  legitimate 
operation)  carried  on,  on  the  same  principle  as  the  govern- 
ment of  the  United  Kiug<lom.  .]uris<liction  as  to  sul»ject 
matter  conceded,  the  will  of  the  legislature.  Dominion  or 
Provincial,  is  supreme  over  the  executive,  in  the  same  sense 
as  the  will  of  the  Imperial  parliament  is  supreme  over  the 
executive  in  the  United  Ivingdom.  The  legal  principle,  so 
strongly  insisted  upon  by  Mr.  Dicey — the  supreniacy  ol 
parliament — as  clearly  appears  here  as  in  the  Unite<l 
Kingdom ;    while,   for  the    "  conventional "   aspect  of  the 

()•)  See  Bank  of  Toronto  v.  Lambe,  12  App.  Cas.  587,  and  post,  Chap.  X. 


OIU    POLITICAL   SYSTEM,  2^^ 

HK'stion,  it  iH  only  nccosHaiy  to  curry  the  coinparison  ono 
xti'p  iurtluT,  iin«]  point  out  that, us  in  tiie  United  Kin^dom^ 
.s')  lioi'L',  the  ultimate  ivsponsihility  oF  the  executive  to  the 
leetorate,  thi-ouuh  the  elective  hi'anch   of   the   le<aslature, 
is  cleai"!^'  estahlished,  in  relation  as  well  to  each  provincial 
as  to  the  Dominion  o-ovornment.     The  elective  l»i"anch  ol' 
;he  leu'islatui'e  (I),>niinion  Parliament  or  Provincial   Leijis- 
ative  Assemhly)  represents,  and  is  directly  responsilde  to, 
;he  electorate — as  in  the  United   Kin;;<ioni.     The  Execu- 
;ive  Couunittee  (the  cabinet)  composed  of  mend)ei's  of  the 
ej,dslature,  holding"  their  positions  by  virtue  of,  and  con- 
tingently  upon,    the    retention    of   the    confidence    of   Ihe 
elective  bi-anch  of  that  Le<;islature,  are  therefore,  practically 
lirectly    responsibUi    to    that   elective    brancli — as    in    tlie 
nited  Kingdom.     The  same  chain  of  connected  relation, 
he  same  source  of  motive  power,  and  the  same  method  of 
p[)iyin;i'  that  power  to  the  work  of  ^ONernment,  exists  in 
jach  of  our  n'overnmental  1)udies,  as  in  the  United  Kint-- 
ioni. 

In  this  \iew  of   the  Canadian  constitution,  the  extent 
o    which     tlie    executive    department    of    the    Dominion 
government    may   exercise,   over   Acts    of    the    provincial 
eirislative  asseml)ly,  the  power  of  disallowance,  will  appear 
quite  innnatei-ial  when  it  is  borne  in  mind  that  this  powei- 
8,  in  any  pven  case,  exercised  under  the  same  responsi- 
>ility  (<lirectly  to  the  Dominion  parliament,  and  indirectly, 
throu«;-h  the  elective  brancli  of  that  parliament,  to  the  elec- 
torate) as  exists  in  relation  to  the  exercise  of  any  othei- 
executive    power    lodo-ed  in   the   hands  of  the   Dominion 
<;<)vernment.     And  so  as  t)  au}'  other  points  of  contact,  or 
exenconHict,  between  the  Dominion  and  Provincial  <'(>vei'n- 
ments — or,  for  that  matter,  between  two  local  jfovernments 
— for  its  conduct  with  re*rard  to  such  mattei-  of  contact  or 
conHict,  for  its  action  or  inaction,  each  i(overnnient  (execu- 
tive and  legislative  department  alike)  is  responsiltle  ulti- 
mately to  the  electorate,  who  condeuni  or  approve  in  the 
very  same  way  and  Mith  like   results  as  in  the  case,  i'or 


24  THE   CANADIAN   CONSTITUTION. 

example,  of  a  conflict  between  Lonls  and  Connnon.s  in  tlic 
United  Kin<,^donj. 

Nor  would  it  make  the  Hli^litest  diflerence,  it*  (as  was 
held  in  certain  ((uarters,  for  .some  year.s  after  18(57,)  concur- 
rent power  over  many  suliject  mattei-H  were,  by  the  B.  N.  A. 
Act,  allotted  to  lioth  the  Dominion  and  Provincial  govern- 
ments, and  if  the  true  construction  of  that  Act  were,  tu 
subordinate  provincial  le^jfislaticm  upon  such  matters,  to 
Dominion  lej^islation  thereon.  Colonial  le<^islation  is  com- 
pletely subordinate  to  Im[)evial,  and  to  the  extent  of  its 
"  ropuf^jnancy  "  to  such  Imperial  le^^islation,  is  utterly  void  ; 
and  yet  no  one,  we  fancy,  would  contend  that,  by  reason  of 
Huch  sul)ordination,  the  constitutions  of  the  pre-Confedera- 
tion  provinces,  for  example,  were  other  than  constitutions 
similar  in  principle  to  that  of  the  United  Kintjjdom.  The 
sphere  of  their  power  of  government  was  lindted  liy  reason 
of  their  colonial  status,  but  .so  far  as  they  liad  power,  that 
power  was  exercised  through  the  same  medium  of  respon- 
sible parliamentary  government.  And  so  now,  under  the 
B.  N.  A.  Act,  each  govx^rnment,  Dominion  or  Provincial, 
has  limitations  set  to  its  sphere  of  operation,  but  each, 
Vi/ithin  its  sphere,  is  a  responsible  parliamentary  govern- 
ment. 


CHAPTER  II. 


THE  PRE-CONFEDERATION  CONSTITUTIONS. 

To  ))r()pL'i'Iy  a]>])ivc-iute  tlio  iiR'i'its  or  accuriitcly  noti^ 
the  (k'ft'cts  of  anv  t'onii  of  mnernnit'iit,  it  iiuiHt  lie  studied  in 
its  actunl  present  working — examined,  so  to  speak,  in  motion 
— and  if  the  B.  N.  A.  Act  were  the  creation  of  a  y;overn- 
iiiental  or<;anism,  new  in  all  its  parts,  we  mij^ht  lack  justitica- 
tion  for  in(hd(^in(jj  in  historical  retrospect  l>ack  of  liS()7.  But, 
just  because  the  slate  was  not  cleaned,  just  l)ecause  many 
parts  of  the  machinery  of  government  existing  in  thf 
pi'ovinces  prior  to  Confederation  were  continued  in  the  new 
plant  set  up  in  the  various  provinces,  it  will  be  necessary 
to  examine  the  earlier  constitutions  of  those  provinces, 
indeed,  it  will  appear  that  in  at  least  two  of  them,  New 
Ihunswick  and  Nova  Scotia  (^0,  the  governmental  ma- 
chinery was  left  l)y  the  B.  N.  A.  Act  almost  intact,  and  new 
plant  was  provided  only  for  the  Domini(m  government  and 
the  provinces  of  Ontario  an<l  Queltec  {!>).  These  reasons, 
here  ur<^Hd  in  ])rief,  will  develop  themselves  more  at  len<;th 
as  we  prof^ress  in  our  examination  of  the  scheme  of  j>'overn- 
ment  contained  in  the  B.  N.  A.  Act.  To  avoid  undue 
repetition,  the  proof  must  he  somewhat  delayed.  In  any 
case,  a  short  histoi'ial  retrospect  would  probably  not  be 
considered  out  of  order. 

("()  The  same  remark  applies  to  British  Columbia  and  Prince  Edward 
Island  upon  their  admission  to  the  Dominion. 

('/)  And  aftai'Wiirds  for  Manitoba  and  t!ic  North  West  Territories. 


20  THE   CANADIAN'    COXSTHTTIOX. 

With  tlic  view,  then,  to  (k'tuniiine  tlio  luiturc  of  tlie  coii- 
wtitutioii  of  <;ovt'nmu'iit  in  the  varioUH  pi-ovinceH  of  wliicli 
till'  J)oiiiinion  is  coinposLMl,  we  proei'ed  to  (Hscuhh  hi'ieHy, 
and  so  fur  only  as  is  necessary  to  a  pi'oper  appreciation  of 
oui"  present  .s^'steni,  the  ct)nstitutional  history  of  those 
provinces. 

To  Nova  Scotia  helont^s  the  distinction  of  Kein'*'  the 
ol<lest  of  the  B.  N.  A.  colonies  now  forniin*;-  part  of  the 
Dominion.  The  preanihle  to  one  of  the  earliest  Acts  (r)  of 
tlie  Nova  Scotia  Assenihly  (17of)),  declares  that  "  tliis  pro- 
vince of  Nova  Scotia,  or  Acadie,  and  tlie  property  thereof, 
<lid  always  of  ri<;ht  l)elon<;'  to  the  Crown  of  Eno-hind,  hoth 
1»3'  priority  of  discovery  and  ancient  pos.session."  The 
correctness  of  this  declaration,  France  would  prohaltly  not 
a(hnit ;  hut  tlie  contest  would  he  of  anticjuarian  interest 
merely,  for  by  the  treaty  of  Utrecht,  in  1 718,  "Nova  Scotia, 
or  Acadie,  with  its  ancient  houndaries,"  was  ceded  l>y 
France  to  the  Crown  of  En^'land  in  the  most  ample  term-^ 
of  renunciation.  Nova  Scotia,  as  thus  ceded,  included  the 
present  provinces  of  Nova  Scotia  (excluding;  Cape  Breton) 
and  New  Brunswick,  and  also  part  of  Maine.  For  many 
years  after  its  ac(|uisition,  Nova  Scotia  was  practically 
under  the  military  rule  of  a  governor  and  council,  whose 
autliorit}^  was  defined  in  the  governor's  connnission.  In 
I74f),  a  colonization  scheme  was  set  on  foot,  and  anticipating;' 
an  influx  of  settlers  into  the  colony,  the  connnission  to 
Governor  Cornwallis,  of  date  1749,  authorized  the  sum- 
monino"  of  "jU'eneral  assenddys  of  the  free-holders  and 
plantei's  wiu'iin  your  government,  according  to  the  usage 
of  the  rest  of  our  colonies  and  plantations  in  America. ' 
After  nmch  delay,  and  the  exhibition  of  much  unwilling- 
ness on  the  part  of  the  governor  and  his  council  to  act 
upon  this  direction,  a  scheme  of  representation  was  settled, 
jind  the  first  parliament  of  Nova  Scotia  met  on  the  second 
t)f  October,  1758,  at  Halifax. 

(c)  33  Geo.  II.  c.  3  (N.  S.). 


I'KE-C<  »X  KKDKUATIOX   ('( >N'STITrTloNS.  2  i 

In  17():i,  the  rt'inainin;,^  portioiiH  of  what  arc  now  known 
5isth<'  Maritime  PiovinccH— Cape  Breton  an<l  Piinec  Kdward 
Jsland — were,  l»y  the  treaty  of  Paris,  ceded  to  (ireut  Britain: 
.•and,  hy  the  prochiniation  whicli  followed,  wer«.^  annexed 
"to  onr  trovernnient  of  Nova  Scotia." 

Six  years  hiter,  PhiM'E  EdwahI)  Island  was  made  a 
tirparate  province,  under  a  o-overnor  of  its  own,  wIiosl- 
'Cdiamission,  also,  anthoi'ized  the  callinj;' to;4ether  of  "oenei-al 
iissemhlvs  of  the  freo-holders  and  planters,  within  voni- 
_^()vernment,  in  such  manner  as  you  in  your  discretion 
shall  jud^e  most  proper,"  and  according-  to  further  instrne- 
Hons.  The  first  parliament  of  Prince  Edward  Island  mi't 
jn  177.S. 

In  17(S4,  New  BurxswifK  was  made  a  separate  province, 
Avith  a  y-overnor  of  its  (jwn ;  and  his  conmiission,  too, 
luithoi'i/ed,  in  somewhat  similar  phraseology,  the  summun- 
in;;'  of  a  <;vnera)  assemhly,  which  shortly  thereafter  met. 

Of  Cai'E  1>|{ET()\'s  constitutional  vicissitudes  it  is  un- 
necessary to  make  mention  {<!).  Finally,  in  1820,  it  was 
j'e-annexL'd  to  the  o-overnment  of  Xova  Scotia,  of  which 
proN'ince  it  has  evei'  since  formed,  and  now  forms,  ])art. 

So  far  as  .the  Maritime  Provinces  {<')  are  concerned,  the 
le;4islatures  of  to-day,  in  those  provinces,  are  the  lineal 
descendants  of  those  early  "general  assemhlys."  But,  as  we 
must  show,  the  sphere  of  their  authority  in  i^'overnnient,  in 
l.S(j7.  when  Nova  Scotia  and  New  Brunswick  (/')  became 
part  of  the  Dominion  of  Canada,  was  very  ditferent  from 
their  sphere  of  authority  in  175S,  and  for  many  years 
thereafter. 

Quebec — not  tlie  present  province  of  that  name,  hut 
:[)ractically  the  now  provinces  of  Quebec  and  Ontario — was 

(d)  They  are  set  out  at  length  in  5  Moo.  P.  C.  2oi) :     In  re  The  Island 
■of  Cape  Breton. 

(e)  The  documentb  relating  to  the  early  constitutions  of  the  IMaritinie 
Provinces  are  set  out  in  Return  No.  70,  Can.  Sess.  Papers,  1883. 

(/)  And  so  as  to  Prince  Edward  Island  in  1873.     See  iwst. 


2S  THE   CANADIAN   CONSTITUTION. 

ceded  to  Great  Britain  by  the  same  treaty  of  Paris,  which 
secured  Cape  Breton  and  Prince  Edward  Island.  Tlie 
proclamation  ([/),  to  which  w^e  liave  ah-eady  referred,  which 
followed  upon  tlie  cession,  simply  annexed  Cape  Breton 
and  Prince  Edward  Island  to  the  government  of  Nova 
Scotia,  but  erected  Quebec  into  a  new  province,  and  made 
provision  for  its  government.  Both  by  that  proclamation, 
and  by  the  connnission  to  Governor  Murray,  the  institution  of 
a  representative  assembly  was  contemplated,  but,  for  reasons 
upon  w'hich  it  is  unnecessary  to  enlarge,  no  such  assembly 
ever  met  thereunder ;  and  it  was  not  until  after  the  Imperial 
])arliament  intervened  (for  the  second  time)  in  the  govern- 
ment of  the  B.  N.  A.  provinces — after  the  passage  of  what 
is  known  as  "The  Constitutional  Act,  l7dl"  (h),  dividing 
Quebec  into  the  two  provinces  of  Upper  and  Lower 
Canada,  and  providing  for  a  separate  legislature  in  each 
province — that  such  assend)lies  met ;  that  of  Upper  Canada, 
at  Niagara,  on  the  17th  of  September,  1792,  and  that  of 
Lower  Canada,  at  Quebec,  a  few  months  later.  In  1840,  the 
two  provinces  of  Upper  and  L  ower  Canada  were,  by  what 
is  connnonly  known  as  "The  Union  Act"  (/),  joined  together 
in  a  legislative  union,  which  lasted  until  the  birth  of  the 
Dominion  (j). 

We  nuist  now  retrace  our  steps,  in  order  to  take  a  com- 
prehensive view  of  the  nature  of  the  government  which  was 
established  in  the  various  provinces ;  and,  in  taking  such  a 
N'iew,  it  will  be,  to  say  the  least,  convenient  to  treat  of  the 
statutory  constitutions  of  the  Upper  Provinces  separately, 
and  to  confine  our  attentior,  in  the  first  place,  to  the  con- 
stitutions established  (in  the  exercise  of  the  prerogatives 
of  the  Crown)  by  means  of  the  conmiissions  and  proclama- 

(//)  See  Houston,  Constitutional  Documents  of  Canada,  ]).  07. 
(/()  ai  Geo.  III.  c.  ai  (Imp). 

(0  3  &  i  Vic.  c.  35  (Imp). 

(j)  We  defer  consideration  of  the  constitution  of  Britisli  Columbia, 
and  of  Manitoba  and  the  North  West  Territories  until  a  later  stage.  See> 
post. 


PHE-CONFEDEH.  TK )X   C( )XSTrrUTIO\S.  20 

tions,  to  wliich  we  luive  refeiiv<l  We  ina}'  suy  at  once 
tliat,  alono-  Ijoth  lines,  this  survey  is  undertaken  in  or<lei' 
to  show  that,  prior  to  the  date  of  Confederation,  the 
Imperial  ^-overnnient  had,  in  a  tanoil)le  wa}' — evidenced 
partly  l»y  dispatches,  partly  l)y  instructions,  partly  l»y 
statutory  enactments,  partly,  perhaps,  l»y  lono-  disuse  of 
power  alonji'  certain  lines — put  upon  record  their  reco^- 
niti(m  of  the  necessary  C(mnection  which  nuist  exist 
;  between  the  lei^'islative  an<l  executive  departments  of 
Ijovernment,  as  well  in  the  case  of  a  colony  as  in  the  case 
of  the  United  Kinti-dom. 

As  a  preliminar\'  to  this  survey,  it  is  almost  indispens- 
^able  that  we  should  a^ain  refer  to  M'hat  was,  in  the  latter 
part  of  the  eighteenth  and  the  earlier  decades  of  the  nine- 
teenth century,  the  accepted  explanation  of  that  scheme  of 
^•overjunent  known  as  the  "  Biitish  Constitution."  In 
"those  days,  the  chief  connnendati(Mi  hestowed  on  that  con- 
stitution was  on  account  of  the  complete  separation,  as 
was  supposed,  of  the  legislative  and  executive  powei' — 
legislative  supremacy  in  the  parlmment,  executive  supre- 
macy in  tlie  Crown.  Opportunity  for  interference  hy  })<'ir- 
lianient  to  control  and  regulate  executi\e  action,  was  lai-gely 
the  result  of  the  financial  necessities  of  the-executive  head 
[)f  the  nation  :  Imt,  to  the  extent  to  which  the  revenues  of 
fch'-  Crown  rendered  that  executive  head  independent  of 
parliament,  the  government  of  the  nation  was  freiiuently 
carried  on  without  that  hodv  beinji-  s\nnmone<l  toiiethei-. 
How  the  change  was  gradually  brought  about,  until  now 
the  supremacy  of  parliament  over  the  executive,  is  a  clearly 
estal)lished  prhiciple  of  the  Britisli  constitution,  it  is 
beyond  the  scope  of  this  work  to  trace  (/,•):  but,  shortly 
stated,  it  would  appear  to  have  l)een  efi'ected  by  the  judici- 
ous use  of  the  power  over  the  purse  strings,  in  order  to 
secure  the  consent  of  the  Crown  to  the  relin(iuishment  to 
parliament  of  the  most  important,  if  not  the  most  numer- 

(/.)  See  May's  Const.  Hist ,  Vol.  ii.  p.  39. 


so  THE   CANADIAN    CONSTITUTION. 

icnlly,  of  those  '  comniqii  law '  povvei-s  of  the  executive 
known  us  "  the  prerooutives  of  the  Crown."  But,  Jit  the 
time  of  wliich  we.  write,  the  <;"overnnient  of  Oreut  Britain 
was,  to  an  extent  very  nuich  lart^er  tlian  at  present,  carried 
on  }\y  the  exercise  of  these  prero<^atives — that  is  to  say,  was 
hir^-ely  an  executive  government — and  of  no  department 
was  this  more  true  than  of  tlie  colonial,  "the  Board  of 
Trade  and  Plantations."  The  very  facts  to  wliich  we  have 
alluded — that  for  very  many  years  after  the  settlement  of 
Nova  Scotia  (practically  until  the  B.  X.  A.  Act),  no  legis- 
hitive  interference  by  the  Imperial  pai-liament,  in  the  r^overn- 
ment  of  the  ^Maritime  Provinces,  took  place — that  provinces 
were  enlar^vd,  di\'ided,  joined,  all  without  Act  of  parlia- 
ment— and  that,  without  Act  of  parliament,  representative 
assemblies  were  established  therein — make  manifest  the 
<'xtent  to  which  the  ^'overnment  of  the  early  provinces  was 
ill  the  nature  of  executive  ^'overnment,  l)y  prerofj^ative. 
xVnd  vet  not  entirely  so,  for  in  tlie  celebrated  case  of 
Campbell  v.  Hall  (/)  involvini^  a  consideration  of  the  pro- 
clamation of  17G3  (in  its  relation  to  Grenada),  it  was  decided 
by  Lord  Manstiehl,  that,  alth(ni<;'li  on  the  acipiisition  of  new- 
territory  by  contpiest  or  cession,  the  Crown,  without  par- 
liament, may  make  laws  for  the  government  of  the  con- 
quered or.  ceded  territory  {m),  nevertheless,  on  the  grant  to 
the  inhabitants  of  the  right  to  make  laws  in  and  b}  a 
representative  assembly,  the  prerogative  right  of  the  Crown 
to  make  laws  in  respect  of  the  internal  government  of  the 
colony  is  forever  gone,  and  that,  thereafter,  the  Crown 
stands  in  the  same  relation  to  the  representative  assembly 
of  the  colony  as  in  England  to  the  Imperial  parliament : 
and  any  withdrawal  of  the  colony's  right  to  make  laws  can 
only  be  effected  by  the  Imperial  parliament  {a). 

(/)  Co.^p.  '201. 

(ih)  This  was  one  of  the  prerogatives  anne.xed  to  the  Crown  as  com- 
mander-in-chief—a  rif^ht  arising  by  conquest. 

(//)  See  iHMt,  Chap.  VI.,  In  re  Lord  Bishop  of  Natal,  3  Moo.  P.  C. 
(N.S.)  148. 


PRE-COXKEDEkATION   CONSTITUTIONS.  81 

Sv)  far,  however,  as  related  to  the  executive  functions 
(if  (foverniiient — tlie  athniuistration  of  public  affairs,  the 
execution  of  the  laws  of  the  colonies  (whether  imposed  by 
imperial  or  colonial  le^-islative  authority),  the  collection  and 
expenditure  of  the  public  revenues,  and  the  appointment 
and  control  of  the  executive  ofiicials  necessary  to  these 
en<ls — the  thetu'etical  independence  of  the  executive,  which, 
as  we  have  shown,  obtained  in  Enn-hmd,  was  carried  to  its 
l)i-actical  result  in  the  work  of  government  in  the  colonies. 
Theoretically  and,  indeed,  le^'ally,  the  executive  head  of 
the  nation,  by  virtue  of  its  position  as  a  constituent  l)ranch 
of  parliament,  could  prevent  encroachment  by  the  ieeisla- 
Unv  u})on  the  prerogatives  of  the  Crown — that  is,  upon  the 
executive  dt-partment  of  government — lait  the  financial 
necessities  of  the  executive  in  En(;"land  (gradually  le<l,  as 
we  have  before  observed,  to  the  surrender  to  parliament, 
or  at  least  to  parliamentary  control,  of  the  entire  executive 
I  ;;'overnment  of  the  nation.  The  C^'own  occupied,  in  the 
colonies,  the  same  position  as  a  constituent  branch  of  the 
leeislature  of  a  colony,  l)ut  the  financial  necessities  of  the 
executive  p)veriuaent  were,  in  these  early  days  of  our 
colonial  history,  su  largely  met  by  the  revenues  arising 
from  the  sale  of  the  Crown  lands,  fines,  tolls,  and  other 
royalties  of  various  soits,  and,  for  the  balance,  provided 
fir  in  the  Imperial  I  ludget,  that  the  executive  of  a  colony 
was  to  a  large  degree  independent  of  the  coh^nial  Jissenddy. 

That  the  early  "asseml)lvs"  of  the  provinces  were 
inten<led  to  lie  confined  to  purely  legislative  work,  and 
that,  in  the  doing  of  it,  they  were  not  to  interfere  in  the 
executive  government  of  the  colony,  is  apparent  when  we' 
come  to  study  somewhat  more  closely  the  counnissions 
of  the  early  governors-7-which  were  in  truth  the  charters 
of  government  in  those  provinces. 

There  is  no  essential  difference  in  the  terms  of  the  com- 
missions to  Governor  Cornwallis  (Nova  Scotia),  Governor 
Patterson  (Prince  Edward  Island),  Governor  Carleton  (New 


'82  THE  CAXADIAX   COXSTITUTIOX. 

Brunswick),  and  Governor  Murray  (Quel tec):  and  we  there- 
fore take  for  connnent  the  first  commission  wliicli  conveyed 
autliority  to  sunnnon  ^m  assembly  in  the  provinces  now 
forminfj^  part  of  the  Dominion — that  to  Governor  Cornwal- 
lis  (o),  of  Nova  Scotia.  "  For  the  Itettei'  ailministration  of 
justice,  and  the  mana^'ement  of  the  pulilic  affairs  of  our 
said  province,"  the  ^'overnor  was  authorized  to  appoint 
"such  fittino-  and  discreet  persons  as  you  sliall  either  find 
tliere,  or  airri/  along  with,  yon,  not  exceeding-  the  number 
of  twelve,  to  be  of  our  council  in  our  said  pj-ovince.  As 
also  to  nominate  and  appoint,  by  warrant  under  your  han<l 
and  seal,  all  such  other  ofticei-s  and  ministers  as  you  shall 
ju<l<re  proper  and  necessary  for  our  service,  and  the  ^oo(\  of 
the  people  whom  we  shall  settle  in  our  said  province  until 
our  further  will  and  pleasure  shall  be  known."  Subse- 
(juent  appointments  to  till  vacancies  in  the  council  were  t  ) 
be  made  1)y  the  authoi'ities  in  /'JiH/lmnl.  With  tlie  advic.^ 
and  consent  of  this  council,  the  o()ve)'nor  was  empowered 
to  establish  courts  of  justice,  and  to  appoint  all  the  neces- 
sary ministerial  and  judicial  officers  in  connection  there- 
with.  The  public  revenue  was  to  be  disbursed  by  the 
j^overnor's  warrant,  issued  by  and  with  the  advice  of  the 
council,  with  this  limitation,  however,  that  it  was  to  be 
disposed  of  by  the  o-overnor  "for  the  support  of  the  ^"ov- 
ernment,  and  not  othei'wise."  It  is  hardly  to  be  wondered 
at,  havino-  in  view  the  mode  of  appointment,  and  of  tilling- 
vacancies  in  this  council,  that  the  executive  <;'overn.nent  of 
those  days  came  to  be  designated  by  the  familiar  phrase — 
"  the  family  compact." 

Turnin<4'  now,  to  the  part  played  in  ^'overnment  by  the 
assenddies,  and  referrin(»'  a<>'ain  to  tlie  commission  to  Gover- 
nor  Cornwallis,  we  find  him  connnanded  to  ^'overn  the 
colony  accordin<)^  to  his  connnission,  the  instructions  there- 
with, or  to  be  thereafter  given  (from  England,  of  course), 
"  and  according  to  such  reasonable   laws  and  statutes  as 

(o)  Houston,  Const.  Documents,  p.  y. 


I'J{E-C()XFEI)EUATI()N'    COXSTITUTIOXS.  33 

liereafter  whall  bo  mude  or  a^j^reetl  up m  hy  you,  witli  tlie 
advice  and  consent  of  our  council  and  the  as,senil)]y  of  our 
said  provinces." 

The  let^ishitive  power  of  tlie  governor  and  assend)ly,  is 
in  terms  aniple :  "To  make,  constitute,  and  ordain  hiws 
.  .  .  .  for  the  puhlick  peace,  welfare  and  |^-ood  ji'overn- 
ment  of  our  said  province  ....  and  for  the  benefit 
of  us,  our  heirs,  and  successors :  which  said  laws  are  not  to 
be  repu(.,niant  but,  as  near  as  may  be,  a^^reeable  to  the  laws 
and  statutes  of  this  our  Kin^'doni  of  Great  Britain."  All 
such  laws,  however,  wei'e  subject  to  disallowance  by  the 
Jiiipcrial  authorities,  with  no  limitation  as  to  the  time 
within  which  such  disallowance  should  take  place. 

We  shall  have  occasion  to  refer  to  the  position  of  the 
Crown  as  a  constituent  branch  of  the  Imperial  parliament 
and  of  colonial  assemblies,  but  the  clause  providing-  for  this 
in  the  connnission  now  under  examination,  is  noteworthy 
For  the  frank  and  undis;4uised  fashion  in  which  it  discloses 
the  reason.     This  clause  is  as  follows: 

"  AnJ  to  the  end  that  nothing  may  be  passed  or  done  by  our 
said  council  or  assend)ly  to  the  prejudice  of  us,  our  heirs  and 
successors,  we  will  and  ordain  that  you,  the  said  Edward  Corn- 
wallis,  shall  have  and  enjoy  a  negative  voice  in  the  making  and 
passing  of  all  laws,  statutes,  and  ordinances,  as  aforesaid." 

Tlu^  importance  of  the  concession  to  the  early  provinces, 
of  the  ri(;ht  to  frame  the  laws  by  which,  in  local  mattei-s, 
they  were  to  be  governed,  must  not  be  under-rated.  If  it 
cannot  be  considered  as  in  any  fair  sense  a  concession  of 
the  ri^dit  of  self-(,^overnment,  it  must  at  least  be  admitted 
that  it  fell  short,  onh-  l>ecause  of  the  theory  which  then 
obtained,  of  the  independence  of  the  two  de[>artments  of 
{j^overnment,  and  becau.se  of  the  inabilitv  of  the  leo-islative 
liodies  m  the  colonies  to  withhold  supplies  until  grievances 
in  the  executive  department  were  remedied. 

We  now  procee<]  to  Quebec,  in  order  to  examine  the 
^chancres  in  the  form  of  o-overnment,  introduceil  there  by 
Can.  Con.— 3 


34  THE   CANADIAN   CONSTITUTION. 

Imperial  statutes.  For  eleven  years  after  the  Treaty  of 
Paris,  the  commission  to  Governor  ]\lurray  and  his  succes- 
sors (read  with  the  proclamation  of  l7G'i),  was  the  charter 
of  government;  but,  as  we  have  already  noticed,  no  assem- 
bly ever  met  in  that  province,  and  any  legislation  which 
was  considered  necessary  was  passed  by  the  governor  and 
his  council.  Owing  to  the  discontent  of  the  inhabitants, 
then  largely  French,  at  the  introduction  (which  was  claimed 
to  liave  taken  place)  of  English  civil  law,  and  owing  perhaps 
to  a  doubt  of  the  legality  of  the  ordinances  of  the  governor 
and  his  council,  "The  Quebec  Act,  1774"  (/>),  was  passed  l)y 
the  Imperial  parliament.  Of  this  statute,  it  is  necessary 
to  make  here  only  this  note,  that  it  revoked  the  right 
to  a  representative  assembly,  and  lodged  l>oth  departments 
of  govennuent,  legislative  and  executive,  in  the  hands  of 
the  governor  and  his  council :  with  this  provision,  how- 
ever, that  the  memljers  of  the  council  were  to  be  appointed 
from  the  inha1)itants  of  the  province.  A  perusal  of  the 
Act  discloses  much  milder  checks  on  tlie  legislative  power 
than  in  the  c<ise  of  the  earlier  connnissions ; — no  doubt 
because  of  the  union  of  the  legislative  and  executive  powers 
of  government  in  the  same  hands  ((/). 

By  "The  Constitutional  Act,  1791"— the  provhice  of 
Quel>ec  having  been  divided  Ijy  royal  proclamation  (or 
rather,  the  king  having  signified  "his  Royal  intention  to 
divide  his  province  of  Quebec  into  two  separate  pi'ovinces") 
— provision  was  made  for  the  establishment,  in  each  of  the 
two  provinces.  Upper  and  Lower  Canada,  of  a  legislative 
council  and  assembly.  Beyond  giving  the  asseml>ly  so 
created,  the  right  to  legislate  as  to  time,  place  and  manner 

(P)  U  Geo.  III.  c.  8:}. 

{q)  By  the  13th  sec.  tho  Governor  and  his  conncil  were  expressly 
prohibited  from  "  layinj^ "  taxes  or  duties  within  the  province,  with  the 
exception  of  local  assessments  for  municipal  purposes.  By  an  Act  of 
the  same  session  (cap.  88)  provision  was  made  for  raiainj^  a  revenue  by 
means  of  duties  on  rum,  spirits,  and  molasses,  to  be  disbursed  by  imperial 
officers.     See  the  Act;  Houston,    Const,  Doc.  p.  07. 


I'UE-C()\FE1)EHATI()X    COXSTITUTIOXH.  35 

of  l)"lilini;'  elections  to  the  fisseiii])ly,  and  us  to  the  officers 
liy  wiioui  such  elections  were  to  he  conducted  (/•),  the  Act 
would,  upon  cursory  perusal,  appear  to  <;ive  to  the  letrisla- 
tui-e  no  control  over  the  executive,  nioi'o  than  had  been 
conferred  on  the  assemblies  in  the  Maritime  Provinces:  hut 
there  is  one  most  important  exception,  to  which  particular 
attention  nuist  be  given  (.s). 

We  have  not,  of  course,  overlooked  the  rule  of  law,  that 
the  consent  of  the  Crown,  hy  its  representative  in  the 
colony,  to  any  Act  of  the  colonial  lei;-islature  curtailing  the 
|)o\ver  of  the  Crown  in  the  exercise  of  any  prerogative  ri(dit, 
is  ;is  ctlective  to  that  end  as  is  an  Act  of  the  Impei'ial  par- 
liament, in  similar  case:  but  by  reascm  of  the  refusal  to 
concede  to  the  colonies  the  control  of  the  revenues  raised 
tlierein,  the  colonial  assend)lies  were  unable  to  force  consent 
to  Acts  in  cui'tailment  of  prerogative.  Not  being  al>le  to 
starve  the  executive,  they  were  unable  to  hoM  tlie  officers 
of  that  <lepartment  to  responsi])ility  for  the  due  perform- 
fuice  of  their  duties;  and  whether  they  had  the  confidence 
of  the  representative  branch  of  the  legislature  or  not,  was  a 
matter  of  perfect  indifference  to  these  executive  officers. 
Tlie  importance,  therefore,  of  this  (piestion  of  revenue  and 
its  expenditure — the  power  to  make  provision  for  a  revenue 
and  to  appropriate  it  when  raised,  becomes  more  and  more 
apparent  as  we  proceed,  and  the  (|uestion  nnist  now  be 
dealt  with. 

The  treatment  acc(n-ded  by  Great  Britain  to  her  colonies, 
in  the  matter  of  taxation,  was  entirelv  reu'ulated  bv  the 
\  lew  taken  ni  England  of  the  necessities  of  Imperial  "trade 
anil  conunerce."  At  first,  of  course,  the  expense  of  P-overn- 
iiig  the  olonies  was  borne  entirely  bv  the  home  t-overn- 
HH-nt,  but  as  early  as  1()72  (0,  the  Imperial  treasury  levied 
tribute  u})on  the  colonies,  by  the  impo.sition,  by  Imperial 

('■)  A  parliament  so  firm  in  its  claim  to  exclusive  control  over  elec- 
tniiis,  as  was  the  British  Parliament  at  that  time,  could  scarcely  have 
I  lone  otherwise. 

(■>.•)  See ij.M-M,.  39.  (r)  25  Car.  II.  c.  7. 


3G  THE   CAXAUIAX   CONSTITUTION. 

Act,  of  export  (lutit's  on  certuin  articles  sliipptMl  from  tlio 
colonieH  for  consumption  elsewhere  than  in   England:  the 
proceeds  of  which  (luties  were,  of  course,  a  set-oti'  to  the 
expense  of  o<,vernment  in  those  colonies.     ])urin;.^  the  cen- 
tury whicli  followed,  Imperial  Acts  were  from  time  to  time 
passed,  providing-   for  the   collection   of   hoth  export  and 
import  duties,  hut  always  as  part  and  parcel  of  the  reo-ula- 
tion  of  trade  and  connnerce  (/')•     In   1 7 (i:^  permanent  pro- 
vision was  made  with  i-e^ard  to  these  colonial  duties,  and 
it  was  provide<l  that  the  net  proceeds  thereof  should  hv 
reserved   for  the   disposition  of  the   Imperial  parliament, 
"towards  defrayintr  the  necessary  expenses  of  defendiii;;', 
protectin^^  and  securin^^the  Biitish  colonies  in  America"  ('). 
This,  then,  was  the  position  of  aiiairs  at  the  time  wlieii 
Tef;-ular  forms  of  civil  j^-overnment  heo'an  to  he  estahlishcd 
in  Nova  Scotia,  Prince   Edwar<l  Island,  New   Brunswick 
and  Quebec.     The  al)andonment  l)y   the   Imperial   parlia- 
ment, of  the  principle  that  these  duties  were  in  the  nature 
of  re<,mlati ons  of  Imperial  trade  and  commerce  only,  and 
the  extension  of  the  Imperial  power  of  taxation  to  matters 
of  excise — to  layino-  trilaite,  in  other  words,  on   internal 
trade — and   the   conseijuent  loss  of  the   southern  half   u\ 
this  continent,  's  a  familiar  story.     During-  the  pro<>-ress()l 
the  struu-o-le,  but  too  late  to  win  l)ack  the  revolting-  colonies 
the  Impei'ial  parliament  passed  the  celebrated  Renunciation 
Act  of  177H  ('«')-  hy  which  it  was  declared  and  enacted  that 
"the  King  and  parliament  of  Great  Britain  will  not  impi.sr 
any  duty,  tax,  or  assessment  whatever,  payable  in  any  et 
his  ]\Iajesty's  colonies,  provinces  an<l  plantations  in  Nortli 
America  or  the  West  Indies  •.  except  only  such  duties  as  it 
may  be  expedient  to  impo.se  for  the  regulation  of  connnerce: 
the  net  produce  of  such  duties  to  be  always  paid  and  applio'l 

(u)  14  Geo.  Ill,  c.  88  (noted above)  was  a  "revenue"  Act.  See  post,  p. 3'.' 

(v)  See  Todd  "  Pari.  Gov.  in  Brit.  Col  ,"  p.  lGi>,  et  seq. 

(w)  18  Geo.  III.  c.  12.     This  Act  is,  of  course,  powerless  to  bind  th 

Imperial  parliament ;  but  it  is  a  most  emphatic  expression  of  a  "con 

ventional"  rule  to  be  thereafter  followed. 


I'RE-COXFEDEHATK  )\    COXSTITUTIOXS.  37 

t'>  iunl  for  the  usi!  of  the  colony,  province  or  plantation  in 
which  the  same  hIwiU  he  respectively  levied,  in  such  manner 
as  other  duties  collected  hy  the  authority  of  the  respective 
;^t'neral  courts  or  ^ejieral  assemlilies  of  such  colony,  prov- 
ince, or  plantation,  are  ordinarily  pai<l  and  applied,"  and 
this  princii)le  was  followed  until  the  free  trade  campaij^ 
in  Fjni,danil,  led  to  the  ahaudonment  of  the  system  of  tax- 
in;;-  tra<le  for  the  henetit  of  trade,  and,  with  it,  the  re<^ula- 
tion  of  colonial  tariffs  hy  Imperial  legislation. 

])urinf^  this  period,  however,  the  practical  result  of  the 
colonial  system  was  this.  With  the  exception  of  such  suni.s 
as  the  colonial  as.semhlies  were  minded  to  raise  (usually  ))y 
the  imposition  of  ciistoms  duties),  in  order  to  the  carryin*^ 
on  ol"  puhlic  improvement  and  promotin*;'  settlement,  the 
ivvcnues  which  came  to  the  hands  of  the  executive  were, 
(  I )  the  proceeds  of  customs,  excise  and  license  duties, 
levied  under  Imperial  Acts;  and  (2)  the  hereditary, 
territorial  and  casual  revenues  of  the  Crown,  eonsistinf;  of 
the  proceeds  of  the  sale  or  lease  of  the  "waste"  lands  in 
the  colonies,  tines,  tolls,  etc.  Over  the  revenues  ari.sing 
under  colonial  Acts,  the  colonial  legislatures  could,  of  course, 
and  did  insist  on  retaining  power  of  appropriation,  and, 
,s()  I'ar  as  these  revenues  were  concerned,  could  withhold 
supplies;  hut  their  action  in  such  case  made  no  difference 
to  the  executive,  however  it  might  do  harm  to  the  colony. 
The  cost  of  the  administration  of  justice,  and  of  civil 
(government  (including-,  as  it  did,  the  salaries  of  the  entire 
executive  staff,  administrative  and  judicial),  was  paid  out 
of  the  other  two  sources  of  revenue,  and  over  these  the 
I  (lonial  assemhlies  had  for  man\^  years  no  power  of  appro- 
])riation  or  control.  To  secure  control  of  the  executise — 
to  make  them  fed  responsibility — it  was  indispensably 
necessary  to  get  control  of  these  revenues  and  their  appro- 
priation ;  and  the  history  of  the  growth  of  the  principle  of 
'  Responsible  government "  is  the  history  of  the  gradual 
\C(iuisition  by  the  colonial  legislatures  of  tlie  right  to 
appropriate   revenue,  from    whatever    source   within   the 


38  THE   CAXADiAX   CONSTITUTION. 

colony  arising'.  The  "tennre-of -office"  ((ueHtion  prnctically 
depended  upon  this  (piestion  oi'  control  over  the  purse 
string's. 

In    all    the   provinces,    the    real  issue    was   soniewliat 
ohscured  h}'  reason  of  the  fact  that,  under  the  then  ar- 
rangement, the  lei^islative  council,  or  second  chaniher,  acted 
as  a  shield  to  the  {governor  and  his  executive  council,  and 
was    interposed   to   l)ear    the    hrunt   of    all   attacks   upon 
executive  methods.     In   the  earlier  stages  of  colonial  his- 
tory, the  executive    council   was  really   a  hranch   of    the 
leo-islature,    and    it   always   continued    potentially    so,    l>y 
reason  t)f  its  members  f(>rmin<^  the  intiuential  i)ortion  of 
the  Crown-appointed  le<,dslati\e  council.     This  position  ol' 
aH'airs,  however,  gave  the  disputes  hetween  the  leo-islature 
and    the    executive,    the    appearance    of    heino-    disputes 
between  the   two  branches  of    the    le(;islature :    and   it  is 
not  surprisinjj;-,  therefore,  to  find  that  the  ettbrts  of  Howe, 
Wilmot,  Papineau,  and  Baldwin,  were  directly  and  osten- 
sibly  bent    to  secure   reform    in    the   constitution  of   the 
le<rislative  council  (x).     The  real  issue,  however,  was  the 
(juestion    of    executive    responsibility,    and,   as    we    have 
endeavored   to  point  out,  that  ([uestion  largely  depended 
upon,  and  was  ultimately  solved  l)y,  the  solution  of  the 
more  sordid  one  as  to  control  of  expenditure.      Perhaps, 
there  was  a  lack,  too,  of  proper  appreciation  of  the  way  in 
which  the  principle  of  responsible  government  was  workinjj 
its  way  into  the  fibre  of  the  British  constitution — through 
the  medium  of  cabinet  government — and  this  may  have 
tended  to  the  adoption    of   the    less    direct  route  to  the 
establishment  of  responsible  government  here.     It  needed 
men   like    Lord    Durham    and    Charles   Buller,  who   were 
able  to  see  through  the  intricacies  of  governmental  machin- 
ery and  discern  the  true  principle  of  the  British  system, 

(x)  J.  G.  Bourinot,  "Responsible  Government  in  Canada  "—a  paper 
read  before  tlie  National  Club,  Toronto,  during  the  winter  of  ISltO-'Jl, 
and  published  sub.  tit.  "Maple  Leaves,"  p.  43. 


1'1{E-1'(»NFLI)EUAT[(>X    Ct  (NsnTlTlOXS.  .'i!) 

to  point  out  how  that  .saine  principU'  could  hv  iiuule  efi't'Ct- 
tive  in  tiie  colonial  niachineiy  of  ^overnuK'nt. 

The  tirst  concession  o^ained,  was  of  the  power  of  appro- 
priating the  proceeds  of  Imperial  tariffs  in  force  in  the 
colonies.  As  far  hack  as  "The  Constitutional  Act,  17J)1 ,"  this 
power  of  appropriation  was  expressly  ^iven  to  the  le<(isla- 
tures  of  Upper  and  Lower  Canada,  over  the  proceeds  of  all 
customs  duties  levied  as  part  of  the  connuercial  polic}'  of 
the  Empire;  and  this  i'^  the  point  of  distinction  between 
the  powei-H  of  the  colonial  assend»lies  under  that  Act  and 
under  the  earlier  commissions,  to  which  reference  was  made 
a  few  parfi^raphs  hack  (y).  But  the  only  Imperial  tariff 
Act  in  force  in  Cana(hi,  was  the  Act  of  1774 — a  irvciiw 
Act  (i);  and  because  that  Act  was  contended  not  to  come 
within  the  terms  of  "The  Constitutional  Act,  1 791,"  express 
U'o'islation  was  necessary  to  j^ive  the  Colonial  legislature 
conti'ol  over  the  revenue  arisino;  under  that  Act.  This  was 
obtained  in  l.SIU  {n). 

Still,  however,  in  all  tlie  provinces,  the  "hereditary, 
territorial,  and  casual  revenues"  to  which  we  have  referi'ed 
were  amply  sufficient  to  "pay  the  piper";  and  so  far  as 
the  salaries  of  all  the  executive  "family-compact"  staff' 
were  concerned,  the  legislature  had  power  neither  to  fix 
nor  withold  them.  Secure  in  the  enjoynient  of  the  emolu- 
ments of  office,  the  executive  were  aide  to  thwart  the 
wishes  of  the  popular  branch  of  the  legislature,  an<]  to 
decline  to  recog-nize  its  rio;ht  to  control  or  regulate  their 
mode  of  conducting  public  business. 

The  history  of  the  struggles,  which  in  the  Upper  Pi-o- 
viuces  culminated  at  one  time  in  open  rebellion,  and  in  all 
ivsulted  in  the  firm  establishment  of  Responsilde  Govern- 
ment, is  beyond  the  scope  of  this  work ;  but  it  is  curious  to 

ill)  Ante,  p.  35.  (z)  See  note  ante,  p.  3t). 

(a)  1  &  2  Wm.  IV.  c.  23.   See  Houston  'Const.  Doc'  p.  lOG;  Andrew 
V.  White,  18  U.  C.  Q.  B.  170. 


40  THE  CANADIAN   CUNSTITUTJON. 

noto  tlint  tlie  conteiiiporary  Htatiitoiy  record  (h)  appcni-H  in 
Acts  relating  to  colonial  control  of  colonial  ilnancuH, — the 
"  tonnrc  of  ofHci;  "  ((ncstion  appcarintr  only  in  tlio  "conven- 
tional "  aspect  of  (leHpatcheH,  inHtnictions,  etc,  (<•).  Not  to 
dwell  at  nndue  length  upon  this  point,  we  may  mention 
shortly,  that  first  to  New  Biuns\\ick,  and  afterwaid  to 
Canada,  (1(S47),  and  Nova  Scotia  (I iS4f)),  full  control  over 
the  revenues  from  all  sources  was  conceded;  and  having 
that  full  control,  the  Legislative  Assend)lies  slowly,  hut 
surely,  overcame  the  stuhhorn  resistance,  or  active  opposi- 
tion of  the  governors  of  the  early  forties,  and  the  principle 
of  executive  responsibility  was  tinnly  and  permanently 
established  in  all  the  pre-Confederation  provinces. 

We  are  now,  perhaps,  in  a  position  to  define  with  some 
accuracy,  the  nature  of  the  constitutions  existing  in  the 
provinces  innnediately  prior  to  the  coming  into  force  of  the 
B.  N.  A.  Act. 

What  Lieut.-Gov.  Archibald  has  said  ('/)  in  reference  to 
the  constitution  of  Nova  Scotia  is  clearly  applicable  to  the 
other  maritime  provinces  :  "  No  formal  cliarter  or  constitu- 
tion ever  was  conferred,  either  on  the  province  of  Nova 
Scotia  or  upon  Cape  Breton  while  that  island  was  a  sepa- 
rate province.  The  constitution  of  Nova  Scotia  has  always 
been  considered  as  derived  from  the  terms  of  the  roval 
connnissions  to  the  Governors  and  Lieutenant-Governors, 
and  from  the  "  instructions  "  which  accompanied  the  same, 
moulded  from  time  to  time  by  despatches  from  Secretaries 
of  State,  conveying  the  will  of  the  Sovereign,  and  by  Acts 
of  the  local  legislature,  assented  to  1  ly  the  Crown ;   the 

{h)  1  A  2  Wm.  IV.  c.  23  (Imp.)  ;  8  Wm.  IV.  c.  1  (N.B.) ;  3  &  4  Vic- 
c.  35  (Imp)  ;  6  &  7  Vic.  c.  29  (Imp  )  ;  6  Vic.  c.  31  (Can.) ;  9  &  10  Vic. 
c.  94  (Imp.) ;  9  Vic.  c.  114  (Can.) ;  10  &  11  Vic.  c.  71  (Imp.) ;  12  &  13  Vic. 
c.  (N.S.)  ;  12  &  13  Vic.  c.  29  (Imp.)  ;  15  &  IG  Vic.  c.  39  (Imp.)  ;  17  &i  IH 
Vic.  c.  118  (Imp.)  See  Mercer  v.  Atty.-Genl.  of  Ont.,  5  S.  C.  K.  at  p.  700, 
t'(  seq.^  for  an  historical  statement  by  Gwynne,  J.,  on  this  subject. 

(c)  Todd,  Pari.  Govt.  Brit.  Col.,  pp.  23-6. 

((/)  Can.  Sess.  Papers,  1883,  No.  70. 


PKE-CONFEDKKATInX   COXSTITUTIOXS.  41 

whole  to  soino  extent  interpreted  liy  uniform  usat^n^  an<l 
custoiM  in  the  colony." 

In  (old)  Canada  the  form  of  (government  wan  prescribed 
Ity  the  Act  of  Union  (<).  But  as  to  all  the  provinces,  it 
can  he  truly  said  that  their  constitutions  were  modelled  on 
the  j)attern  of  the  parent  state,  both  as  to  their  ^ovei'n- 
iiii'utal  machinery  and  as  to  the  principle  on  which  they 
were  operated.  In  outward  forui,  there  is  a  close  resem- 
Itlance  between  the  British  constitution  and  the  constitution 
of  those  provinces — the  same  single  executive,  the  same 
K'<fislative  machinery  (even  to  a  second  cluunber),  with 
about  the  same  apparent  connection  l)etween  the  two  de- 
partments of  government.  And  up(jn  inquiry  further  into 
the  motive  power  and  the  mode  of  its  application,  we  may 
say  that  just  as  in  the  case  of  the  Imperial  parliament,  so 
ht're  in  the  case  of  tlie  pre-Confederation  provinces,  one 
will  look  in  vain  for  any  statute  laying  down  the  rules 
which  shall  govwu  in  the  matter  of  the  formation,  the 
continuance  in  office,  or  the  retirement  of  the  Cabinet.  The 
"conventions  of  the  constitution,"  whose  slow  growth  had 
gradually  culminated  in  tlie  full  recognition  of  the  principle 
of  executive  responsibility  to  parliament,  was  by  the  simple 
method  we  have  shortly  described — by  instructions  to  the 
governors — introduced  as  the  working  principle  of  the  pro- 
vincial constitutions. 


Of  the  causes  which  led  to  the  adoption  by  the  pro- 
vinces of  the  Resolutions  t)f  Quebec,  upon  which  the 
B.  X.  A.  Act  is  founded,  it  is  for  the  historian  to  treat.  So 
far  as  those  causes  affected  the  terms  of  the  union,  as  to  the 
distribution  of  the  field  of  governmental  action,  we  shall,  of 
coui"se,  have  occasion  to  refer  to  them  hereafter.  Here  we 
need  only  point  out,  that  in  agreeing  to  the  establishment 
of  a  "general"  government,  charged  with  mattei-s  of  com- 


(-')  3  &  i  Vic.  c.  3o  (Imp.) 


42  THE   (JAXADIAX    CONSTITUTION. 

inon  concern,  the  provinces  resolved  that  such  ^'eneral 
government  should  l)e  modelled  on  the  British  constitution, 
and  that  its  executive  autliority  should  he  administered 
accordino-  to  the  well-understood  principles  of  the  British 
coistitution.  We  may  say,  therefore,  of  both  the  Dominion 
and  the  provincial  jjjovernments :  "  That  great  l>ody  of 
unwritten  conventions,  usa^^es,  and  understandin<j^s,  which 
have  in  the  course  of  time  orown  up  in  the  practical 
working  of  the  English  constitution,  form  as  important  a 
part  of  the  political  system  of  Canada  as  the  fundamental 
law  itself  which  governs  tlie  federation  "  (f). 

(/)  Bourinot,  '  Maple  Leaves,'  p.  37. 


CHAPTER  111. 


WHAT  BECAME  OF  THE  PRE-CON FEDERATION 
CONSTITUTIONS  ? 

Ah  justitieation  for  the  last  chapter,  it  was  asserted  that 
in  order  to  estahlisli  the  Dominion  government,  and  the 
federal  scheme  of  the  B.  N.  A.  Act,  the  slate  liad  not  Ijeen 
cleaned;  and  we  shall  endeavor  to  make  (;'ood  that  justi- 
tieaffon. 

In  comparing  the  British  and  United  States  systems  of 
government,  the  really  federal  character  of  the  form' r — 
viewed  as  an  Imperial  constitution — was  pointed  out ;  but 
the  gradual  working  out  of  the  federal  idea  in  the  Imperial 
constitution  (through  continuous  concessions  of  powers  of 
self-government  to  the  colonies)  was  contrasted  with  the 
studied  action  of  the  Fathers  of  the  American  Union,  in 
taking  this  federal  idea  as  the  starting  p(jint  of  their 
departure  {<().  The  reason  is  apparent.  Thirteen  self- 
governing  connnunities  occupied  one  compact  territory : 
their  inhabitants  were  of  common  orii>in,  and  had  connnon 
interests;  and  they  deliberately  set  to  work  to  estal)lish 
a  "national"  government,  charged  with  the  control  of  tliose 
matters  which  were  deemed  of  common  interest,  but,  just 
as  deliberately,  they  insisted  upon  pres  irving  their  right  to 
regulate  their  local  concerns  in  their  lo  al  assenddies.  And 
so  in  relation  to  the  enactment  t)f  tiie  J.  X.  A.  Act : — there 

(a)  See  ante,  Chap.  I.,  p.  5,  cl  f!cq. 


44  •  THE   CANADIAN    COX.STITUTKJN. 

was  tlie  same  fact  of  pre-existing  jrovernnients,  the  same 
desire  for  united  action  on  matters  of  connnon  concern,  and 
the  same  deliberate  refusal  (based  on  tlie  same  desire  to 
preserve  local  autonomy)  to  establish  a  le(]i;islative  union, 
or  what  has  been  styled  a  "unitarian  "  system. 

Opinions  may  very  reasonably  vary  at  different  periods 
as  to  where  the  line  should  be  drawn  which  is  to  divide 
matters  of  coiinnc^n  or  "  national,"  from  matters  of  "  local ' 
concern ;  and  this  variation  in  opinion  is  manifest  in 
the  assit^nment  to  our  Dominion  government  of  several 
s\ibject  matters,  which,  under  the  scheme  of  division 
adopted  by  the  convention  of  1787,  were  not  assigned 
to  their  national  government — for  example,  criminal  law, 
and  the  law  of  "  marriage  and  divorce  "  (h).  When  the 
idea  of  a  Canadian  Confederation  l)egan  to  take  prac- 
tical shape,  the  United  States  was  in  the  throes  of  its 
civil  war,  and  the  notion  was  prevalent  that  that  war 
had  been  caused  l)y  the  weakness  of  the  "  natimial " 
government,  arising  from  including  among  "state  rights" 
the  "  re^u/aaiii  of  poiuer,"  as  it  has  been  termed.  That  the 
war  was  not  caused  by  any  such  defect  in  the  division  of 
the  field  of  goverinnental  action  was  then  pointed  out  {(■), 
and  has  been  since  fully  demonstrated  ;  but  the  prevalence 
here  of  that  notion  led  the  fathers  of  confederation  to 
desire  a  strong  central  government,  and  to  that  end  the 
"ref^iditum  of  power"  is,  under  the  B.  N.  A.  Act,  with  the 
Dominion  government  {d).  This  fact  has  been  much 
utilized  in  argument,  to  belittle  the  sphere  of  authority  of 
the  Provincial  governments,  and  because,  as  it  is  put,  these 
latter  are  governments  possessing  only"  eimmerated  powers," 

(/<)  That  the  assif^nment  of  these  (aa  matters  of  coir,  non  concern  re- 
quirinj^  uniformity  of  treatment)  to  the  "  national "  government  is 
more  consonant  with  modern  ideas,  is  apparent  from  the  numerous  ex- 
pressions of  opinion  from  across  the  line,  in  favor  of  an  amendment  of 
the  U.  B.  constitution  in  these  particulars. 

(f)  See  the  speech  of  Mr.  C.  Dunkin — Confed.  Deb.,  p.  491. 

(</)  See  sec.  1)1. 


PREVIOUS   COXSTITUTIOXS.  46 

the  ar<;uinent  is  puslied  to  tliiw  leno;th,  tliat  the  constitutions 
of  the  pre-Confetleration  provinces  were,  by  the  B.  N.  A. 
Act,  completely  wiped  out,  and  that  the  powers,  both 
le'Hslative  and  executive,  of  the  post-Federation  provinces 
— and  without  rei^ard  to  an}'  necessary  connection  between 
these  two  departments  of  j>;overnment — are  such  only  as 
are  to  l)e  found  expressly  set  out  in  the  B.  N.  A.  Act.  If 
that  is  the  result  of  the  enactment,  never  did  le<;is1ation 
fail  more  eo;reo;iously  in  carrying  out  of  the  desi<>'n  of  its 
promoters.  The  Que])ec  Resolutions  convey  no  hint  that 
the  net^otiatini,^  provinces  desired  more  than  to  establish  a 
"fo(lei-al"  union  on  terms  which  would  be  just  to  the 
pi'ovinces,  and  leave  their  autonomy,  as  to  matters  local, 
unimpaired.  But  these  Resolutions,  if  proper  to  be  referred 
to  at  all,  can  perhaps  l)e  cited  to  aid  only  in  the  construc- 
tion of  doubtful  or  ambio-uous  phraseolooy  in  the  B.  N.  A. 
Act  (f),  and,  therefore,  the  terms  of  the  Act  itself  nuist  be 
looked  at  carefully  on  this  point.  But,  first,  it  is  necessary 
to  advert  to  the  inaccuracy  of  the  phrase,  "rrsiilaiim  of 
■power."  As  has  already  l)een  pointed  out,  there  is  not, 
under  a  federal  system,  any  necessary  division  of  jioircf, 
in  the  proper  sense  of  the  term:  the  essential  division 
which  exists,  bein^*  a  division  of  the  subjects  proper  for 
(governmental  rei^ulation,  into  two  classes  of  matters — 
matters  of  "national,"  and  matters  of  "local"  concern. 
Just  what  matters  beloni^  to  the  one  class,  an<l  wliat  to 
the  other,  is  a  (piestion  upon  which,  as  we  have  sairl, 
opinion  may  vary,  but  V\'hether  the  matters  of  "national" 
concern  are  enumerated, and  the  residuum  left  as  of  "local" 
concern  (as  b}'  the  U.  S.  constitution),  or  the  matters  of 
"local"  concern  enumerated,  and  the  residuum  left  as  of 
"national"  concern  (as  is  partially  the  case  with  us),  is 
matter  of  indifference,  so  lono-  as  the  enumerated  class  is 
sufficiently  comprehensive  to  satisfy  public  opinion,  at  the 
time,  as  to  the  proper  line  of  division.     But  what  is  essen- 

(<•)  See  poxt,  Chap.  X. 


46  THE   CANADIAN   CONSTITrTION. 

tial,  is,  tlifit  t;)  tlie  full  limits  of  the  mutters  entrusted  to 
each  government,  riational  or  local,  the  po\V(;r  of  ifoveni- 
mental  action  slu.  'd  he  full  and  complete.  It  will  he 
noticed,  of  course,  tliat  the  division  effected  hy  the  B.  N,  A. 
Act  is  a  division  of  matters  for  lefjjislative  action,  hut  this 
must  involve  a  division  along  the  same  line  for  executive 
action.  Any  other  arrangement  would  he  a  clear  departure 
from  that  principle  of  the  British  constitution,  upon  which 
we  have  dwelt  at  some  length  in  earlier  pages — the  supronn- 
acy  of  the  maker  of  a  law  over  the  executor  of  that  law — 
a  principle  which  is  dominant  in  every  Anglo-Saxon  com- 
uumitv,  unless,  indeoil,  Canada  is  now,  as  is  claimed,  the 
exception. 

That  principle,  as  we  have  pointed  out,  clearly  ohtaiiied 
in  the  pre-Confederation  provinces  as  the  result  of  the 
long  struggle  for  "  responsible  government,"  and  it  is  im- 
portant therefore  to  ascertain  whether,  mider  the  B.  N.  A, 
Act,  the  provincial  constitutions  r(^/////M(r' ;  for  if  so,  then 
the  same  connection  between  the  legislature  and  the  execu- 
tive, which  existed  before  confederation,  nnist  still  continue, 
with  respect  to  the  sul)jects  of  provincial  cognizance. 

Any  complication  which  may  exist  in  connection  with 
this  ([uestion  has  arisen  from  what  has  been  termed  "  the 
necessities  of  the  draftsman."  One  cause  of  the  support 
given  in  the  two  parts  of  (ol<l)  Canada,  to  the  scheme  pro- 
pounded by  the  QuebiiC  Resolutions,  was  that  it  :nade  pro- 
visi;)n  for  the  severing  of  the  tie  of  legislative  union 
between  them  ;  and  the  carrying  out,  in  one  Act  of  parlia- 
ment, of  this  design  and  the  larger  federal  scheme,  neces- 
sitated first  the  seNei'ance  of  that  tie,  and  then  the  creation 
l>y  the  Act  of  a  federal  union  between  the  four  provinces. 
But,  while  on  the  one  hand  this  necessity,  and  the  mode  of 
meeting  it,  adopted  in  the  Act,  has  provided  a  small  peg  on 
which  to  hang  an  argument  adverse  to  tiie  provinces  (/"), 

(/)  As  a  matter  of  construction,  it  would  appear  tliat  sees.  5,  0  and  7, 
point  merely  to  the  territorial  limits  to  hz  assif»ned  to  the  different  pro-' 
vinces  of  the  Confederation. 


I'HEViors  foxsTrn'Tioxs.  47 

it  has  also  ])r()vi(lc<l  scvt'ial  otluTs,  upon  which  a  very 
sti'on;;'  ai-;;'iii>R'nt  may  1m.'  ht.'ape(L  in  support  of  the  full 
autonomy  of  the  provinces  in  relation  to  the  suhjects 
allottefl  to  them.  Old  Canada  heino-  thus  divided  into  its 
niioinjd  divisions, — with  new  names,— it  liecame  necessarv 
to  make  pi'ovision  for  the  estahlislniient  of  new  f^overn- 
inental  machineiy,  legislative  and  executive,  in  Ontario 
and  (^ueltec.  Eliminate  from  the  Act  all  clauses  inserte<l 
to  this  entl  :  consider  Ontario  and  Queliec  as  having-  had 
^overiniiental  machinery  such  as  existed  in  the  ]\Iaritime 
Provinces:  and  the  Act  would  clearly  appear  as  an  Act  for 
the  estahlishment  of  pdrrtil  machinerv  only,  for  drawinji' 
tile  line  of  di\  ision  between  matters  proper  for  the  con- 
siilrration  of  the  "  y'eneral  "  government,  and  those  proper 
for  the  consideration  of  the  "local  "  ^'overnments,  and  foi* 
the  makin<;'  over  to  the  federal  f^overnment  of  certain  por- 
tions of  the  assets  and  revenue-producin<;'  powers  of  the 
pro\inces.  The  very  use  of  the  tavm  fnlciud  in  connection 
with  the  creation  of  a  central  j^'ovei'nment  for  territory 
(leeupied  hy  previously  existing-  ^•.)Vernments,  mutually 
independent,  would  seem  to  ini[)ly  the  continued  existence 
of  the  indisidual  <;()ve]-nments,  parties  to  the  firdti.s ;  and 
the  fact  that  no  provisions  were  made  for  Nova  Scotia  and 
^'(■w  Brunswick,  similar  to  those  ma<le  for  Ontario  ami 
<^)ueltee,  would  appear  to  i)oint  to  the  conclusion  that  the 
;j,()verinnental  machineiy  of  those  provinces  was  to  continue 
iis  before,  employed,  of  cimrse,  upjn  a  somewhat  smallei- 
i;ui;;e  of  matters. 

The  type  of  i^'overnuiental  or^-anization  in  the  })re- 
C 'on federation  provinces  was  one  and  the  same — a  single 
rxecutive  head  (assisted  by  an  executive  council),  and  a 
len-islature  (//) — and  the  princii)le  upon  which  the  whole 
worked  in  the  actual  t;()vernment  of  the  provinces  was  the 
lirinciple    of    executive    responsibility    to    the    electorate 

('/)  The  existence  or  non-existence  of  a  second  chamber  is  in  no  way 

iiiiiteriul. 


48  THE   CANADIAN'   CoXSTITUTlOX. 

tlmm<;'h  the  legislature.  The  B.  X.  A.  Act  makes  provision, 
as  to  all  the  provinces,  for  a  single  executive  head  in  each, 
but  judgint.';  from  the  absence  of  any  provision  for  the 
appointment  of  the  Goveriior-General,  it  may  be  doubted  if 
such  provision  would  have  l)een  e.rprcxHhj  made  in  regard  to 
the  Lieut.-Governors,  had  it  not  Iteen  intended  to  alter  the 
mode  of  appointment,  so  as  to  make  each  provincial  execu- 
tive head,  a  link  in  the  chain  of  federal  connection  (A).  As 
to  the  '■  powers,  authorities,  and  functit^ns  "  of  that  execu- 
tive head,  they  are  particularly  mentioned  only  as  to 
Ontario  and  Quel)ec  (/*),  and  as  to  those  two  provinces  onl}' 
so  far  as  they  were  dependent  for  their  existence  v pov 
sidfatex,  eitlier  of  the  Imperial  parliament  or  the  parlia- 
ments of  (Old)  Canada.  This  latter  limitation  has  been 
urged  as  supporting  the  view  tliat  certain  of  the  "  powers, 
authorities,  and  functions" — tliose  depending  for  their  effi- 
cacy iifX)!!  the  coyainuii  hur — exercisable  by  the  Governors 
(or  Lieutenant-Governors)  of  tlie  pre-Confederation  pro- 
\inces,  are  now,  even  as  to  matters  within  the  legislative 
autliority  of  Ontario  and  Quebec,  exercisable  onl}'  by  the 
Governor-General. 

We  shall  deal  Avith  this  contention  in  a  moment,  merely 
remarking  now  tliat  such  a  construction  of  the  Act,  would 
create  diversity  in  the  position  of  the  ditt'erent  pro\inces, 
and  would  V)e  a  departui'e  from  tlie  principle  insisted  on,  as 
apparent  throughout  the  British  constitution — the  co-ex- 
tensive and  complementary  sphere  in  government,  of  the 
executive  and  legislative  departments.  The  matter  material 
to  bo'  now  noted  is,  that  these  stafitfori/  powers  had  been 
conferred  upon  the  holder  of  a  p9rticular  office  which  was 
now  to  be  divided,  and  therefore  a  statutor\'  re-allotnient, 
so  to  speak,  had  to  be  made.  The  language  of  the  section 
to  which  we  are  now  referring;  (sec.  65),  and  of  what  mav 
be  called  its  companion  section  (sec.  12),  bears  out,  too,  our 

(h)  Compare  sees.  10  aud  58,  B.  N.  A..  Act,  1807. 
(0  B.  N.  A.  Act,  sec,  65. 


PHEVIors   COXSTITUTION'S.  49 

C'litifisiii  of  tliL'  [)lirjise,  "division  of  power,"  iiuisimicli  as 
hotli  sections  cuivFully  iivoid  nsinn-  any  sucli  tenii  as 
"division."  Tivatino-  the  "powers,  authorities,  and  func- 
tions" conferred  hy  previous  legislation  as  a  sum  total,  they 
carefully  provide  that  all  these  powers,  etc.,  so  far  as  they 
are  capahle  of  heing  exercised  after  the  union,  in  relation  to 
the  government  of  the  Dominion  and  the  provinces  respec- 
tively, shall  he  vested  in  the  Governor-General,  or  in  the 
Lieutenant-Governors,  as  the  case  may  re([uire. 

To  revert  now  to  the  ar^'ument  founded  on  the  limita- 
tion of  sections  12  and  (55  to  statutory  "powers,"  etc.  We 
have  already  indicated  "the  necessities  of  the  draftsman," 
as  the  reason  for  their  insertion  in  the  Act.  But  for  that 
necessity,  they  would  not  have  appeared,  and  we  should 
have  to  look  to  some  other  part  of  the  Act  in  order  to 
ascertain  the  position  of  the  executive  head  of  the  different 
])rovinces,  as,  indeed,  we  have  to  do  with  reference  to  Nova 
Scotia  and  New  Brunswick.  If  there  were  no  express 
|)rovision,  we  should  still  contend  that,  as  executive  head 
of  the  province,  a  Lieutenant-Governor  is  invested  with  all 
the  "  powers,  authorities,  and  functions  "  necessary  to  carry 
on  the  g'overinnent  of  the  province — that  wherever  provin- 
cial le<i;islation  reijuires,  in  order  to  its  complete  and  efficient 
enforcement,  the  sanction  of  executive  action, all  the  "powers, 
authorities,  and  functions"  (prerooative  and  otherwise) 
necessary  to  such  enforcement,  reside  in,  and  are  exercise- 
ahle  hy,  the  executive  head  of  the  provincial  o-overnment 
(,/').  But  we  are  not  limited  to  this  application  of  le^-al 
piiuciples,  incontestable  thouoii  they  l)e.  Sec.  12!)  of  the 
B.  N.  A.  Act  is  clear  upon  this  matter : — 

"  Except  as  otherwise  provided  by  this  Act,  all  laws  in  force 
in  Canada,  Nova  Scotia  or  New  Brun  wick,  at  the  Union,  and 
all  coiu'ts  of  civil  and  criminal  jurisdiction,  and  all  legal  connnis- 
sious,  powers  and  authorities,  and  all  officers,  judicial,  administra- 

(./)  See  judgment  of  Burton,  J.A.,  in  Atty.Gen'I  (Can.)  v.  Attv.- 
Geu'l  (Out.),  19  0.  A.  R.  38. 

Can.  Cox.— 4 


50  THE   CANADIAN   CONSTITUTION. 

tive  and  ministerial,  existing  therein  at  the  Union,  shall  continue 
in  Ontario,  Quebec,  Nova  Scotia,  and  New  Brunswick  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  Ireland),  to  be  repealed,  abolished 
or  altered  by  the  Parliament  of  Canada,  or  by  the  legislature  of 
the  respective  province,  according  to  the  authority  of  the  par- 
liament or  of  that  legislature  under  this  Act." 

The  lan(^UM<^e  of  this  section  is  very  comprehensive.  It 
continued  the  whole  body  of  pre-existino-  laws  and  let;'al 
institutions,  "  except  as  otherwise  provided  by  this  Act"; 
and  excepting-  Imperial  Acts  and  institutions  existino- 
un<ler  Imperial  Acts,  it  divided  the  entire  tield  of  hnv  (in 
its  widest  sense)  between  the  Dominicm  and  tlie  provinces, 
"  according-  tt)  the  autliority  of  the  parliament  or  of  that 
letj^islature  under  this  Act."  This  Itody  of  law  would  in- 
clude every  branch  of  jurisprudence — the  lex  prerofi<itira  as 
well  as  the  other  branches.  Combined  with  sec.  12,  it 
carries  the  whole  executive  power  incident  to  the  legislative 
sphere  of  authority  of  the  Dominion  parliament,  to  the 
Dominion  ;  and,  combined  with  sec.  Go,  it  has  precisely  the 
same  result  in  relation  to  the  government  of  the  provinces  (/•). 

With  regard  to  the  executive  council  in  each  province 
— in  other  words,  the  Gahinet — we  have  to  point  out  that 
no  provision  is  made  for  such  a  council  in  New  Brunswick 
or  Nova  Scotia,  beyond  what  may  be  gathered  from  the 
express  enactment  that  the  const  it  at  to  >i  of  the  executive 
authority  in  those  two  provinces,  should  continue  as  before 
the  passing  of  the  B.  N.  A.  Act ;  while,  in  regard  to  Ontario 
and  Quebec,  the  appointment  ^f  the  first  officers  who  are  to 
constitute  the  executive  council  in.  those  provinces  is  pro- 
vided for.  Tliere  is  this  diti'erence,  too,  to  be  remarked 
between  the  section  of  the  Act  which  provides  for  the 

(fc)  Dobie  V.  Temporalities  Board,  L.  K.  7  App.  Caa.  136;  and  see 
notes  to  B.  N.  A.  Act,  sees.  12,  6.5  and  129,  post. 


PHEVIOl'S   CONSTITUTIONS.  61 

Pi-ivy  Council  of  the  Dominion  (sec.  11)  and  the  correspond- 
iii^^  section  as  to  tlie  executive  councils  ot*  Ontario  und 
<^)uehec  (sc"  ()8),  namely,  that  the  latter  seems  to  take  it 
For  granted  (if  we  may  use  the  expression),  that  there  is  to 
he  an  executive  council  in  those  two  provinces;  while  the 
foj-mer  distinctly  provides  that  "there  shall  he"  a  Privy 
Council  for  Canada.  It  may  here  lie  remarked  that 
iiowliere  in  any  statute  hook  will  he  found  any  Act  which 
lays  down  that  such  executive  council  shall  continue  to 
hold  office  only  so  lon<^  as  it  commands  the  contidence  of 
the  let;islature :  hut  the  existence  of  that  "convention  of 
the  cop.stitution,"  and  its  raisou  d'etre,  have  been  already 
dealt  with  at  sufficient  leno-th,  and  no  one,  we  fancy,  would 
ar;4Ue  that  any  sio-niticance  attaelies  to  its  ahsence  from  the 
B.  X.  A.  Act..  As  put  hy  Lord  Russell,  in  his  famous  dis- 
patch (0,  of  September  7tli,  1(S39,  conveyint^  to  Lord  Syden- 
ham his  "  iustructions "  as  to  tlie  '••(♦vernnu'nt  of  Upper 
Canada:  "It  is  evidently  impo.ssihle  to  reduce  into  tiie 
form  of  a  po.sitive  enactment,  a  constitutional  principle  of 
this  nature."  But  not  only  is  the  appointment  of  the  first 
memhers  of  the  Cabinet  provided  for  in  the  case  of  Ontario 
and  Queliec,  but  provision  is  also  made  as  to  their  "  rio-hts, 
[)owers,  duties,  functions,  respon.silalities  or  authorities" — 
tlie  draftsman  was  certainly  exhaustive  in  his  phraseology 
— and  what  has  just  l)een  said  as  to  the  sections  dealino' 
with  the  poAvers,  authorities  and  functions  of  the  executive 
head,  is  eijually  applicable  to  sec.  185,  which  makes  this 
provision  as  to  the  executive  officers  under  hiu).  All  the 
"  powers,  etc.,  etc.,"  which  the  executive  officials  named,  had 
in  relation  to  the  government  of  Canada,  are  to  be  vested 
m  the  officers  of  the  provincial  governments,  in  relation  to 
those  governments.  There  is  no  division  of  poiuer,  but  of 
sphere  of  authority  only. 

Ecpially  significant  of  the  continued  existence  of  the 
pre-Confederation    constitutions,  are    the   clause.s   of   the 

(0  Can.  As9.  Jour..  1841,  pp.  390-6,  App.  BB. 


52  THE   CANADIAN    CONSTI'ITTION. 

B.  N.  A.  Aft,  (k'lilin;^  with  tlir  constitution  of  tlir  li';;islu- 
tive  nutliority  in  tht-  provinci's  {m).  For  Ontario  and 
Quol»ec,  k'^islatni'L'H  had  to  he  providtMl.  TIm'  constitution 
of  those  lt';;islatur(.'s  is,  of  course,  entirely  the  creation  of 
the  B.  N.  A,  Act:  l)ut,  so  far  as  the  ci'eative  clauses  are 
concerned,  there  is  nothin<j'  to  in<licate  anv  diH'erence  in 
principle,  between  tlie  constitution  of  those  lej^islatures, 
and  tlie  constitution  of  other  colonial  le'dslatures,  hex'ond 
the  absence  in  the  "constitutional"  statutes  relatinii'  to 
those  other  colonies,  of  any  division  of  the  sphere  of 
their  le^'islative  authority.  But  for  Nova  Scotia  and  New 
Brunswick  no  legislatures  wei'e  crt-ated,  it  lK'in;j|,'  pi'ovided 
(just  as  ha<l  been  provided  with  re^-ard  to  the  executi\e)  that 
the  constitution  of  the  legislature  of  each  of  those  provinci's 
should  coiiiiinit'  as  it  existed  at  the  Union.  The  House  of 
Assendjly  of  Nova  Scotia,  as  it  happened,  had  been  dis- 
solved, so  that  new  pro\incial  elections  were  necessary, 
an<l,  in  order  to  save  expense,  it  was  provided  {n)  that 
such  new  elections  should  take  place  at  the  same  time  as 
the  iirst  elections  for  the  House  of  Connnons  of  the 
Dominion.  But,  as  to  New  Brunswick,  its  House  of 
Assend)ly  was  still  alive,  and  it  was  expressly  provided  that 
it  should  contiime  (unless  sooner  dissolved)  for  the  period 
for  which  it  had  been  elected.  As  to  both  Nova  Scotia 
and  New  Brunswick,  the  B.  N.  A.  Act  contains  no  provision 
for  the  summoning-  of  their  Assendjlies,  for  the  lenn,th  of 
time  they  should  live,  for  yearly  sessions,  or  as  tt)  the 
conduct  of  their  business ;  as  to  all  of  which  matters, 
minute  provision  is  made  as  to  the  legislatures  of  Ontario 
and  Quebec  (o). 

The  group  of  clauses  (ji)  of  the  Act,  dealing  with  tlu' 
division  of  the  assets  of  the  provinces,  between  tliose  prov- 
inces and  the  Dominion,  Ijears  throuii'hout   marks  of  the 

{in)  Sees.  69-9;).  (n)  B.  N.  A.  Act,  sec.  89 

(o)  Note,  however,  sec.  9  ',  s-s.  1,  j^ont. 

(p)  Group  VIII  ,  sees.  102-126.  " 


PREVIOUS   COXSTITUTIOXS.  63 

(IniftsinfinH  idea  tliat  the  pro-CanfLMlenition  piv^vinces  coii- 
Inni-'il; — they  "  sluill  retain  all  their  i-espective  puhlic 
[)ruj)crty  not  otherwise  <lispi)se<l  of  in  this  Act  "(7):  and 
certain  dnties  and  revennes  are  "reserved  to  the  respective 
If^fisiatnres  of  tlie  provinces  (/•)." 

The  division  of  the  (jjronp  of  niiscellaneous  provisions 
(.s)  into  "<;eneral,"  and  "Ontario  and  Quehec"  is  in  itself 
si^iiiricant,  and  the  ahsence  of  pri)visi()ns  for  New  Brnns- 
wick  and  Xova  Scotia,  similar  to  those  made  to  n»eet  the 
iireds  of  the  newly  created  governments  of  Ontario  and 
(^)ueht'C — provisions  as  t)  the  execntive  stati ;  as  to  the 
(Jreat  Seals  to  he  nsed  ;  as  to  the  construction  of  temporary 
Acts  of  the  parliament  of  old  Canada,  etc. — would  seem  to 
make  it  perfectly  clear  that  the  constitutions  of  the  pre- 
(. Confederation  provinces  "by  the  sea,"  at  all  events,  were  not 
intended  to  he  destroyed,  and  at  most,  it  can  only  be  said, 
that  the  constitution  of  old  Canada  was  re-cast  and  made 
into  two,  each  on  the  same  pattern  as  the  one  had  previously 
e.'hibite<l. 


Upon  consideration,  it  would  appear  that  the  really 
essential  point  to  be  determined  in  connection  with  this 
controversy,  is  the  actual  presence  in  the  provincial 
machinery  of  (government  (in  their  conMitutiout^,  in  other 
words,)  of  the  same  working  principle  as  was  present  in 
the  constitution  of  the  pre-Confederation  provinces.  As  to, 
Nova  Scotia  and  New  Brunswick,  there  can  be  no  doubt, 
jis  the  B.  N.  A.  Act  is  distinct,  that  the  constitution  of  the 
executive  and  legislative  authority  in  those  provinces — and 
these  two  departments  comprise  the  whole  round  of  govern- 
ment— shall  contl'iuie;  and  the  controvei"sy  must  therefore 
he  limited  to  Ontario  and  Quebec.  And  as  to  these  two 
provinces,  it  has  already  been  remarked  that  the  clauses 
which   create   their  legislative  and   executive   machinery 

iq)  Sec.  117. 

((■)  Sec.  102;  and  see  also  sec.  126.         (.s)  Group  IX.;  sees.  127-144. 


54  THE   CAN'ADIAX    (OXSTITrTIOX. 

(liti'cr  in  no  I'sst'ntial  ivspt'cts  from  the  similui'  C'luuscs  in 
other  Imperial  Acts  creative  of  colonial  constitutions,  thc^ 
presence  in  which  of  the  principle  of  the  co-extensive  and 
C(»mplementai'y  njiture  of  the  executive  and  le;>islative 
powers  in  (government,  cannot  he  <;ainsaid.  No  Act, 
Imperial  or  Colonial,  has  ever  expressly  so  enacted  :  hut  it 
is  the  le^al  principle  of  the  British  constitution,  and  of  the 
colonial  constitutions  of  the  Empire  as  well.  And  when  we 
find,  as  a  comparison  of  the  vari(ms  "constitutional  Acts" 
for  the  colonies  will  show,  that  the  machineiy  of  j^overn- 
nient  provided  by  those  Acts  is  "all  of  a  ])iece,"  an  argu- 
ment is  afforded  in  favor  of,  rather  than  a<;ainst,  the 
existence  of  the  same  workin<;  principle  in  each.  Compare, 
for  instance,  the  clauses  of  the  B.  X.  A.  Act,  creatin<^'  the 
executive  and  lemslative  machinerv  of  the  Dominion  u'ov- 
ernment,  with  those  creating;  the  like  machinery  <jf  the 
governments  of  Ontario  and  Quebec,  and  l>oth  sets  of 
clauses  with  the  similar  provisions  of  the  Acts  relating  to 
(say)  the  Australasian  colonies,  and  no  essential  diH'erence 
can  be  found  (0 — nothing  to  indicate  that  in  one  the 
\ix\y-makhuj  power  is  supreme  over  the  authority  which 
executen  that  law,  and  that  in  another  the  two  are  not 
co-terminous.  The  fact  is,  that  government  is  one,  and 
indivisible.  The  "sanction"  of  a  law  is  executive  action, 
and  no  impossible  attempt  to  create  two  independent 
powers  in  relation  to  any  given  subject  matter,  is  made  by 
any  of  these  "Constitutional  Acts." 

(<)  Compare  B.  N.  A.  Act  with  the  Union  Act  (3  &  4  Vic.  c.  35),  and 
with  the  Constitutional  Acts  of  New  South  Wales  (5  &  C  Vic.  c.  76;  7  &  8 
Vic.  c.  74  ;  13  &  14  Vic.  c.  59,  etc.) ;  of  Victoria  (13  A-  14  Vic.  c.  59;  18  & 
19  Vic.  c.  55,  etc.);  of  Newfoundland  (5  &  0  Vic.  c.  120;  10  A'  11  Vic. 
c.  44),  and  of  Queensland  (24  &  25  Vic.  c.  44).  See  Forsyth,  Constitu- 
tional Iiaw,  p.  27,  for  an  enumeration  of  the  various  "  Constitutional 
Acts"  for  the  colonies. 


PART   II. 


THE  RESULTS  OF  OUR  COLONIAL  STATUS. 


CHAPTER  IV. 


WHAT  IMPERIAL  ACTS  AFFECT  US? 

While  we  have,  in  the  preceding  chapters,  endeavored 
to  distinguish  clearly  between  the  laiu  and  the  "  conven- 
tUmx"  of  the  constitution,  we  have  necessarily  had  to  deal 
with  Itoth.  In  the  light  of  the  conventions  of  the  constitu- 
tion, the  parliament  of  the  United  Kingdom  has  heen 
described  as  a  legislature  possessed  of  a  dual  nature,  par- 
tiiking  of  the  character  both  of  an  "  Imperial  "  parliament 
and  of  a  "local"  parliam  nt  for  the  United  Kingdom.  It 
must  be  again  admitted,  nowever,  that  although,  by  those 
usages  and  precepts  of  the  constituti.)n,  the  field  of  govern- 
mental action  properly  to  be  occupied  by  the  Imperial 
parliament,  is  practically  though  not  yet  perhaps  very 
definitely  limited,  the  lnw  of  the  constitution  recognizes 
no  limit  capable  of  judicial  enforcement. 

For  the  whole  British  Empire,  legislative  sovereignt}' 
resides  in  the  Imperial  parliament,  and  when  that  Ixxly 
undertakes  to  legislate  for  the  colonies  generally,  or  for 
juiy  one  of  them  in  particular,  its  enactments  are  a  law 
unto  such  colony,  binding  on  its  inhabitants,  and  peremp- 
torily reijuiring  recognition  l)y  the  judges  in  its  courts  ('0  ' 
and  no  colonial  legislature  has  power,  directly  or  by  a  side 
wind,  to  alter,  in  one  jot  or  tittle,  an}'  such  Imperial  enact- 

'      ('i)  Letter  by  Historicus,  in  London  Times,  June  1,  187'J  ;  Dicey,  Law 
of  the  Const. ;  Ciark,  Colonial  Law,  10. 


5()  THE   CANADIAN   CONSTITUTION. 

iiient  (h).  That,  in  certain  instances,  colonial  le^islatuves 
have  heen  empowered  I>y  Imperial  let^ishition  (<■)  to  exclude 
their  particular  colony  h'inn  the  operation  of  some  par- 
ticular Act — usually  upon  terms — is  the  exception  which 
proves  the  rule.  It  nnist  he  kept  clearly  in  mind,  that  we 
are  irat  now  discussing;  the  "conventional"  limits  .set  to 
this  le'dslative  s(3verei<>;ntv.  For  the  iud<>'e  and  the  lawyer, 
there  are  no  limits  ;  for  them  there  is,  in  the  performance 
of  their  respective  duties,  no  escape  from  the  "  literary 
theory."  They  have  t;)  do  with  lenol  rij^hts ;  and,  for 
Canada  at  least,  lej^al  rights  are,  in  the  ultimate  analysis, 
founded  upon  Imperial  enactment.  By  Imperial  enactment, 
we  enjoy  representative  <;overinnent ;  by  Imperial  enact- 
ment, that  enjoyment  could  l)e  (as  once  indeed  it  has  l)een) 
taken  from  us:  by  Imperial  enactment,  the  lec^islative  power 
conferred  upon  our  parliaments,  has  Ijeen  more  or  less; 
limited ;  l»y  Imperial  enactment  only,  can  a  change  be 
eti'ecteil  in  those  limits.  No  power,  even  its  own,  can  tie 
the  hands  of  the  Imperial  parliament  ('/);  and  the  boundaries 
set  to  colonial  freedom  of  action  in  one  session  of  that  par- 
liament may  bo  enlarged  in  the  next,  and  again  restricted 
in  a  third.  And  as  in  these  larger  matters,  so  in  any  the 
smallest  (juestion  (V^)  involving  the  legal  rights  of  the 
individual,  if  she  will,  she  legally  may,  and  every  British 
judge,  in  every  part  of  the  British  Empire,  is  1);)und  to  give 
efi'ect  to  the  expressed  will  of  the  Imperial  parliament. 
So  well  settled  is  the  parannjunt  legislative  authority  of 
the  Imperial  parliament,  that  English  jutlges  have  not 
hesitated  to  lay  it  down  that  : 

"If  the  legislature  of  England  in  express  terms  applies 
its  legislation  to  matters  l)eyond  its  legislatorial  capacity, 

(h)  Craw  V.  Ramsay,  Vaugh.,  29'2.     See /josf ,  Chap.  IX. 
((•)  E.  //.  ii  &  10  Vic.  c.  t)4,  empowering  the  colonies  to  repeal   Imp. 
tariff  Acts. 

(d)  Auchterarder  case,  Mac.  &  R.  (H.L.)  238;   Dicey,  Law  of   the 
Const.,  CI, 

(e)  Such,  for  instance,  as  arose  in  Gordon  v.  Fuller,  infra.  • 


WHAT    IMl'EIUAL    ACTS   AFFECT    US  ^  57" 

Mil  Kii^'lish  court  must  ()l)t'y  the  English  lef^islature,  how- 
cNi'i-  contrary  to  interiuitioual  comity  such  k';;-islati(m  may 
1k'-'(/"). 

It  may  perhaps  seem  that  we  have  ihvelt  witli  umhie 
('ia[)hasis  on  this  point,  hut  a  o-lance  at  s(ime  Canadian 
aiitlitrities  will  make  it  apparent  that,  even  on  the  hench, 
the  ieo'islative  omnipotence  of  the  Imperial  parliament — 
perhaps  we  should  rather  say  the  le^-islative  impotence  of 
our  colonial  le<;'islatures  to  alter  an  Imperial  enactment — 
lias  not  li^'en  atlmitted  in  its  entirety  without  much  dis- 
cussion. Moreover,  a  clear  reco!,niition  of  this  fundanuaital 
fact  in  the  structure  of  the  Canadian  csjustitution,  should 
tend  to  make  our  statesmen  all  the  more  careful  that  the 
limits  within  which  this  omnipotence  is  to  have  "conven- 
tional" scope,  are  clearly  defined.  The  ultimate  le^al 
[)  )wer — whose  mandates  must  lie  judicially  enforced — 
residiuf^  abroad,  our  right  of  self-g>)vernment  should  not 
(lei)eiid  on  uncertain  usages,  but  on  clearly  expressed 
guarantees. 

How  are  we  to  know  wdien  an  Imperial  Act  extends 
by  its  own  inherent  force  to  a  colony  ?  It  was  never  con- 
tendeil  that  English  statutes  were  operative  beyond  the 
b  )unds  of  the  United  King('  mi,  unless,  upon  a  reasonable 
construction,  tliere  appeared  the  intention  that  they  sliould 
s  )  operate  (//).  For  a  long  time  this  (juestion  of  construc- 
tion was  unatfecte'l  by  any  statutory  enactment,  Imt  at  the 
present  time  the  Imperial  Act,  2!S  (jc  29  Vic.  c.  08,  pro- 
vides the  canon  of  construction — "x\n  Act  of  parliament 
or  any  provision  thereof  shall  .  .  be  said  to  extend  to 
any  colony,  when  it  is  made  applicable  to  such  colony  by 
the  express  words  or  necessary  int(m(hnent  of  any  Act  of 
l)arliament." 

{/)  Niboyet  v.  Niboyet,  L.  R.  4   P.  D.  20;    and  see  Re^.  v.  Keyn, 
L.  R.  2  E.V.  D.  1.52,  100,  207  ;  Reg.  v.  Anderson,  L.  T^.  1 C.  C.  R  at  p.  107. 

(;/)  1  Blackstone,  107,  ct  seq. ;  Santos  v.  lUidge,  8  C.  B.  N.  S.  809,  887 ; 
Routledga  V.  Low,  L.  R.  3,  E.  &  I.  App.  11.^;  Penley  v.  Beiicon  Assce 
Co.,  10  Grant  428;  8u3S9X  Peerai^e  Case,  11  CI.  &  F.  140.     See  further 
on  this  point,  ]mt,  Chap.  IX. 


5S  THE   CANADIAN   CONSTITUTION. 

A  very  difi'eivnt  ([Uestioii  this,  from  the  (jiiestioii,  how- 
far  Eno-lish  statutory  hiw,  '<)f  no  expressed  colonial  applica- 
tion, has  been,  l)y  Imperial  o-rant  or  coloriial  adoption, 
omhodied  in  the  le^-al  system  of  a  colony.  We  are  nt)\v 
dealintr  with  Acts  of  the  Imperial  parliament,  whicli,  when 
passed,  were,  hy  "express  words  or  necessary  intendment," 
made  applicable  to  our  colony.  The  former  (^uestiorx  will 
1)6  fou.xd  treated  in  sul>se(pient  pa^es :  hut  it  may  now  ho 
mentioned  that,  as  a  ^^eneral  rule,  it  is  Kmited  to  a  considera- 
tion of  the  Eno-lish  statutory  law  as  it  existed  at  the  time  of 
the  introduction  of  Eno-lish  law  into  the  colony.  Imperial 
enactments  of  a  o-eneral  character,  passed  suhsecjuently 
to  such  introduction,  are  not  operative  within  the  olony 
(A).  But  it  follows  from  what  has  already  been  laid  down, 
that  there  can  be  no  time  limit  with  reo-ard  to  the  class  of 
Imperial  enactments  now  under  discussicm.  Of  course,  in 
the  case  of  statutes  passed  pricn-  to  the  acquisition  of  n 
colony,  there  nnist  be  the  "express  words  or  necessary 
intendment "  requisite  to  make  such  enactment  applicable 
to  colonies  to  be  thereafter  acquired;  but  it  is  simply  ii 
question  of  construction — an  encjuiry  as  to  the  intention  of 
the  Inq)erial  parliament. 

It  also  necessarily  follows  from  what  we  have  said,  that 
anv  colonial  enactment  inconsistent  with  an  Imperial  en- 
actment  on  the  same  sul)ject— which  is  the  earlier  and 
which  the  later,  makes  no  difference — is  inoperative ;  and 
s!)  far  did  the  English  authorities  carry  this  doctririe  of 
"  repuo-nanc}',"  that  colonial  enactments  inconsistent  with 
the  principles  of  the  Enu-lish  connnon  law,  as  well  as  those 
inconsistent  with  Imperial  enactments  (of  the  class  we  are 
now  discussing),  were  considered  inoperative  ;  and  "  repu*;- 
nancy,"  in  one  portion  even,  was  considered  to  invalidate 

(//)  Harrison  v.  Spencer,  15  O.  R.  092 -the  "  Thellusson  Act."  39  A-  40 
Geo.  III.  c.  9  (Imp.) ;  Rex  v.  Vaughan,  4  Burr,  2500 ;  and  cases  cited  in 
last  note;  and  see  Jamas  v.  McLean.  3  Allen,  101  (Nova  Scotia),  in  which 
2  Geo.  II.  c.  28  (Imp.),  was  held  not  to  apply  to  a  colonj-  settled  before 
the  Act  was  passed. 


I  WHAT    I.MI'EIUAL    ACTS    AFFECT    US  ^  5f) 

tlic  whole  of  a  colonial  eiinctinent.  It  caiiiiot  1»l' said  that 
the  authorities  were  clear  to  the  extent  mentioned,  lait 
thero  was  a  respectalile  opinion  tendino-  in  that  directi(ni  (/). 
The  Act  to  which  we  have  already  referred  (commonly 
known  as  "The  Colonial  Laws  Validity  Act,  1<S()5,")  was 
passed  to  clear  away  these  uncertainties.  It  recites  that 
doubt  had  been  entertained  respectin^r  the  validity  of  di\ers 
laws  enacted,  or  purporting-  to  be  enacted,  by  colonial  legis- 
latures, and  respecting:  the  powers  of  such  leoislatures,  and 
after  layin<jj  down  the  canon  of  construction  already  (pioted 
it  enacts  : 

"II.  Any  colonial  law,  which  is  or  shall  be  repugnant  to  the 
provisions  of  any  Act  of  parliament  extending  to  the  colony  to 
which  such  law  may  relate,  or  repugnant  to  any  order  or  regula- 
tion made  under  authority  of  such  Act  of  parliament,  or  having 
iu  the  colony  the  force  or  effect  of  such  Act,  shall  be  read,  sub- 
ject to  such  Act,  order,  or  regulation,  and  shall,  to  the  extent  of 
such  repugnancy,  but  not  otherwise,  be  and  remain  absolutely 
void  and  inoperative. 

"III.  No  colonial  law  shall  be,  or  be  deemed  to  have  been, 
void  or  iuopei-ative  on  the  ground  of  repugnancy  to  the  law  of 
Kwihiml,  unless  the  same  shall  be  repugnant  to  the  provisions  of 
some  such  Act  of  parliament,  order,  or  regulation,  as  afore- 
said "  (7). 

Connnontino-  on  this  Act,  Willes,  J.  (in  deliverino'  the 
unannuous  judonient  of  the  seven  judges  of  the  Exche(|uer 
( 'handler,  ii;  Phillips  v.  Eyre,  involving  a  consideration  of 
a  certain  "Act  of  Indenuiity "  passed  by  the  legislature  of 
Jamaica),  says  (/,•)  : 

I        "It  was  further  argued  that  the  Act  in  question  was  contrary 
to  the  principles  of  English  law  (/),  and,  therefore,  void.     This 

(i)  Bowman  v.  Middleton,  1  Bay,  2.52.  This  limitation  has  eveu  been 
:  suggested  as  applying  to  Imperial  legislation-12  Rep.  7(J ;  see  Dicev, 
;  Law  of  tiie  Const.,  59,  note  1. 

(j)  28  tt  21)  Vie.  c.  63  (Imp.). 

(A)  L.  R.  6  Q.  B.  at  p!  20. 

(/)  Because  ex  pout  facto  legislation.     See  l„  re  Goodhue,  19  Grant, 
aeO  ;  and  ;;o.vf,  Chap.  IX. 


(iO  THE    CAXADIAX    C JNSTITUTIOX. 

is  a  vague  expression,  ami  must  mean,  either  contrary  to  some 
positive  law  of  England,  or  to  some  principle  of  natural  justice, 
the  violation  of  which  wouUl  induce  the  Court  to  decline  giving 
effect  even  to  the  law  of  a  foreign  sovereign  state.  In  the 
former  point  of  view,  it  is  clear  that  the  repugnancy  to  English 
law  which  avoids  a  colonial  Act  means  repugnancy  to  an  Im- 
perial statute,  or  order  made  by  authority  of  such  statu.'^, 
applicable  to  the  colony  by  express  words  or  necessary  intend- 
ment ;  and  that,  so  far  as  such  repugnancy  extends,  and  no 
further,  the  colonial  Act  is  void.  ...  To  what  Act,  order, 
or  regulation,  then,  is  the  .Jamaica  Act  of  Indemnity  and  oblivion 
repugnant '?  {m)  ...  It  was  further  objected  that  the 
colonial  law  was  contrary  to  natural  justice,  as  being  retrospec- 
tive in  its  character,  and  taking  away  a  right  of  action  once 
vested,  and  tliat  for  this  reason,  like  a  foreign  law  against 
natural  justice,  it  could  have  no  extra-territorial  force." 

This  oltjection,  too,  was  overnile.l ;  but,  as  we  shall  have 
to  touch  upon  this  particular  class  of  objection  to  colonial 
k'<,nslation  at  a  later  sta(>e,  we  omit  further  connnent  here. 

As  we  have  already  intimated,  it  has  l)-en  seriously 
contended  in  the  courts  of  this  country  that,  under  what  is 
known  as  the  Constitutional  Act,  1791  (ii),  the  Imperial 
parliament  had — s:)  far,  at  least,  as  concerns  Imperial  statutes 
of  a  date  pri<ir  to  its  passa^^e — <,aven  to  the  legislatures  of 
Upper  and  Lower  Canada  power  to  annul,  by  direct  repeal 
or  inconsistent  enactment.  Imperial  legislation  of  express 
colonial  application. 

In  188(3,  in  the  case  of  Gordon  v.  Fuller  {<>),  it  was 
decided  that  the  first  section  of  the  Imperial  Act,  o  Geo  II, 
c.  7  (to  the  fourth  section  of   which  we  trace  our  fi.  fn, 

(m)  See  further,  as  to  what  constitutes  ''  repu^niancy,"  Reg.  v.  Sher- 
man, 17  U.  C.  C.  P.  1(17.  Reg.  v.  Slavin,  ib.  205,  seems  to  lay  down  bad 
law  (pp.  210-11),  that,  because  a  Canadian  Act  is  later  than  an  Imperiul 
Act,  "the  question  as  to  any  contlict  between  them  does  not  arise." 
fleg.  V.  Sherman  seems  to  foreshadow  tliis  error. 

(»()  31  Geo.  TIL  c.  31  (Imp.).         (o)  5  U.  C.  Q.  B.  (0.  S.)  174. 


WHAT    IMPERIAL    ACTS    AFFECT    L'.S  ^  (jT. 

laiiils)  ( /'),  respt'ctiii^-  affidavits  to  l>f  inadu  in  Eiiu-lund  for 
|)r()oF  of  (lel>ts  suetl  for  in  tliis  colon}',  was  not  repealed  hy 
tjie  provincial  Act,  (32  Cieo.  III.  c.  1,  s.  5),  lait  from  the 
ju(l;j,HR'nt  of  the  court,  Mr.  Justice — afterward  Chief  Justice 
— Macauia}- dissented:  and,  in  order  to  appivciate  the  force 
of  the  opinion  delivered  Ity  Chief  Justice  Kohinson  in  supjiort 
of  theJud;j;inentof  the  court,  weipiote  first  from  that  tlissent- 
inii'  opinion:  and,  as  these  earlier  opinions  contain  a  lar!«'e 
amount  ot"  clear  aiid  instructive  historical  statement  in 
ivfei-ence  to  the  early  constitutional  history  of  this  country, 
we  venture  to  jjfive  them  somewhat  at  length.  Mr.  Justice 
Macaulay  says : 

V  t. 

"In  1791,  the  31  Geo.  III.  c.  HI,  in  contemplation  of  a 
division  of  the  provinces,  provided  the  present  constitution,  ard 
fonns  the  source  from  which  the  powers  and  authorities  of  our 
piovincial  statutes  fioAV.  It  authorized  the  formation  of  local 
legislatures,  and  enacted  that  his  ]\hijesty  sliould  have  power, 
with  the  advice  and  consent  of  the  legislative  council  and  assem- 
bly in  each  province,  to  make  laws  for  the  peace,  welfare,  and 
good  government  thereof,  not  being  repugnant  to  that  Act.  All 
which  laws  are  thereby  declared  to  be,  by  virtue  of  and  under 
the  authority  of  that  Act,  valid  and  binding  to  all  intents  and 
purposes  whatever,  within  the  provinces  respectively  .... 
The  two  principle  questions  are — 1st.  Whether  the  provincial 
legislatu.re  possessed  the  power  to  subject  suitors  in  actions  for 
money  demands,  resident  in  England,  to  the  Icr  hid  in  this 
respect — to  the  same  rules  of  evidence  prescribed  for  the  inhabi- 
tants of  the  colony  and  all  others  ;  in  other  words,  to  remove 
the  operation  of  5  Geo.  II.  c.  7,  from  this  province  as  a  rule 
in  such  cases,  or  to  introduce  incompatible  regulations  on  the 
same  subject.  And  if  so— 2ndly,  whether  by  implication  (for 
it  is  not  done  in  express  terms)  such  effect  has  been  accomplished. 
Tbe  statute  5  Geo.  II.  does  not  include  all  suitors  and  witnesses 
livn)g  in  England,  but  extends  only  to  cases  of  debt  or  account,  and 

ip)  Seo  the  very  interesting  case,  Gardiner  v.  Gardiner,  2  U.  C.  Q.  B. 
(0.  S.)  55i,,  in  which  the  right  of  a  creditor  to  sue  out  afi.fa.  lamh,  is 
exhaustively  discussed. 


02  THE   CANADIAN   CONSTITUTION. 

perhaps  conteinplatecl  only  those  contracted  in  England.     First, 
as  to  the  power :    I   consider  it  imparted  by   81    Geo.   III.  c. 
81,  which  is  very  comprehensive,  and  ahnost  unhmited  in  its 
terms  :  .  .  .  .     Hubjecfc  to  the  exceptions  therein  expressed,  I  do 
not  see  that  the  powers  of  the  colonial  legislatures  are  otherwise 
abridged,  so  far  at  least  as  respects  the  laws  in  force  at  the  time 
it  was  first  organized,  however  liable  to  control  by  subsequent. 
Imperial  statutes,  naming  the  province,  or  including  it  in  a  more 
general  allusion  to  the  North  American  possessions  ....     The 
King  has  almost  unqualified  power  to  make  laws,  binding  upon 
and  within  the  province,  with  the  advice  and  consent  of  the 
legislative  council  and  assembly ;    not  as   a   mere  prerogative 
right,  or  under  a  system  of  government  established  by  commis- 
sion as  a  royal  government  emanating  from  the  grace  and  pre- 
rogative powers  of  the  Crown,  but  by  virtue  of  a  British  statute, 
which  says  that  all  laws  so  made  (if  not  repugnant  thereto)  shall, 
by  virtue  of  that  Act,  be  valid  and  binding  ;  and  in  order  not  to 
abridge  the  superintending  control  of  his  Majesty's  government, 
a  double  negative  is  granted  to  his  Majesty,  who  may  annul  and 
disallow  Acts,  although  assented  too  in  his  name  by  the  governor 
or  lieutenant-governor  representing  him  in  his  provincial  parlia- 
ment here.     With  these  and  other  such  qualifications  and  safe- 
guards as  the  Imperial  parliament  deemed  expedient,  free  scops 
is  given  to  the  action  of  the   colonial  legislature  in  all  other 
respects ;  so  much  so,  that  /  cnnnot  hut  m/ard  the  prorincial  statute, 
w/icii  diiUj  paused,  of  eijiud  force  within  the  jirorince  with  British 
statutes,  when  not  repugnant  to  81  Geo.  III.  c.  81.     In  other 
words,  I  feel  constrained  to  read  the  fifth  section  of  our  first  Act 
(7)  as  if  it  had  been  incorporated  in  31  Geo.  III.  c.  31,  and 
formed  one  of  its  provisions,  and  conceive  it  competent  to  the 
provincial  parliament  (as  a  mere  question  of  power)  to  exclude 
the  operation  of  5  Geo.  II.  c.  7,  in  any  or  in  all  respects  by  aa 
Act  duly  assented  to  by  or  on  behalf  of  his  Majesty ;  and,  if  so, 
to  produce  the  same  efiect  by  implication  arising  from  the  intro- 
duction of  incompatible  or  other  contradictory  regulations.     .    . 
.     .     The  second  inquiry — whether  this  clause  of  it  has  been 
excluded.     No  provincial  Act  mentions  it  by  name,  and,  conse- 

iq)  32   Geo.  III.  c.  1  (U.  C),  introducing  English  law  into   Utper 
Canada. 


WHAT    IMI'ERIAL    ACTS    AKKIX'T    T'S  ;*  (l:? 

quLMitlv,  if  effected,  it  must  be  by  implication.  J.  liave  already 
((uoted  the  clause  of  oiu-  first  Act,  which,  in  furtherance  of  the 
[)revioug  clauses  adopting  the  law  of  England,  prescribes  the 
rule  of  evidence  and  the  forms  thereof.  .  .  .  Regarding  the 
whole  scope  and  spirit  of  our  provincial  Act,  from  the  first  to 
the  last,  so  far  as  respects  the  general  adoption  of  the  law  of 
England,  it  appears  to  me  that  5  Geo.  II.  c.  7,  s.  1,  was 
not  repealed,  but  excluded  from  operation  here  by  implication, 
especially  by  the  5th  section  introducing  inconsistent  provisions." 

And  ho  proceeds  to  intimate  his  opini(ui  that  tlie  Imperial 
statute,  ()  Geo.  IV.  c.  11-I-,  which  declares  void  all  laws, 
li\-laws,  usaji;es,  or  cnstDUis,  repu^^iiant  to  that  or  other 
Ihitish  Acts,  referred  oidy  to  'laws,  nsa(;es,  etc.,  founded 
upon  the  old  systems  of  colonial  o-overnnient  by  charter 
or  otherwise,'  and  not  to  laws  made  by  colonial  assunil)lies 
constituted  under  an  Imperial  statute. 

Chief  Justice  Robinson,  in  delivering  the  judgment  of 
the  co\irt,  says  : 

"  As  a  general  principle  bearing  on  our  introduction  of  the 
English  law,  civil  and  military,  I  think  .  .  .  that  this 
general  adoption  (r)  of  them  was  not  intended  to  supersede  any 
particular  provision  that  had  before  been  made  in  respect  to  a 
certain  matter,  by  a  competent  legislative  authority,  applying 
itself  particularly  to  the  colony.  It  was  an  Act  to  give  a  general 
rule  in  cases- not  specially  provided  for.  On  the  other  hand,  I 
think  this  provision  of  5  Geo.  II.  c.  7,  does  not  come  within 
the  -IGth  section  of  31  Geo.  III.  c.  31 ;  and  that  if  it  depended 
on  the  (piestiou  whether  that  clause  (and  that  clause  only) 
disabled  our  legislature  from  repealing  it,  it  would  not  now  be 
in  force.  To  receive  such  an  affidavit  in  proof  of  debt  at  the 
trial  does  certainly  militate  against  the  rules  of  evidence  as 
established  in  England,  and,  therefore,  after  the  passing  of  our 
provincial  statute,  32  Geo.  III.  cap.  1,  it  cannot  be  admitted, 
unless,  1st,  it  can  be  held  that  the  repeal  of  the  British  statute, 
5  Geo.  II.  c.  7,  IS  not  within  the  intention  of  the  statute  32 
Geo.  III.  cap.  1 ;  or,  2nd,  iras  not  within  the  power  of  the  colonial 
legislature." 

('•)  i.e.  by  32  Geo.  III.  c.  1,  (U.  C.) 


ti4  THE    CAXAIHAN'    (( tXSTITrTK  >\. 

Then,  upDii  ii  consi(lt«riitioii  oi'  tlic  pi-ovincial  Act,  82 
Oeo.  III.  c.  1,  lit'  CdiK'hKk's  tliut  there  is  no  cvideiice  ol' 
intent  to  repeul :  ami  ])r.-L'e>Mls  : 

"  Secondly. — If  the  legislatiu'e  intended  the  repeal,  had  they 
the  power  ? 

"1st.  The  direct  effect  of  such  repeal  would  be  to  take  from 
persons  resident  in  Great  IJritain,  conveniences  secured  by  an 
express  British  Act  of  parliament  to  them,  and  them  only;  and 
I  cannot  conceive  that  81  Geo.  III.  c.  81,  j^'ives  to  this  le«j:is- 
lature  such  a  power,  .  .  .  Nothing  can  be  more  repugnant 
to  any  Act  than  an  attempted  rei)eal  of  it,  and  the  consequence 
of  being  illegal  and  void  must  follow,  unless  the  eft'ect  of  81  Geo. 
III.  c.  81,  is  to  make  our  legislature  independent  of  the  pro- 
visions of  the  imperial  statutes  respecting  'repugnancy.'  It 
may  be  contended  that  it  has  that  effect— 1st,  because  parliament 
delegated  the  power  to  make  laws  for  the  colony  to  our  legislature, 
having  the  concurrence  of  the  King ;  and  that  all  that  is  done 
by  ihis  delegated  authority  (within  their  scope)  is  to  be  regarded 
as  if  done  by  the  British  parliament  on  the  principle  of  execution 
of  powers.  2nd.  By  specifying  .  .  .  certain  exceptions  to 
this  power,  which  do  not  embrace  such  a  sul.'jeet  as  that  in 
question,  we  must  take  it  there  are  to  be  no  other  exceptions, 
and  that  all  laws  passed  iu  this  province  not  coming  within  tlie 
exceptions  .  .  .  -ud  not  repugnant  to  the  constitutional 
Act  which  creates  the  power,  must  he  within  the  competence  of 
our  colonial  legislature.  But  to  this,  I  answer— 1st.  That  the 
power  is  to  make  laws  to  operate  directly  only  on  the  peace, 
welfare,  and  good  government  of  this  province  (though  indirectly 
they  may  affect— which  is  inevitable— persons  resident  out  of 
it),  and  that  it  does  not  reasonably  extend  to  the  repeal  of  an 
Act  of  the  British  parliament  expressly  passed  to  afford  facilities 
to  British  subjects  resident  in  England.  .  .  .  8rd.  That 
the  British  parliament  did  not  mean  to  give  to  this  colonial 
legislature,  authority  to  repeal  Acts  of  parliament  prior  to  ni 
Geo.  III.  expressly  binding  in  the  colony  (and  especially  such 
as  did  not  concern  the   colony  merely),  is  evidenced   in   the 

strongest  manner  by   G  Geo.  IV.  c.  114,  s.  49 

for  it  provides  expressly  that  all  laws  in  force  or  practice  in  any 


WHAT    IMPEHIAL   ACTS   AFFECT   FS  i  '65 

of  the  British  possessions  of  America,  which  are  in  any  wise 
repugnant  to  any  Act  of  parliament  made,  or  to  be  made,  in  the 
I'uited  Kin<(dom,  so  far  as  such  Act  shall  relate  to  and  mention 
the  said  possessions,  are,  and  shall  be  null  and  void  to  all  intents 
and  purposes  whatever  (s). 

"  It  is  said  that  32  Geo.  III.  c.  1,  repeals  the  British  statute 
;')  Geo.  II.  c.  7,  in  this  particular.  If  it  does,  it  must  be  re- 
pugnant to  it.  If  it  be  repugnant  to  it,  then  it  is  an  Act  in 
force,  or  attempted  to  be  put  in  force,  in  this  British  possession, 
repugnant  to  an  Act  of  parliament  made  in  the  United  Kingdom 
relating  to  and  mentioning  the  British  possessions  in  America  ; 
and,  therefore,  as  to  such  Act,  so  far  as  it  does  relate  to  and 
mention  such  possessions,  it  is  null  and  void  under  the  Imiierial 
statute  G  Geo.  IV.  c.  114.  .  .  .  We  have  ascertained  that 
in  Lower  Canada  the  Courts  have  uniformly  held  5  Geo.  II. 
c.  7,  to  be  in  force  as  respects  the  provisions  now  in  question, 
notwithstanding  that  the  ancient  Canadian  law,  as  the  general 
rule  of  decision,  is  given  by  the  British  statute  14  Geo.  III. 
e.  K3  {t),  which  would  make  the  argument  stronger  in  favor 
of  the  supposed  virtual  repeal  "  (»). 

Another  Canadian  case,  illustrative  of  the  Avant  of  full 
appreciation  of  our  sul«jeetion  to  the  supremacy  of  the 
Imperial  parliament,  arose  in  1S()4,— the  ease  of  Re((.  v. 
Schram  k  Anderson  (v).  These  men  were  eliar^-ed,  under 
the  Foreit^ni  Enlistment  Act,  59  Geo.  III.  c.  00  (Imp.),  with 
h;ivinu-  tried  to  procure  inhabitants  of  tliis  province  to 
'iiHst  in  the  American  army.  Strange  as  it  may  seem,  it 
was  seriously  arjirued,  that  in  spite  of  express  words 
making  the  Act  applicable  to  all  parts  of  the  Empire,  it. 
was  not  in  force  here,  because  we  had,  at  the  time  it  was 
passed,  a  local  legislature.  And,  although  the  judgment  of 
the  Court  was  that  the  Imperial  Act  in  question  was  in 
force  here,  the  reasons  advanced,  indicate  no  clear  distinc- 

(s)  See  now  28  &  29  Vic.  c.  03,  supra.         (t)  The  Quebec  Act,  1774. 

(")  See  also  Smith  v.  McGowan,  11  U.  C.  Q.  B.  399,  and  Gabriel  v 
Derb.vHbire,  1  U.  C.  C.  P  422,  as  showing  the  judicial  dislike  of  this  sec- 
tion of  5  Geo.  II.  c.  7,  and  its  extension  by  an  Act  of  Wm.  IV. 

(i')  14  U.  C.  C.  P.  318. 
Can-.  Con.— 5 


66"  THE  CANADIAN   CONSTITUTION. 

tioii  between  the  ley'al  limits  (or  want  of  lethal  limits)  to 
the  leo;islative  power  of  the  Imperial  parliament,  and  the 
"  conventional "  limits  jnoper  to  be  observed  in  the  exercise 
of  that  i)()wer.  We  (juote  from  the  judo-vuent  of  Chief 
Justice  Richards : 

"  The  only  ground  on  which  we  can  hold  that  the  statute, 
59  Geo.  III.  is  not  in  force  in  this  country  is  because  we  have, 
and  then  had,  a  local  parhament,  and  that  enactments  of  this 
kind  ought  to  be  made  by  the  authority  of  that  parliament,  and 
if  not  so  made,  they  ought  to  be  held  not  to  be  in  force  here. 

"  By  the  Constitutional  Act,  1791  (31  Geo.  III.  c.  81),  a 
separate  legislature  was  established  in  each  section  of  the  prov- 
ince, to  make  laws  for  the  peace,  welfare,  and  good  government 
thereof,  such  laws  not  being  repugnant  to  that  Act.  By  the 
Union  Act  (3  &  4  Vic.  cap.  35),  these  provinces  were  again 
united,  and  power  given  to  the  local  legislature  to  pass  laws  for 
the  peace,  welfare,  and  good  government  of  the  province  of 
Canada,  such  laws  not  being  repugnant  to  that  Act,  or  to  such 
parts  of  the  Constitutional  Act,  1791,  as  were  not  repealed,  or  to 
any  Act  of  the  Imperial  parliament  made,  or  to  be  made,  and 
not  thereby  repealed,  which  did,  or  should,  by  express  enactment, 
or  by  necessary  intendment,  extend  to  the  provinces  of  Upper 
or  Lower  Canada,  or  either  of  them.  The  very  words  of  the 
statute  seem  to  imply  that  the  power  to  legislate  on  some 
matters,  was,  and  is  reserved  to  the  Imperial  parliament,  though 
this  province  may  be  affected  by  such  legislation. 

"  As  long  as  it  is  admitted  ihat  the  Home  government,  by 
whom  the  supreme  power  of  the  Empire  is  exercised,  is  the 
proper  channel  through  which  all  our  relations  and  intercourse 
with  foreign  governments  are  to  be  carried  on,  the  power  to  pass 
laws  to  bind  the  whole  nation,  so  far  as  regards  those  relations 
and,  as  necessarily  arising  out  of  them,  the  peace  of  the  Empu-e, 
must  rest  with  the  Imperial  parliaruent. 

"  Independently  of  the  doctrine  that  our  local  legislature 
can  only  exercise  such  powers  as  are  specially  conferred  upon  it 
under  the  statutes  passed  by  the  Imperial  parliament,  there  are 
other  points  of  view  in  which  the  question  may  be  considered. 
Though  possessing  a  domestic  legislature,  we  form  part  of  a 


WHAT    IMPERIAL   ACTS    AFFECT   US  ?  67 

vast  Empire,  having  other  colonies  exercising  similar  legislative 
powers  to  our  own.  If  any  one  colony,  by  passing  laws,  or  re- 
fusing to  pass  laws,  produced  a  state  of  things  which  created 
difficulty  with  a  foreign  state,  the  whole  nation  might  be  in- 
volved in  a  calamitous  war  from  the  imprudence  or  recklessness 
of  a  very  unimportant  colony.  Considered  in  this  light,  it 
appears  to  me  that  the  statute  which  we  are  discussing  relates 
to  the  conduct  of  citizens  of  the  Empire  towards  foreign  states 
and  people,  and  is  on  a  subject  which  must  be  disposed  of  and 
legislated  upon  by  the  Imperial  parliament,  as  representing  the 
supreme  legislative  power  of  the  nation,  and  as  to  which  it  is 
necessary  that  all  the  subjects  of  the  Crown  should  alike  be 
bound.  The  very  preamble  of  the  Act  states  that  the  proceed- 
ings which  the  statute  prohibits  may  be  prejudicial  to,  and 
endanger  the  peace  and  welfare  of  the  Kingdom." 

And  attain,  in  Reg.  v.  Taylor  (w),  Chief  Justice  Draper, 
in  considering  the  term  "  exclusive,"  in  the  91st  section 
of  the  B.  N.  A.  Act,  construed  it  as  "  intended  as  a  more 
( letinite  or  extended  renunciation,  on  the  part  of  the  parlia- 
ment of  Great  Britain,  of  its  powers  over  the  internal  atlairs 
of  the  new  Dominion  than  was  contained  in  the  Imperial 
statutes,  18  Geo.  III.  c.  12  (x),  and  28  k  29  Vic.  c.  63  (/y)," 
overlooking  apparently  the  fact  that  such  a  renunciation 
would  be  of  no  legal  ettect  whatev^er  in  restraining  future 
parliaments  from  legislative  interference  in  the  internal 
nti'airs  of  Canada,  if  so  ill-advised  as  to  take  such  an  "uncon- 
ventional "  step.  This  interpretation  of  that  term  "  exclu- 
sive" has,  in  subsequent  cases,  and  by  other  judges,  been 
very  emphatically  dissented  from,  and  the  general  principle 
of  the  legislative  supremacy  of  the  Imperial  parliament 
clearly  laid  down  (z). 

(ic)  36  U.  C.  Q.  B.  at  p.  220. 

Ix)  The  celebrated  Eenunciation  Act;  see  ante,  p.  36.  As  to  the 
legal  effect  of  this  renunciation,  see  charge  of  Blackburn,  J.,  in  Reg.  v. 
Eyre,  reported  by  Finlayson. 

((/)  The  Colonial  Laws  Validity  Act,  1865. 

{z)  Smiles  v.  Belford,  1  O.  A.  R.  436  ;  Reg.  v.  Coll.  of  Phys.  41  U.  C. 
Q.  B. 564. 


US  THE   CANADIAN    CONSTITUTION. 

In  the  Maritime  provinces,  where  Imperial  Act.s  relating 
to  navigation  were  frecjuently  invoked  in  the  Vice-A(hiiir- 
alty  Courts  existint^  in  those  provinces,  a  clearer  view 
seems  to  have  prevailed  as  to  the  operation,  within  the 
colonies,  of  such  Acts ;  and  numerous  cases  are  to  be  found 
in  which,  without  (luestion,  ett'ect  was  given  to  their  pro- 
visions. It  would  appear,  however,  that  the  view  was 
pressed  in  argument  there,  just  as  it  was  in  the  courts  of 
the  upper  province,  that  a  provincial  Act,  assented  to  by 
the  Crown,  was  of  equal  validity  with  an  Imperial  Act. 
and  if  later  in  point  of  time  than  an  Imperial  Act  with 
which  it  might  appear  to  clash,  it  should  be  given  etl'ect  to, 
hi  preference  to  such  Imperial  Act.  In  the  case  of  "  The 
13ernuida  "  (a),  an  attempt  was  made  to  attach  prize  money 
in  the  hands  of  a  prize  agent,  under  the  provisions  of  the 
Nova  Scotia  statute,  1  Geo.  III.  c.  8;  but  it  was  held  by 
Dr.  Croke  that  this  could  not  be  permitted ;  that  the  Nova 
Scotia  statute  was  in  this  particular  "repugnant"  to  the 
Imperial  "Prize  Act,"  49  Geo.  III.  c.  123,  and  therefore,  to 
that  extent,  void.  He,  however,  notices  the  contention  we 
have  referred  to,  in  favor  of  the  validity  of  the  Provincial 
Act,  and  thus  disposes  of  it: 

"  Considering  it  in  another  point  of  view,  and  giving  it  every 
possible  validity,  still  the  British  Act  must  be  allowed  to  be  of 
equal  authority,  and  then  the  provincial  Act  must  be  taken  to 
be  substantially  repealed,  so  far  as  it  is  repugnant  to  the  British 
Act,  which  is  of  a  later  date." 

W«i  may  also  refer  to  "The  Providence,"  in  which  the 
provisions  of  the  English  Navigation  Act  (12  Car.  II.  c.  18) 
— the  second  section  of  which  was  directed  against 
alien  traders — was  enforced  in  Nova  Scotia  against  an 
American  trader,  in  1820  (h).  That  section,  being  of 
express  colonial  application,  and  not  repealed  by  an}' 
subse([uent  Imperial  Act,  was  held  by  Dr.  Croke  to  be  still 
in  force  in  Nova  Scotia,  "though  not  often  acted  upon." 

(a)  Stewart,  245.  '  (b)  Stewart,  186. 


WHAT   IMPERIAL   ACTS   AFFECT   US  ?  G!) 

And  ill  like  imuiiier  the  English  Bankruptcy  Act  (12  & 
18  Vic.  c.  lOG)  was  held  to  apply  to  Nova  Scotia — so  fai- 
ns to  discharge  the  V)ankrupt  from  debts  there  incurred — 
and  an  attachment  of  debts  due  to  him,  issued  after  the  Jiaf, 
was  set  aside  {(•). 

When  an  Imperial  Act,  made  applicable  by  express 
words  or  necessary  intendment  to  any  colony,  is  (even  after 
the  estaldishment  of  a  legislature  in  such  colony)  repealed 
by  an  Imperial  Act,  such  repeal  is  operative  in  the  colony. 
Tliis  was  one  of  the  points  for  decision  in  the  old  case  of 
Bank  of  Upper  Canada  v.  Bethune  (r/),  in  which  it  was 
endeavored  to  subject  the  Bank  to  the  disabilities  imposed 
1  )y  the  English  Bubble  Acts.  The  earlier  one  of  these  Acts 
liad  been  repealed  by  an  Act  of  tlie  Imperial  parliament, 
0  Geo.  IV.  c.  91,  and  in  pronouncing  the  judgment  of  the 
court,  that  by  reason  of  such  repeal  the  Bubble  Acts  were 
no  longer  in  force  in  Upper  Canada,  Rabinson,  C.J.,  brings 
out  clearly : 

1st.  That  the  Queliec  Act,  1774,  and  tlie  Provincial  Act, 
40  Geo.  III.  c.  1  (upon  which  two  Acts  our  enjoyment  of 
the  criminal  law  (e)  of  England  rests),  were  not  intended 
to  refer  to  Acts  expressly,  or  by  necessary  intendment,  made 
applicable  to  the  colonies  in  general,  or  to  Canada  in  par- 
ticular. 

2nd.  That  such  Acts  continued  to  be,  as  they  had 
always  l)een,  in  force  liere  by  their  own  inherent  vigor 
alone ;  and 

3rd.  That  a  repeal  liy  Imperial  Act  would  M'ipe  them 
out  of  the  list  of  colonial  laws.     It  ii'oes  without  saviui"- 

(c)  Hall  V.  Goodall,  3  Murd.  Epit.  149;  Fraser  v.  Morrow,  2  Thomp. 
'232,  and  see  also  "  The  Friends  Adventure,''  Stewart,  200;  "  The  Fama," 
Stewart,  112;  and  Congdon's  N.  S.  Dig.  133(5,  ct  seq.  ,  and  Steven's  Dig. 
N.  B.  siih.  tit.,  "  British  Statutes." 

(</)  4  U.  C.  Q.  B.  (O.  S.)  IGo. 

((')  The  argument  is  equally  applicable  in  reference  to  the  Act  32 
Oeo.  III.  c.  1  (U.  C),  introducing  English  civil  law. 


70  THE   CANADIAN   CONSTITUTION. 

that  liis  viewH  are  very  clearly  expressed,  and  we  venture 
therefore  to  quote  somewhat  at  leii<^th  from  his  opinion  : 

"  My  opinion  is,  that  the  fii'st  Bubble  Act  has  not  been  in 
force  in  this  province  since  the  repeal  of  that  statute  by  the 
Imperial  parliament  in  their  Act  of  G  Geo.  IV.  c.  91.  While 
it  was  in  force,  I  think  it  derived  its  obligations  in  the  colonies, 
first  and  principally,  from  the  very  words  of  the  statute  itself. 
It  was  passed  in  order  that  its  provisions  might  extend,  not  inerely 
to  London  and  other  parts  of  the  Kingdom,  but  also  to  Ireland 
and  '  other  his  Majesty's  dominions.'  It  was  in  force  in  the 
colonies  by  the  same  act  of  legislative  authority,  and  its  obliga- 
tion rested  on  the  same  foundation  in  the  colonies  as  in  Eng- 
land  When,  therefore,  the  legislature  determined 

it  to  be  expedient  that  the  first  Bubble  Act,  or  rather  those 
clauses  of  it  which  are  now  in  question,  should  be  repealed,  and 
that  the  several  undertakings,  attempts,  etc.,  therein  prohibited 
should  be  left  to  be  dealt  with  according  to  the  common  law, 
they  did,  in  my  opinion,  absolve  the  application  of  that  statute  as 
plainly  and  as  fully  in  the  colonies  as  in  other  parts  of  the 
Empire  where  it  had  been  in  force.  Of  course,  that  must  be 
the  efl:ect,  unless  some  statute  passed  in  England  or  in  this 
colony  since  the  first  Bubble  Act  prevents  it.  The  second 
Bubble  Act,  14  Geo.  II.  c.  37,  cannot,  as  I  think,  have  that 
effect.  It  was  never  anything  but  a  mere  supplement  to  the 
first  Bubble  Act.  (hnne  accessorhun  ii('(jHitHr  suum  princijxili'. 
The  latter  statute  has  nothing  to  stand  upon  if  the  former  has 
been  withdrawn.  Then  we  must  next  consider  the  effect  of 
"The  Quebec  Act,  1774,"  introducing  the  criminal  law  of 
England  into  the  province  of  Quebec,  and  of  our  provincial 
statute,  40  Geo.  III.  c.  1,  declaring  that  the  criminal  law  of 
England,  as  it  stood  on  17th  September,  1792,  shall  be  the 
criminal  law  of  this  province.  Neither  of  those  enactments,  in 
my  opinion,  were  intended  to  affect,  or  can  properly  be  construed 
to  affect,  the  question  whether  the  Bubble  Acts  are  now  in  force 
in  this  province. 

"  By  the  Quebec  Act,  1774,  the  British  parliament  clearly 
designed  to  give  to  Canada  the  criminal  law  of  England,  as  to 
those  objects  and  in  those  matters  for  which  no  special  provision 


WHAT    IMI'EllIAL    ACTS    AFFECT   I'S  i'  71 

liatl  before  been  made  by  parliament.  That  statute  had  no 
intended  reference  to  Acts  of  parliament  which,  from  their  very 
terms,  already  were  as  much  in  force  in  the  colonies  as  in 
Enj^dand,  and  which  consequently  required  no  introduction  at 
tliat  period.  It  left  those  special  laws  as  they  stood.  Upon  any 
other  principle,  if  there  had  been  particular  penal  statutes  then 
in  force  applying  solely  and  exclusively  to  the  colonies,  and  form- 
ing no  part  of  the  law  of  England,  we  must  have  held  such 
statutes  to  be  virtually  repealed  by  the  Quebec  Act,  1774, 
giving  us  the  criminal  law  of  England,  though  clearly  such  an 
eti'ect  never  could  have  been  intended.  The  Bubble  Acts  were 
not  peculiarly  the  law  of  England— they  did  not  come  to  us  as 
introduced  by  The  Quebec  Act,  ]77-4;  they  were  part  of  the 
criminal  law  of  England,  and  of  the  other  colonies  before,  and 
they  continued  to  be  so  upon  the  same  ground,  and  no  other, 
after  the  Quebec  Act  was  passed,  as  before. 

"  Then,  as  to  our  statute  40  Geo.  III.  c.  1,  the  point  is 
still  more  clear.  Our  colonial  legislature,  when  they  passed  that 
Act,  must  be  taken  to  have  been  using  their  discretion  and 
choice  in  introducing  the  criminal  law  of  England,  in  the  whole  or 
in  part,  with  or  without  exception,  as  they  judged  best.  Now, 
they  had,  at  that  time,  no  discretion  to  exercise  in  regard  to  these 
liubble  Acts,  because  they  already  formed  part  of  our  penal  law, 
being  expressly  made  to  extend  to  this  and  other  colonies  by  a 
power  beyond  that  of  the  provincial  legislature.  If  they  had 
desired  to  except  them  they  could  not  have  done  it,  and,  there- 
fore, it  cannot  follow  that  because  they  did  not  except  them,  they 
adopted  them  ;  they  were  not  legislating  with  any  view  to  laws 
already  in  force  under  a  power  superior  to  their  own.  If  they  had 
excluded  them,  the  exclusion  would  have  been  illegal ;  if  they 
had  introduced  them,  their  declaration  to  that  effect  would  have 
been  idle  and  inigatory.  I  understand  the  provincial  legislature 
to  have  left  them  as  they  found  them,  standing  upon  their  own 
original  foundation,  which  they  had  no  power  to  strengthen  or 
weaken;  and  when  the  parliament  of  the  Mother  Country 
repealed  the  original  and  principal  Bubble  Act,  declaring  that  it 
was  expedient  to  have  such  practices  and  schemes  to  be  dealt 
with  according  to  the  common  law,  they  did,  in  my  opinion,  undo 
all  that  they  had  done  by  that  statute,  and  they  neither  meant 


72  THE   CAXADIAX   CON'STFTITIOX. 

to  leave  it  in  force,  nor  did  leave  it  in  force,  in  anj  one  part  of 
the  British  dominions  more  than  in  any  other." 

The  principle  we  are  now  UiscuHsiu^',  namely,  the  opera- 
tive force  in  a  colony  of  an  Imperial  Act  repealin;;'  a 
previous  Imperial  Act  of  express  application  to  such  colony^ 
was  recognized  in  a  comparatively  recent  case  which  came 
before  the  Judicial  Committee  of  the  Privy  Council,  Re;;. 
V.  Mount  &  Morris  (/').  These  men  were  tried  before  the 
Supreme  Criminal  Court  of  the  colony  of  Victoria,  upon 
the  charge  of  murder,  alleged  to  have  been  committed  on 
board  a  British  ship  on  the  hi^h  seas,  and  were  convictfd 
of  manslau^'hter.  The  jurisdiction  to  try  persons  char^t'il 
with  offences  connnitted  on  the  sea,  within  the  jurisdiction 
of  the  admiralty,  was  for  the  first  time  conferred  upon 
colonial  courts,  in  1849,  bj'-  the  Imperial  Act  12  &;  13  Vic. 
c.  96,  the  second  section  of  which  provided  that  convicted 
persons  should  bo  sul)ject  to  the  same  punishment  "as  by 
any  law  now  in  force "  persons  convicted  of  the  same 
offence  would  be  liable  to,  had  the  offence  been  committed 
and  the  trial  had  in  England. 

At  the  time  this  Act  was  passed,  the  punishment  for 
manslaughter  in  England  was  transportation  for  life. 
Afterwards,  by  an  Imperial  Act,  punii^hment  l)y  transpor- 
tation was  abolished,  penal  servitude  being  suV»stituted 
therefor.  There  was  nothing  in  this  Act  expressly  extend- 
ing it  to  the  colonies;  l>ut,  notwithstanding  this,  the  Com- 
mittee held  that  the  previous  Act,  12  &  13  Vic.  c.  9(5, 
which  had  conferred  on  colonial  criminal  courts  the  iuris- 
diction  to  try  sucli  offences  as  we  have  mentioned,  must  bo 
held  to  be  amended  (in  respect  to  the  sentence  to  1  )e 
imposed)  by  the  Act  which  abolished  transportation. 
Their  view  is  thus  expressed  : 

"When  the  Imperial  legislature  substituted  penal  servitude 
for  transportation,  it  is  reasonable  to  suppose  that  the  alteration 

(/)  L.  R.  G  P.O.  283. 


WHAT    IMl'KIUA/,   ACTS   AFFECT   US  !  7'.] 

Was  intended  to  embrace  sentences  for  oflfences  tried  in  tlie 
colonies  under  the  special  jurisdiction  conferred  by  12  t't  18  Vic, 
since  there  is  no  trace  of  any  intention  on  the  part  of  the  legis- 
lature to  change  the  policy  of  that  Act,  which  orders  these  sen- 
tences to  be  passed  according  to  the  law  of  England. 

"This  construction  creates  no  conflict  between  Imperial  and 
colonial  authority,  and  in  no  way  affects  the  rights  and  privileges 
of  the  colonial  legislatures.  It  simply  affirms  that  the  Imperial 
statute,  which  gave  the  courts  of  the  colonies  <jiii>ail  offences 
conmiitted  upon  the  seivs  beyond  their  territorial  limits,  a  juris- 
diction which  their  own  legislatures  could  not  confer,  was  altered 
by  a  subsequent  Imperial  Act." 

This  case,  as  will  be  seen,  is  a  pretty  strong  one,  as  the 
alteration  of  the  previous  Act  (which  alteration  was  held 
to  have  effect  in  the  colonies)  was  an  alteration  by  implica- 
tion, and  not  by  direct  amendment  or  repeal. 

It  is  beyond  the  scope  of  this  work  to  enumerate  even 
luii'rty  the  Viirious  Imperial  Acts  ((/)  whicli  to-day  lay 
down,  on  various  matters,  the  law  for  our  «;'uidance  and 
submi'^sion.  Tiie  most  that  can  be  done  is  to  indicate,  with 
no  pretence  of  exhaustive  treatment,  some  of  the  subjects 


(a)  For  other  cases  involving  an  enquiry  whether  or  not  some  par- 
ticular Imperial  Act  extends  to  Qanada,  see: — 

Routledge  v.  Low,  L.  R.  3  E.  and  I.  App.  100— Copyright  Act  (5  &  (> 
Vic.  e.  45). 

//(  i-c  Lyons,  G  U.  C.  Q.  B.  (O.  S.)  627- -An  Act  respecting  Declarations 
in  lieu  of  Oaths. 

Hodgins  v.  McNeil,  9  Grant,  305— Lord  Lyndhurst's  Marriage  Act 
(5  A  G  Wm.  IV.  c.  5i).  "  The  colonies  are  not  mentioned  in  the  Act,  nor 
included  by  any  necessary  or  even  strong  intendment." 

Thompson  v.  Bennett,  22  U.  C.  C.  P.  393— Orders  in  Lunacy  (11  Geo. 
IV.  and  1  Wm.  IV.  c.  60). 

Pw  Squier,  4G  U.  C.  Q.  B.  474— Removal  of  Colonial  Officers,  (22  Geo. 
III.  0.  75). 

Georgian  Bay  Trans.  Co.  v.  Fisher,  5  O.  A.  11.  383— Mer.^hant 
Shipping  Acts. 

Mowat  V.  McPhee,  5  S.  C.  R.  GG. 

Allen  V.  Hanson,  18  S.  C.  R.  G67,  at  p.  G31— English  Joint  Stock 
Companies  Acis. 


74  TlIK   C'ANAI»I.\N    CON'STITI'IION. 

on  wliich  the  luipfi-ial  piirliuiiM'nt  dot's  legislate  for  ns.  We 
havt>  advortod,  to  some  extent,  to  the  general  nature  of  Hueh 
HuhjectH  in  a  |)revioUH  cliapter,  and  have  indicated  that  they 
are  Hnlijeets  which  arejleeniecl  to  he  of  connnon  concern  to 
the  whole  Empire,  l)iic  it  will  he  advisahle  to  defer  any  fur- 
ther remarks  upon  this  hranch  until  we  come  to  treat  of 
those  sections  of  the  B.  N.  A.  Act  which  divide  the  field  of 
colonial  self-<,^)vernment  allotted  to  Canada  hefeween  the 
parliament  of  Canada  on  the  one;  liand,  and  the  Le<fislativo 
Assemlilies  of  the  various  provinces,  on  the  other  (A). 

(/()  The  "Chronological  Index,"  published  with  the  English  Law 
Reports,  affords  a  convenient  method  of  tracin),;  the  fate  of  Imperial  Acts. 
See  xhIj.  tit.  "Colonies"  and  the  various  cross-references. 


CHAPTER  V. 


THE  SOURCES  OF  OUR  LAW. 

In  the  last  clmptor,  we  pointed  oUt  the  nece.ssity  for  a 
careful  distinction  between  Imperial  Acts  which  are  in 
force  in  any  particular  colony  because  "made  api)lical»lc 
to  such  colony  l»y  the  express  words  or  necessary  intend- 
ment" thereof  (f()  and  Acts  which  (as  comint^  within  the 
term  English  law,  or  the  law  of  En<^lan<l)  have  been,  by 
Imperial  <;'nint  or  colonial  adoption,  made  the  law  of  the 
colony.  A  constant  ^uard  must  be  maintained  with  refer- 
ence to  this  distinction.  In  the  last  chapter,  the  extent  to 
which  we  are  subject  to  the  law  enacted  in  and  by  the 
former  class  of  Imperial  Acts  was  discussed.  This  chapter 
will  deal  with  those  Imperial  Acts,  and  those  only,  which 
have  no  expressed  reference  to  the  Cijlonies  in  general,  or 
to  any  colcmy  in  particular,  and  the  encjuiry  is  to  be — To 
what  extent  are  sack  Acts  to  be  held  in  force  in  Canada  ? 

In  entering  upon  this  enquiry,  it  becomes  at  once 
apparent  that  there  is  a  marked  variety  in  the  position  of 
the  various  provinces  of  which  the  Dominion  of  Canada  is 
composed ;  and  that  the  extent  to  which  Englisli  statutory 
law,  of  a  general  character,  is  in  force  in  the  difierent 
pro\inces,  is  by  no  means  the  same.  The  reasons  for  this 
variety  are  to  be  sought  in  the  ditt'eiences  which  mark  their 

(a)  2S  &  23  Vic.  c.  63,  s.  1  (Imp.). 


70  I'm-;    CANADIAN    COXSTITl  TION. 

varly  liistoiy  hs  Ht'panit*'  colonies  of  (Jreiit  Hritain — diffi  r- 
t'UCi's  as  to  tlu'  niotlo  l>y  which  they  attiiiiu'(l  that  (li.stiiic- 
tion — ilift't'ivnccs  in  tlie  nii'thoils  ciuployud  l>y  Inipt'i'lal 
autliojity.  in  <h'tt'rniinin;^  what  syHteni  of  jm'isj)ru<h'nct' 
shoulil  \)v  oiven  to  hucIi  of  them  as  had  t!uit  (|U»'stiuii 
si'ttled  for  them  hy  Imperial  anthoi'ity — ditt'enMiees  in  tlic 
extent  to  which  En^dish  hiw  was  adopted  hy  such  of  them 
ns  determined  tiie  (piestion  for  thems(d\"es — ditt'ei'ences  hh 
to  tile  point  of  time  in  reference  to  wiiich  the  introduction 
toulv  phice. 

"A  ([Uestion  of  this  kind,"  said  Chief  Justice  Uohinsmi, 
in  1<S45,  "  arisin*;  in  any  British  colony,  must  depend  upon 
the  manner  in  which  the  law  of  Eny;land  has  Itecojne  the 
law  of  that  particular  colony  ;  wliether  it  lias  been  merely 
assumed  to  he  in  force  upon  conniion  law  princii)les,  as  in 
the  case  of  new  and  imiiihahited  lands  found  and  planted 
by  British  suhject.s;  or  whether  it  has  l>een  introduce*!  l»y 
8onie  positive-enactment  of  the  Mother  Country,  or  of  the 
colony,  or  (as  may  be  done  in  the  case  of  a  con(|uerLMl 
tjountry)  imposed  l»y  the  mere  act  or  re<,'ulation  of  tlu' 
Kinj^,  in  the  exercise  of  his  royal  prerocrative"  {!>). 

It  may  be  said  that  in  Canada  there  are,  amon«;  the 
provinces,  representatives  of  each  of  the  classes  of  colonies 
referred  to  ))y  the  euiinent  Chief  Justice  whose  words  we 
have  (|Uoted :  and  an  apolof^y,  therefore,  is  liardly  in  order 
for  makin*^  our  in([uiry,  so  to  speak,  %  province.^. 

The  reader  should,  perhaps,  lie  M'arned  that  many  of 
the  English  statutes,  upon  whicli  discussions  have  taken 
place  and  decisions  been  given  to  the  effect  that  the}'  nnist 
be  held  to  l)e  in  force  here,  are  not,  at  this  date,  in 
force  in  Canada,  and  for  the  reason  that  the  subject  with 
which  they  deal  has,  since  they  were  under  judicial 
scrutiny,  received  attention  at  the  liands  of  our  pai'lia- 
ments.  It  cannot  hd  too  carefully  kept  in  mind  that  it  is 
only  in  the  absence  of  Canadian  or  provincial  le(,dslatiun 

(b)  See  post,  Chap.  VI. 


Tin;    SOLUCLS   OF   iJLll    LAW.  77 

(MS  tilt'  cast'  may  '»»')  on  tin-  Hiilijcct,  that  any  (lui'.stion  can 
;iiisf  as  to  tln'  t'H'i'C't  ln'i"»'  of  an  Inipi'iial  t-nac^mont,  [)a.s.s('<l 
lictniv  the  <hite  in  rcffivnce  to  wliich,  En^^lish  hiw  is  to  he 
takt'M  as  a  Hxt'<l  "lio<ly"  of  hiw,  a»nl  iih  .such  introluccd 
into  the  <liit('Pent  provinces.  The  cases  are  colk'ctetl  an<l 
iv\iewe<l  in  or<h'r  to  enHl)le  the  reader  to  fully  ^I'asj),  if 
possilde,  the  principles  on  which  tlu-  decision  nnist  rest, 
which  admits  or  denies  any  Imperial  statut«'  as  opei-ative 
hi  iv,  raiher  than  as  showinj;  wliat  |)articulHr  Impei'ial 
tiiactnients  are  to-day  in  force  in  the  tlifi'erunt  provinces  of 
Canada. 

Si'iiiiH't's  i)f'i(n'('x. — Nova  Scotia,  as  the  (jjdest  o*"  the 
jdovinces,  is  entitled  to  the  tii-st  consich.'ration.  We  liuve 
al'eady  referred  to  the  claim  made  by  tiie  Cieneral  As.semldy 
i»t'  that  province  in  1759,  that  Nova  Scotia  "did  always  of 
ri;;ht  helon^'  to  tlie  Crown  of  En{.,'iat\d,  lioth  hy  priority  of 
ijiscovery  a,nd  ancient  po.ssession  "  (c).  By  the  Nova  Scotia 
courts,  this  claim  would  appear  to  have  lieen  reco<^nized  ;  to 
this  extent,  at  all  events,  that  Nova  Scotia  has  always  1)een 
treatei]  as  a  colony  hy  .settlement  as  distinguished  from  a 
col(aiy  ohtained  l)y  couipiest  or  cession.  Owini,'  to  the 
ahsL'Uce  of  reports  of  the  early  decisions  in  that  province^ 
we  are  unable,  hy  direct  reference  to  decided  ca.ses,  to  show 
the  way  in  which  this  question — how  far  English  law  was 
deemed  to  be  introduced — was  treated  in  the  earlier  years 
<>t  ius  history.  There  is,  however,  one  decision  in  that 
province  which  may  be  considered  classic  upon  this  ques- 
tion, and  su])se(|uent  decisions  have  practically  been  but  tlie 
up|ilication  of  the  principles  eimnciated  in  that  case.  The 
decision  to  which  we  refer  is  that  of  the  Supreme  Court  of 
Nova  Scotia,  in  the  case  of  Uniacke  v.  Dickson  ((/).  Chief 
Justice  Halliburton,  who  then  presided  over  the  court,  had, 
iit  the  time  this  decision  was  given  (19th  February,  1«4S), 
occupied  u  seat  on  the  bench  for  over  forty  yeai-s.  Both 
on  account  of  the  exhaustive  treatment  of  the  whol-  ques- 

{<-)  rtH^f,  p.  26.  (d)  James,  287. 


7.S  TiiK  c.WAin.w  cox.srrrrTio.v. 

tion  C()nt!iin('(l  in  the  opinions  of  the  Chief  Justice  and  Mi'. 
.Justice  Hill,  Hud  heciiuse  the  cuse  is  u  tittin<;'  introduction 
to  our  whole  suliject,  we  venture  to  (juote  Honiewluit  fully 
from  those  (jpinions. 

The  action  was  an  action  on  a  uiorty'Hi'e,  in  which  tlie 
Attorney-Cjreneral  for  the  province  into'vened,  clainiin;;-  a 
char<;e  in  pri(jrity  to  that  of  the  plaintiff'  l»y  reason  of 
certain  dehts  which  were  due  U)  the  Crown  hy  the  moi't- 
j;a^or.  The  claim  was  1)ased  upon  Impei'ial  statutes,  3H 
Hen,  VIII.  c.  30,  and  l-S  Eliz.  c.  4,  the  {.,^eneral  tenor  of 
which,  is  sufiiciently  indicate*!  in  the  jud_i;inents : 

Hallihuutox,  C.J. — 

" To  what  extent  the  laws  of  the 

motlier  country  prevail  in  the  colonies  settled  by  her  descend- 
ants, is  a  question  which  lias  occasioned  much  discussion  without 
producing  any  rule  approaching  to  precision  for  our  guidance. 

"  The  language  of  elementary  writers  upon  this  subject  is 
couched  in  such  general  terms  and  qualified  by  such  numerous 
exceptions,  that  they  perplex  rather  than  enlighten  us. 

"  Our  excellent  Blackstone,  for  instance,  says,  in  his  commen- 
taries (1st  vol.  101),  'it  hath  been  held  that  if  an  uninhabited 
country  be  discovered  and  planted  by  English  subjects,  all  the 
English  laws  then  in  being  (which  are  the  birth-right  of  every 
subject)  are  immediately  there  in  force.'  Had  the  learned 
commentator  stopped  here,  he  would  indeed  have  laid  down  a 
rule  so  broad  as  to  embrace  every  case  and  remove  all  difificulty ; 
no  distinction  is  alluded  to  between  the  con.mon  and  statute 
law,  but  all  the  laws  then  in  force  in  England  are  to  be  at  once 
transplanted  into  the  infant  colony.  His  own. good  sense,  how- 
ever, at  once  pointed  out  to  him  the  absurdity  of  such  a  position, 
and  he  immediately  adds :  'But  this  must  be  understood  with 
very  many  and  very  great  restrictions ;  they  carry  with  them 
only  so  much  of  the  English  law  as  is  applicable  to  their  own 
situation  and  the  condition  of  an  infant  colony ' ;  and  among 

his  exceptions,  he  particularly  mentions  the  laws  of  police  and 
revenue. 

"  Among  the  colonists  themselves  there  has  generally  existed 

&  strong  disposition  to  draw  a  distinction  between  the  commou 


THF    SOl'UCES   OF   (»ri{    F-AW.  79 

and  the  statute  law.  As  a  code,  they  have  heen  disposed  to 
adopt  the  whole  of  the  foniior,  with  the  exception  of  such  parts 
only  as  were  obviously  inconsistent  with  their  new  situations, 
whilst,  far  from  being  inclined  to  adopt  the  whole  body  of  the 
statute  law,  they  thought  that  such  parts  of  them  only  were 
in  force  among  them  as  were  obviously  applicable  to,  and  neces- 
sary for,  them. 

"  As  it  respects  the  common  law,  any  exclusion  formed  the 
exception  ;  whereas,  in  the  statute  law,  the  reception  formed  the 
exception. 

"  Now,  although  this  view  of  the  subject  leads  us  to  nothing 
very  precise,  yet,  if  we  adopt  it,  and  I  think  it  wise  and  safe  to 
do  so,  we  must  hold  it  to  bo  quite  clear  that  an  English  statute 
Is  applicable  and  necessary  for  us  before  we  decide  that  it  is  in 
force  here. 

"The  language  of  C.J.  Chipman,  in  the  cage  of  the  King  v. 
McLaughlin  {»'),  might  induce  us  to  suppose  that  he  did  not 
recognize  this  distinction,  for  he  says:  *As  to  the  distinction 
attempted  to  be  drawn  by  the  counsel  for  the  claimants,  between 
the  common  law  and  the  statute  law  extending  to  the  colonies, 
other  statutes  than  those  mentioned  by  the  Solicitor-General  are 
daily  acted  upon';  but  when  1  turn  to  the  expression  of  this 
able  judge  at  the  commencement  of  his  opinion,  I  think  he 
sanctions  the  distinction.  He  there  says  :  *  Each  colony,  at  ita 
settlement,  takes  with  it  the  common  law  and  all  the  statute  law 
applicable  to  its  colonial  condition.'  indeed,  the  distinction 
exists  in  the  very  nature  of  things,  and  is  derived  from  the 
origin  of  the  two  codes.  The  common  law  has  its  foundation  in 
those  general  and  immutable  principles  of  justice  which  regu 
late  the  intercourse  of  men  with  men,  wherever  they  may 
reside.  The  statute  law  emanates  from  the  wisdom  of  the 
legislature  of  the  day,  varies  with  varying  circumstances,  and 
consists  of  enactments  which  may  be  beneficial  at  one  time  and 

{(')  There  does  not  seem  to  be  any  printed  report  of  this  case,  beyond 
a  note  of  it  in  Stevens'  Dij^.  (N.  B.).  It  involved  the  same  Imperial  Act 
as  was  in  question  in  Uniacke  v.  Dickson  ;  but,  in  New  Brunswick,  the 
Act  was  held  to  be  in  force.  As  will  be  noticed  hereafter,  the  courts  of 
that  province  have  been  more  liberal  in  their  recognition  of  the  binding 
force  in  the  province  of  British  Acts ;  see  j^ont. 


80  THK   CANADIAN    COXSTITrTlON. 

injurious  at  another — which  might  advance  the  interests  of  one 
community,  and  prove  ruinous  to  those  who  were  differently 
situated. 

"My  venerable  predecessor,  C.J.  Blowers,  who  presided  so 
ably  in  the  Supreme  Court  for  many  years,  inclined  to  the 
opinion,  that  those  statutes  only  which  were  in  ameliora- 
tion of  the  common  law,  and  increased  the  liberty  of  the  subject 
were  in  force  here  ;  and  though  (as  we  have  no  reports  of  the 
decisions)  my  memory  does  not  enable  me  to  mention  any  par- 
ticular case  which  he  decided  upon  that  principle,  I  well  recollect 
that  he  was  invariably  influenced  by  it  in  all  cases  to  which  it 
was  applicable. 

"  It  has  been  contended  that  the  33rd  of  Henry  VIII.  is  in 
amendment  of  the  common  law,  and  I  observe  that  Mr.  Justice 
Botsford,  in  the  case  I  have  alluded  to  (Rex.  v.  McLaughlin) 
gave  a  reluctant  assent  to  the  adoption  of  it  in  New  Brunswick 
upon  that  ground.  The  74th  section,  to  which  he  particularly 
alluded,  may,  perhaps,  be  deemed  to  have  that  tendency^ 
although  conflicting  decisions  have  been  given  in  cases  arising 
upon  it,  in  Westminster  Hall ;  but  surely,  taking  the  statute 
as  a  whole,  it  never  can  be  considered  in  that  light.  Bub 
without  excluding  either  statute  upon  that  ground  alone,  let  us 
inquire  upon  what  ground  they  are  now,  for  the  first  time,  to  be 
adopted,  when  we  have  had  a  local  legislature  for  nearly  a  cen- 
tury, fully  empowered  to  make  such  laws  as  the  interests  of  the 
colony  has  required 

"  In  continuing  his  observations  upon  the  extension  of  the 
laws  of  England  to  the  colonies  of  the  Empire,  Blackstone  says^ 
in  the  same  page  from  which  I  have  already  quoted,  '  What 
shall  be  admitted  and  what  rejected,  at  what  times  and  undei" 
what  restrictions,  must,  in  case  of  dispute,  be  decided,  in  the  first 
instance,  by  their  own  provincial  judicature,  subject  to  the 
revision  and  control  of  the  King  in  Council.'  It  is  not  con- 
tended that  either  of  these  statutes  has  ever  received  this  sanc- 
tion in  Nova  Scotia.  The  attempt  to  enforce  them  here  is  now, 
for  the  first  time,  made  ;  and  it  appears  to  me  to  be  incumbent 
upon  those  who  preside  in  the  respective  courts  of  judicature  in 
this  province  gravely  to  consider  whether  the  adoption  of  their 


THE   SOURCES   OF   OUH    LAW.  81 

provisions,  if  it  be  jinlicions  to  adopt  them,  is  not  now  rather 
the  province  of  the  lef,'i  slatnre  than  the  courts. 

"  In  the  early  settlement  of  a  colony,  when  the  local  legisla- 
ture has  just  been  called  into  existence,  and  has  its  attention 
tnj,'rossed  by  the  immediate  wants  of  the  infant  community  in 
their  new  situation,  the  courts  of  judicature  would  naturally 
look  for  guidance,  in  deciding  upon  the  claims  of  litigants,  to 
the  general  laws  of  the  mother  country,  and  would  exercise 
greater  latitude  in  the  adoption  of  them  than  they  would  be 
iiititled  to  do  as  their  local  legislature,  in  the  gradual  develop- 
ment of  its  powers,  assumed  its  proper  position.  Kirn/  i/cur 
slmiihl  irnih'f  till'  courts  uuire  aottioun  in  the  oilnjition  of  hnrs  that 
lull}  neccr  hcen  iiri'n'niislii  intnuhweil  Into  the  ruloui/,  for  prudent 
judges  would  remember  that  it  is  the  ]no\ince  of  the  courts  to 
(Itclare  what  is  the  law,  and  of  the  legislature  to  decide  what  it 
sliall  be. 

"Impressed  with  this  view  of  the  distinct  functions  of  the 
legislature  and  the  courts  at  this  per'od  of  our  colonial  exist- 
ence, it  does  appear  to  me  that  if  additional  fiscal  regulations 
are  necessary  to  assure  the  due  collection  and  payment  of  our 
provincial  revenue,  it  would  be  more  proper  to  apply  to  the 
legislature  to  adopt  such  as  they  may  deem  prudent,  than  to 
reijuire  from  the  courts  the  adoption  of  English  statutes  which 
were  passed  centuries  ago,  under  sovereigns  who  were  sufficiently 
careful  of  the  preservation  of  their  power,  and  by  parliaments 
who,  to  say  the  least,  paid  as  much  attention  to  the  prerogatives 
of  the  Crown  as  they  did  to  the  privileges  of  the  people — 
statutes,  the  rigours  of  which  have  been  diminished  in  the 
mother  country  during  the  reign  of  our  present  gracious  Queen^ 
(5  Victoria,  c.  11). 

"  Should  this  course  be  pursued,  our  legislature  can  intro- 
tlnce  similar  ameliorations  of  these  statutes,  if  they  think  it  right 
to  adopt  them.  The  courts  have  no  such  power ;  but  if  they 
adopt  them  at  all,  must  adopt  them  in  all  their  rigour. 

*'  The  33rd  of  Henry  VIII.,  if  enforced  here  as  it  now  stands 
in  the  English  statute  book,  would,  to  a  great  extent,  be  destruc- 
tive of  that  security  to  purchasers  of  real  estate  which  our 
registry  Acts  were  passed  to  ensure.  .        -      ' • 

Can.  Con.— 6 


<S2  THE   CANAF)IAX    CON'STITriKtX. 

"  The  18th  of  Ehzabeth  would  partially  have  that  effect 
also,  but  not  so  mischievously,  because  the  officers  liable  to  its 
provisions  would  be  generally  known.  But  bonds  to  the  Crown, 
in  security  for  the  payment  of  duties,  are  given  all  over  the  pro- 
vince by  persons  engaged  in  the  trade  and  others,  and  no  one 
could  be  sure  that  he  was  safe  in  purchasing  real  estate  if  that 
statute  should  be  now  adopted. 

"  There  is  another  objection  to  the  adoption  of  these  statutes 
which  I  think  has  some  weight.  The  Supreme  Court  has 
generally  considered  that  when  the  local  legislature  has  legis- 
lated upon  any  particular  subject,  relative  to  which  English 
statutes  had  previously  existed,  the  colonial  courts  are  to  be 
guided  by  the  provincial  and  not  the  English  statutes  in  deciding 
questions  upon  such  subjects.  Thus,  upon  a  claim  of  a  mother 
to  succeed  to  the  personal  estate  of  her  deceased  child,  to  the 
exclusion  of  her  other  children,  the  Supreme  Court  of  this  pro- 
vince decided  that  she  was  entitled  to  do  so,  because  our  legis- 
lature had  re-enacted  the  provisions  of  the  statutes  of  Charles 
II.  upon  that  subject,  but  had  not  at  that  time  (although  they 
have  since)  re-enacted  those  of  1  James  II.,  which  latter  statute 
had  passed  before  we  had  a  local  legislature. 

"  Now,  our  legislature  have  had  the  subject  of  the  securities 
necessary  to  be  given  for  the  safe  collection  of  the  revenue, 
under  their  consideration,  and  have  passed  laws  upon  that  sub- 
ject, which  direct  that  the  officers  appointed  to  collect  it  shall 
give  bonds,  in  which  they  shall  be  joined  by  sureties,  for  the 
faithful  discharge  of  their  duties ;  and  that  those  who  import 
goods  liable  to  pay  duties  to  the  Crown,  under  the  Acts  of  this 
province,  shall  not  only  give  bonds  for  the  payment  of  those 
duties  as  they  become  due,  but  shall  also  give  warrants  of 
attorney  to  confess  judgment  upon  those  bonds  ;  a  measure  that 
would  have  been  unnecessary  if  the  statute  of  Henry  VIII.  was 
in  force  here,  for  that  statute  would  have  made  the  bonds  them 
selves  debts  of  record.  If  these  sureties  are  not  sufficient,  the 
legislature,  and  not  the  courts,  should  be  applied  to,  to  remedy 
the  evil. 

"  For  these  reasons  I  am  of  the  opinion  that  these  statutes,  on 
which  the  Attorney- General  has  founded  the  right  of  the  Crown 


THE   S(»riUES   OF  (n'U    LAW.  ,S.S 

to  interpose  in  this  case  are  not  in  force  here,  and  consequently 
that  right  cannot  be  sustained  by  them " 

Hill,  J.— 

" Then,  upon  the  best  consideration  I  have 

been  able  to  give  to  the  question,  I  am  of  opinion  that  neither 
tlie  statute  88  Hen.  VIH.  c.  8U,  nor  that  of  18  Elizabeth,  c.  4, 
t'xteiid  to,  or  are  operative  in,  this  province.  There  is  confess- 
edly no  precise  rule,  nor  can  we  expect  to  find  any  direct  decision, 
as  to  what  Imperial  statutes  extend  to  the  colonies  discovered, 
settled,  and  peopled  by  British  subjects.  Tlir  i/wstinu  seews  U) 
hi',  find  inihnl  mmt  of  iwressitij  /*/■,  left  (>i>i'n  ^»  he  ileriU'd  in  encli 
jKirticular  cohmij  and  casr  In/  the  rmirts  eatnldished  in  tkase  ndonies. 
A  law  that  would  be  very  fit,  advantageous,  and  applicable  to 
one  colony,  might  be  very  inapplicable  to,  and  unfit  for  another 
— one  very  requisite  in  one  colony,  might  not  be  at  all  required 
in  another ;  nay,  might  be  very  unfit  for  it,  and  injudicious  to  be 
adopted . 

"  The  general  rule  on  this  subject  appears  to  be,  that  wherever 
English  subjects  discover  and  possess  themselves  of  an  unin- 
habited country,  they  carry  with  them  such  of  the  English  laws 
then  in  force  as  are  applicable  and  necessary  to  their  situation  and 
the  condition  of  the  infant  colony  ;  as,  for  instance,  laws  for  the 
protection  of  their  persons  and  property.  Wherever  an  English- 
man goes,  he  carries  with  him  as  much  of  the  English  law  and 
liberty  as  the  nature  of  his  situation  will  allow.  Lord  Mansfield, 
in  the  case  of  Lindo  v.  Lord  Rodney,  reported  in  note  (/)  to  the  case 
of  Le  Caux  v.  Eden,  Doug.  594,  says :  '  The  colonies  take  all  the 
common  and  statute  law  of  England  applicable  to  their  situation 
and  condition.'  Blackstone,  in  his  Commentaries,  Vol.  L  106 
thus  lays  it  down:  'Besides  these  adjacent  islands  (the  islands 
of  Jersey,  Guernsey,  and  others)  our  more  distant  plantations  in 
America  and  elsewhere  are  also,  in  some  respects,  subject  to  the 
English  law.  Plantations  or  colonies  in  distant  countries  are 
either  such  where  the  lands  are  claimed  by  right  of  occupancy 
only,  finding  them  desert  and  uncultivated,  and  peopling  them  for 
the  mother  country ;  or,  when  already  cultivated,  they  have  either 
been  gained  by  conquest,  or  ceded  to  us  by  treaties ;  and  both  these 
rights  are  founded  upon  the  law  of  nature,  or  at  least,  upon  that 
of  nations.    But  there  is  a  difference  between  these  two  species 


84  THE   CANADIAN   CONSTITUTION. 

of  colonies  with  respect  to  the  laws  by  which  they  are  bound ; 
for  it  hath  been  held  that  if  an  uninhabited  country  be  discov- 
ered and  planted  by  Enj^dish  subjects,  all  the  English  laws  then 
in  being,  which  are  the  birth-right  of  every  subject,  are  immedi- 
ately there  in  force.  But  this  '  (that  is  the  doctrine  laid  dowii 
in  Salk.  411  and  OOG,  whom  Blackstone  quotes)  'must  be  under- 
stood with  very  many  and  very  great  restrictions.  Such 
colonists  carry  with  them  only  so  much  of  the  English  law 
as  is  applicable  to  their  own  situation  and  the  condition  of 
an  infant  colony;  such,  for  instance,  is  the  general  rules  of 
inheritance  and  of  protection  from  personal  injuries.  The  arti- 
ficial refinements  and  distinctions  incident  lo  the  property  of 
a  great  commercial  people,  the  laws  of  police  and  revenue  (such 
especially  as  are  inforced  by  penalties)  the  mode  of  maintenance 
for  the  established  clergy,  the  jurisdiction  of  spiritual  courts,  and 
a  multitude  of  other  provisions,  are  neither  necessary  nor  con- 
venient for  them,  and,  therefore,  are  not  in  force.  What  shall  be 
admitted  and  what  rejected,  at  what  times,  and  under  what  re- 
strictions, must,  in  case  of  dispute,  be  decided,  in  the  first 
instance,  by  their  own  provincial  judicature,  subject  to  the 
revision  and  control  of  the  King  in  Council.' 

"  Blackstone,  therefore,  dissents  from  the  unrestricted  posi- 
tion in  Blankard  v.  Galdy,  Salk.  411. 

"Chitty,  on  Prerogatives  of  the  Crown,  p.  30,  appears  to  adopt 
the  doctrine  as  modified  and  restricted  by  Blackstone.  He  9ay?> 
'  If  an  uninhabited  country  be  discovered  and  peopled  by  Eng- 
lish subjects,  they  are  supposed  to  possess  themselves  of  it 
for  their  sovereign,  and  such  of  the  English  laws  then  in  force 
as  are  applicable  and  necessary  to  their  situation  and  the  condi- 
tion of  an  infant  colony— as,  for  instance,  laws  for  the  protection 
of  their  persons  and  property — are  immediately  in  force.  Wher- 
ever an  Englishman  goes,  he  carries  with  him  as  much  of  Eng- 
lish law  and  liberty  as  the  nature  of  his  situation  will  allow.' 

"  Chitty  refers  to  an  anonymous  case,  in  2  P.  Will.  75,  and  to 
the  Queen  v.  Mayor  and  Aldermen  of  Norwich,  2  Ld.  Raymond, 
1245,  in  which  last  case  Lord  Holt  refers  to  Blankard  v.  Galdy. 

"  Clarke's  Colonial  Law,  p.  7,  is  merely  a  repetition  of  what 
Blackstone  has  already  ::.did  on  this  subject,  and  from  whom  I 
have  quoted. 


THE  .SOL'UCES   Of   OL'U    LAW.  H5 

"  The  whole  tenor  and  spirit  of  what  all  the  writers  on  this 
suhJL'Ct  have  said,  and  of  all  the  eases  relating  to  it,  in  my  mind, 
leave  the  question  under  conside-ation  widely  open,  and  that 
irli.ctlier  (I  jiiirticiiltir  statute  ilons  or  ilm's  )tnt  t.itinil  to  n  coltmij  is  to 
hi'  thridi'd  in  ciicJi  iKtrticuUw  ciiae  hij  thf  colonini  Judicature,  subject 
to  an  appeal  home. 

"  When  this  colony  was  first  settled  and  possessed  by  English 
subjects,  were  these  two  statutes  applicable  and  necessary  to  the 
condition  and  state  of  the  first  occupiers  and  possessors  ?  Did 
the  state  of  the  colony  require  them  to  be  in  force  ?  I  do  not 
conceive  the  question  to  be  whether  the  whole  or  some  small 
part  of  these  Acts  might  not,  as  it  wera,  be  pressed  into  the 
service,  but  whether  they  are  necessary  to  our  wants  and  require- 
ments ?  Looking  then  at  ti'e  matter  in  this  point  of  view,  I 
cannot  say  that  these  statutes  were,  or  are,  necessary  to  the  state 
and  condition  of  Nova  Scotia — to  "ts  wants  and  requirements.  In 
that  great  country  where  these  statutes  were  passed,  the  rights  of 
tiie  Crown  were  considered  sufficiently  protected  under  the  com- 
mon law  until  the  time  of  their  enactment ;  and  in  an  infant 
colony  like  this,  at  its  first  settlement,  and  even  now,  the  rights 
of  the  Crown  will  find  ample  and  adequate  protection  under  that 
same  law,  without  requiring  the  aid  of  these  stringent  statutes. 
There  is  no  danger,  I  think,  of  its  being  prejudiced  in  the  collec- 
tions of  its  revenue,  or  otherwise. 

"  Up  to  this  period  I  have  never  heard  of  any  complaint  or 
difficulties  upon  the  subject.  In  England,  where  the  Crown 
revenues  were  so  great,  and  derivable  from  so  many  resources, 
and  where  its  dues  necessarily  pass  through  so  many  hands,  it 
might  be  very  proper  to  clothe  the  Crown  with  greater  authority 
and  security  to  collect  its  revenues.  But  how  could  that  be 
necessary  here,  on  the  first  settlement  of  the  country,  when  the 
Crown  may  be  literally  said  to  have  had  no  revenue  from  any 
source,  nor  any  debts  due  to  it  ?  But  how  has  the  colonial 
legislature  silently  spoken  upon  this  subject  ?  If  it  had  been 
thought  that  these  statutes  were  wholesome,  necessary,  and 
applicable  to  us,  I  cannot  but  think  that  our  legislature  would 
have  so  said  by  re-enacting  them.  The  legislature,  in  its  very 
first  session  in  1758,  did  re-enact  many  provisions  of  English 
statutes  which  were  thought  applicable  to  our  situation,  and 


86  rilK    (ANADIAX    CON'sTITniON'. 

from  time  to  time  such  re-enactments  liavo  f'onml  tlieir  way  into 
our  statute  books,  but  we  find  notliin;,'  of  these  statutes  l)ein{,' 
re-enacted.  Does  not  then  this  fact  show  in  stron<,'  colors  what 
th  opinion  of  our  le^'islature  was  and  lias  been  on  the  niatter? 
for,  as  I  have  remarked,  if  occasion  had  called  for  it,  there 
undoubtedly  would  have  been  a  re-enactment.  As  far,  there- 
fore, as  the  opinion  of  the  le<,'i3lature  may  be  gathered,  these 
statutes  do  not  extend  to  us;  and  I  must  add,  that,  on  a  refer- 
ence to  our  statute  book,  it  will  be  found  that  very  particular 
attention  has  been  paid  to  the  securing  the  debts  of  the  Crown 
under  our  various  revenue  Acts,  and  particularly  under  tliose  of 
a  later  date.  The  mode  of  securing  and  the  manner  of  collect- 
ing are  precisely  pointed  out,  so  that  it  is  manifest  the  subject 
of  the  Crown  debts  has  been  under  the  consideration  of  our  own 
legislature.  I  allude  to  this,  not  as  showing  that  our  legislature 
would  abrogate  the  statutes  of  Henry  and  Elizabeth,  but  as  an 
argument  that  they  did  not  extend  to  us. 

"  Thus  far,  then,  as  to  the  legislature.  What,  then,  has  been 
the  opinion  i  i  practice  among  the  profession  ?  Cases  nuist 
have  arisen  i  which  these  statutes,  if  extending  here,  might, 
and  probably  would,  be  called  into  operation ;  and  yet  this  is 
the  first  occasion  on  which  the  attention  of  any  court  in  the 
province  has  been  called  to  them.  The  contrary  has  not  been 
asserted ;  and,  no  doubt,  the  fact  is,  that  the  writ  of  extent  never 
issued  in  this  country.  The  ordinary  process  of  our  courts  has 
invariably  been  the  mode  of  collecting  the  Crown  debts.  Why, 
then,  has  this  been  so?  I  apprehend  merely  because  no  incon- 
venience has  ever  been  found  to  flow  from  following  the  ordinary 
and  prevailing  practice — no  detriment  to  the  rights  or  interests 
of  the  Crown.  This  non-user,  if  I  may  so  speak,  of  either  of 
these  statutes,  this  wan*  of  any  reference  to  them,  convinces  me 
that  the  profession,  at  all  events,  never  considered  them  as 
having  any  efficacy  with  us. 

"Now,  the  interest  in  this  case  is  entirely  local,  it  alone  con- 
cerns the  province  and  the  support  of  its  government;  no 
portion  of  this  money  goes  into  the  private  cotters  of  the 
sovereign,  or  into  the  Imperial  treasury;  and  when  circum- 
stances shall  demand  it,  doubtless  we  shall  pass  our  statutes  of 
Henry  and  Elizabeth,  as  was  done  in  England. 


THK  SOl'UCKS  OK  inn   I,A\V.  ,S7 

But  let  ns  suppose  that  our  lt'<,'islature  in  IToH  Imd  re-enactod 
those  two  statutes,  or  tliat  portion  of  them  whicii  reluti'S  to  the 
matter  in  liand  ;  could  it  l)o  said  that  tiiey  were  necessary,  or 
rather,  coidd  it  be  denied  that  their  enactment  would  have  been 
absurd,  inasmuch  as  there  was  nothing  for  them  to  operate  on. 

"  The  question,  therefore,  after  all,  is  a  narrow  one,  and  may 
lie  said  to  be  more  addressed  to  our  judgment,  ^(,i  /innleiit  nml 
liiilit'JKihiini/  men,  than  as  lawyers  and  judges.  My  opinion, 
therefore,  is  based  upon  this  consideration,  that  neither  of  these 
statutes  was  api)licable  and  necessary  to  our  state  and  condition 
when  the  province  was  iirst  settled,  nor  at  any  time  since,  and 
that  the  rights  of  the  Crown  are  amply  protected  and  secured  by 
the  common  law." 

Acts  in  curtuihiu'iit  «>!'  pivro^^oitive  seem  to  Inivc  lieen 
t'.ivonilily  looked  on  l»y  Nova  Seotiii  j'udt^es.  ^luti-na  Chartn 
.ind  the  Hec<ui(l  and  third  eharterH  of  Henry  III.  were  held 
(  /)  t)  he  operative  W'thin  the  province,  to  prevent  the 
Crown  from  n^rantin^'  a  general  ri^ht  of  fishery;  for,  as  was 
said,  a  tyrant  to  support  that  must  he  as  old  as  the  rei^n  of 
Henry  II.,  and,  therefore,  heytuid  le<^al  'neni<»ry  ;  for,  by 
Mai;na  Charta  and  the  chartei's  of  Hev.i/  III.,  the  kiny;  is 
expressly  })recln<le<l  from  makin<;'  fresh  ;4TantH.  A^ain,  it 
was  held  (7)  that  where  huul  had  Ijeen  yrante<l,  with  a 
condition  that  the  <i;i'ant  should  he  void  if  the  land  were 
n  )t  settled  upon  within  a  certain  time,  no  new  tyrant  could 
he  made  without  impiest  taken:  the  provisions  of  the 
statutes  S  Henry  VIII.  c.  1(1,  and  LS  Henry  VIII.  c.  (), 
hein;^  held  operative  within  the  province,  to  prevent  .such 
new  g-rant  from  taki.  ^;"  ett'ect.  The  view  acte<l  upon  by  the 
court  is  thus  expres.sed  : 

"  The  very  grievances  intended  to  be  remedied  and  redressed 
by  this  statute,  are  those  under  which  the  subjects  of  this 
province  might  well  say  they  labored,  if  it  were  held  that  land, 

if)  Meianer  v.  Fanning,  2  Thorap.  97. 

(,'/)  Wheelock  v.  McKeown,  1  Thorap.  41  (2nd  ed  );  and  see  also  Miller 
V.  Lanty,  ib.,  IGl. 


88  THK  CANADIAN    (ONSTITl'TIOX. 

granted  with  a  condition  timt  the  grant  siioiihl  he  void  if  the 
land  were  not  settled  on  within  a  certain  time,  could  i)e  siibse- 
<iuently  granted  without  infjuest  of  otlice." 

Tlu;  .same  view  was  thus  expressiMl  in  a  Inter  ciise  (//) 
inv()lvinj(  considiTiition  of  the  sunie  stutnte  : 

'  '•  The  court  has  uniformly  decided  that  when  there  is  /'/«•»// 
(Hissessii)  lield  against  the  Crown — particularly  under  color  of 
title — the  Crown  must  re-invest  itself  with  the  possession  before 
it  can  grant ;  and,  if  it  grant  while  it  is  out  of  possession,  that 
grant  is  void  under  H  Henry  VIII.  c.  1(5,  and  lb  Henry  VUI. 
c.  u. 

In  u  Htill  later  case  (/),  invcdvinj^CDnsidcration  of  21  Jac. 
I.  c.  14 — an  Act  hi  jmri  iimtct'ln  with  the  statutes  of 
Ht.'nry.ahove  referred  to — Youn;;',  t'..J.,siH'akin<;()f  rniackc 
V.  Dickson  and  the  statute  there  in  (juestion,  says: 

"The  statute  of  James  is  of  a  different  character.  The 
object  of  the  former  was  to  extend,  that  of  the  latter  is  to  limit 
and  restrain,  the  prerogative  of  the  Crown,  and  that  for  a  highly 
beneficial  purpose,  and  for  the  protection  and  benefit  of  the 
subject.  What  class  of  persons  is  better  entitled  to  the  favor  of 
the  legislature  and  the  courts  than  the  men  who  transform  a 
rude  country  into  smiling  habitations,  and  hi  it  for  the  use  and 
enjoyment  of  man?  I  look  upon  this  statute  of  James  as 
peculiarly  suited  to  our  condition  and  circumstances,  and  to 
have  the  same  title  to  be  considered  part  of  ou.  law,  and  on  the 
same  principle  on  which  we  have  always  recognized  the  Statute 
of  Uses  and  the  statute  <//-  Douin  until  the  present  enactment 
abolishing  estates-tail." 

The  \iew  expressed  by  Hallilnu'ton,  C.J.,  in  Uniacke  v. 
Dickson,  that  after  a  legislature  has  been  duly  c(jnstitute(l 
in  a  colony,  and  has,  ho  to  speak,  settled  down  to  its  work, 
courts  of  law  should  be  very  cautious  in  j^ivino-  ert'ect  to 
Imperial  Acts  which  had  never  been  previously  acted  upon 

(/i)  Scott  V.  Henderson,  2  Thomp.  115. 
(.)  Smyth  V.  McDonald,  1  01c\  274. 


THE  HOl'Ut'ES  OK  (»L  H    LAW.  h!) 

in  the  coloijy  (./),  Iwis  I'vitlcntly  luul  ii  must  jtowfrful  «'rtV'et 
in  sul)stM|Ut'nt  chsim.  For  iiistiiiu't'.  tin-  coiii't  rt'tust'tl  to 
viHit  U[M)ii  the  Nlicritr  of  Hiiliiux  |>»'iiiilti»'s  to  which  h»' 
Would  hiivc  Imm'11  Hulilr  Uli(h'l'  Kli;;liHh  stiltutt'S,  hfciiusc  thr 
Xovu   Sootiii    h';;i.slaturt'  "  huN*'   wisely   ic;;ishiti'il    for    thr 

whole  nuitter The  iiiipenitiN f  woi-<|.s  of  the 

Kii;xhHh  stiitute  throw  tlu-  reM[)oiisil)ility  upon  the  sheriff 
in  Kii^^hinti,  hut  these  words  are  not  to  he  found  in  our 
statute,  and  therefore  neither  hiw  nor  justice  throw  it  upon 
liini  heiv"  (/). 

And,  in  like  niaiuier,  the  Imperial  statutes  2H  Kdw.  III. 
V.  \'A,  antl  M  Hen.  VI.  c.  2!),  ;;ivin}^^  aliens  a  ri^dit  to  n 
jnry  <l('  iiifil'mfofr  l'ni(/ti(i(',M\i\  the  other  statutes  with  that 
ohject,  were  held  (/)  not  to  he  in  force  in  Nova  Scotia, 
hi'cause  : 

"  In  the  numerous  Jury  Actj",  cxtendinji,'  from  1750  .  .  . 
down  to  the  Uevised  Statutes  (2nil  ser.),  not  the  slightest 
allusion  nor  provision  for  this  privilege  of  aliens  ...  is  to 
III'  found.  This  long  course  of  legislation,  coupled  with  the  fact 
that  it  has  never  before  been  claimc^  in  our  courts,  though  the 
idea,  and  the  usage  in  the  mother  country,  were  familiar  to  every 
lawyer,  is  strong  evidence  of  the  opinions  held  by  our  judges  and 
legislators." 

In  a  late  ease  {in),  the  Supreme  Coui't  of  Nova  Scot  in 
had  to  consider  the  ((uestion  whether  or  not  the  ini[)erial 
statute  18  Geo.  II.  c.  1<S,  re(piirin<;'  notice  to  a  convictin;^- 
justice,  of  a  motion  for  a  writ  of  ccrfltti'iii'ljiud  limiting-  the 
time  for  niovinij;  tor  such  writ,  to  six  months  from  convic- 
tion,  was  in  force  in  the  province.     Reference  was  nuule  hy 

(J)  See  the  passafje,  ante  p.  HI. 

(/i)  Jackson  v.  Campbell,  1  Thonip.  18  (2nd  ed). 

(/)  Reg.  V.  Bnrdell,  1  Old.  TiC. 

(m)  Reg.  V.  Porter,  20  N.  S.  R.  Reference  i8  made  to  Ihe  fact  that  in 
Tpper  Canada  it  had  been  always  treated  as  in  force  there.  It  appears 
to  have  been  acted  on  in  Nova  Scotia.  See  Reg.  v.  McFadden,  (i  R,  cV  &. 
■42(1,  and  McDonald  v.  Ronan,  7  R.  tV  G.  2").  As  to  New  Brunswick,  see 
I'o^t,  p.  ".t4. 


t 
00  llli:   <ANAI)IA\    cnNSTITiriON'. 

Hitc'liif,  .J.,  ill  ilrlivt'iiii;^  tlif  ju<l;;iii<'Mt  ol"  tli«'  court,  t«> 
Uniju'kf  y.  Dickson.  AthT  <|Uotiii;4'  tln'  cuutioii  ol"  Hiilli- 
Imiton,  ('..I.,  hIxivc  ivt'crrcd  to,  tlic  opinion  proceeds: 

"  If  this  caution  was  iit'cessnry  forty  years  a^o,  there  is  nuich 
nioro  necessity  for  caution  now,  in  view  of  the  fact  that,  since 
then,  very  many  Acts  have  heen  passed,  re<,'ulKtin<<  the  practice 
aiitl  proceihire  of  this  court,  and  tiio  removal  of  causes  from 
iulV'rior  courts.  .  .  .  Now,  our  lej,'ishiture  has  passed  several 
statutes  on  the  suhject.  ...  I  cannot  see  that  19  (leo.  II. 
c.  18,  is  obviously  applicai)lt!  and  necessary  to  our  condition 
in  this  province;  and  as  our  le^'islature  l^is  undertaken  to  legis- 
late in  the  matter  of  rrrtinrtiri,  and  has  enacted  many  of  the 
provisions  of  the  English  statutes  on  that  subject,  omitting  those 
contained  in  the  Act  in  ipiestion,  I  have  been  unable  to  come  to 
the  conclusion  that  that  Act  is  at  present  in  force  here." 

Anuniherof  Inip»'riiil  Acts,  pjiHsed  pi'ior  to  the  scttle- 
nit'iit  of  Xovii  Scotia,  have  lu'en  acted  upon  without  (pU's- 
tioii,  a.s  having  h'/eii  introduced  into  the  colony  u^ion  its 
.settlement.  The  Statute  of  L^se.s  was,  without  fpiestion, 
treated  as  bein;;'  in  force  within  the  province  (n),  while  its 
companion — the  Statute  of  Knrolment — would  appear  to 
have  been  thought  inapi)lical)le,  by  reason  of  the  lack  of 
facilities  foi-  enrolment  (o).  The  Imperial  Acts,  81  Hen. 
VIII.  c.  1,  and  82  Hen.  VIII.  c.  82,  allowiii";-  partition 
between  joint  tenants  and  tenants  in  connnon,  were  held 
to  have  been  introduced  into  Nova  Scotia  as  part  of  the 
Eno-li.sh  law  ;  and  the  Nova  Scotia  lei^dslature,  in  passing 
K.  S.  N.  S.  c.  18f),  s.  1,  was  held  to  have  intended  to 
make  the  remedy  thereby  provided,  concurrent  with  the 
remedy  under  those  statutes  of  Henry  VIII.  (y>).  In  the 
case  of  "The  Dart "  (7),  the  provisicms  of  3Ia<^ia  Charta, 
an<l  of  the  Statute  of  Staples,  27  Edward  III.  c.  17, 
which  provided  that,  "  In  case  of  war,  merchant  strangers 

(n)  Shey  v.  Chisholm,  James,  52. 

(o)  Berry  v.  Berry,  i  R.  &  G.  (>() ;  see  the  contrary  holding  in  New 
Brunswick,  Doe  d.  Hanington  v.  McFadden,  Berton,  153,  jJOxt,  p.  92. 

ip)  Doane  v.  McKenny,  James,  328.  (7)  Stewart. 


THK   smUCtM  nF   n(  H   LAW.  !)1 

sliiill  luivi'  fn'f  lili«'ity  to  <lt'|iiirt  the  r«'iiliii  with  their  ^^ood.s 
IVt'i'ly,"  were  ent'iuved  in  favor <»t'  iin  Aiiieiiniii  vcmh*-!,  H»'i/f<| 
hrl'ore  tlie  conmH'iicfment  of  the  American  wai"  of  liSpJ. 
The  Act  HJ  Kli/.  c.  5,  ivHjM'otin^'  fianthilent  convryanccs, 
seeiMH  to  luive  hccn  acted  npon  without  i|ne.stion  (/•), as  also 
the  Act  'i2  Ih'ury  \'III.  c.  !),  against  the  hnyin;;  of  ])ie- 
tendetl  tith'H  {x). 

Tpoji  a  review  of  these  Nova  Scotia  (h'oi.sionH,  it  wouM 
certainly  appear  that  the  aihnisHion  of  Imperial  HtatiiteH,  as 
(iperative  within  the  pro\ince,  has  Keen  the  exception: 
those  which  have  heen  held  to  he  in  foi'ce,  iieine',  in  the 
main,  statutes  in  amelioration  of  the  ri;;ors  of  the  connnon 
law,  Acts  in  curtailment  of  pi'eron^ative  or  in  enlarecmeiit 
of  the  liherty  of  the  suhject.  To  a  ;;'reater  extent  than  lias 
h"en  the  case  in  either  New  IJrunswick  or  Ontario,  the 
jiidj^es  of  Xova  Scotia  have  deemed  it  the  office  of  le^isla- 
tim,  I'ather  than  of  judicial  <lecision,  to  brint;'  into  operation 
within  the  province,  the  provisions  of  Im})ei-ial  statutes  not 
ori;;inally  capahleof  hein^"  made  operative,  hut  which  mi^ht 
he  thought  suitable  to  the  chan^^ed  circumstances  of  the 
colony.  And  in  the  same  spirit,  it  was  laid  down  (0,  that 
where  an  Ent^lish  Act  is  held  to  Ik;  in  f(n'ce,the  courts  "will 
not  'ffWe  it  a  further  extension  than  it  receivetl  in  the  land 
of  its  oriein.  The  operation  of  an  En;;lish  statute  may  he 
contined,  T  take  it,  within  narrower  hounds  hy  the  circum- 
stances and  situation  of  the  colony  to  which  it  has  been 
hrou^ht;  but  it  can  never,  as  it  appears  to  me,  l)ecome  a. 

(r)  Tarratt  v.  Sawyer,  1  Thoinp.  H\  ('2nd  ed.) ;  Moore  v.  Moore,  1  R. 
A  G.  525 ;  and  Graham  v.  Bell,  5  R.  *  G.  'JO. 

{■■<)  Wheelock  v.  Morrison,  1  N.  S.  D.  837 ;  Scott  v.  Henderson,  2 
Thomp.  115.  Other  Imperial  Acts  which  have  been  treated  as  in  foice 
in  Xova  Scotia,  are:  13  Edw.  I.  c.  18  (elegit),  Caldwell  v.  Kinsman^ 
James,  3!)8;  2  Hen.  IV.  c.  7  (judgment  of  nonsuit),  Grant  v.  Protectiou 
Ins.  Co.,  1  Thomp.  12  (2nd  ed);  7  Hen.  VIII.  c.  4  (damages  in  replevin); 
Freeman  v.  Harrington,  1  Old.  o58 ;  and  see  Congdon's  N.  S.  Dig.,  coL 
I'l-'lti,  et  nei], 

(t)  Freeman  v.  Morton,  2  Thomp.  852,  per  Bliss,  J. 


•92  THE   CAXADIAX   CONSTITL'TlOX, 

statute  of  oTouter  effect  or  more  enlar^'od  coiistniction 
than  was  ^-iveii  to  it  in  the  intention  of  those  hy  whom  it 
was  passed.     Tliis  is  the  office  of  le<»'islation  alone." 

New  BurxswicK. — In  this  province,  we  have  the  same 
iHfficulty  to  contend  with  as  was  noted  in  the  case  of  Nova 
Scotia,  namely,  that  there  are  no  reports  of  the  earlier 
decisions  in  the  province  durin«:^  the  time  when  this  question 
would  be  most  t'recjuently  under  consideration.  The  earliest 
reported  case  (u)  in  which  we  are  furnished  with  the  opin- 
ions of  the  jud<jjes,  is  Doe  dcm  Hanin<jton  y.  McFadden  (r), 
in  which  the  Supreme  Ct)urt  of  that  province  had  to  con- 
.sider  wliether  or  not  the  Statute  of  Uses  and  its  companion 
— the  Statute  of  Enrolment — were  in  force  in  the  province, 
and  that  case  has  had  a  very  lar^e  controllinj;'  influence  in 
New  Brunswick.  Chipman,  C.J.,  <piotes  with  approval  the 
lan<(uaoe  of  Sir  W.  Grant  in  Attorney-General  v.  Stewart 
(iv),  and  takes  as  his  jjjuide,  the  principle  enunciated  in  that 
•case — "Whether  it  l)e  a  law  of  local  polic}',  adapted  solely 
to  the  country  in  which  it  was  made,  or  a  general  regu- 
lation of  propert}',  ecpially  applicable  to  any  country',  in 
which  it  is  by  the  rules  of  English  law  that  property 
is  governed."  As  to  the  Statute  of  Uses,  no  doubt  what- 
ever was  expressed ;  the  fact  that  that  statute  had  been 
generally,  if  not  universally,  considered  to  be  in  force  in 
the  old  American  colonies,  was  treated  as  indicative  of  the 
general  understanding  tliat  the  statute  was  carried  l)y 
emigrating  colonists  as  part  of  the  law  of  England  relating 
to  real  property.  As  to  the  Statute  of  Enrolment,  more 
hesitation  seems  to  have  l>een  expressed ;  l)ut  all  the 
judges  concurred  in  treating  the  two  statutes  as  practically 
one;  and,  although  the  Statute  of  Enrolment  might  be 
somewhat  difficult  of  application  in  New  Brunswick, 
it  seems  to  have  l)een  considered  that  the  machinery 
of  the  provincial  courts  could  l>e  utilized  in   this  respect. 

(ii)  See  note,  ante,  p.  79,  as  to  Hex.  v.  McLau<i!hlin. 

((•)  Berton,  153.  («■)  2  Mer.  at  p.  IGO. 


THE    SorUCES   OF   nV\{    LAW.  \V.^ 

It  was  pointed  out  tliat  the  extension  to  tlie  province, 
of  statutes  which  are  in  terms  continecl  to  tl\e  courts 
of  the  uiotlier  country,  is  not,  hy  any  means,  without 
precedent,  and  several  of  sucli  statutes,  re<^uhitive  of  the 
])ractice  in  "  Her  Majesty's  Courts  at  Westminster,"  which 
had  always  been  treated  as  operative  within  the  pn)vince 
ill  relation  to  the  superior  courts  there,  were  cited  (,/). 

No  such  clear  thread  of  principle  can  he  discerned  in 
the  decisions  of  the  New  Brunswick   courts  as  has  been 
noticed  in  the  case  of    Nova  Scotia,  and,  for  that  reason,. 
it  is  somewhat  difficult  to  classify  the  decisions. 

In  an  early  case  (/y),  it  was  held  that  the  Imperial 
Act,  82  Henry  VIII.  c.  89,  which  authorized  the  Ex- 
oheijuer  Court  in  England  to  ^dve  relief  to  Crown  debtors, 
was  operative  to  enable  the  Supreme  Court  of  New  Bruns- 
wick to  relieve  from  an  estreated  recomiizance. 

Following  Attorney-General  v.  Stewart,  it  was  held  (c) 
that  the  Statute  of  Mortmain,  9  Geo.  II.  c.  30,  is  not  in 
force  in  New  Brunswick. 

In  Kavanagh  v.  Phelon  (a),  involving  a  consideration  of 
the  fees  proper  to  be  pau  to  a  sheriff',  it  was  held  that  29 
Eliz.  c.  -i.  was  not  operative  in  New  Brunswick  to  re<>u- 
late  the  sheriff's  fees,  in  cases  not  provided  for  l)y  the  pio- 
vincial  ordinance  upon  the  subject.  Referring-  to  Doe  dem 
Haiiin^ton  v.  McFadden  (1)),  Chipman,  C.J.,  says  : 

"For  the  same  reason  it  seems  to  me  that  the  statute  o' 
Eliz.  is  entirely  inapplicable  to  this  or  any  oth.^r  colony,  and, 
therefore,  is  not  in  force  here.     It  is  difficult  to  conceive  of  any 

(.!•)  4  Anne,  o.  16  (assignment  of  bail-bonds) ;  14  Geo.  II.  c.  17  (jud;^- 
nient  of  nonsuit) ;  and  see  Kelly  v.  Jones,  2  Allen,  473  (43  Eliz.  c.  6— cer- 
titicate  as  to  costs),  and  Gilbert  v.  Sayre,  (7^  512  (13  Car.  II.  c.  2 — double 
costs  on  affirmance  in  error).  See  Hesketh  v.  Ward,  17  U.  C.  C.  P.  667, 
referred  to  po»t. 

(ly)  Reg.  V.  Appleby,  Berton,  397. 

[z]  Doe  d.  Hasen  v.  Rector  of  St.  James,  2  P.  &  B,  479 ;  see  the  cases 
in  Ontario,  post. 

(n)  1  Kerr,  472.  (b)  Ante  p.  92. 


^4  THE   CAXADI.W   CON'STLTrTloX. 

subject  that  must  be  cleiilt  with  upon  considerations  more  entirely 
local,  than  the  proper  remuneration  to  be  allowed  to  public 
officers." 

and  he  refers  to  the  declaration  in  the  provincial  ordin- 
ance that  "  there  is  no  law  oi'  ordinance  now  in  force  re^n- 
latinj;'  sheriff's'  fees,"  etc.,  and  the  rennlution  of  the  matter 
1>y  that  ordinance,  as  indicative  of  the  view  of  the  le;^isla- 
ture  ((*). 

Although,  as  we  have  .said,  it  is  very  difficult  to  classify 
the  New  Brunswick  authorities  upon  this  (juestion,  this 
much  dt)es  appear:  that  in  every  case  the  jud<>es  of  the 
courts  there  have  endeavored  to  exercise  their  best  jud;^- 
ment  as  to  the  (i/iplicaJnliti/  of  the  Imperial  statute  to  the 
circumstances  of  the  colony.  If  any  distinction  in  pi-inciplc 
can  he  drawn  between  the  decisions  in  New  Brunswick  and 
tho.se  in  Nova  Scotia,  it  would  appear  to  he  alon^^  the  line 
indicated  in  the  jud<rment  of  Halliburton,  C.J.,  in  Uniacke 
V.  Dickson — that  i.s  to  say,  Imperial  statutes  have  Vjeen 
denied  operative  force  in  Nova  Scotia  unless  clearly  appli- 
cable, while,  in  New  Brunswick,  the  tendency',  at  least  of 
the  earlier  authorities,  seems  to  have  l)een  not  to  reject 
them  unle.ss  clearly  inapplicable.  At  the  same  time,  it  must 
be  confes.sed  that  this  distinction  cannot  be  clearly  pointed 
out  in  ever}'  case. 

Ontario  falls  within  the  class  of  colonies  into  whose 
le^'al  system,  Enolish  law  has  been  introduced  by  the  will 
of  the  colony  itself,  as  expressed  in  legislative  enactment. 

In  the  year  1701,  the  parliament  of  Great  Britain 
passed  an  Act,  31   Geo.  III.   c.   31,  connuonly  known  in 

(c)  For  other  New  Brunswick  cases,  see  Ex  parte  Ritchie,  2  Kerr,  75, 
and  Ex  parte  Bustin,  2  Allen,  211,  in  which  the  English  statutes  as  to 
certiorari  proceedings  were  held  not  in  force ;  Wilson  v.  Jones,  1  Allen 
•658,  in  which  1  Rich.  II.  c.  12,  giving  a  creditor  an  action  of  debt  against 
a  8heri£f  on  an  escape,  was  (following  an  early  unreported  decision)  held 
not  in  force,  although  it  was  acted  upon  in  Nova  Scotia  and  the  older 
American  colonies ;  and  see  James  v.  McLean,  3  Allen,  164,  and  Doe  d. 
Allen  V.  Murray,  2  Kerr,  359. 


THE    SOlHCES    OK    (»ll{    LAW.  !>.") 

Caimda  as  tlie  Constitiitioiml  Act,  17!H,  liy  wliich  prox  isi(»ii 
Wiis  iiiado  for  tlu'  (li\isi()ii  of  the  province  of  Quebec  into 
two  provinces,  Upper  and  Lower  Canada,  and  for  the  estali- 
lishnient  therein  of  separate  <;ovei'niuents.  During-  the 
pr()t;;ress  of  tlie  war  of  American  in»h'])en«U'nce,  there  had 
taken  phice,  from  the  disatt'ected  colonies  into  what  aftcr- 
war<ls  hecame  Upper  Canada,  a  hir;;e  inHux  of  loyal  sulijects, 
"horn  and  eihicated  in  ctanitries  where  the  English  laws 
were  established,  and  .  .  .  unaccust(ime<l  to  the  laws 
of  Canathi."  And  as,  in  1774,  the  pa)-liament  of  CJreat 
liritain,  hy  »;ivino;  to  the  inhahitants  of  Canada,  then 
almost  exclusively  French,  the  law  in  accordance  with 
which  thev  had  heen  accustomed  to  rei^ulate  their  <lail\' 
lives,  secured  their  cordial  adherence  to  British  connection, 
despite  the  enticinj^  words  of  Washington  and  his  French 
allies  (f/),  so,  in  1791,  they  estahlished  the  new  inmii^ration 
in  content  in  the  upper  province,  hy  pvin<;  them  a  distinct 
legislature,  with  the  power  to  adopt  sucli  system  of  laws 
as  they  nii<;ht  deem  l)est  calcuhited  to  secure  and  advance 
their  own  material  and  religious  welfare.  Avoiding-  all 
appearance  of  dictation  to  either  province,  the  Constitu- 
tional Act,  1791,  simply  provided  that  there  slunild  he 
within  each  of  the  provinces  respectively,  a  Le<jfislative 
C(juncil  and  an  Assem])ly,  and  tliat  in  each  of  the  provinces 
His  Majesty  sliould  luive  power,  hy  and  with  the  advice 
and  consent  of  the  Letjishitive  Council  and  Assendtlv  of 
such  province,  to  make  laws  for  the  peace,  welfare,  and 
^ood  government  tliereof,  sucli  hiw^s  not  l)ein<^  repu^j^nant 
to  the  Act.  All  laws,  ordinances,  and  statutes  in  t\)rce 
within  the  provinces,  or  either  of  them,  at  the  date  of  the 
Act,  were  to  remain  and  continue  as  if  the  Act  had  not 
heen  made,  except  in  .so  far  as  not  expressly  varied  by  the 
Act — the  Act  is  limited  to  the  making  of  constitutional 
changes — or  except  in  so  far  as  the  same  mijht  be  there- 
id)  See  Confed.  Deb.  p.  606;  Eyerson,  "The  U.  E.  Loyalists  in 
America." 


9G  THK   CANADIAN    (( )NSTirrTI<  »N. 

tif'tcr  irfU'dlcil  "/'  ra  r'lt'il  hi/  f/ic  LcijlKliit  i  re  Cuii  iiril  a  mf 
Axxcinhl'icx  itf  the  rfsju'cf  I  re  jh'oi'I  ix-t's.  The  inhaltitunts  of 
Lm'er  Cjiujula,  l)L'in<^  content  with  the  hiw  umler  which 
they  lial  lived  since  1774,  niude  no  change;  Imt,  in  the 
very  first  parHanient  of  Upper  Canada,  l>y  tlie  first  Act 
of  its  first  session,  "that  was  done  wliich  no  douht  was 
anticii)ated  and  intendeil  as  a  consequence  of  erectin;^- 
Tpper  Canada  into  a  separate  jirovince.  Recitin<;  that  tiie 
provision  made  hy  the  Qnehec  Act,  1774  (before  alhided  to>, 
luid  l»een  manifestly  intended  for  the  acconnuodation  of  His 
Majesty's  Canadian  suhjects,  and  that  the  territory  com- 
prisin^i'  Upper  Canada  had  become  inhabited  principally  by 
British  subjects,  unaccustoitied  to  the  laws  of  Canada,  it 
repealed  the  provision  in  the  Quebec  Act,  1774,  so  far  as. 
that  Act  had  the  effect  of  introducini^  the  French  law  into 
Upper  Cai'.;i<la,  and  enacted,  that  '  from  antl  after  the 
passinof  of  this  Acl,  in  all  matters  of  controversy  rchdive 
to  pi'ojK'i'iji  <ii)(l  clril  ri<jhtfi,  resort  should  l)e  had  to  the 
laws  of  Ent^land,  as  the  rule  for  the  decision  of  the  same' "  {e). 
The  criminal  law  of  England  had  been  in  force  in  the 
old  province,  and  no  lei^islation  was  deemed  necessary  by 
the  let^islature  of  Upper  Canada,  beyond  naming  a  day,  in 
reference  to  which  the  Ent^lish  criminal  law  was  to  be  ccni- 
sidered  fixed  (so  far  as  Upper  Canaila  was  concerned), 
unless  altered  by  the  colonial  let^islature.  This  date  was 
fixed  by  40  Geo.  III.  c.  1  (U.  C),  which  enacted:  "Tlie 
criminal  law  of  Enij^land,  as  it  stood  on  the  17th  day  of 
Septeml)er,  1792,  shall  be,  and  the  same  is  hereby  declared 
to  be,  the  criminal  law  of  this  province,"  subject  to  any 
variations  therein,  effected  by  ordinances  of  the  old  pro- 
vince of  Queltec  passed  after  the  Quebec  Act  of  1774. 
The  difference  in  the  phraseology  in  the  two  Acts  of  82  and 
40  Geo.  III.  respectively,  must  be  carefully  noted,  for,  as  will 

(e)  Per  Robinson,  C.J.,  in  Z»oe  d.  Anderson  v.  Todd,  2  U.  C.  Q.  B.  82; 
note  the  same  expression,  "  property  and  civil  rights,"  in  the  B.  N.  A. 
Act,  8.  92,  ss.  13,  and  s.  94;  and  see  Citizens  v.  Parsons,  L.  R.  7  App. 
Caa  9«}. 


TIIK   SontCKS   OK   on?    LAW.  !>7 

!«'  seen  lieivnt'ttT,  u  iimi'ktMl  difU'rciicc  ii»  ctt'cct  lias  lu-cn 
atti'il»nt(Ml  to  those  two  t'liactincnts.  In  tin;  various  w- 
visioiiH  ol"  the  statute  law,  which  have  since  taken  place, 
these  two  Acts  havi'  Ikm-m  simply  "lirouirht  up  to  <late." 
Thev  now  stand  as  c.  iV'l  oF  the  Hevised  Statutes  of 
Ontario  (lSS7lai\dc.  144.  s.  I .  of  the  Hevised  Statutes  of 
Canada  ( iS.S(i),  i-espectively. 

In  the  province  of  Ontario,  therefore,  the  whoh'  (piestion 
tiUMis  upon  the  effect  wliich  should  he  ;riven  to  these,  oui- 
own  enactments,  and  so  far  as  concerns  tlie  law  rchiflrt  fi, 
liri>iK'rfi/  iiiK/cirll  /•////'/>«•.  it  will  he  found  that,  owin;^  ti> 
the  construction  j)lac<'d  upon  'V2  (ieo  III.  c.  1,  hy  the 
courts  in  Upper  Canada,  the  same  method  of  en<|uiry  has 
heen  foUowt'd  in  that  pro\iuce  (n(»w  Ontario)  as  in  the 
older  provinces  of  Nova  Scotia  and  New  Brunswick. 

Althout;'h  the  ([Uestion  is,  with  every  session  of  oui- 
[(firiiaments,  hecomin;^'  less  and  ii'ss  of  \ital  imjnu'tance, 
still  cases  do  even  yet,  and  not  infretpiently  ai-ise,  excn  in 
these  provinces,  in  which  the  ri;;hts  of  suitors  depend  upon 
KnL:;Iish  .statutes  of  cousiduraMe  antii|uity,  making-  pro- 
visions as  to  various  mattei's  upon  wdiich  oui'  parliaments 
li.ive  omitted  to  exercise  theii'  le^^islative  power. 

Throujihout  tlie  hiw  reports  of  Upper  C-anada  ((Ontario), 
muiierous  CJises  will  he  found  in  which  laws  pa.sse<|  Ity  the 
pailiament  of  England,  and  in  force  there  in  17!t2.  were 
without  ([Uestion  acted  upon  hy  owv  courts  as  hein^'  the 
law  in  Upper  Canada.  In  the  veiy  first  volume  of  reported 
oases,  hy  Taylor,  several  of  "such  instances  a])i)ear  (/  ).  and  so 
oil  throU(;h  the  rei)orts  to  the  present  tinu'.  For  ijistance, 
no  ((Uestion  seems  to  have  ever  heen  i^aised  as  to  the 
Enoiish  Statute  of  Frauds,  tlu'  Acts  of  Elizaheth's  time 
as  to  fraudident  and  voluntary  conveyances,  and  a  casual 
;;;lance  at  (jur  Diji^ests  will  reveal  many  others,  as  to  which 
no  douht  lias  ever  found  a  reporter.  As  beiui;-  in  afKi'm- 
ance  of  the  connnon  law,  or  in  amendment  of  .some  defect 

{/)  Taylor,  54G. 
Can.  Con.— 7 


08  THE   CAXADIAN    ( OXSTITI'TK  >N. 

in  tlmt  law.  working'  ^ciu'ial  (Ictriincnt,  their  ]i(»sitioii,  as 
})rat'tically  part  ainl  jtaiTi-l  ol'  ^^cncral  En;^lisli  law,  was  too 
t'ullv  i-cc");>iii/(Ml  t)  1>.'  (iiiestioiu'il.  lUit — not  to  iiR'ution 
many  Knylisli  Acts,  whose  non-applicaliility  (if  that  he 
s  )un<l  ;;rounil  for  rejection) is  dehatenhle — many  old  enact- 
ments, some  i-ejiuhitive  of  me«lieval  men  h\-  me(lieval 
methods,  some  hut  parHanientaiy  tomhstones,  marking'  the 
irraveK  of  local  (Knulish)  e\ils  of  a  temi)()rarv  character, 
have  heen  invoked  in  Canatlian  liti;iation — put  forward 
HH  havino'  Itcen  introduced  jiere  hy  colonial  enactment,  'i2 
(Jeo.  111.  c.  1. 

Somewhat  of  this  sort,  was  the  statute  passed  in  5  Eliz. 
(c.  4),  makint;'  void,  in  tlie  interests  of  the  ^'uilds,  articles 
of  appi'enticeship  for  a  less  term  than  seven  years.  It  was 
the  first  statute  upon  which  ar^^'ument  seems  to  have  heen 
had,  and  in  three  earlv  cases  it  received  consideration.  In 
the  tli-8t  (</)  of  these  cases,  Rol»inson,  C.J.,  said:  "The  pro- 
visions of  the  statute  .  .  are  no  longer  part  of  the  law 
of  Ent^dand  ;  they  ha\e  l)een  repealed  (//)  as  impolitic,  e\  en 
in  the  conditit)n  of  that  populous  country.  In  my  opinion, 
these  provisions  were  never  part  of  the  law  of  this  pro- 
vince." In  the  second  (i),  Sherwood,  J.  (deliNei'in^'  the 
jud<i'ment  of  the  court),  sa^'s,  after  referrino-  to  the  tei'uis  of 
.S2  Geo.  III.  c.  1  (U.  C.) : 

"  The  intention  and  meaning?  of  the  legislature  undoubtecllv 
was,  that  resort  should  be  had  to  such  of  the  laws  of  England 
as  are  applicable  to  the  state  of  society  in  a  Brii.sli  colony, 
which  is  very  different  in  many  respects  from  the  state  of  society 
in  England.  Courts  of  justice  are  to  decide  on  the  applicability 
of  the  law  to  any  particular  case,  when  doubts  arise  on  the  sub- 
ject ;  and  upon  the  same  principle,  they  must  decide  upon  the 
adaptability  of  any  particular  law  of  England  to  this  province, 
in  a  general  point  of  view.  The  statute  5  Eliz.  c.  4,  is  en- 
titled, "  An  Act  containing  divers  orders  for  artificers,  laborers, 

(g)  Fish  V.  Doyle,  Drap.  328  (1.^31). 

(h)  By  59  Geo.  III.  c.  W). 

(i)  Dillingham  v.  Wilson,  G  U.  C.  Q.  B.  (0.  S.)  85  (18il). 


THE    SorHCES   OK    OVW    LAW.  <)f) 

•sL'fvants  of  luishancU'v,  and  a[)pix'iitices  " ;  and  the  Act?  itself, 
from  beginning  to  end,  contains  internal  evidence  that  no  resort 
can  be  properly  had  to  it,  within  tiie  scope  and  meaning  of  our 
Provincial  Act  already  mentioned,  as  a  rule  for  deciding  the 
manner  in  which  apprentices  are  to  be  bound  in  this  province, 
iind  the  legal  effect  of  such  binding.     That  Act  was  obsolete  in 

i'lnglund  even  before  the  statute  which  repealed  it 

We  consider  the  statute  of  5  Eliz.  c.  4,  as  a  local  Act,  which 
was  probably  adapted  to  the  state  of  society  in  England  three 
hundred  years  ago,  but  is  not  now,  and  never  was,  adapted  to 
the  population  of  a  colony,  and  was  never  in  force  here." 

In  the  third  case  (j),  it  was  broadly  contended  :  "  The 
court  can  not  sav,  that  these  .statutes  are  not  in  force; 
it  is  ncjt  a  (juestion  of  their  applicahility  that  is  to  bo  de- 
cided, the  ;lecisiou  must  be  on  the  express  words  of  a 
statute.  When  the  law  is  to  Ije  j^iven  to  a  colony  settled 
and  planted  by  British  subjects,  we  can  understand  that 
only  such  parts  of  the  En<;lish  statute  law  as  are  applicable 
shall  be  declared  to  be  in  force;  but  when  tiie  statute  law 
is  introduced  by  leo-islntivo  enactment,  there  can  ])e  no 
([Uestion  abtnit  the  applicability  of  statutes,  as  the  le<^isla- 
ture  have  shown  that  their  determination  was  to  introduce 
them  all,  with  the  exception  of  tho.se  parts  which  are 
expressly  excepted."  In  delivering,'  the  judgment  of  the 
court,  Chief  Justice  •Rol)inson  says  : 

" It  cannot  possibly  admit  of  doubt  that  its 

provisions  are  inapplicable  to  any  state  of  things  that  ever 
existed  here ;  a  clause  here  and  there  might  be  carried  into 
effect  in  this  colony,  or  anywhere,  from  the  general  nature  of 
their  provisions  ;  but  that  is  not  sufficient  to  make  such  a 
statute  part  of  our  law,  when  the  main  object  and  tenor  of  it,  is 
wholly  foreign  to  the  nature  of  our  institutions,  and  it  is  there- 

(,/)  Shea  v.  Choat,  2  U.  C.  Q.  B.  211  (1845).  The  head-note  is  mis- 
leading. In  speaking  of  20  Geo.  II.  c.  19,  Robinson,  C.J.,  says:  "  My 
inclination  at  present  is  that  that  statute  in  its  present  scope  and  bear- 
ing is  not  applicable  to  this  province";  but  he  decided  that,  even  if  in 
force,  the  pleading  could  not  be  supported,  not  showing  a  case  within  the 
statute. 


100  IIIK   CAN'ADI.W    cnXSTITriloN-. 

tore  incapal)Io  of  being  ciirriod,  subHtantiiilly  and  as  a  whole,  into 
t'xocution." 

TlicHc  cMsrs  distinctly  Jitlii-in,  that  (Icavin;^  ont  nf  cm- 
siih'nition  i]\r  I'our  iiml  U.inUrMptt'y  hnvs)  (/.)  n<»t  t-Ncry 
Kn^i'lish  stjitutf  ill  lort'*'  in  Kii^^hiin!  in  I7!>'J,  tncii  thun;;h 
sueh  statntr  was,  in  a  srnsc.  of  njcm-ral  a)»)»licati<>ii  in 
Kiij^lainl,  is  in  t'orcr  hcrr  nndfr  the  tcniis  ol'  .'i'J  (Jco.  III. 
c.  1 — that  a  rceo^iiiition  mnst  Im-  aecunlnl.  sn  to  s|irak,  tn 
the  «liH'('rcnc('s  of  cnvinainii'iit,  and  that  tlic  <  itnrts  ol"  rpiu-r 
Canada  shnnid  j'onsidt'r  the  (|U('stit)n  of  the  aihiptaliility  of 
an}'  Kiii^lish  Act  "t<»  the  natnrc  ol"  onr  institntiuns."'  To 
sonif  extent,  this  \  icw  of  thf  etil-ct  of  '^2  (}eo.  III.  c.  I.  has 
not  met  with  entiif  approNal  liy  indi\idnal  Jnd;,;es  in  suhse- 
(|Uent  cases:  lait,  as  will  lie  seen,  the  decideil  tendency  >A'  the 
authorities  lias  been  to  support  the  principle  laid  down  in 
these  three  cases. 

Baldwin  \.  Ivoddy  (/)  invohi-d  tlir  (|nesti<.n  as  to  the 
linulish  Act  "  I'or  the  removal  oi'  causes  honi  interior 
courts"  (III  (!t'o  III.  e.  70).  That  Act  "seemed  desinned 
in  England  to  su[)ply  a  det'eft  Mliich  parliament  occasi(»ned 
when  they  took  away  arrest  IVoni  inleiior  courts  in  cases 
under  CIO' — the  process  of  those  courts  c(add  he  cvadtd 
l>y  the  removal  of  a  dditors  cflects  frofti  the  limits  of  their 
Jurisdiction — and  it  was  held  hy  Rohiuson,  C.J.,  to  he  intro- 
duced here.  "It  is  a  reasonalile  and  ^ood  provision,  n-eneral 
in  its  naturi' ;  not  conHned  as  to  locality:  not  contlne«|  to 
certain  courts,  or  to  any  amount  of  jud;:;nient,  nor  incum- 
l)ere(l  with  any  forms  or  re(|uisitions  inap]>licahle  to  the 
nature  of  our  courts.'" 

In  l.S8(),  the  <|UestioM  arose  (///),  whether  the  British 
statute    (22    (Jeo.    II.    c.   40),   "for  the    more    eti'cctually 

(A)  Expressly  excepted  by  H2  Geo.  III.  c.  1  (U.  C.)  s.  (i. 

(/)  a  IT.  C.  Q.  B.  (O.  S.)  lfi« ;  and  see  Gregory  v.  Flanagan,  2  IT.  C.  Q.  B. 
(O.  S.)  552. 

(m)  In  Leith  v,  Willis,  5  U.  C.  Q.  B.  (O.  S.)  101 ;  followed  in  Heartly 
V.  Hearns,  6  IT.  C.  Q.  B.  (O.  S.)  452. 


THE    HOrUCKS  OK   (»ru   LAW,  101 

rcMtniiniiin;  tlic  retailing;  of  distillfd  H)iiiitu<»u.s  liinioi-x,"  tlu* 
r2tli  Ni'ctioM  of  wliifli  (Iciiii'il  all  v\(^\\t  of  uctioii  to  any  oim 
wlliji^f  It'SH  tlmii  20  sliilliiiMs  woj-th  ut  om*  tiiiir,  was  t<>  Ik* 
<'(>nsiil('j»'<l  ill  fort't'  in  I'pjM'r  ('ana«la  or  not.  TIh'  Act  coii- 
taiiifil  M2  clauHCH,  as  to  all  of  wliicli  (otlicr  than  the  12tli 
si'Ctioii)  Hol>ins(»n,  ('.,).,  saifl :  "Not  one  with  any  reason 
can  hi'  considori'd  as  apjdicahlL'  to  this  province' ";  and  as  to 
that  si'ction  he  said: 

"  Tpon  a  view  of  the  whole  caso,  tliou<,'h  1  fuel  it  dinicult  to 
lest  a  (It'cision  upon  a  perfectly  clear  ground,  I  am  of  opinion 
that  the  IJritish  Act  docs  not  prevent  the  plaintitt'  recovering. 
It  was  passed  in  England  to  meet  a  [)articular  evil,  which  was 
stated  to  be  increasing  tlicn-  nj  lute  (itiionij  a  iim'thnlat  rlnxs  of  thr 
iiilitihitinit.s.  ^^'e  cannot  say  judicially  that  the  circumstances  so 
fur  correspond  in  tliis  province,  as  to  make  it  a  reasonable 
inti'iidmcnt  that  a  statute  passed  to  meet  such  exigency  in 
I'.ngland,  is  to  he  treated  as  a  part  of  the  general  statute  law  of 
England,  intended  to  be  introiluced  into  this  province." 

iU)nu  the  furtluT  <n'ound,  too,  that  the  i^n>\iiicial  Act 
•"  William  I\'.  c.  I,  made  jH'ovisioiis  inconsistent  with  the 
pioN  isiuiis  of  the  P)i'itisli  Act — prolta1»ly  tlu-  safer  around 
ioi'  ilfcision  njKiii  fixed  [»rinei[)le— the  latter  was  luld  not 
in  forcf  here. 

The  English  statute  !>  (leo.  11.  c.  'My — commonly 
classt'd  as  one  of  the  Mortmain  Acts — has  ln-cn  under 
iv\i(\v  ill  a  iiumlier  of  decideil  cases;  and  in  the  ar^ii- 
iiifiit  of  counsel  and  the  o{)inions  of  the  .pid;;es,  will  he 
found  all  the  considei-atioiis  which  can  l>e  ur^^vd  in  su]ti)ort 
of  the  two  dittt'i't'iit  views — those  who  Would  n[>hold  the 
Act  MS  lieini":  introduced  here  l>v  tiie  Provincial  Act  82 
(!ei,  III.  c.  1,  nruiiiii"  that  hecause  the  HiiiiHsh  laws 
lelatiii;^'  to  the  poor  and  to  haiikruptcy,  were  in  terms 
excluded,  the  maxim  ''  ci-inrssio  nuliix  r.i'clnsio  est  til- 
ffi'lus"  should  he  a})piied,  and  all  other  English  Acts  of 
;;t'iicral  apjdication  in  Ennhmd,  held  to  he  in  force  in 
I  l>l)er  Caiuuhi;  while  those  wdio  denied  the  hinding  force 


102  TIIK   «   \NAIH.\N    <  n.NSTITI'TlON. 

ul*  tli«'  Htntutr  In  r<'  Mi';;\i('<|  t'oi"  ;i  iimif  liiiiit<><l  iiitriHliictioii 
of  tli<'  l''.ii;,Hisli  liiw.  Tin-  liitiiT  \  i('w  clciirly  pifMiilnl,  mihI 
tii<'  Viii'ioiis  ciiiisitlriatioiiM  ur;;;<i|  in  its  sii|i|Mirt,  will  n|)]it'Mi- 
IVuni  II  I'cvit'W  <»r  llic  CMSrN.  Ill  tlir  n'.siilt,  till'  Miiitlltf  \\i\H 
(l('('i<l(>*l   to  Itf  ill   t'orci'  ill   ('|i|)cr  ( 'iiiitnln,  Itiit.  only  on   tlit> 

^rouilfl  of    its  iniplini    riini/iii/nni    III/    nil  r  infnii  ill!  fi^/is/il- 

Inrr;  the  view  ol"  i\  ili-ciilcij  nnijoritA'  lit'in;;;,  tlint  it  wiis 
not,  intrtxhicfd  liy  tin'  sole  r<»r('t'  of  'A2  ( ico.  Ill.c  I.  In 
(IcciWin;;  in  Tuvor  ol'  tlir  |tro|iiit'ty  of  iimkin;^'  (•oiii|iiirison 
iM'tNVt'tn  tlh'  <liir«'r»>nt  Hitnittions,  nuitt'iinl  iin<l  socinl,  of  Mh« 
niotlirr  ('(uniirv  mihI  the  colony,  mm  well  as  in  tioitin;;- 
coloninl  rccof^^nition  iis  a  ;^<io(|  n-i-nmnl  Tor  lioMin;^'  ;in 
Ijnpt'rinI  Act  in  loi-cc  in  n  colony,  tlic  courtH  of  1')i|h'|- 
('iiniKla  (Ontai'io)  Iuinc  in'iicticjilly  luloptcd  tlic  view  ol" 
Wol.inson.  l'..I„  that  the  tcniis  ol"  the  Act  :{2  (Ico.  III.  c.  I 
(IJ.  I'.).  "<lo  not  place  the  introilnction  ol'  the  Kn^lish  law  on 
ji  I'ootinj;  materially  (litlerent  from  the  footin^^  on  which 
the  laws  of  I'ini^Iand  staiul  in  those  colonies  in  which  they 
art'  nn'ivly  assiimeij  to  he  in  force,  on  the  principles  of  the 
common  law,  hy  i-eason  of  such  colonit's  ha\in;4"  hecn  fii'st 
inhal>ite(l  and  plaiiti'tl  hy  Hritish  suhjects  "  (/;).  This  is  the 
constrnction  to  which  reference  was  a  short  time  iv^i)  made, 
as  placin;^  Ontario  upon  the  same  line  in  this  matter  as 
tlu'  maritime  provinces,  and  (as  we  shall  point  t>ut)  the 
more  lat"Iy  ac(|uired  provinces  of  the  Dominion  of  Canada. 

The  leadin^^  ca.se,  jus  to  this  .statute  of  Mortmain,  is  Dar 
(h'ln  Anderson  v.  Todd,  decided  in  ISJ-;"),  fi-om  which  we 
have  already  (pioted,  and  which  has  heeii  followed  in  a 
number  of  suhsecpient  cases  up  to  1S7(),  wlu'U  the  Court  of 
Appeal  for  Ontario,  upon  a  careful  consideration  of  the 
wlu)le  subject,  estahlished  the  decision  in  the  earliei-  case. 
To  attempt  to  .set  forth  the  views  of  Kohin.son,  C.J.,  in 
lan;;;ua|;e  other  than  his  own,  would  so  weaken  theii'  «'tt"ect, 
that  we  feel  con.str»iine(l  to  (juote  his  opinion  somewhat  at 
len<;th: 

(«)  Doe  (I  Anderson  v.  Todd,  2  U.  C,  Q.  B.  at  p.  H(i. 


IMi:   SMI  Ur|;,H  nl'   nl  it    |,\\V.  lO.'l 

"Tlio  <|iicHti()ii  is  ilii'ii  Itfi  ti)  lie  ilctfnuincil  wlictlii'i'  tli" 
ilt'visi!  iniitli!  Iiy  tint  will  to  ii  ('lini'itiil)li<  iis(>  in  voitj  in  tliin 
(■(iiititi'V  under  tlii>  pi'oviHifiiis  of  tlir  stiiliitc  *.)  (leo.  II.  c.  iM  ; 
til  ii  it  '\H  of  sncli  II  niitun>  iih  to  cfiinc  witliin  tin*  terms  of  tlint 
stiitnte,  ciuniot  III'  iloiilitcil,  iiiiil  tlif  only  point,  tiiorcl'oi-e,  to  lie 
•  leterniine(l  is,  wlictliei'  tiie  stiitnt'!  in  in  torce  in  I  |)[ii.<i'  Caniulii. 

If  tliiOiiul  l)een  a  colony  of  that  (les('i-i|)tion,  mill 

not  a  ('oni|iiere(l  or  ceilid  country,  luivin;^'  jilremiy  luws  of  its 
own,  ami  if  the  (|ii)>.sli')ii  whether  the  stntiitt!  u  (ieo.  Ii.  e.  M(!. 
could  he  ref^'iirded  as  in  lorc(.'  or  not,  had  turiit  i|  wholly  on  the 
point  whether,  upon  the  principles  of  the  coninion  law,  without 
the  inter|)osition  of  any  letjislativo  enactment,  that  statute 
rui'iiied  part  of  the  law  hindin;^'  u|)on  nil  who  settleil  in  tin* 
colony  or  plantation,  I  think  we  shouM  without  dilliculty  have 
held  that  it  did  not,  for  the  reasons  exi^ressed  in  this  passa^'e  of 
the  connnentarie''(«),iind  which  received  the  sanction  of  ajudici'il 
decision,  in  the  case  of  TIk;  Attorney. (leneral  v.  Stuart,  2  Mer. 
1  II.  from  a  very  eminent  judi^'e  (Sir  W.  (Irant),  an<l  in  refer- 
ence to  the  very  statute  now  under  consiih  ration.  liut  it  is 
plain  that  the  <piestion  does  not  rest  liere  on  that  footing,  and 
thou^di  the  case  of  Attorney  (leneral  v.  Stuart  may  appear  very 
material  to  its  decision,  it  cannot  he  so  upon  the  footing  that  this 
is  a  colony  planted  originally  hy  British  suhjects,  to  which  all 
who  have  come,  have  hrought  the  law  of  Kngland  as  their  hirth- 
right,  hut  it  may  he  material  as  ilhistrating  the  extent  and 
elfect  which  should  he  given  to  the  words  of  a  provincial 
statute  introducing  the  law  of  J']ngland,  which  statute,  after 
all  considerations  are  stated,  must  form  the  foundation  of 
our  decision.  The  country  in  which  this  question  rises 
ibrnied  part  of  the  comiuered  province  of  Canada,  ceded  hy 
the  French  government,  hy  the  Treaty  of  Paris,  lOtli  July, 
17(18.  and  in  which,  therefore,  after  the  cession,  it  was  in  the 
power  of  the  Crown,  independently  of  the  legislature  (/»),  to 
have  introduced  either  the  laws  of  England,  or  any  other  ; 
hut  the  laws  before  enjoyed  by  the  compiered   people    would 

(())  Of  Bliickstone,  from  which  full  extracts  have  already  been  taken  ; 
Hee  ante,  p.  78  et  seq, 

(/>)  See  Chap.  VI.  poitt,  for  a  reference  to  the  contention  to  the  con- 
trary raised  in  Lower  Canada. 


104  THK  CANADIAN   tONsm  ITinN. 

l)rc>viiil  tintil  such  introduction.  TIu'mo  prinoipleH  iiro  clciirly 
and  pivcisi'ly  stated  hy  tlif  MiistiT  of  tlio  Uolls  (2  I'.  Wins.  75) 
to  liavf  l)ft'n  dt>t»;rnii!U'tl  l)y  tlio  Jjords  of  tlie  I'rivy  Coiincil, 
on  an  appoal  to  the  kinj^'  in  council  from  the  fori'ij^n  planta- 
tions, fiord  C'.  J.  Holt  assents  to  tlioin,  in  emphatic  terms, 
in  Smith  v.  Cooper,  1  Salk.  (KWI,  where  ho  says,  •  the  laws  of 
l!ngland  do  not  ext«'nd  to  Virf,'inia;  hcin^'  a  confjucrod  country, 
their  law  is  what  the  kin^'  pleases.'  I  do  not,  however,  uiidci'- 
stand  in  what  sen.se  his  Lordship  speaks  of  Virj^'inia  as  a 
concpicrod  country.  In  1  Salk.  11,  the  princii)Ies  we  are  consider- 
ing are  a<.(ain  stated  hy  Lord  C.  J.  Holt,  and  were  elaborately 
set  forth  in  modern  times  hy  Lord  Mansfield,  in  the  well-known 
case  of  Campliell  v.  Hall,  1  Cooper,  iiOL  The  proclamation 
of  October,  17(58,  on  the  effect  of  which  that  judgment  pro- 
ceeded, was  an  act  of  the  Sovereign,  introdueing  tlie  law  of 
Lngland,  in  general  terms,  into  countries  ci-ded  by  the  Treaty  of 
I'aris  ;  but,  by  some  inadvertence,  the  ti'rritory  which  was  then 
formed  into  the  Province  of  ()uebec,  was  so  described  in  that 
proclamation  as  to  exchule  the  greater  part  of  Canada,  in  regard 
to  which  no  provision  was  made  for  its  civil  government.  This 
omission  is  noticed  in  the  i)reamble  to  the  Ih-itish  statute  14 
(ieo.  III.  c.  88.  If  the  territory  which  lately  for;>v.'d  I'pper 
Canada,  and  in  respect  to  which  the  question  now  before  us  has 
arisen,  had  been  included  within  the  limits  given  by  that  pro- 
dauuition  to  the  Province  of  Quebec,  and  if  to  this  moment  we 
had  been  left  to  the  effect  of  that  proclamation,  which  assured 
to  the  inhabitants  '  the  enjoyment  of  the  benefit  of  the  laws  of 
England,'  and  directed  that  all  causes,  criminal  and  civil,  should 
be  determined  according  to  law  and  ecpiity,  and  ks  near  im  mttj/ 
hr,  iii/rccdlile  to  till  I  mm  nf  Hinihtiul,  then  the  (juestion  would  have 
been,  whether  in  reason  we  should  hold  that  any  other  laws 
were  intrnduccd  by  those  general  words  than  such  laws  as 
English  colonists,  planting  a  newly  discovered  country,  would, 
on  the  principles  of  the  common  law,  have  carried  with  them ; 
and,  in  considering  that  point,  the  observations  of  Sir  William 
Grant,  in  Attorney-General  v.  Stuart,  would  have  strongly 
applied,  and  might,  indeed,  have  been  taken  as  direct  authority. 
Then,  how  does  the  question  stand  on  the  real  facts  of 
the  case  ?     The  British   statute   14   Geo.  III.   c.  H8,   noticing 


THK    S«irU('KS    OK   (tlK    LAW.  lOr) 

the  tleft'Ct  in  the  proclamation  of  the  7tli  of  Ootohi-r,  17(18, 
ciiliu-^'od  the  hinita  thor*'  assij^ned  to  tlio  Provinci'  of  QiU'bec, 
and  made  them  clearly  cmhraco  the  country  now  involved  in 
this  qiu'stion  (if  not  the  whole  of  Tpper  Ciinaila);  and  parlia- 
ment, liy  that  Act,  for  the  Hatisfaction  of  her  Maji-sty's 
Canadian  piuhjects,  provided  that  within  the  whole  of  the  terri- 
tory thus  defined,  in  all  matters  of  controversy  relative  to  /(/»»- 
furtif  iiitil  citil  riifhts  («/),  resort  should  he  had  to  the  laws  of 
Canadii  (that  is,  the  laws  which  prevailed  in  Canada  before  the 
con(iuest),  for  the  decision  of  tlu^  same.  This  f,'ave  a  new  start- 
ing,' point  with  repird  to  the  i|iiestion,  and  puts  an  end  to  all 
doulits  which  mif^dit  have  arisen  under  the  prochuuation,  whi'-h, 
in  this  respect,  was  wholly  ahroj^^ated.  The  statute  81  (leo.  111. 
c.  Ml,  which  divided  the  Province  of  Quebec,  and  f?ave  to  Upper 
Canada  a  distinct  le<,Mslative  body,  and  did  not  by  anything  con- 
tained in  it  affect  the  terms  of  this  ([uestion,  left  the  French- 
Canadiiin  law  in  force,  but  it  created  a  le<j;islature,  with  power  to 
make  laws  for  the  peace,  welfare,  and  good  government  of  the 
province,  and  which,  under  the  very  general  terms  of  that 
authority,  might  alter  or  abrogate  the  existing  law,  if  it  thought 
proper.  In  the  first  statute  passed  by  this  legislature,  82  (leo. 
III.  c.  1,  that  was  done  which,  no  doubt,  was  anticipated  and 
intended  as  the  consequence  of  erecting  Upper  Canada  into  a 
separate  province.  Reciting  that  the  provision  made  by  the 
11  (reo.  III.  c.  HH,  had  been  '  nninifestly  intended  for  the 
accommodation  of  his  Majesty's  Canadian  subjects,'  and  that 
the  territory  comprising  Upper  Canadii  had  become  inhabited 
principally  by  lU'itish  subjects,  unaccustomed  to  the  law  of 
Canada,  it  repealed  the  provision  i;i  the  1-4  Geo.  III.  c.  88,  so 
far  as  it  had  the  eftV'ct  of  introducing  the  French  law  into  Upper 
Canada,  and  enacted,  that  '  from  and  after  the  passing  of  that 
Act,  in  all  matters  of  controversy  relative  to  property  and 
civil  rights,  resort  should  be  had  to  the  laws  of  England,  as 
the  rule  for  the  decision  for  the  same.  And  that  all  matters 
relating  to  testimony  and  legal  proof  in  the  investigation  of 
fact,  and  the  forms  thereof,  in  the  several  courts  of  law  and 
equity  within  this  province,  shall  be  regulated  by  the  rules  of 
evidence   established   in   England ' ;    with   a    proviso  that   the 

(q)  See  Citizens  v.  Parsons,  L.  R.  7  App.  Cas.  W. 


10()  THE    CANADIAN    CONSTriTTK  »X. 

Act  '  shouUl  not  be  construed  to  intarfere  with  the  subsisting^ 
provisions  respecting  ecclesiastical  rights  or  dues  within  the 
province,  or  with  the  forms  of  proceedings  in  civil  actions,  or 
the  jurisdiction  of  the  courts  already  estal^lished,'  or  to  intro- 
duce 'any  of  the  laws  of  England  respecting  the  maintenance  of 
the  poor,  or  respecting  bankrupts.'  On  this  foundation  rests 
our  right  to  the  enjoyment  of  the  laws  of  England,  except  as 
regards  the  criminal  law,  which,  having  been  introduced  by  the 
royal  proclamation  into  the  province  of  Quebec  as  there  defined, 
was  afterwards,  by  the  statute  14  Geo.  TIL  c.  83,  extended  to 
the  whole  territory  (including  Upper  Canada),  which  was  by  that 
Act  made  to  constitute  the  Province  of  Quebec,  and  has  ever 
since  been  allowed  to  continue  in  force  there;  being  expressly 
recognized  in  Upper  Canada  by  40  Geo.  III.  c.  1  (r),  and  modi- 
fied by  that  and  many  subsequent  statutes.  Except  for  the 
purpose  of  tracing  the  history  of  the  introduction  of  the  laws 
which  govern  this  colony,  it  was  unnecessary  to  the  decision  of 
the  point  before  us,  to  have  gone  further  back  than  the  statute 
32  Geo.  III.  c.  1 ;  whatever  was  done  before  cannot  affect  the 
question,  though  some  things  which  have  been  done  afterwards 
may.  Then,  looking  in  the  first  place  at  the  w'ords  of  this 
statute,  it  is  my  opinion  that  they  do  not  place  the  introduction 
of  the  English  law  on  a  footing  materially  different,  as  regards 
the  extent  of  the  introduction,  from  what  would  have  been,  or 
rather  from  what  was  the  effect  of  the  proclamation  of  7th 
October,  1763,  in  those  territories  to  which  it  extended,  or  from 
the  footing  on  which  the  laws  of  England  stand  in  those 
colonies  in  which  they  are  merely  assumed  to  be  in  force  on  the 
principles  of  the  common  law,  by  reason  of  such  colonies  having 
been  first  inhabited  and  planted  by  British  subjects.  The 
restrictions  intimated  in  the  passage  which  I  have  cited  from  the 
commentaries  and  the  reasons  of  Sir  Wm.  Grant,  in  the  case  of 
Attorney-General  v.  Stuart,  apply,  I  think,  in  the  case  of  an 
introduction  by  express  enactment  in  such  general  terms,  as 
well  as  in  the  other  case.  It  would  have  been  hardly  pos- 
sible for  the  legislature  to  have  excepted,  in  special  terms,  all 
those  British  statutes  which,  being  inapplicable  to  the   con- 

(r)  See  post, -p.  12S  et  seq. 


THE    SorUCES   OF   OUU    LAW.  107 

(lition  of  tlie  colony,  they  might  not  wish  to  inchule  as 
parts  of  the  law  of  Englantl.  And  it  is  impossible  to  allow 
that  they  could  have  intended,  by  the  Avords  they  used,  to 
embrace  every  provision  in  the  British  statute  book  which 
they  did  not  specially  except.  It  is  true,  indeed,  that  they  have 
made  some  special  exceptions  ;  in  their  enactment  they  have 
been  careful  to  provide  that  we  are  not,  under  the  general  wox'ds 
used  by  them,  to  take  the  English  poor  laws  and  bankrupt  laws 
with  the  rest ;  these  were  both  of  theni  systems  of  law  framed 
wholly  by  English  statutes.  It  cannot  be  denied  to  be  a  maxim 
that  '■  inentio  unim  e.alusio  est  (dterins.'  And  it  may  be  said 
that  the  legislature,  in  making  these  two  exceptions,  evinced 
their  impression,  that,  if  they  had  not  made  them,  the  poor  laws 
and  bankrupt  laws  would,  under  the  words  which  they  had  used 
before  in  the  statute,  have  been  introduced  into  the  province. 
The  argument,  consequently,  applies  (juantum  vuletit;  but  I  am 
of  opinion  that  we  cannot  allow  it  so  much  force  as  to  admit 
that  every  English  statute  of  a  general  nature,  not  excepted, 
is  in  force  because  it  was  not  excepted.  The  legislature,  look- 
ing on  the  poor  laws  and  bankrupt  laws  as  unsuited  to  the 
condition  of  the  colony,  were  determined  to  leave  no  room  for 
doubt  as  to  their  exclusion;  and,  therefore,  for  greater  caution, 
expressly  excepted  them ;  but  if  we  were,  therefore,  now  to  hold 
that  all  statutes  which  they  have  not  excepted,  and  which  could 
by  their  nature  be  enforced  here,  must,  therefore,  be  binding 
upon  us,  we  should  be  making  great,  and,  1  fear,  absurd, 
changes  in  our  system  of  laws,  as  it  has  been  always  hitherto 
received  and  acted  upon  here.  The  game  laws,  for  instance,  are 
not  excepted  in  the  statute;  nor  the  statutes  which  disable 
persons  from  using  a  trade  who  have  not  served  seven  years 
apprenticeship  (s),  nor  any  of  the  multitude  of  acts  relating  to 
certain  trades  and  manufactures;  and,  indeed,  it  would  be  oasy 
to  enumerate  a  long  list  of  statutes,  all  actually  capable  of  being 
acted  upon  in  this  country,  but  which,  having  been  passed  upon 
grounds  and  for  purposes  peculiar  to  England,  and  either  wholly 
or  in  a  great  degree  foreign  to  this  colony,  have  never  been 
attempted  to  be  enforced  here,  and  have  never  been  taken  to 
apply  to    us.     And,   indeed,  several  occasions  have   arisen   in 

(t)  See  ante,  p.  98.      * 


108  THE    CANADIAN    CONSTli'l  TION. 

which  this  court  has  determined,  with  respect  to  certain  British 
.statutes  passed  hefore  our  provincial  statute  32  Geo.  III.  c.  1, 
that  they  formed  no  part  of  the  law  of  this  province,  not  having? 
provisions  in  their  nature  applicahle,  and  such  as  it  could  he 
supposed  the  legislature  intended  to  introduce  under  the  f,'eneral 
words  used  hy  them  ;  these  words,  too,  it  must  be  remarked, 
are  not  such  as  expressly  introduce  the  whole  civil  law  of  Eng- 
land ;  they  seem  rather  intended  to  be  more  prudently  limited 
to  the  purpose  of  givmg  the  principles  of  English  law,  modified, 
of  course,  as  they  may  have  been  by  statutes,  as  the  rule  of 
decision  {t)  for  settling  questions  as  they  might  arise  relative  to 
property  and  civil  rights.  Still  it  must  be  confessed  that  a 
■wide  field  is  opened  for  disputes  by  the  term  civil  rights.  Among 
a  man's  civil  rights  it  may  be  argued  is  the  right  of  disposing  of 
his  property  as  he  thinks  fit.  And  when  he  has  made  a  dis- 
position of  it,  the  legality  of  which  is  questioned,  that  seems  to 
present  a  point  which  must  be  solved,  since  our  statute  82  Geo. 
III.  c.  1,  by  conceding  what  a  man  in  the  exercise  of  his  civil 
rights  might  in  such  a  case  do  in  England,  and  taking  that  as 
the  rule  for  deciding  the  controversy  between  the  persons  claim- 
ing under  the  disposition  which  may  be  questioned.,  and  the 
person  who  would  be  entitled  to  the  property  as  the  representa- 
tive of  the  deceased,  if  he  had  not  the  power  to  dispose  of  it  as 
he  has  donu.  To  decide  these  constitutional  points,  for  such 
they  are,  upon  principles  so  manifestly  clear  and  consistent  as 
to  keep  free  from  all  appearance  of  confiicting  decisions,  is  more, 
I  apprehend,  than  it  can  be  hoped  to  attain.  That  inisiro 
sirritus  which  is  said  to  exist  where  \ius  est  rai/uin  '  is  so  justly 
dreaded  in  tliese  times,  tliat  no  one  can  consent  to  admit  that 
there  exists  in  any  tribunal  an  arbitrary  discretion  to  say  what 
British  statutes  shall  be  in  force  here,  and  what  not ;  and  yet,  on 
the  other  hand,  in  the  present  state  of  our  jurisprudence,  there 
eamiot  be  said  to  be  any  other  method  of  settling  all  these  doubts 
as  they  arise,  tluni  for  courts  of  justice  to  detenninr  tlwin,  not 
hy   (1)11/   (irhitriiri/  e.rercisc  of  titcir  trill,   for   tlwij  C(i)i    ihiiiii    }io 

{t)  See  Moulson  v.  Commercial  Bank,  2  U.  C.  Q.  B.  'S^S,  involving 
the  question  how  far  the  English  Bankruptcy  Act  was  introtlucerl  by  the 
first  Canadian  Bankruptcy  Act,  which  uaeil  mucli  the  same  form  of 
expression.  ♦ 


THE   SOURCES   OF  ol'H    [,A\V.  TOO 

s)icli  lii/fit,  hut  upon  the  Iwst  riciis  which  thiij  nni  ttihe  of'  'iiiiii- 
iiwnts  ivhich  nninot  in  their  nuturr  lead  t>)  invj  ileitr  and  incnntvstohli' 
cimchtsion  {u).  To  repeat  what  I  have  ah-eady  quoted  from  ^Ir. 
.Justice  Blackstone,  '  What  shall  be  admitted  and  what  rejected, 
at  Avhat  times  and  under  what  restrictions,  must,  in  case  of 
dispute,  be  decided,  in  the  livst  instance  by  the  provincial  judica- 
ture, subject  to  the  revision  t.  i  'control  of  the  King  and  council,' 
and  we  may  add,  subject  alsio  to  any  express  provision  which  the 
legislature  of  the  motlipr  country,  or  of  the  province,  may  think 
fit  to  make.  With  regard  to  this  particular  statute,  9  Geo.  II. 
c.  86,  when  I  consider  the  English  decisions  as  to  what  are 
charitable  uses  within  the  intention  of  the  Act,  I  cannot  persuade 
myself  that  there  have  not  been  many  dispositions  made  in  this 
province  of  property,  both  by  deed,  and  by  will  which  would  be 
held  to  come  within  the  prohibitions  of  the  statute,  but  whicli 
have  nevertheless  been  acquiesced  in  and  executed  without 
ipiestion.  In  the  case  of  Poe  drm  McDonald  and  others  v. 
McDougall  in  this  Court,  Trin.  Term.  3  »t  4  Will.  IV.,  the 
(|uestion  whether  this  statute  was  in  force  here  was  discussed, 
and  as  far  as  I  know,  for  the  first  time.  The  point  was  not 
determined  in  that  case,  for  the  judgment  proceeded  on  other 
grounds  of  objection,  which  prevailed  ;  but  I  recollect  that  I 
formed  and  expressed  an  opinion  upon  it,  and  that,  looking  to 
the  reason  of  the  thing,  and  fully  concurring  in  the  sentiments 
which  liad  been  delivered  by  Sir  W.  Grant,  in  the  case  of 
Attorney-General  v.  Stuart,  I  was  disposed  to  look  upon  the 
statute  as  not  binding  in  this  province,  and  that  would  still  be 
my  opinion,  if  the  point  were  left  to  depend  wholly  on  the  effect 
of  our  statute  82  Geo.  III.  c.  1.  I  think  the  reasoning  of  the 
Master  of  the  Rolls,  as  applied  to  the  particular  provisions  and 
exceptions  in  that  statute,  is  obvious  and  irresistible,  and  that 
it  should  lead  us  to  say,  that  the  legislature,  if  they  had  given 
no  other  evidence  of  their  intention  than  is  to  be  found  in  statute 
82  Geo.  III.  c.  1,  did  not  intend  by  that  Act  to  introduce  the 
statutes  of  Mortmain,  among  which  the  9th  Geo.  II.  ic  usually, 
though  not  very  accurately,  classed.  But  my  opinion  is  that  we 
cannot  properly  hold   that  opinion  now,  after  the  legislative 

(«)  Compare  with  this  the  lainjuage  of  Mr.  Justice  Hill,  in  Nova 
Scotia,  ante,  p.  87. 


110  THE   CAXADIAN   COXSTnTTloN'. 

exposition  which  has  boen  afforded,  and  especially  in  ivcent  times, 
of  the  assumed  effect  of  that  statute.  The  legislature,  it  is 
admitted,  are  the  best  interpreters  of  their  own  laws,  and  to 
say  nothing  of  other  evidences  they  have  given  of  their  under- 
standing upon  this  point,  by  the  Church  Temporalities  Act 
passed  in  3  it  4  Vic.  c.  78,  they  have  provided  that  lands  may 
be  conveved  to  such  uses,  for  the  benefit  of  the  United  Church 
-of  England  and  Ireland  in  this  province,  as  would  clearly  have 
been  prohibited  by  the  British  statute  9  Geo.  II.,  and  they  have 
shown  it  to  be  their  understanding  that  without  such  express 
legislative  authority,  the  English  statutes  of  Mortmain  would 
have  restrained  parties  from  making  such  a  disposition,  for  they 
have  added  the  words  •  the  Acts  of  parliament  commonly  called 
the  statutes  of  Mortmain,  or  other  Acts,  laws,  or  usages  to  the 
contrary  thereof  notwithstanding,'  9  Geo.  II.  c.  36,  being 
commonly  regarded  as  one  of  these  statutes  of  Mortmain ;  but 
the  legislature  not  being  really  anxious  to  relieve  parties  in  this 
instance  entirely  from  its  restrictions,  they  accompanied  the 
authority  given  by  the  Act  with  limitations  in  the  same  spirit, 
though  not  to  the  same  extent,  as  those  contained  in  the  9  Geo. 
II.  c.  30.  They  only  give  validity  to  deeds  conveying  lands  to 
the  use  of  the  church,  provided  such  deeds  shall  be  made  and 
executed  six  months  at  least  before  the  death  of  the  person 
conveying  the  same,  and  shall  be  registered  within  six  months 
after  his  decease.  The  recognitions  by  the  legislature  to  which 
1  have  alluded,  are  subsequent  to  the  discussion  of  the  question 
in  Doe  <lein  McDonell  ct  al.  v.  McDougall  et  al.,  whether  the 
statute  9  Geo.  II.  c.  36,  was  or  was  not  binding  in  Upper 
Canada.  We  can  hardly  suppose  a  point  more  especially  within 
the  province  of  the  legislature  to  decide,  than  whether  a 
particular  part  of  the  statute  law  of  England  is  or  is  not  so  far 
in  its  nature  applicable  to  the  state  of  things  in  this  province, 
that  it  may  in  reason  be  considered  to  be  included  within  the 
operation  of  the  statute  which  they  had  themselves  passed, 
introducing  the  law  of  England  Relative  to  property  and  civil 
rights. 

"  If,  after  the  Church  Temporalities  Act,  which  I  have 
particularly  referred  to,  and  which  certainly  is  based  on  the 
assumption  of  the  statutes  of  Mortmain  being  in  force  here,  we 


THE   SOriK'ES   OF   oriJ    \..\\\.  Ill 

were  to  hoUl  tliat  the  statute  in  question,  9  Geo.  II.  c.  30,.  is  not 
in  force,  then  this  incongruity  would  follow,  that  while  i)eople 
would  be  restricted  from  conveying  lands  to  religious  and 
charitable  uses  connected  witli  the  Church  of  England,  in  any 
other  niuiner  than  by  a  deed  made  six  months  before  the  deatli 
of  the  grantor,  and  registered  within  six  months  after,  they 
might  convey  their  lands  to  religious  and  charitable  purposes 
connected  with  any  other  denomination  of  Christians,  without 
any  restrictions  whatever,  and  might  devise  all  their  estates  to 
such  uses,  even  upon  their  death-beds.  What  is  said  by  the 
Master  of  the  Rolls,  in  Curtis  v.  Hutton  (r),  very  strongly 
accords  with  this  view  of  the  case.  If  the  legislature  Lad  left 
the  subject  of  Mortmain  untouched,  making  no  reference  to 
it  in  any  of  their  Acts,  then  I  think  for  the  reason  given  by  Sir 
W.  Grant,  in  Attorney-General  v.  Stuart,  we  should  have  held 
that  the  statutes  of  Mortmain  were  not  introduced  by  the  pro- 
vincial statute  32  Geo.  III.  c.  1 ;  but  to  treat  them  as  inappli- 
cable to  this  province,  and  on  that  ground  to  keep  them  wholly 
out  of  view,  after  what  the  legislature  has  done  in  contemplation 
of  their  being  in  force,  would  lead  to  greater  inconveniences  and 
inconsistencies  than  those  which  Sir  William  Grant  has  pointed 
out  as  arguments  against  their  being  held  generally  inapplicable 
to  the  colonies.  We  ought,  in  my  opinion,  now  to  take  into  our 
view  all  that  the  legislature  has  done  bearing  on  this  question  ; 
and  doing  so,  we  must  hold  that  the  statute  9  Geo.  II.  c.  8G,  is 
part  of  our  laws,  and  that  under  it  the  disposition  made  by  the 
testator  by  the  will  in  this  case  is  void,  and  that  the  estate  has 
consequently  devolved  on  the  heir-at-law,  the  lessor  of  the 
plaintiir." 

It  should  l)e  remarked,  however,  that  Jones  mid  McLea'.i, 
JJ.,  appear  to  have  entertained  the  view  that  the  statute  in 
C|Uestion  was  introduced  l)y  .S2  Geo.  III.  e.  l,as  l>eint;'  a  part 
of  English  law  capable  of  application  to  Upper  Canada, 
but  both  treat  the  question  of  applicaliility  as  one  proper 
for  consideration.     McLean,  J.,  puts  it  thus  : 

♦*  It  is  evident  from  the  words  of  the  statute,  that  they  '.sA(/// 
form  the  rule'  for  such  decisions,  that  the  legislature  must  have 

();)  14  Ves.  541. 


112  rilK    f.WADIAX    COVSTITrriON'. 

been  well  invarc  that  in  very  many  other  niattern,  as  well  as  in 
reference  to  the  Poor  and  Bankrupt  laws,  the  laws  of  England 
were  wholly  inapplicable  to  the  circmnstaiices  of  this  province, 
and  could  not  therefore  be  introduced  as  a  body  of  laws  to  be 
enforced  in  all  eases.  They  are  therefore  only  to  form  the  ride 
in  all  matters  in  which  they  can  properly  and  reasonably  l)e 
brougiit  into  operation  here.  The  statutes  of  INIortnuiin  form  .i 
part  of  the  law  of  England  introduced  as  the  nde  of  decision  in 
all  cases  coming  under  their  operation,  and  tlu>re  is  nothing  to 
prevent  their  application  to  the  circumstances  of  the  country." 

on  the  crt'eet  of  sul»s('i|Ut'nt  le^'isbitivc  i-(»ci)y,'nitioii  they 
juTci'd  with  the  Chief  .lusticc,  find  the  uiiiininious  indiiinent 
(d"  the  court  was  thut  the  stututf  had  the  force  of  law 
ill  llp])t'r  ( 'aiia<la 

The  ^vneral  tenor  of  the  tleeisions  in  the  other  cases 
iiivolvin;^'  a  (;ousidei"}ition  of  this  statute  down  to  1S7(), 
will  siitficiently  appear  hy  the  following-  ^^\tract  iVoni 
the  Jir;;unieiit  of  counsel  in  the  case  in  appeal  about 
to  l>e  note<l  :  "  Hallock  v.  Wilson  (ic)  follows  Doc  Anderson 
\'.  Todd,  and  proceeds  on  the  <;'round  that  re^'i  strati  on  is 
substituted  for  enrolment,  and  that  the  statuU'  !)C«eo.  II. 
c.  ']{'),  is  in  foi-ce,  because  certain  provincial  statutes  have 
recognized  it  as  beiujn"  i"  force.  Mercer  v.  Hewston  (.c) 
expresses  a  doubt  wlvether  the  statute  is  in  force.  That 
<lecision  follows  Ihic  Ambn'son  v.  Todd,  as  beinj;'  the  law 
until  otherwise  detenniiied  by  the  C(mrt  of  Appeal.  Ander- 
son V.  Duu^all  (//)  and  Ander.son  n'.  Kilbourn  (:)  do  not 
discuss  tlie  ((uestion  whether  the  statute  is  in  force  or  not; 
and  Davidson  v.  Boomer  {a)  concedes  that  the  statute  is  in 
force  in  this  pi'ovince,  followinj;'  /Jor  Anderson  v.  Todd:  but 
in  Hambly  v.  Fuller  (//)  the  judgment  orily  states  that  it 
nuist  be  lield  that  the  statute  is  in  force,  upon  the  above 
authorities,  until  otherwise  decided  by  the  Court  of  Appeal. 

(id)  7  U.  C.  C.  P.  29.  (z)  lb.  21$). 

(x)  9  U.  0.  C.  P.  349.  (a)  15  Grant,  1,  218. 

(ij)  18  Grant,  164.  (b)  22  U.  C.  C.  P.  142. 


THE   SOUUCKS   (>F   (tVH    ].\\\\  118 

Fci'^i'nson    V.   (iiliHon    (r)    Fi)lIi)WH    tlu-    hUovu    HuthoriticH 
witlinut  "liscussint^- wluither  the  Act  is  in  force  or  not." 

The  wlioK'  mutter  cjiiiie  Hnnlly  before  the  Court  of 
Ainteal  foi"  Ontario  in  the  disc  of  W'hithy  v.  Lisconihe  (d). 
'I'he  oj)inions  (IcliN'ei'tMl  l»y  the  t'niint-nt  jud^-'es  who  deciiled 
tile  case  sliow  tlie  same  marl\e«l  diHcrence  of  opinion  as  was 
a])))arent  in  tlie  early  case — a  (h'cided  diHerence  in  principU' 
— althou;;h  the  Ju<l;^im'nt  of  the  court  was  unanimous  that 
the  statute  is  in  force  in  Ontario,  because  all  aijreed  in  hold- 
ing-that  tlie  le^iislative  reco;;nition  of  its  hindin^j^  force  here 
(particularly  .siucr  IS4'))  was  sufficient  to  incoi'porate  it 
anionjL;st  the  laws  of  Ontario  (').  Chief  Justice  Divipei- 
expresses  a  clear  opinion  that  the  ])rovincial  statute  82 
(leo.  III.  c.  1,  was  surticient,  per  w,  to  introduce  the 
Mortmain  Acts,  and  fi-om  his  lano-uaoe  it  mi^'ht  even  he 
ar;;ueil  that  he  considered  the  (piestion  of  aj)plicahility  not 
o[)en :  "The  (luestion  before  us  is  whether  our  legislature 
have  not  made  it  part  of  our  laws  ;  and  but  for  the  case  of 
Attorney-(  leneral  v.  Stewai't,  I  should  never  have  enter- 
taine<l  a  <loubt  on  this  point."  And  auain,  referriiifij  to  the 
En^ilish  laws  as  to  the  poor  and  to  bankruptcy,  and  another 
statute  subseijuently  excluded,  he  says :  "  The  reason  ^iven, 
that  the  provisions  of  those  Acts  were  inapplicalde  to  this 
province,  is  virtually  one  of  the  reasons  for  Sir  W.  Grant's 
Judjiinent  in  the  Attoi'ney-General  v.  Stewart;  but  our 
leoislature  evidently  did  not  douV)t  that  their  first  Act  had 
introduced  both  these  British  statutes  into  Upper  Canada." 
On  the  other  hand,  Mr.  Justice — afterwards  Chief  Justice — 
Moss,  agreed  fully  with  the  view  expressed  by  Robinson, 
C.J.,  in  the  early  case,  that  l)y  the  efi'ect  of  our  provincial 
Act  32  Geo.  III.  c.  1,  j^cr  se,  the  Act  in  question  was  not  in 
force.     Revievvin^  that  case,  he  said : 

(c)  22  Grant,  30. 
(rf)  23  Grant  1. 

(e)  Only  on  this  ground  is  Reg.  v.  Gamble  and  Boulton,  9  U.  C.  Q.  B. 
546,  supportable.     See  notes  to  B.  N,  A.  Act,  ss.  18  and  09  post. 
Can.  Con.— 8 


114  IMK   CANADIAN    CONsTITrilON. 

"  Thi'  (jtiostion  of  priiicipul  interest  in  this  casi.'  is  wlu'tluT 
the  stnttite  commonly  calltMl  the  Moitmiiin  Act  is  in  force  in 
this  province.  IMore  than  thirty  yeiirs  iii,'0  the  Court  of  (Queen's 
iiciich,  upon  full  consiileratu)!!,  held  that  it  was  in  force.  Since 
that  time,  in  e.xpress  <l(?ferenco  to  that  authority,  the  Courts  of 
Common  Law  and  the  Court  of  Chancery  have  decided  nuiny  cases, 
and  nuiny  devises  mid  he«]Uests  to  charitahle  usi'S,  otherwiso 
nnimpeachahle,  have  hcen  udjudfjfed  invalid.  The  point  is  now  for 
the  lirst  time  raised  in  a  Court  of  Ai)peiil.  So  many  instates  have 
been  administered  and  so  nuiny  titles  have  huen  ac(piired  upon 
the  assumption  of  the  correctness  of  a  decision  which  had  hetn 
followed  so  often  by  courts  of  coordinate  jurisdiction,  and 
remained  so  lonj,'  unchallenged  on  appeal,  that  its  reversal  woidd 
be  attended  with  serious  con.suquences.  Under  such  circum- 
stances, it  would  deserve  co)isideration  whether  the  case  was  not 
a  tittini,'  one  for  the  application  of  the  rule  -start'  tlifisi.s. 
If  the  only  <piestion  was  whether  I'oe  Anderson  v.  Todd  was 
well  decided,  1  should  hesitate  long  before  holding  in  the  atlir- 
mative.  The  points  then  presented  for  determination  were, 
whether  the  provincuil  statute  82  (leo.  III.  c.  1,  should  have 
been  judicially  interpreted  to  have  the  effect  of  introducing  the 
Mortmain  Act,  and,  if  not,  whether  suhseciuent  legislation  had 
effected  a  change  in  the  law.  Ko])inson,  C.J.,  was  of  oi)inion 
that  but  for  subsequent  legislative  exposition,  the  true  interpre- 
tation of  the  statute  of  Geo.  III.  excluded  the  Mortmain  Act, 
while  the  other  members  of  the  cotu't  seemed  to  have  enter- 
tained a  different  view.  The  reasoning  of  the  Chief  Justice 
appears  to  me  to  be  unanswerable — at  least,  if  the  decision  of 
Sir  Wm.  Grant,  in  Attorney-General  v.  Stewart,  is  correct, 
^nd,  apart  from  its  intrinsic  force,  it  would  be  hopeless  to 
impugn  this,  after  its  approval  by  the  House  of  Lords,  in  Whicker 
V.  Hume  fj').  It  was  attempted  in  the  argument  of  this  appeal 
to  distinguish  Doe  Anderson  v.  Todd,  and  withdraw  it  from  the 
application  of  the  principles  enunciated  in  the  two  English 
cases.  I  do  not  think  the  attempt  was  attended  with  success. 
It  proceeded  upon  the  differences  in  the  terms  employed  in  intro- 
ducing the  laws  of  England  into  this  province,  and  into  Grenada 
and  New  South  Wales  respectively.     Our  statute  enacted  that 

(f)  16  Jur.  .S9. 


■|"HK   SoriMKS   ol'    (till    LAW.  1  1.*) 

'  in  11,11  inattt'i's  of  controvorsy  ruliitivo  to  piopcrty  mid  civil 
ri,i,'lit3,  resort  slioiiM  be  had  to  thu  laws  ul'  Kn;,'l,'ind,  as  the  rult' 
tor  the  doeision  of  the  same.'  In  (ireuada,  justice  was  to  be 
administered,  as  near  as  mi<,'ht  he,  according'  to  the  laws  of 
l'<iii,daiid.  In  New  South  Wales,  the  laws  in  force  in  MiiKliiud, 
'  so  far  as  they  can  he  applied  within  the  said  colonies,'  were 
introduced.  Sir  Wm.  (rrant  held  that '  the  (juestion  of  whether 
the  statute  was  in  force  m  (Jrenada  depended  upon  this  eonsid 
eration  whether  it  he  a  law  of  local  policy,  adajjted  solely  to  the 
country  in  which  it  was  made,  or  a  •,'eneral  re^nilation  ol 
property,  e<|ually  applicable  to  any  coaiitry  in  which  it  is  by 
tlie  rules  of  l*lngHsh  law  that  property  is  governed;'  and, 
having  discussed  tlie  scope  of  the  statute,  he  ilecided  it  to  be 
local  in  its  character,  and  not  a  general  regulation  of  property. 
In  Whicker  v.  Hume,  Lord  Cranworth  emphatically  says:  'With 
regard  to  this  statute  of  Mortmain,  ordinarily  so  called,  I  cannot 
have  the  least  doubt  that  that  cannot  be  regarded  as  applicable 
to  the  colonies.'  This  being  the  construction  placed  upon  the 
statute  by  such  higli  autliorities,  the  respondents  were  forced  to 
the  broad  construction,  that  all  the  laws  of  I'ingland  relative  to 
pro})erty  and  civil  rights,  whatever  might  he  their  historical 
origin,  or  however  political  their  character,  or  however  clearly 
they  grew  out  of  local  circnmstiinces,  or  we^'e  meant  to  have  a 
local  operation,  were  introduced.  The  ob.servations  of  the  Chief 
Justice,  in  I  hie  Anderson  v.  Todd,  seem  to  me  to  effectually  dis- 
pose of  this  proposition.  As  he  points  out,  the  language  of  the 
statute  does  not  expressly  introduce  the  whole  civil  law  of 
England,  but  seems  to  be  limited  to  the  purpose  of  giving  the 
principles  of  the  English  law  as  the  rule  of  decision  for  settling 
questions,  as  they  might  arise,  relative  to  property  and  civil  rights. 
If  this  be  the  correct  view,  I  cannot  perceive  that  any  substan- 
tial distinction  can  be  founded  upon  the  differences  of  language 
to  which  I  have  referred."  • 

He,  liowcver,  doubted  tho  propriety  of  tin.'  decision  in  that 
CfiHu,  as  founded  on  too  .slight  a  legislative  recognition  of 
the  Imperial  Act  a.s  beiny  in  force  liere,  and  concluded  hi.s 
opinion  by  saying  :  "  It  is  upon  the  ground  of  this  hkJj- 
scqncut   lej^islative   recognition  that  I  wish   to   place   my 


lli;  THE   I'ANAIMAN    (  oNSTimioX. 

ju'l'^UH'iit,  that  till'  Mtatutf  must  now  l>c  lirl<l  tn  In-  in  Wnv 
ill  this  proviiK't'  "  (//). 

Stiirk  V.  FonI  (A)  is  tlic  rMtlicr  miiusiii;^  rccupd  nl"  mi 
misiu'C'tiSsriil  attt'iii|it  to  sulijfct  a  ('niiatliaii  Jiiil;;*'  to  tlic 
IMMUilties  providt'd  in  tin-  Act  '  loi  Mli;>lisliin<;  tlu'  Court  of 
Star  Clianilit'i',  Hi  Car.  I.  c  l(>  rpon  fxaniiiiation  of  the 
statute.  Roliin.son,  C.»I.,  jMtints  out  tliat  its  whole  hcojk'  was 
to  t'oiwiT  jmt  a  stop  to  the  unconstitutional  usui'jiation  of 
jijilieial  functions  l»y  the  Court  of  Star  Clianili«r,  an<l 
riiliculeil  the  idea  of  extelldili;;'  it  to  m  Jud;:e  Mlle;;ed  to  have 
acti'd  illenally  in  the  exercise  of  his  assiened  duties. 

At  the  date  of  the  passiii;^'  of  the  Provincial  Act, 
H2  (Jeo.  III.  ('.  1.  the  law  o|'  nuin'ia;4'e  —  hoth  as  to  the 
forms  t(»  Ite  olisei'Nt'd,  Mini  as  to  the  disahilities  which  would 
prex'ent  its  solemni/.ation  in  certain  cases — in  force  in  (Jreat 
Britain,  was  re<:ulated  li\-  the  statu'f  commonh'  kno>vn  as 
Lortl  Hardwicke's  Act,  2(5  (!eo.  II.  c.  'i'-i.  Since  I7J)2,  many 
provincial  statutes  have  made  |»ro\isions  on  many,  if  not 
most,  of  the  matters  le^-islateil  upon  l»y  Lord  Hardwicke's 
Act  ( ' ) :  hut,  as  late  as  1.S.S7,  tiie  latter  statute  has  l»een 
expressly  leci )t;ni/ed  as  introduced — as  a  wiiole — hy  our 
first  piMvincial  Act.  The  I'easons  ni\cn  for  so  considirinj;' 
it  in  foi'ce,  constitute  tlie  material  matter  for  us  in  this 
eiinuirv,  ami  l»v  wav  of  contrast  we  ma\'  note  tlie  reasons 
oiveii  for  hojdino- — as  has  in  IfS.Sl)  Iteeii  finally  held — that 
sect!  )n  II  of  th<>  Act  w;vs  n  .'Ver  introduced  into  our  law. 

"That  section  rendered  such  nmrriafire  by  license" — /.«'., 
of  a  minor  without  consent  of  parent  or  guardian — "  ahsohitely 
void,  without  any  sentence  of  the  court ;  and  length  of  coliabita- 

('/)  See    Smith    v.    Methodist   Church,    Hi    O.    R.    I'J'.I ;    Bntland   v. 
Gilleapie.  ib.  4iH\ 

(h)  11  U.  C.  Q.  B.  3(53. 

(j)  The  whole  matter  has  never  been  taken  up  by  our  letjialatures 
because  of  the  differences  in  reliv-ious  view  on  the  question  in  upper  and 
Lower  Canada  respectively  ;  and  note  the  division  of  the  subject  between 
the  Dominion  and  the  provinces  under  the  B.  N.  A.  Act,  s.  Ill,  ss.  2(i, 
and  8  i)2,  s-s.  12. 


THE   .S«HMl<ES   or   (flit    LAW.  |  |7 

tion  iiiitl  biitli  i)f  childi'i'M  iitVorled  no  ground  of  exeniptidn  (/) ; 
and  consent  snbsiMjufntly  m'ivt'H  would  not  avail  to  validate. 
This  rij^orourf  law  was  soon  afttT  repfiik-d  in  Kiii,'land,  and  no 
jiidk't'  Ims  regarded  witli  favor  the  proposal  to  hold  it  applioahie 
to  this  country.  .Judicial  opinion  as  reportod  is  all  the  other 
way."— /V/-  Boyd,  ('.,  in  Lawless  v.  Chamlu'rlain  (/.•).  "  Whether 
the  11th  section  of  the  Act  containing  tliiit  provision  was  ever 
piirt  of  the  law  of  this  province,  by  virtue  of  our  adoittion  of  the 
law  of  Knj^lanil,  may  fairly  he  ipiuflCioned.  If  it  ever  was,  it 
must  he  so  still,  as  we  have  already  mentioned,  because  the 
Knt,'lish  statute  repealinf,'  it  is  of  too  modern  a  date  to  be  bindinj; 
upon  us  by  virtue  of  our  statute  8'2  (ieo.  III.  c.  1,  and  it  lias  no 
relation  to  the  colonies;  but  it  would  be  dillicult  to  satisfy  our- 
selves, we  think,  that  it  ever  has  l)een  in  force  in  Upper  Ciinada, 
on  aecotuit  of  the  impossibility  of  applying'  the  12th  clause  to 
the  condition  of  things  here.  We  could  not  therefore  have  t)ie 
enactment  respecting  the  consent  of  parents  i)i  its  intei,'rity, 
and  as  it  would  work  great  hardship  to  have  the  11th  clause  in 
force  without  the  I'ith  or  any  other  provision  as  a  substitute  for 
it,  we  shall,  perhaps,  if  we  find  it  necessary  in  any  case  to 
detennine  the  point,  find  it  right  to  determine  that  neither  of 
these  clauses  could  be  taken  to  foiin  part  of  our  law  of  marriage 
under  our  own  adoption  of  the  law  of  England  by  82  Geo.  III. 
c.  1." — /'»■;•  Rjbinson,  C.J.,  in  Reg.  v.  Roblin  (/). 

Tlu'  reasons  jriven  on  the  otliei-  hund  for  hol(lin<;  the 
Act,  otlier  than  the  clauses  in  (jiiestion,  to  l>e  introduced 
here,  will  appear  in  the  following  passages  extracted  from 
the  opinions  of  Robinson,  C.J.,  Esten,  V^C.,  and  Armour, 
C.J.,  in  three  ca.ses  in  wliich  tliose  judges  had  the  (juestion 
luider  consideration  : 

"  When  by  our  statute  82  Geo.  III.  c.  1,  the  provincial  legis- 
lature adopted  the  law  of  England  as  the  rule  of  decision  .  . 
.  .  they  adopted  to  the  extent  mentioned,  not  merely  the 
common  law  of  England,  but  also  the  statute  law,  with  the 

U)  Johnstone  v.  Parker,  »  Phill.  41.  (A-)   IS  O.  R.  at  p.  309. 

{I)  21  U.  C.  Q.  B.  at  p.  8.')i.     See  Reg.  v.  Seeker,  14  U.  f.  Q.  H.  604, 
and  Rep.  v.  Bell,  15  U.  C.  Q.  B.  287. 


IIH  THE  TAXADIAX   rnXsTfTITinV. 

cxocptioriH  H|)t'cifu<l  in  tin  Act,  mid  with  other  cxt'i'ptioiiH,  though 
not  Hpt'C'ifiod,  of  Hiich  Iftws  iih  arc  clearly  not  appliciihle  to  the 
Rttitc  iA  things  cxiHtinK  iti  the  colony,  oC  whicli  various  (>xiunpleH 
tnij^ht  hi»  cited. 

"  \Vr  consider  that  our  adoption  of  the  \n\v  of  Kn^dand  to 
the  extent  mid  with  the  exceptions  just  nienlioned,  inchided  the 
law  ^'eni'rally  which  related  to  niairia;,'e.  The  statute  2(5  (ieo.  II. 
c.  Hi),  being  in  force  in  England  when  our  statute  was  passed, 
was  adopti'(l,  as  well  as  other  statutes,  so  far  as  it  consisted  with 
our  civil  institutions,  heing  part  of  the  law  of  Mnglund  at  that 
time  '  relative  to  civil  rights ' ;  that  is,  to  the  civil  rights  which 
an  inhiiltitiint  of  rpjjcr  Canada  may  claim  as  a  hushand  or  wife, 
or  as  lawful  issue  of  a  marriages  alleged  to  have  luen  solemnized 
in  I'pper  Canada. 

"  The  legislatiu'e  of  I'pper  Canada  have  so  regarded  this 
nuitter,  as  appears  hy  the  statute  MBCeo.  III.  c.  T),  sees.  1,  Hand 
(>;  88  Geo.  III.  c.  1,  s.  4  ;  and  11  Ceo.  IV.  c.  9(5,  in  whieli  they 
have  recognized  the  English  Marriage  Act,  in  etVect.  though  not 
in  express  teinis,  as  having  the  force  of  law  here  in  a  general 
sense,  and  controlling  tlu'  manner  in  which  marriage  is  to  he 
solemnized."   -IVr  Kohinson.  C.-I.,  in  Kegina  v.  Hohliii  (//') 

"No  doubt  the  Act  of  the  M'2nd  of  the  late  King,  introduced 
all  the  law  of  marriage  as  it  existed  in  England  at  that  date, 
excepting,  perhaps,  some  clauses  of  the  2(>  (Ieo.  II.  c.  HM.  It 
introduced  thy  Acts  '2r>  Hen.  VIll.  c.  22  ;  28  Hen.  VIII.  c.  7  ^^ 
1(5;  and  H2  Hen.  VIII.  c.  HS.so  far  as  they  remained  in  force, 
and  so  much  of  the  canon  law  as  had  heen  adopted  hy  the  law 
of  England.'  — I'tr  Esten,  V.C.,  in  Ilodgins  v.  McNeil  (/;). 

"  The  legislature  of  this  province  has  repeatedly  recognized 
that  Act  as  heiiig  in  force  in  this  province,  by  from  time  to 
time  passing  laws  modifying  and  qualifying  its  provisions.  8ee 
88  Geo.  III.  c.  r> ;  88  Geo.  HI.  c.  4  ;  2  Geo.  IV.  c.  11  ;  11  Geo. 
IV.  c.  HO. 

"Having  regard  to  the  ])rovisions  of  the  Acts  82  (Jeo.  III. 
c.  1,  and  40  Geo.  HI.  c.  1,  to  the  cases  above  referred  to,  and  to 
the  recognition  thereof  by  the  legislature  of  this  province,  as 
above  mentioned,  I  am  clearly  of  opinion  that  the  Act  20  Geo. 
n.  c.  88,  was  brought  into  force  in  this  province  by  the  Acts 

(m)  21  U.  C.  Q.  B.  ftt  p.  3.35.  (h)  5)  Grant,  at  p.  309. 


TIIK   snllU'Ks  (»K  tUU    I.WV.  ll!> 

89  Oto.  III.  ('■  1,  iiiid  to  (ieo.  III.  c.  1,  HO  fur  as  itH  proviHJons 
Wi'Vv  uppliniMt'  to  tlu-  circmnstimcis  of  this  pi'ovinco,  and  were 
not  incoiisiHtctit  with  the  civil  institutions  thereof;  and  that,  at 
all  events  (which  is  all  that  I  am  concerned  with  in  this  case), 
the  provision  thereof  niakini,'  all  niarria^^'es  which  should  he 
Holennii/.ed  without  puhlii-ation  of  hanns  or  license  of  niarria^'(* 
from  a  person  or  persons  having  authority  to  ^vnut  the  same, 
first  had  and  ohtnmed,  mill  and  void  to  all  intents  and  purposes 
whatsoevt-r,  was  hrou^'ht  into  force. 

"  I'nless  this  provision  was  ho  hrouj^dit  into  force  in  this  pro- 
vince, there  is  no  provision  in  this  province  makinj,'  void  a 
iiiarriaj,'e  so  solemni/.ed,  iuid  the  fact  that  the  h'j,'islaturiM)f  this 
province  has  never  deemed  it  necessary  to  make  any  such  pro- 
vision, is  cojjent  evidence  that  it  considered  it  unnecessary  to  do 
so  ;  hecause  this  provision  of  2(5  (leo.  II.  c.  MM,  was  treated  hy  it 
as  hein^'  in  force  in  this  province." — I'd-  Armour,  C.J.,  in  O'Con- 
ii'ir  V.  Kennedy  (o). 

Kroni  the  >ll»i)\e  CHSes  it  \\ill  lie  seen  thut  ill  rct'evi'nco 
ti>  liorii  FlHi-<lwiel<e',s  Marriii};e  Act  the  sume  |)riiK'i|)les 
Well'  iiivoUed  us  in  refert'iiee  to  the  Mortniiiin  Acts.  In 
<  ju'li  eiise  the  ('(ini't  Consiilered  : 

1st.  Is  the  Ih'itisli  statute  one  wliieh  oin  lie  considercMJ 
Hs  so  »i])])Iic)il>le  to  the  cireninstunoeH  of  this  colony,  tlint  tin; 
li'^^isliitnre  must  have  intended  to  introduce  it  l>y  tlu'  in- 
trinsic I'tlect  of  their  Act  'i'2  (Joe*.  UI.  c.  I  f  'I'his  (|uestion, 
in  the  cnse  of  the  I\lortniuin  Acts,  does  not  seem  to  have 
Iteeii  uniinimously  iinsvveriMl  hy  C'unadiun  jud^n's,  but  tho 
vveiuht  of  authority  would  apjiear  to  he  foi"  a  iu'<;fitive 
answer — in  coni'onnity,  as  will  have  heen  noticed,  with 
t^iii^lish  <lecisions.  As  to  tlii^  IMarria^v  Act  of  Lord  Hard- 
wiclce,  tlu'i'e  seems  to  have  been  no  ditt'erence  of  opinion — 
all  aiireeintj  in  the  ivsult  arrived  at,  in  favor  of  an  aftiniia- 
ti\e  answer,  except  as  to  the  1 1th  and  12th  clauses. 

2nd.  Has  there  been  subsecjuent  legislative  recognition 
by  the  provincial  parliament,  of  the  Itindin^  force  liere  of 
the  Act  in  (piestion  :'    As  to  lH)th  Acts,  the  answer  has  b^cn 

(o)  15  O.  R.  at  p.  22. 


120  THE   CANADIAN    ("ONsmr  lloN. 

unaniniouHly  in  tlu*  iiffiniintivc.     To  tlu'sc  consiWcnitioiis 
may  l)e  added  : 

.Si'(l.  Have  the  decifsions  ot"  provincial  courts  proct'e<K'(l 
HO  clearly  upon  one  line,  and  for  such  a  len^^th  of  time,  as 
to  liav»!  established  a  rule  of  law  in  regard  to  dealin^^s  with 
pro})erty,  or  in  regard  to  the  sfufns  of  particular  classes  of 
persons;'  "In  the  later  cases  there  can  T)e  no  douht  this 
consideration  operated  niost  powerfully  [n  Wliithy  v. 
Liscomlte  (/>),  in  l.S7(),  Mr.  .lustice  Burton  uses  this 
lan^ua<^e  :  "  Where  solemn  determinations  which  estahlish 
a  rule  of  property  have  been  ac<piiesced  in  foi'  so  loni;  a 
period,  a  court  even  of  last  resort  should  re((uire  very  stron;; 
^roumls  for  interferint;  with  them  '  ;  and  Mr.  Justice 
Patterson,  speakin;^;  of  Dor  Anderson  v.  Todd,  says  :  "  It 
has  been  acipiiesced  in  too  Ion;:;,  and  has  for  too  loni^  a 
period  sjjoverned  titles  to  land  in  this  ])i-ovince  to  be  now 
interfered  witli  by  any  authority  short  of  legislative  enact- 
ment "  ;  and  we  have  ab-i'ad}'  <pioted  tlie  opinion  of  Mi-, 
.histict!  (afterwards  Chief  Justice)  ]\Ioss,  in  which  the  same 
rule  of  expediency  is  expressed  in  tiiose  polished  periods  l)y 
which  his  written  opinions  are  always  cliai-acterized. 

Tlie  case  Hesketh  v.  Ward  (7),  l)rin^s  into  prominence 
another  (piestion  proper  for  consideration,  in  decidin;jj 
whether  or  not  a  particuhir  Im]>trial  Act  (we  are  of  course 
dealing;  with  Acts  in  force  in  Enj^lantl  on  15th  October, 
1792)  is  in  force  in  Ontario,  namely,  tlie  (|uestion — Is  tlie 
Act  one  of  {jjenerai  application  in  Eniijland,  or  is  it  local,  in 
tlie  sense  of  beinjjf  confined  to  some  particular  locality  or 
local  institution  in  England  i*  Upon  a  review  of  the  casea 
already  mentioned,  this  consideration  will  appear  to  iiave 
been  always  present  to  some  extent,  but  in  Hesketh  v. 
Ward  it  was  tlie  real  point  for  decision.  The  Acts  in 
(juestion  there,  were  1  Anne  (st.  2)  c.  (>,  and  5  Anne,  c.  9, 
making  certain  provisions  in  reference,  anioiifj^st  other 
matters,  to  escape  warrants.     Richards,  C.J  ,  after  a  careful 

(p)  23  Grant,  1.  (7)  17  IT.  C.  C   P.  (5()7.     See  nitte,  p.  93. 


THE   SOUHCES   OK    ol'K    LAW.  |21 

conHidiTfition  of  the  tirrtt-iuentioiuMl  .stntntc,  <l('ci<li'il  that 
it  was  not  part  of  oui*  law,  Itecausc  "  passfd  with  ivfeivncc 
to  th<'  ]K'cnliar  ])osition  of  thr  ottitvrs  of  the  prisons" — tlu* 
Marshalst'a  an<l  the  Fk'ct— "  to  which  it  rcforrtMl,  and  tho 
evils  recited  in  the  preanilile,  which  state  of  things  has  not, 
and  is  not  likely  to  exist  in  this  conntry  " :  and  apiin 
becanse  "  in  terms  it  is  only  applicahle  to  the  two  En^^lish 
pi'isons  named  in  it;  to  ri'medy  evils  which  the  preamble 
....  refers  to  as  peculiar  to  persons  of  the  descriptions 
theiv  referred  to,  and  as  to  which  no  apparent  necessity 
exists  in  this  comitry."  Thv  dissentini^  opinion  of  Mr. 
Justice  Wilson  (afterwards  Chief  Justice  Sir  Adam  Wilson) 
is  not  a  dissent  in  ])rinciple,  hut  a  joiner  of  issue  on  the 
facts.  After  a  lenj^thy  historical  discussion,  showin«>'  his 
usual  painstaking;  research,  he  points  out  that,  "  Altht>uo-Ji 
it  may  have  a  limited  ai)i)lication  in  En<;land  to  the  two 
special  and  peculiar  prisons  of  the  courts,  it  is  nevertheless 
a.  general  law,  and  a  heneticial  one,  ami  an  amendment  of 
the  law,  and  as  there  are  no  special  prisons  of  the  courts 
here,  hut  all  the  {jjaols  of  the  province  an;  eipially  the 
prisons  of  the  court,  the  statute,  hein^  such  general  law  by 
the  declaration  of  the  statute  itself,  has  an  o))eration 
here  upon  all  the  prisons  of  the  courts  "  (/•), 

In  a  series  of  cases  it  was  held  that  the  provisions  of 
14  Geo.  III.  c.  78,  relatint;  to  the  liability  of  persons  upon 
whose  premises  a  tire  accidently  starts,  for  damaijjes  result- 
m^  from  its  spreading  to  the  premises  of  another,  are  part 
of  our  law,  because  they  were  part  of  the  ^enei-al  law  of 
England,  introduce<l  by  82  Geo.  III.  c.  1,  and  were  not  of 
local  application  there  in  the  sense  before  referred  t  >  (s). 

(r)  On  this  principle,  many  English  statutes  referrini"  to,  c.;/.,  the 
courts  "at  Westminster"  have  been  held  to  be  part  of  f/c/icni/  Enjjlisli  law, 
and  as  such  in  force  here  in  relation  to  our  Superior  Courts.  See  43  Eliz. 
c,  fi,  and  13  Car.  II.  c.  2,  as  to  costs  in  certain  cases,  and  note  the  New- 
Brunswick  decisions  on  this  point,  ante,  p.  93. 

(.s)  Gaston  v.  Wald,  19  U.  C.  Q.  B.  586;  StinsMi  v.  Pennock,  14 
Grant,  ()04;  Carr  v.  Fire  Ass.,  14  O.  R.  487;  C.  S    II.   v.   Phelps,   14 


122  TFIE   rANADIAN   CONSTITrTIOX. 

Tlu'  CiiHes  heretot'ort'  considered  liave  luid  relation  to 
tlu-  effect  of  82  (Jeo.  III.  c.  1,  und  tlie  pliraseoloi;}'  employed 
in  that  Act,  has  l)een  relied  on  in  suiipoit  of  the  contention 
for  a  limited  introduction  of  the  Entdish  statutory  law 
relating  to  property  and  civil  i-i<^dits.  We  now  tui'n  to  the 
Provincial  Acts,  l)y  which  the  En^jlish  criminal  law  was 
introduced  into  this  province,  and  the  limits  of  its  applica- 
hility  <lefine(l.  As  has  heen  already  noticed,  the  (^)uel)ec 
Act,  1774,  (14  (Jeo.  III.  c.  N8),  while  re-introducin<j;'  the  law 
of  (^inada— /.r.,  the  Fi'ench  law  in  foi-ce  at  the  comiuest  — 
into  the  Pi'ovince  of  (^uehec,  as  desci'il)ed  hy  the  Act,  pro- 
\ide<l  foi"  a  contimiation  therein  of  the  criminal  law  of 
En^'land. 

"  XI.  And  whereas  the  ceitainty  and  lenity  of  the  criminal 
law  of  England,  and  the  benefits  and  advantaj'cs  resulting  from 
the  n.se  of  it,  have  been  sensibly  felt  by  the  inhabitants  from  an 
experience  of  more  than  nine  years,  during  which  it  has  been 
uniformly  administered  ;  be  it,  therefore,  further  enacted  by  the 
authority  aforesaid,  that  tiie  same  shall  continue  tc«  be  adminis- 
tered, and  shall  be  observed  as  law  in  the  province  of  Quebec,  as 
well  in  the  description  and  qtuility  of  the  offence  as  in  the 
method  of  prosecution  and  trial,  and  the  punishments  and  forfei- 
tures thereby  inflicted,  to  the  exclusion  of  every  other  rule  of 
criminal  law  or  mode  of  proceeding  thereon,  which  did  or  might 
prevail  in  the  said  province  before  the  year  of  our  Lord  1704  ; 

H.  C.  R.  132.  For  other  caaes  in  ITpper  Canada  (Ontario)  on  this  subject, 
see  Torrance  v.  Smith,  ;}  U.  C.  C.  P.  411,  a'xl  Hearle  v.  Hoss,  15  U.  C. 
Q.  B.  25i),  in  which  2(5  Geo.  III.  c.  8(1,  exempting  vessel  owners  from 
liability  for  loss  thronj,'h  fire,  was  held  to  he  part  of  our  law  ;  Reg.  v.  Mc- 
Cormick,  18  U.  C.  Q.  B.  131— Nullum  Tempus  Act  (9  Geo.  III.  c.  Tfi),  in 
force  here;  Dunn  v.  O'Rielly,  11  U.  C.  C.  P  404,  in  which  the  clauses 
m  22  Geo.  II.  c.  4(),  relating  to  attorneys,  were  held  to  be  in  force  here, 
altliough  other  parts  of  the  Act  inapplicable  (a  veritable  witches'  cauldron, 
this!);  Reg.  v.  Row,  14  U.  C.  C.  P.  307,  ii.  vhich  28  Geo.  III.  c.  49,  s.  4 
(enabling  a  magistrate  for  a  county-at-large  to  sit  within  a  city,  itself  a 
county,  within  the  boundaries  of  the  county-at-large),  was  held  not  to  be 
in  force,  being  lonal  in  its  character;  Bleeker  v.  Myers,  fi  U.  C.  Q.  B. 
134 ;  Hart  v.  Meyers,  7  U.  C.  Q.  B.  416 ;  Garrett  v.  Roberts,  10  O.  A.  R. 
(l.'^O — 18  Eliz.  c.  "),  as  to  suits  by  informers,  in  force  here. 


THK  soi'iU'Es  OF  oru   I-.\\V.  128 

everything  in  this  Act  to  the  contrary  thereof  in  any  respect 
notwithstanding ;  siihject,  nevertheless,  to  such  alterations  and 
amendments  as  the  (lovernor,  Lieutenant-Ciovernor,  or  Com- 
mander-in-Chief for  the  time  being,  by  and  with  the  advice  and 
consent  of  the  legislative  council  of  the  sind  province,  hereafter 
to  be  appointed,  shall  from  time  to  time  cause  to  he  made  therein 
in  manner  hereinafter  directed." 

Tlu'  ConstitutiDHul  Act  of  17f)l,  while  dividinn-  the  Pro- 
vince of  Quebec  into  Upper  and  Lowei'  Ciinndn,  left  each 
province  with  the  law  as  it  stood  undei-  tlie  Act  of  1774 
(except  of  coiii'se  as  altered  1»}'  pro\'incial  ordinances),  hut 
pive  each  province  a  le<;islatui'e  empowered. to  make  laws 
for  the  peace,  welfare  and  <;oo(l  ^'•overnment  thereof.  What 
Upper  Cana<ln  would  do,  was  prett}'  well  undtM'stood.  As 
was  anticipated,  she  annuled  the  old  Frencli  law,  .-ind 
adopte<l  the  law  of  Hn^^land  as  the  rule  for  decision  of  all 
controversies  relative  to  pr()])ei"ty  Jiu<l  civil  rij^hts;  and 
she  not  nuM'elv  adhered  to  the  criminal  law  of  l^nu'land, 
as  introduced  hy  the  pi'oclamation  of  17()M,  and  coutinutMl 
by  the  (,)uel)ec  Act,  ahove  (pioted,  hut  she  went  furthei', 
aufl  liy  40  (Jeo.  III.  c.  1,  enacted  that  "  the  criminal  law  of 
Eniiland  as  it  stood  on  the  17th  da^' of  September,  A.I). 
175)2,  shall  he,  and  the  same  is  hereby  declared  to  be,  the 
crin.inal  law  of  this  province." 

Un(kn'  this  statute,  every  Act  of  the  Bi-itish  parliament 
in  force  as  part  of  the  <;eneral  criminal  law  of  En^dand  on 
the  17th  day  of  September,  1792,  was  introduced  into 
Upper  Canada.  The  date  in  reference  to  which  the 
Knii'lish  criminal  law  should  be  considel'ed  in  force  was 
thus  brouji>ht  forward  by  bS  years,  and  under  it,  as  well  as 
under  the  Quebec  Act  of  1774,  the  encjuiry  proper  under 
the  common  law  as  to  the  ajjplicabilit}'  of  an  Imperial  Act 
to  the  circumstances  of  a  colony  was  elimiufited,  and  the 
only  enquiry  is — Is  the  Imperial  statute  local  in  the  sense 
we  have  menticmed  ?  If  not,  it  is  part  of  the  law  of  Upper 
Canada. 


» 
124  THE   CANADIAN   CONSTITUTION. 

We  must,  liowever,  ai^ain  repeat  that  we  are  dealiut;'  in 
this  chapter  with  Eiif^Hsh  .statutes  of  no  express  ajjplication 
to  the   colonies,  and   the  Provincial   Act,  40  Geo.  III.  c.  1 

> 

applies  only  to  such  statutes  (0-  Imperial  Acts  which 
jiroprh)  vifjore,  apply  to  us,  are  treated  of  elsewhere.  With 
this  repeated  caution,  we  proceed  to  consider  some  Canadian 
authorities  upon  the  (piestion  of  the  introduction  of  Eni;-lish 
criminal  law  into  Upper  Canada  ('')• 

In  Bea.sley,  (]ui  tain,  v.  Cahill  {r),  it  was  held  that  the 
Imperial  statute,  82  Hen.  VIII.  c.  J),  against  huyini,^  disputed 
titles,  was  in  fc^rce  in  Upper  Canada.  It  was  contended 
that  the  statute  was  obsolete,  even  in  England,  and 
Robinson,  C.J.,  remarked  that  this  seemed  to  him  rather 
singular,  as  the  reasons  assigned  in  the  preamble  of  the  Act 
for  its  passing,  were  reasons  sufficient  in  all  times:  hut 
notwithstanding  that  it  seemed  to  have  remained  .so  lonj^  a 
dead-letter  in  England,  he  held  the  Act  to  be  in  force  jn 
Upper  Canada,  because  "  it  constitutes  part  of  the  criminal 
law  of  England,  which  we  have  adopte<l  by  an  ex})ress 
.statute,  intro<lucing  it  as  it  stood  in  England  on  the  17th 
September,  1792"  {w). 

In  Regina  v.  Mercer  (,r),  certain  English  Acts  against 
the  buying  and  selling  of  offices  were  considered  (5  iz  0 
Edward  VI.  c.  IH,  and  49  Geo.  III.  c.  12(5).  The  latter  Act 
it  will  be  noticed,  is  of  a  date  subse  pient  to  1792,  and  does 
not  therefore  fall  within  our  present  encjuiry  ;  it  was  how- 
ever held  to  be  of  express  colonial  application,  and  thei'e- 

(t)  Bank  of  U.  C.  v.  Bethune,  4  U.  C.  Q.  B.  (O.  S.)  Kio ;  see  ante,  p.  69. 

(m)  Since  the  above  was  written,  the  '  Criminal  Law  "  of  Canada  has 
been  codified,  and  (it  is  undergtood)  all  necessity  for  reference  to  English 
criminal  law  obviated.  As,  however,  the  "  criminal  law  "  over  which  the 
Dominion  parliament  has  legislative  power,  does  not  cover  the  whole 
field  of  penal  legislation,  what  we  have  written  may  still  be  applicable  in 
a  few  cases  even  in  Ontario. 

(r)  2  U.  C.  Q.  B.  320. 

{w)  And  see  Purdy  q.  t.  v.  Ryder,  Tay.  236. 

(r)  17  U.  C.  Q.  B.  602  ;  S33  also  Foot?  v.  Bullock.  4  U.  C.  Q.  B.  480, 
and  Reg.  v.  Mood  e,  20  U.  C.  Q    15.  ;;s;i. 


THK    SnnU'ES    (»F    (H'R    I, AW.  125 

t'orr  ill  force  Ir'IV.  Tlie  Act  of  Kdwnrd  \'I.  whh  uiiaiii- 
niously  held  to  l»e  pnrt  of  our  law.  Roliiiisoii,  C..I.,  udverts 
to  tlie  distiuctio)!  lietweeii  tile  two  provincial  Acts,  l]'2  (leo. 
III.  and  4()  (jleo.  III.,  in  the  follo\vin<;'  lan^^ua^'e  : 

"  It  is  denied  that  tills  statute  luis  any  force  in  Upper 
<'anada.  If  that  [mint  de])ended  merely  on  the  question  whetiier 
it  is  included  in  our  adoption  of  the  law  of  En^daiid,  under  our 

statute  82  (leo.  III.  c.  1, a  good  deal  might  be 

urged  against  the  application  of  the  statute It 

is  more  to  the  purpose,  I  think,  to  consider  whether  5  (V;  (J 
Edward  VI.  c.  10,  should  not  he  held  to  he  in  force  here  under 
our  adoption  of  the  criminal  law  of  l-iiigliind  hy  40  freo.  III. 
c.  1,  which  enacted  that  the  criminal  law  of  England  as  it 
stood  on  the  17th  of  8eptend)er.  1792,  sliall  he,  and  it  was 
thert  hy  declared  to  be,  the  criminid  law  of  Upper  Canada.  I 
think  it  must  be  held  that  the  statute  formed  part  of  the  criminal 
law  of  England  which  was  thus  introduced." 

McLean  and   Burns,  .Id.,  were  e{|ually  free  from  doubt. 

So  likeAvise,  in  a  nuniher  of  cases,  the  En;^lish  Lottery 
Acts  were  held  to  be  in  force  in  Upper  Canada:  Cronyn  v. 
Widder  (//)  l»ein<i;  the  leading*  case.  Both  in  this  case  and 
Rei^ina  v.  Mercer,  above  noted,  it  was  ur^ed  that  tlie 
statutes  were  not  criminal  statutes,  but  with  the  considera- 
tion which  led  the  court  in  each  instance  to  hold  these  Acts 
to  b*^  part  of  th'i  criminal  law  of  England,  we  have  here 
nothing-  to  do.  It  is  more  to  our  purpose  to  observe  that 
havinu"  held  them  to  be  part  of  the  En^'lish  criminal  law, 
the  court  applied  them  as  part  of  the  criminal  law  of 
Upper  Canada,  \\ithout  entering  upon  any  inquiry  as  to 
their  adaptation  or  want  of  adaptation  to  the  circumstances 
of  Upper  Canada. 

And  in  Reid  v.  Int^lis  (z),  Draper,  C.J.,  speaking  of  the 
Act  1  Wni.  &  Mary,  c.  18,  "against  disturbers  of  religious 

(y)  16  U.  C.  Q.  B.  .35(),  and  see  Corby  v.  McDaniel,  ih.  378.  In  earlier 
casea  referred  to  in  these,  the  Acts  were  not  questioned. 

(z)  12  U.  C.  C.  P.  191. 


12()  THi:    CAXAIIIAN    CONS'l'ITrriON'. 

met'tin^H,"  said  :  "I  sec  no  rcfison  foi- lioliliiiijf  tlw.t  tli»'  Act 
is  not  in  force  lici'c:"  From  which  we  would  infer  thut,  in 
his  opinion,  all  Knnlish  criminal  statutes  in  Force  in  Kn^- 
lainl  in   I7!*2,  are  iH-nmi  fticir  in  Force  here  (u). 

AikI  now-  even  at  the  risk  oF  a  char;^'e  oF  undue  repeti- 
tion—vv(^  nnist  a;,^ain  point  out,  tliat  in  any  case,  the  (jues- 
tion  whethei"  or  not  any  particular  British  statute'  oF  date 
anterior  to  I7f)2,  lias  the  Foice  oF  law  in  Ontario,  will 
de])end,  in  the  first  place,  upon  the  ahsence  oF  colonial 
le{,;is|jition  -C'anadian  or  Proxincial,  as  the  case  may  he  — 
on  the  suhject  matter  involved.  IF  there  is  none  such,  then 
the  principles  we  ha\'e  enumei'ate»l  in  the  cases  we  havt^ 
reviewiMl,  will  Jiave  to  he  consi(lere<l,  and  may  he  suni- 
mai'izod  shortly  hy  saying': 

^l.s-  to  the  c'l iihiihil  hnv,  no  (piestion  cjui  arise,  save' 
the  one  (|uestion  — Is  the  act  one  oF  general  h^n^lish  appli- 
cation '.  If  so,  it  is,  in  the  ahsence  always  of  cohaiial  let;'iH- 
latiou,  as  ahove  speciHe<l,  pnrt  of  our  law  under  40  (}eo. 
III.  c.  1. 

zl.s  to  j)i'o/)erfi/  iiiiil  (i)'il  ri(/li.ts,  t^ie  Followin;.i'  points 
must  he  considered  :  (I)  Is  the  Act  one  of  {^[eneral  ti]n;4'lish 
application  in  the  sense  we  have  mentioned  !*  (2)  If  so.  is 
it  an  Act  i)ro})erly  applicable  to  the  circumstances — the 
connnercial,  relit«;ious,  and  social  enviromiients — of  this  pi-o- 
vince  !*  (.S)  [f  not  so  applicahle,  or  if  the  matter  is  one  of 
reas()nal)le  doubt,  has  there  been  a  lej^islative  reco^niition 
of  the  Injperial  Act,  as  bein>^  in  force  here  f  (4)  Hfive  the 
decisiijns  of  the  courts  j)rocee<led  so  clearly  upon  one  line, 
as  U)  have  estal)lishe:l  a  rule  of  property  or  .statuf<  in  the 
province  ^ 

It  will  be  seen  that,  owin<;  to  the  recognition  by  Upper 
Canadian  judj^es  of  the  propi'iety  of  making  an  inquiry  as 

(a)  See  Sheldon  v.  Law,  8  U.  C.  Q.  B.  (O.  S.)  85,  and  Fulton  v.  James, 
5  U.  C.  C.  P.  182  (horse- racing) ;  Reg.  v.  Milford,  20  O.  R.  30o  (9  Geo. 
II.  c.  5,  against  fortune  telling),  and  Reg.  v.  Barnes,  45  U.  C.  Q.  B.  276 
(Lord's  Day  Act). 


TIIK    SOl'HCKS    OK    (>ri{    I.WV.  1 27 

ti)  the  applif.'iihility  of  aiiv  ImpD-ial  Act  to  the  ciiruiii- 
staiKH's  of  this  ])roviiic't',  the  piMiiciplcs  upon  wliicli  the 
•  Iccisioii  nmst  rest,  in  thr  case  of  any  ^^ivrn  Htatiitc,  ai'c  the 
same  (e.\ct'j)t  as  to  criiiiinal  statutt's)  as  those  hii»l  down  in 
the  decisions  of  the  Xo\a  Scotia  and  New  Hrnnswick 
conrts,  and,  as  we  shall  iiereaftersee,  the  statutes  l»y  which 
this  (juestion  is  no\t'nicd  in  the  proNinces  more  lately 
a('(|nii'ed,  expressly  make  "  applicaliilily  the  test  of  theii- 
introduction. 

The  Kn^lish  authoi'ities  upon  this  sul»je(!t  aic  sutli- 
eiently  referre(l  to  in  the  extracts  taken  frt)m  the  (nnailian 
authorities.  As  pointed  out  l>y  Chief  Justice  Ilalliliurton, 
in  Tniacke  w  Dickson  (A),  those  authorities  lay  down  no 
\'ery  detinite  pi'inciple  to  ;,niide  colonial  jud;^'es  in  comin<^ 
to  !i  decision  in  this  very  impoi'tant  matter:  and,  for  this 
reason,  we  liaxc  ;j;()ne  more  elahorately  into  the  authorities 
in  the  older  provinces  than  mi<^ht  semi  necessary,  .so  far  as 
those  oldei"  provinces  alone  are  concerned:  hut,  owin*;'  to 
the  comparatively  rt'Cent  dates  which  have  lieen  fixed  uj)on 
in  the  lately  ac(piii'ed  provinces  {<■),  ;is  the  date  for  tlm 
introduction  of  Eni^lish  law,  the  (piestions  discusse»l  in 
this  chapter  are  certain  to  he  of  fre'.|Uent  occurn^nce  in 
those  [)rovinces,  and  we,  therefore,  li-ave  this  chapter  as 
oi-i^inally  written. 

So  far  as  the  province  of  Ontario  is  concerned,  the 
matter  now  stands  : 

^l.s-  to  the  Imr  rcbiflrr  to  jtro/xi'ti/  oikI  rii.il  rajhts — 
up(jn  R.  S.  O.  (1887)  c.  {)'i  in  which,  after  reciting  82  Geo. 
III.  c.  1,  the  Legislative  Assend)ly  of  Ontaiio  enacts  as 
follows : 

"  1.  In  all  matters  of  controversy,  relative  to  property  and 
civil  x'ights,  resort  shall  continue  to  be  had  to  the  laws  of 
England,  as  they  stood  on  the  said  loth  day  of  October,  1792, 
as  the  rule  for  decision  of  the  same,  and  all  matters  relative  to 
testimony  and  legal  proof  in  the  investigation  of  fact,  and  the 

(6)  Ante,  p.  78.  (c)  Pont,  Chap.  XIII.  et  neq. 


12.S  Tllhr^CAXADIAX    (.OXSTITl'TION. 

forms  thereof,  in  the  several  courts  in  Ontario,  shall  continue  to 
he  ref,'ulate(l  by  the  rules  of  evidence  established  in  En<,'land.  ns 
they  existed  on  the  day  and  year  last  aforesaid,  except  so  far  as 
the  said  laws  and  rules  have  been  since  rei>ealed,  altered,  varied, 
modiiied,  or  attected  by  any  Act  of  the  Imperial  parliament  still 
having  the  force  of  law  in  Ontario ;  or  by  any  Act  of  the  late 
province  of  Upper  Canada,  or  of  the  province  of  Canada,  or  of 
the  province  of  Ontario,  still  having  the  force  of  law  in  Ontario, 
or  by  these  revised  statutes. 

"  2.  The  statutes  of  Jeofails,  of  limitations,  and  for  the 
amendment  of  the  law,  excepting  those  of  mere  local  exi)ediency, 
which,  previous  to  the  17th  day  of  January,  1H22,  liad  been 
enacted  respecting  the  laws  of  England,  and  then  continued  to 
be  in  force,  shall  be  valid  and  etl'ectual  for  the  same  purposes  in 
Ontario,  I'xcepting  so  far  as  the  same  have,  since  tiie  day  last 
aforesaid,  been  repealed,  altered,  varied,  modified,  or  affected  in 
the  manner  mentioned  in  section  1  of  this  Act.'" 

Avtl  ti.s  ft)  tlic  n'tDihial  loiv — upon  H.  S.  C.  (l(SH(i) 
c.  144,  by  section  I  of  wliicli  it  is  enacted  as  follows  : 

"  The  criminal  law  of  England,  as  it  stood  on  the  17th  day 
of  September,  in  the  year  1792,  and  as  the  same  has  since  been 
repealed,  altered,  varied,  modified,  or  aftected  by  any  Act  of  the 
parliament  of  the  United  Kingdom,  having  the  force  of  law  in 
the  province  of  Ontario,  or  by  any  Act  of  the  parliament  of  the 
late  province  of  Upper  Canada,  or  of  tb<^  province  of  Canada, 
still  having  force  of  law,  or  by  any  Act  of  the  parliament  of 
Canada,  shall  be  the  criminal  law  of  the  province  of  Ontario." 

Quebec. — The  position  of  this  province  is  so  entirely 
iini(|ue,  that  reference  tt)  its  legal  system  is  of  no  aid  in 
the  other  provinces.  Its  civil  law'  (founded  on  the  "Code 
Civile"  of  Napoleon)  has  since  been  recast  into  a  provincial 
code,  and  no  reference  to  English  law  is  in  order  in  that 
province  in  the  sense  we  are  now  discussing.  As  to  the 
criminal  law,  its  recent  codification  obviates  any  further 
reference  to  it. 


(ilAITEH    VI. 


Tin:   I'HKHOGATIVKS  OF  THE   CROWN. 

Thcrt'  lins  Ikh'U  mo  more  Fruitful  euusc  ol*  (lis[)Ut('  and 
•<K'l»iitt',  ill  rt'l'i'i'i'iK't'  to  the  ^((vcniiMeiit  t)t'  the  British 
i'olonii's,  tluiii  tlic  lack  oi*  a  proper  undcrstundinji;'  ot"  that 
i)ran('h  of  iMi^lish  law  which  relates  t()  the  "prerogatives 
of  the  Crown";  and  witiiin  a  conipaivitively  recent  period 
tlu!  Hanie  want  of  appreciation  of  the  essential  principles 
which  underlie  that  law  has  oiveii  rise  to  notable  disputes 
{o)  between  tlie  executive  authoritieK  of  tlie  Dominion  and 
of  some  of  tlu^  pi'ovinces,  as  to  which  executive  head — the 
(iovernoi'-Cieneral  or  Lieutenant-(»overnor — sliould  exercise 
the  preroi;-ati\es  in  cei'tain  eases.  And,  in  truth,  this  lack 
of  a  proper  orasp  of  tin;  situation  is  not  much  to  lie  won- 
<lere<l  at:  and,  for  this  reason,  that  the  authorities  on  tiiis 
braneli  of  law  {!>)  so  mix  statements  of  law  with  hymns  of 
praise  and  ascriptions  of  attributes  almost  divine  to  the 
wearer  for  the  time  )>ein(;'  of  the  Crowni  of  England,  that 
it  is  a  difficult  task  to  disentangle  the  thread  of  legal  prin- 

{(t)  Atty.-Genl.  (Can.)  v.  Atty.-Genl.  (Ont.),  19  O.  A.  R.  31,  affirming 
*20  O.  R.  2'22 ;  see  Lenoir  v.  Ritchie,  3  S.  C.  R.  575.  The  question  about 
the  appointment  of  Queen's  (-ounsel  is  now  standing  for  argument 
before  the  C!ourt  of  Appeal  for  Ontario. 

(h)  "  A  topic  that  in  some  former  agea  was  ranked  among  the  arcana 
impiirii :  and,  like  the  mysteries  of  the  bona  dea,  was  not  suffered  to  be 
pried  into  by  any  but  such  as  were  initiated  in  its  service;  because,  per- 
haps, the  exertion  of  the  one,  like  the  solemnities  of  the  others,  would  not 
bear  the  inspection  of  a  rational  and  sober  enquiry." — Blackstone. 

Can.  Con.— 9 


ISO  '  THi:    rANADI.W    rnNSTInrioN. 

ciplc  wlueli  niMH  tlii<»u;;li  it  (r).  'I'lic  (»!<!  juristic  snw  nhi 
jus  est  roi/iiiiK  Hii  inisfiui  sti'i'iftiH,  ]\hh  iio  iiiorf  tMr<"il»N' 
illiistnition  tliuii  in  tii**  history  of  the  Htr\i;;<;h's  of  the 
Kii^iish  people  to  free  theiiiselves  from  the  (h'spotisin  of 
^<»venimeiit  l»y  prero;;iitives,  uiiejirthe<l  liy  the  imhistry  <>f 
Hi'i'vile  hiwyi'rs,  hikI  tortuied  into  ie;^Hl  jiistitieuti'in  for 
executive  ,)ppreHHi((li. 

It  is  jilwolutely  necesMury  to  clear  up  this  vmhucucss  and 
to  assign  a  (h'linite  position  in  Kn;^lish  jurisprudence  to 
that  hranch  of  it  which  ndates  to  these  "  pivi'ot;ati\i's.  " 

It  vvouhl  he  highly  intert'stin^,  hut  altogether  lnxoiid 
the  scope  of  this  woi'k,  to  enter  upon  a  i)hil(»sopjiic  en<|uiry 
into  the  relative  antitpiity  of  the  lej^dsiative  and  executive 
departments  of  ^ovei-nment-  the  lavv-makin^f  and  the  hiw- 
executin;;  power— oi"  even  upon  the  more  limited  en(|uiry 
into  their  relative  position,  historically  considered,  in  Hi'it- 
ish  jurisprudence.  We  can  merely  .say,  that  from  time 
innnemorial  there  has  lieen  a  clear  distinction  di'awn  hy 
jurists  hetween  these  two  depjiitments.  If  any  theoiy  can 
he  .said  to  have  lej^al  validity,  it  would  appear  that  the- 
lepil  theory  of  Hi'itish  juiispindence  is,  that  fuither  hack 
than  any  court  will  l(i'.;k  there  was  a  1>ody  of  law  a  funda- 
mental law  (so  to  speak)  of  the  constitution  {(/) — hy  viitue 
of  which  lii)th  Kin<;  and  Parliament  had  their  lej^al  l>ein^, 
and  hy  it  the  relations  of  Kin^  to  Parliament,  and  of  each 
to  the  government  of  the  kinj^<lom,  were  rej^ulated.  Thin 
common  law  of  England  recoj^nizes  only  one  executive 
magistrate  as  exercising  authority  without  connnission 
from  any  other,  within  oi'  without  the  realm.  That  execu- . 
tive  magistrate  is  the  occupant  for  the  time  heinj;'  of  the 
Hi-itish  throne.     All  other  mai^istrates  act  "  hv  connnission 

(f)  Haj^arty,  C  .).,  speaks  of  the  "  boundless  crop  of  venerable  learning 
as  to  pardon  and  prerogative."— 19  O.  A.  K.  at  p.  36. 

(d)  "  The  orif^inal  right  of  the  kingdom  and  the  very  naturul  consti- 
tution of  our  state  and  policy," /jcc  Yelverton,  «/v/.  2  St.  Tr.  483.  And  see 
Hale's  Hist,  of  the  Common  Law ;  Broom's  Const.  Law,  2nd  ed.,  p.  245, 
et  seq. 


I'KKIUMIATIVKS   OK    I'HK   (RnWV.  181 

t'i-t)iii  )iii<l  ill  <lu«;  suli()i'<liiiiitioii  to  liiin"(r').  Hut  t)i<-  power 
atid  duty  of  this  cxeciitiv*'  htiul  is  to  execute  the  hiws  of 
the  reiihii.  He  iw  not  uhove  thoH(5  hiWH,  liut  uinler  them, 
heiiij;  Iiouiul  l»y  th»'iii  e(|Uiilly  with  the  meanest  of  his 
snltjects.  It  follows,  of  course,  thiit  no  commission  from 
him  wouM  ciiriy  iiuthority  to  act  oth«'rwise  than  according 
to  law  (  /  ).  Ill  order  to  the  dut'  execution  of  tlie  laws,  this 
"common  law  of  Kn;rland"  has  invested  tlu(  ex«'cutive  head 
with  certain  attributes  and  powers,  and  these  an'  collect- 
ively ivijown  as  the  "  prerogatives  of  tlu!  (/rown."  The 
power  to  alter  the  law  of  the  land  was  no  ])ait  of  these 
preroj,nitives('/):  that  power  rested  exclusively  with  parlia- 
mi'ut,  the  h'.r  rf  cmixiirf  iinlm}^  which  is  ecjually  part  of  the 
common  law.  PailiaiiuMit  consisti'd  of  the  Kin<j(  and  the 
three  estates  of  the  realm,  Lords  spirituill.  Lords  temporal, 
and  (yomnions ;  and  its  enactments  were  promulj^ated  as 
the  Acts  of  the  Kiii^'  in  parliament.  In  tlufory,  it  would 
seem  that  defects  in  the  law  were  supposed  to  he  discoveied 
l»y  the  executive  lu-ad  in  the  course  of  the  administration 
of  pulilic  aHairs:  whereupon,  in  the  exercise  of  his  pre- 
idijfative  riirht,  vi'sted  in  him  l»v  the  common  law,  to  sum- 
mon  the  three  estates  of  the  realm,  he  would  cause  parlia- 
ment to  assemhle  in  order  that  the  law  mii^ht  (if  all  ao-ree*!) 

(«')  Chitty,  "  <.>ii  tile  I'rero^jativtvs  of  the  Crown,"  4. 

(./■)  Ih.  r, :  Bracton,  L.  1.  c.  o. 

(fl)  The  power  of  the  Crown,  witlioiit  parliament,  to  make  audi  laws 
Hi*  mif^lit  seem  proper,  for  a  connncied  territory,  was  no  exception  in 
reality ;  its  exercise  waH  in  the  nature  of  executive  action.  See 
("lark  Colonial  Law,  fi,  8;  Campbell  v.  Hall,  Cowp.  204  ;  and  the  valu- 
able note  (a)  to  Ijeith  &  Smith's  Blackstone,  at  p.  I'J.  "It  has  been  said 
that,  in  case  of  territory  ac<|uired  by  CJreat  Britain  by  comiuest,  inas- 
much as  the  t^overnment  is  i)ot  absolutely  monarchical,  but  the  authority 
to  impose  laws  is  vested  in  the  Sovereij^n  conjointly  with  the  two  Houses 
of  Parliament,  tiie  Kin}^  therefore  alone  can  exercise  no  prerogative  ri^^ht 
to  impose  such  laws  as  he  pleases,  and  consecjuently  that  the  mode  .  . 
by  which  the  British  laws  were  introduced  into  Canada  after  the  Treaty 
of  Paris  was  of  no  effect.  See  the  opinion  of  C.  J.  Hey,  2  L.  G.  Jur., 
appx.  in  Wilcox  v.  Wilcox,  and  L.  C.  Jur.,  vol.  1,  2nd  part,  pp.  38-48.  See 
also  the  various  judgments  in  Stuart  v.  Bowman,  2  L.  C.  R.,  and  in  apnx. 
to  2  L.  C.  Jur."     See  also  Forsyth,  12,  ct  seq. 


\:V2  TIIK  <'.\\AI)|.\X   (  '  XSTITI  TlnV. 

Ih'  iiltrrnl  iiinl  the  (Ict't'i't  r»'!iH'(linl.  I'urliuiiii'iit.  Iiuwcvcr 
KiKT  Mssciiildfil,  iiii;^lit  iiddrcMs  itMcH',  inti  iMcr«  ly  tit  till'  (iltcr- 
iitioii  (U'.siiu'il,  liiit  to  tlif  iiltfintioii  nl*  tlif  Inw  ii|)()ii  (itln-r, 
jiinttci'M  ;  iiikI  tlic  otlicr  Itiaiicln's  ol'  |»iilimiii'iit,  or  i'itln'i'  t>f 

tlicin.    iMi;ilit    liiir;;iiiii    lor   tlic    liittiT  Jis   the   )tri( t'   the 

loniHi'.  ill  iiiiy  ciisc,  liny  ai'<l  t-vny  iiltcnitioii  iii  tlic  liiw 
iioTctMl  upon  liy  tlif  Kiiiy;!in<l  the  tlii'cr  I'stjitrs  wmh  tlifrr- 
at"tri"  )>Jirt  of  tilt-  \n\\ ,  to  tlif  f  Xfciitioii  of  wliicli  tlic  |»oWfr 
iiinl  tluty  of  tlif  Kin;;'  was  liinitftl.  As  it  is  soniftiiiifs,  Imt 
not  very  intflli^iMy.  c spPfssftl,  tlif  Kind's  authority,  as 
fXfC'Uti\('  lifail  of  tlif  natitm,  is  sulionliiiatf  to  liis  authority 
as  rti/ml  rl  /iiiis  jKi  I'l  HI  nil  nil  (h)  lint  wliilf  parlianifiit 
may  r  nact  laws  has  fiiactfd  iiian\-  laws  f\fn  with  rfffi- 
fnc'f  to  tlif  i»rf ro;;atiNfs  of  tlif  ( 'row  n,  tlifir  cxtfiit, and  tlif 
niodf  of  fXfrcisiiin'  tlifiii,  still,  inilfss  pai'Iianifnt  ;;()fs  to 
thf  full  fxtfiit  of  law  iiiakinj^"  in  any  fivfii  casf,  it  cannot 
Wfakfii,  ill  thf  sli;>litfst  (IcL-rff,  thf  Iffal  fftfct  of  thf 
fXfi'cisi'  l)V  thf  So\fr(>iyn  of  a  iirfroi-atiNc  riiilit  attrilmtcil 
to  him  l»y  the  connnon  law  :  and  Ihis  lf;;al  cHfct  is  what 
the  older  w  ritfi's  particularh'  nolict". 

So  carfful,  indcfd — the  old  writfis  jait  it  is  the  coni- 
nion  law  in  its  jirovisions  for  thf  diu- f  xft-ution  of  tin;  laws 
of  thf  land  :  so  careful  to  |)ro\  i<lf  a  chfck  a;4iiinst  any 
If^islativt!  Iiindrancf  to  their  smooth  and  fX})editiouH 
workin<;",  that  the  executive  ma^istratf  thf  Crown -is  liy 
thf  cortimon  law,  and  for  the  very  ]>ui'i)osf  of  prott^ctinj^" 
the  royal  executive  authoi'ity  (/),  a  constituent  laanch  of 
pai'lianujnt ;  and  tiie  con.seiit  of  the'  C'l'own  is  absolutely 
essential  to  the  \aliditv  t)f  all  Acts.  This  riu'ht  to  uivi!  or 
withhold  consent,  has  been  treated  as  itself  one  of  the  pre- 
I'o^atives  of  the  (!!rown — the  cover  and  protection  to  all 
the  other  prero<;ativeH — and  ujion  its  exercise  the  law  recojif- 

(/()  See  Steph.  Comm.  Vol.  II.  p.  340,  as  to  the  proper  meaning  of  this 
phrase. 

((■)  Chitty,  On  the  Prerog.  of  the  Crown,  p.  3  ;  see  mites  p.  B3,  for  an 
extract  from  Gov.  Cornwallis'  commiHsion,  disclosinj^  this  reason  in  frank 
termH. 


I'UKIUUJAI'IVKS  (»K  TIIK   fHoWV,  \:\A 

iii/i'M  IK)  liiiiitutions.  Wliili'  tVoin  titiic  to  tiii>«>  |<iu'liaiiK*nt 
luis  witlulniwii  CM'itiiiii  pivru^^ativc  lij^lits  tVoiii  the  Cn)\vn  : 
luiM,  in  n'l^iU)!  tn  ntlicrM,  iv(|uiit'<l  tlir  coiKMU'rciicc  of  sotnr 
ofliiT  |n>i'Moii  !>»•  lindy  <it"  |M'rsuns  in  unlcr  t<»  tlicir  \r^n\ 
fXt'icist';  Mini  ill  immy  wtiyn  lins  t'tttfit'd  tlicir  cxcrcisi'  liy 
('(■iiditionH  lis  to  tiiiH',  |)Iiu"' mill  nmuiici'itt'  t-xfrciso  ;  sucli 
ju'tioii  liiis  mIwhvs  Iiii'I  tlic  coiiMciit  of  tlir  Crown,  no  iimttt'i' 
liow  Mnwillin;^ly.  <>r  iiikIct  wlmt  Mtr"Ns  of  ciirniiistMncrs, 
•^isi'ii:  iiiul  tliis su|»rt'iii('  [JrciMMutivc  for  pit •  count ivc  it  iiuiy 
lie  cjillcd — of  ;;ivinj;'  or  withlioldin;;'  sufli  consi'iit,  no  power 
uliort  of  rt'volutittii  niii  ever  take  iiway  (,/).  TImm  is  tin- 
aspect  of  the  t|Uestion  wliicli  is  pre  eminently  apjjarent  in 
tlie  law  liooks,  and  it  is  the  utter  inad«'(|ua('y  of  this  oiie- 
Hide-of-tlie-story  mode  «>f  treatment  vvhieh  mnk'es  this 
liranch  ot  the  law  so  nnintelli;;ilile  to  the  ordinary  student. 
lie  is  haunted  liy  the  idea  that  what  he  is  readiii;^"  i>^  lar<^ely 
mere  anti(|uarianism  :  and  yet,  the  statemenis  made  are 
statenu'iits  of  le;;al  principles  which  he  cannot  ;;ainsay. 
The  points  of  importance  to  a  proper  understan<linii'  of  this 
branch  of  jurisj)rudence,  are  so  slurretl  over,  that  it  is  only 
hy  patient  spellin;^'  out  of  what  appear  to  he  treated  as 
minoi'  sulxliNisions  that  we  can  reach  a  satisfactory  solu- 
tion of  the  prohlem.  As  a  matter  of  history,  parliament — 
perhaps  we  should  sav  the  HouH^of  CVmuu(,)ns  -has  always 
found  means  to  .secure  tlie  consent  of  the  Crown  to  tu' 
t'uactment  of  laws  on  which  its  heart  was  lieiit;  and. 
lea vin_<i  aside  for  a  moment  the  le^^al  necessity  for  such  con- 
Hent,  let  us  work  out  the  other  le^il  principles  to  which  we 
have  alludiMl. 

Back  of  lepil  memory,  stands  the  common  law  of  Eu^- 
land.  "  The  law  makes  the  Kin^r  "  (/,•) ;  the  atti'ilmtes  and 
powers  which  attach  to  his  office,  as  executive  head  of  the 

ij)  See  notes  to  sec.  2  of  the  B.  N.  A.  Act,  post,  for  a  reference  to  the 
method  adopted  to  get  over  tliis  difficulty,  in  the  case  of  the  Bill  of 
Rights— 1  Wm.  A  Mary,  at.  2,  c  2. 

(k)  Bracton,  L.  1,  c.  8;  Hale,  Hist,  of  the  Common  Law;  Broom, 
Const.  Law,  248. 


184  THE   CANADIAN   CONSTFTUTFON. 

nation,  are  part  of  that  conunoji  law;  are  detined  (Did 
li)))it<'(l  hi/  that  law,  and  are  in  aitl  oi"  the  executive  (/). 
Over  against,  or  at  least  distinct  from  the  Kin^,  stands 
Parliament.  It  is  the  creation  of  that  same  common 
law  (?*<),  and  to  parliament  alone  does  that  conmion  law 
entrust  the  power  to  alter  the  law  of  the  land,  whether 
eonnnon  or  statutory,  upon  an}'  and  every  conceivaliK' 
subject  matter.  Parliament,  therefore,  can  alter  the  Ifj' 
prcrof/dtir^f  (>/);  and  it  needs  no  very  extensive  knowledge 
of  En<ilish  history  to  appreciate  that  the  House  of  (yonnnons 
never  relincjuishes  what  it  ^ains  of  control  over  the  execu- 
tive. The  history  of  Enjjlish  le<>islation  is  the  history  of 
curtailment  of  prerogatives,  and  particularly  of  those  pre- 
rogatives in  the  exercise  of  which  any  lar^e  amount  of 
discretion  was  open  to  the  Crown,  as  to  time,  place  and 
manner  of  exercise. 

At  this  stage,  some  attempt  should  perhaps  l)e  made  to 
classify  tlie  "  prerogatives  of  the  Crown "  as  the}'  are 
enumerated  in  the  works  of  such  writers  as  Hale,  Black- 
stone,  and  Chitty.  One  large  principle  of  division  appears 
in  the  classification  of  prerogatives  into  attributes,  and 
prerogatives  proper.  The  attributes  of  sovereignty,  (oi- 
pre-eminence),  perfection,  and  perpetuity,  find  expression 
in  the  sayings: — "  The  King  is  properly  the  sole  executive 
magistrate"  ((>); — "The  King  can  do  no  wrong";  and — 
'The  King  never  dies."  With  ti.ese  legal  principles,  and 
their  position  in  English  Jurisprudence,  we  need  not  now 
concern  ourselves,  as  they  are  passive. 

(I)  Broom,  316. 

(m)  Steph.  Comm.  (5th  ed.)  vol.  II.  p.  33.5. 

(«)  So  far,  indeed,  does  the  power  of  parliament  over  the  executive 
extend,  that  it  can  not  only  deal  by  legislation,  with  the  lex  lyreronativa, 
but  it  can  "  make  laws  and  statutes  of  suflScient  force  and  validity  to 
limit  and  bind  the  Crown  and  the  descent,  limitation,  inheritance,  and 
government]  thereof,"  at  least  the  statute,  0  Anne,  c.  7,  adjudges  traitors, 
all  who  affirm  the  contrary. 

(<>)  Chitty,  p.  4.  .  . 


PREROGATIVES  OF  THE  CROWN.  185 

Tlif  pivroijjatives  pi-oper  ropi'o.seutcMl,  according'  to  the 
<;oiHiii()ii  law,  powers  of  action  in  connection  with- every 
lej)artnieiit  of  executive  jyovernnient,  administrative  and 
judicial.  Even  those  preroi^ative  powers  in  connection 
with  tlu'  assend)hn<;',  proi'oouint;  and  <lissolvin^  of  parlia- 
ment were  in  aid  of  tiie  executive  (/>).  Chittv  divides 
these  prerogatives  proper — the  Une  of  division  is  not  very 
exact — into: 

1.  Preroffatives  in  refei'ence  to  fore  iyt)  sfufes  (end  affairs, 
such  as  the  sending'  of  andtassadoi's,  the  makinj.;"  of  treaties, 
making-  war  and  peace,  and  the  various  acts  of  executive 
j^overnment  necessary  in  comieetion  with  these  various 
matters  {(}). 

2.  Preroy-atives  ai'isino-  from  tlu;  reco^^'nized  positiori 
of  the  Crown  as  Head  of  tlit'  ('harrli,  with  which  we  in 
<yanada  need  not  perhaps  trouble  oui"selves  (?•). 

-].  Prerogatives  in  connection  with  the  assend»linj(,  pro- 
ron'uino',  and  dissolving;'  of  parliament  (s). 

4.  Prerogatives  annexed  to  the  ])osition  of  the  Crown 
as  tlie  fitaiifahi  of  justice  (/) ;  such  as  the  creation  of 
courts,  the  appointment  of  judj^esand  officers  in  connection 
therewith  ;  the  pardoninjj;  of  offenders,  and  the  issuing  of 
proclamations. 

o.  Those  prerogatives,  which  flow  from  the  position  of 
the  Crown  as  the  f(nn}t<im  of  horumr,  such  as  the  bestow- 
ing of  titles,  franchises,  etc.  (it). 

(i.  The  superintendency  of  connnerce  {v). 

{p)  See  ante,  p.  131. 

{'/)  Chitty,  39. — These  are  all  matters  which,  for  obvious  reasons,  are 
still  treated  as  matters  of  "  Imperial  "  concern,  and  over  which  therefore 
colonial  legislatures  have  nc  legislative  power.     See  Chap.  IX.  post. 

(r)  Chitty,  50.— See  in  r  Lord  Bishop  of  Natal,  3  Moo.  P.  C.  (N.  S.) 
115  ;  Forsyth,  35,  et  seq. 

(s)  Chitty,  67.— See  Che  i.  VIII.  and  notes  to  sees.  38  and  50,  B.  N.  A. 
Act,  post. 

(t)  Chitty,  75.  (;/)  lb.  107.      ■  (r)  Ih.  162. 


186  THE    CANADIAN    CONSTITUTION. 

7.  The  prer()<jj{itiveH  in  connection  with  the  collection  of 
the  revenue  (w). 

Serjeant  Stephen  in  his  new  Coninientaries  on  tlie 
LawH  of  En^-land  (fouinle<l  on  Blackstone),  a(.l<)})ts  n  some- 
what different  (livision.  According  to  lii.s  arran<;eiiient, 
prerogatives  are  either  <l lirct,  or  by  way  of  r.rn'/itidii.  Of 
the  latter  he  says  (./•)  : 

•'  Those  by  way  of  exception  are  such  as  exempt  the  Crown 
from  some  general  rules  estabhshed  for  the  rest  of  the  com- 
munity— as  in  the  case  of  the  maxims  that  no  costs  shall  be 
recovered  against  the  Crown ;  that  the  Sovereign  can  never  be  a 
joint-tenant ;  and  that  his  debt  shall  be  preferre,'.  before  a  debt 
to  any  of  his  subjects"  (//). 

Direct  prerogatives  he  divides  into  three  classes, 
according  as  they  re<;ard,  (1)  the  royal  cluiracter:  (2)  the 
royal  authority;  and  {'■])  the  royal  income  (c).  Of  these 
divisions,  tlie  prerogatives  l)y  way  of  exception,  and  those 
regarding  the  royal  authority  and  the  royal  income,  corres- 
pond with  Chitty's  division  treating  of  "  prero(::atives 
pn^per." 

So  far  as  the  j^overnment  of  the  United  Kinii'dom  is 
concerned,  we  may,  for  reasons  about  to  be  stated,  abandon 
any  further  discussion  in  detail  of  these  prer()i,^atives.  It 
requires  nothing  more  tlian  a  cursory  j^lance  at  the  last 
edition  of  Stephen's  Connnentaries  to  make  cleai-  that  par- 
liament has  so  taken  control  of  these  prerogatives :  has  so 
fettered  their  exercise  by  ctmditions  as  to  the  manner,  time, 
and  circumstances  of  putting  them  into  execution:  has> 
indeed,  in  such  a  vast  majority  of  cases,  indicated  tlie  par- 

(w)  lb.  199. 

(x)  Steph.  Comm.  p.  494,  vol.  II.  (5th  ed.). 

(y)  See  Exchange  Bank  v.  Reg.,  II  App.  Cas.  157,  in  which  it  was  held 
that  no  such  prerogative  right  exists  in  Quebec ;  Reg.  v.  Bank  of  Nova 
Scotia,  11  S.  C.  R.  1,  and  Maritime  Bank  v.  Reg.,  17  S.  C.  R.  (557  (con- 
trary holding  as  to  Nova  Scotia  and  New  Brunswick).  This  last  case 
has  just  been  atRrmed  by  the  Privy  Council.     See  note  (y)  p.  144  post. 

{z)  See  Chap.  II.  ante  p.  35,  et  neq. 


I'HEIUKiATrVES   OF   THE   CROWN.  I  .S7 

ticnliir  ortieial  ]»y  whom  tliey  are  to  he  exercised,  that — 
althouifh  exerci.se<l  in  the  Sovereitrn's  iiaine — all  discretion 
in  connection  with  them  has  vanished.  They  have  very 
largely  ceased  to  he  "  conuiion  law  "  prero<;atives,  and  are 
now  statutory  powers.  But,  hefore  enterinj^  upon  a  con- 
sideration of  the  position  of  the  colonies  generally,  and  of 
(lunula  in  particular,  in  I'eference  to  "  prerogative  "  we  nmst 
a^^ain  emphasize  tlie  le}.;al  ])rinciple  (a)  that  the  h'.r  fwrroif- 
(liivd  WHS  part  of  the  law  of  England,  which  pai-lianient 
was  ahle  to  alter  and  uiould  in  such  way  as,  in  the  opinion 
of  parliament,  wouM  hest  conduce  to  the  interests  of  the 

})eople,  or— to  put  the  same  idea  into  <litlerent  lan^uai^e 

tlie  law-making-  power  in  Eni^land  has  always  Iteen,  and 
still  is,  supreme  over  the  law-executinjj^  power,  their  sphere 
of  activity  heinj^'  one  an<l  the  same.  We  desire,  too,  to 
draw  attention  to  the  fact  that  this  control  by  parliament 
over  the  executive,  exists  liy  law,  and  apart  alto^ethei*  fi'om 
those  conventions  of  the  constitution,  the  observance  of 
which  secures  harmony  and  co-operation  between  the  two 
departments  of  j^overnment,  and  that  this  control  by 
parliament  is,  in  truth,  the  necessary  result  of  th.e  "  I'lde  of 
aw. 

Upon  the  accpiisition  of  a  colony,  what  is  the  position  of 
its  iidiabitants  in  reference  to  this  lev  in'croi/nflni  !  I'his 
broad  (piestion  finds  very  scant  consideration  in  the  text 
writers  on  this  branch  of  law.  The  two  followinj;-  (piota- 
tions  exhaust  all  that  Chitty  has  to  say  on  the  subject : 

"  Though  allegiance  be  due  from  everyone  within  the  terri- 
tories subject  to  the  British  Crown,  it  is  far  from  being  a 
necessary  inference  that  <dl  the  prerogatives  which  are  vested  in 
His  Majesty  by  the  English  laws  are,  therefore,  exercisable  over 
individuals  within  those  parts  of  His  Majesty's  dominions  in 
which  the  English  laws  do  not,  as  such,  prevail.  Doubtless 
those  fundamental  rights  and  principles  on  which  the  King's 
authority  rests,  and  which  are  necessary  to  maintain  it,  extend 
even  to  such  of  His  Majesty's  dominions  as  are  governed  by  their 

[ii)  See  Steph.  Comm.  (5th  ed.)  332,  et  seq. 


\:\H  THE   TAXADIAN   CONSTITITION. 

own  local  and  separate  laws.  The  King  would  be  nominally, 
and  not  sultstantially,  a  sovereign  over  such  of  his  dominions  if 
this  were  not  the  case.  But  the  various  prerogatives  and  rights 
of  the  Sovereign,  which  are  merely  local  to  England,  and  do  not 
fundamentally  sustain  the  existence  of  the  Crown,  or  form  the 
pillars  on  which  it  is  siipported,  are  not,  it  seems,  /irinid  fnn'r, 
extensible  to  the  colonies,  or  other  British  dominions  which 
possess  a  local  jurisprudence  distinct  from  that  prevalent  in,  and 
peculiar  to  England.  To  illustrate  this  distinction,  the  attri- 
butes of  the  King,  sovereignty,  perfection,  and  perpetuity,  which 
are  inherent  in,  and  constitute  his  Majesty's  political  capacity, 
prevail  in  every  part  of  the  territories  subject  to  the  English 
Crown,  by  whatever  peculiar  or  internal  laws  they  may  be 
governed.  The  King  is  the  head  of  the  Church ;  in  iiossi'ssol  of 
II  share  of  U'lihlntion  ;  and  is  generalissimo  throughout  all  his 
dominions  ;  in  every  part  of  them  his  Majesty  is  alone  entitled 
to  make  war  and  peace;  but  in  countries  which,  though  depen- 
dent on  the  British  Crown,  have  different  and  local  laws  for  their 
internal  governance,  ax,  for  instance,  the  plantations  or  colonies, 
the  minor  prerogatives  and  interests  of  the  Crown  must  be  regu- 
lated and  governed  by  the  peculiar  and  established  law  of  the 
place  (/»).  Though,  if  such  law  be  silent  on  the  subject,  it  would 
appear  that  the  prerogative,  as  established  by  the  English  law, 
prevails  in  every  respect ;  subject,  perhaps,  to  exceptions  which 
the  differences  between  the  constitution  of  this  country  and  that 
of  the  dependent  dominion  may  necessarily  create  in  it.  .  .  • 
.  .  .  In  every  question,  therefore,  which  arises  between  the 
King  and  his  colonies  respecting  the  prerogative,  the  first  con- 
sideration is  the  charter  granted  to  the  inhabitants  (c).  If  that 
be  silent  on  the  subject,  it  cannot  be  doubted  that  the  King's 
prerogatives  in  the  colonies  are  precisely  those  prerogatives 
which  he  may  exercise  in  the  mother  country.  The  preroga- 
tives in  the  colonies,  unless  where  it  is  abridged  by  grants,  etc. 
('•),  is  that  power  over  the  subjects,  considered  either  separately 
or  collectively,  which,  by  the  common  law  of  England,  ab- 
stracted from  Acts  of  parliament  and  grants  of  liberties,  etc., 

(/))  See  Exchange  Bank  v.  Reg.,  11  App.  Cas.  157,  with  which  com- 
pare Maritime  Bank  v.  Rej^.,  17  S.  C.  R.  057. 

((•)  A  fortiori .  wliere  the  charter  is  an  Imperial  Act  of  Parliament. 


I'HKKOOATIVKS   OF   TIIK    riJOWN,  139 

from  the  Crown  to  the  suhject.  tlie  King  could  rightfully  exercise 
in  l^ngiand  "  ('/). 

The  stutenit'iits  eontuiiifd  in  thesi'  pjissaf^es,  >iiv  not  very 
■<letinito  ;  l»ut  hearing-  in  mind  the  two  methods  of  acquiring- 
colonies, — hy  con(|Uest  (or  cession)  and  Ky  settlement — 
and  applying-  to  each  type  the  rules  indicated,  it  may  l>e 
laiil  <lo\vn  :  (1)  That  in  a  eonijuered  or  ceded  colony  which 
continues  to  be  ^ovei'ned  1>y  a  foreit^'n  law  (f),  the  Ic.r  j»tr- 
rot/iiflr,!  of  En^dish  jurisprudence,  is  to  be  no  more  deemed 
in  force  theie,  than  is  any  other  branch  of  English  law  (  /"), 
.subject  as  Chitty  puts  it,  to  tlie  operation  therein,  of  those 
fundamental  rijjlits  and  ])rinciples  on  which  the  Kino's 
authority  rests  and  which  are  necessary  to  nuiintain  it; 
(2)  That  in  a  settled  colony  the  Ir.r  itrcroi/afii'd  of  English 
lav  is  carried  with  them  by  tht'  settler's,  Just  to  the  same 
extent  and  with  the  same  conditions  as  to  a^jplicability  (jf), 
as  is  the  case  with  the  other  branches  of  the  connnon  law, 
and  the  prero^-ative  rij^hts  of  the  crown  are  capable  of 
<i.\ercise  in  the  execution  of  the  law  of  a  colony  not  havin^; 
a  le^'islativ(!  body,  only  to  the  extent  indicated  in  the 
connnissions  of  the  executivi;  officers  who  may  l)e  sent 
out  (A). 

The  point  of  supreme  importance  to  us  is  not  however 
brou>i]it  out,  (except  by  inference)  but  it  is  a  clear  and 
undoubted  rule  of  English  law,  that  upon  the  establishment, 
by  charter  or  Imperial  Act,  of  a  local  legislature  within 
a  colony,  that  legislature  is,  within  the  sphere  of  its 
authority  (be  that  sphere  large  or  small),  possessed  of  plenary 
powers  of  law-making,  and  may,  with  of  course  the  consent 

{<l)  Chitty,  25-32. 

(f)  See  Forsyth,  12,  et  seq.:  Dicey,  Law  of  the  Const.,  51,  note. 

(/)  In  some  instances  this  rule  has  increased  the  powei-s  of  the  e.xecu- 
tive — has  invested  the  executive  officers  with  a  wide  discretionary  author- 
ity— simply  because  tlie  foreij^n  law  in  force  in  such  colony  recognized 
the  existence  of  such  wide  discreiicn  in  executive  government ;  see  Reg. 
V.  Picton.  30  St.  Tr.  22.5  ;  Forsyth,  87. 

(/;)  See  Chap.  V.,  (mte.  (h)  See  Chap.  VIII,  post. 


140  THK   CANAIiIAX    ('( .N>Tri  I'l  |(  iN. 

of  the  Crown  mh  a  t-onstitiu'iit  l»niiic'li  of  tlic  k'i;islfiturt'.. 
alter  ami  iiiouM  the  lev  prcfoj/tif I >ti  as  to  the  colony,  to  a.s 
full  an  extent  a.s  the  Biitisli  pailianient  can  alteram!  uionid 
it  as  to  the  United  Kinji'doni  (/).  Thereafter  the  exei'ci.se 
l»y  the  Crown,  oi*  any  otiicer  of  the  Crown  of  any  })rerof;'a- 
tive  I'io'ht  recognised  Ity  tlie  law  of  En^daml,  would  he  in 
the  colony  illei;al,  unless  it  were  also  a  prer();;ati\i'  rin;ht 
/;//  f/ie  law  of  thr.  <i>ltni  1/  ;  and  that  would,  of  course,  depend 
on  the  will  of  the  colonial  lei^islatnre  ji.s  to  all  niattei's 
confided  to  its  authority.  The  proclamation  which  followed 
the  Treaty  of  Paris,  made  provision  (j)  for  the  callini^' 
t.)<^ether  in  Canada,  (Jrenada,  and  East  an  1  West  F^htrida,  of 
"  jreneral  as.semblys,"  empowered  "  to  make,  constitute,  and 
oi'dain  laws.     .  for  the  })ultlic  peace,  welfare,  and  ^ood 

^•overnijient  of  our  said  colonies  and  of  the  people  and 
inhabitants  thereof":  and  Lord  Mansfield  heM  (/•).  that 
the  effect  of  this  was  to  prevent  the  Crown  from  thereafter 
exercisinj;  lei^islative  authority  within  the  colony.  The 
act  of  legislative  authority  (piestioned  in  that  case,  was 
the  imposition  by  Imperial  Order  in  Council,  of  an  export 
tax  on  certain  connnodities.  which  strikes  one  as  an  act  of 
executive  j^overnmant  rather  tluin  of  leoislaticni :  but  how- 
ever that  may  be  viewed,  the  reason  ^iven  for  the  decision 
was,  that  the  Crown,  (I.e.,  the  executive  authority  of 
England),  was  irrevocably  ple<lned  "  that  the  subordinate 
(/)  legislation  over  the  island  should  be  exercised  by  an 
A.s.sembly,  with  the  consent  of  the  (Jovei-nor  in  Council,  in 
like  maimer  as  in  the  other  provinces  under  the  Kin^-,'  and 
.settlers  were  (guaranteed  a  ^'ovennnent  by,  and  accordini^ 
to  the  laws  made  by  such  subordinate  assembly.     To  the 

(/■)  Cl)itty,p.  37. 

(J)  Perhaps  we  shonld  say  that  it  announced  that  provision  had  beenr 
made,  in  the  commissiions  to  the  gv.  .ornors  of  those  provinces,  for,  etc. 
See  ante,  p.  34. 

(k)  Campbell  v.  Hall,  Covpp.  204 ;  see  Phillips  v.  Eyre,  L.  R.  6  Q.  B. 
at  p.  19. 

(/)  i.e.,  subordinate  to  the  Imperfr.l  Parliament. 


rHKHOCJATIVES   nl'   TIIK   ('1{(»\V\,  Ul 

like  crti'ct  is  tlic  CM)iiij»iU'ativi'ly  recent  'Iccisidii  (iii)u\'  the 
Judicial  C'Dimuittee  of  the  l'i-i\y  ('i»iiiicil,  that  "after  a 
culom'  i»r  settlement  h.is  rcceivod  Ict^ishitiM-  institutions 
tile  Crown  (suhject  to  the  special  provision  of  any  Act  of 
parliament  (  n ),  stands  in  the  same  ri'lation  to  that  colony  (»r 
,settlem"nt  as  it  does  to  the  United  Kin<:'flom.  The 
decision  in  this  last  case  was  thut  the  Crown  has  no  j»o\ver 
to  constitute,  hy  letters  patent,  a  hishopric  oi'  ap|)oint  a 
bishop,  (with  ecclesiastical  jui'isdiction)  in  a  colony  pos- 
.SL'ssed  of  an  inde])endent  le^^islature.  And  in  a  still  hitei- 
case  {<))  the  Judicial  Connnittet*  of  the  Pi-i\y  (^)un(•il  held 
that  the  Crown  is  liound  hy  colonial  lei;'islation  and  in 
Queltec  isentitlecl  to  no  priority  ovei' other  ci'editoi-s  because 
"the  subject  of  priorities  is  exhaustively  dealt  with  by 
them" — I.  f.  by  the  Codes  passeil  l>y  the  parliament  of 
(old)  Canuda,  and  continutMl  in  force  in  (^)uebec  by  the 
B.  N.  A.  Act,  s.  12!), — ".s7t  f/nif  f/t"  ('raini  cnn  clunu  no 
pi-'iofif  11  I'.rcc/tt   ll'/nif   is  idUnvcd  hy  f/if'iii." 

The  let^'islatures  existing-  in  Canada,  l»oth  Dominion 
and  provincial,  ai'o  statutory — i.e.,  they  exist  undei'  the 
authority  of  the  H.  N.  A.  Act — -with  the  exception,  to  a 
[)artial  extent,  of  the  leo-islatures  of  Xew  Bininswick  and 
Nova  Scotia,  whose  sphere  of  local  authority  is  alone  statu- 
tory; and  this  fact,  of  course,  makes  the  ar^'ument  <i  foi'fitn'i 
in  th«j  case  of  Canada.  (Certainly  no  act  of  the  executive  in 
F^n^land  can  be  upheld  a^^ninst  the  pi'ovisions  of  an  Imperial 
statute.  The  powers  of  our  Canadian  parliaments  have 
been  ai;ain  and  aoain  declared  to  be,  within  their  sphere, 
plenary  })owers  of  le»4'islation.  It  is  uiniecessary  to  labor 
fui'ther  upon  this  point,  foi'  a  ^'lance  throut^'h  our  statute 
books  will  disclose  that  our  colonial  parliaments  have 
legislated  with  regard  to  the  exercise  of  the  vast  majority 
of  the  prerou-atives  of  the   Crown  down    to  the   smallest 

(;/()  In  re  Lord  Bishop  of  Natal,  8  Moo.  P.  C.  (N.  S.)  115. 

(h)  /.(.'.,  of  the  Imperial  Parliament. 

,(o)  Exchange  Bank  v.  Reg.,  11  App.  Caa.  157. 


142  THK  CANADIAN    CoNSTITrTlON. 

(K'tfiil.  Jind  tilt'  (liscit'tionary  powci'  of  the  <'xrcuti\t'  \h 
iVfhuH'd  to  a  iiiiniiiiiim,  as  in  tlic  Uiiitt'<l  Kin^rdoni.  It  may, 
howcvt'i",  1)1'  jitraiu  reiiiai-k«'(I  that  now  that  ••xccutivc 
responsildh'ty  to  parliament,  an<l  thiou^^h  parHanicnt  to 
the  ek'ctoiatc,  is  so  thorou^^hly  ivc'o<;ni/A((l,  and  tht;"con- 
ventions  "  of  the  constitution  which  ensun?  such  ivsjxaisi- 
hility,  HO  univoi'sally  ohscrved,  the  tendiMicy  of  Ic^'isiation 
is  to  incruasr  the  amount  of  discretion  allowcil  to  the 
executive  officers  in  the  various  depui'tmentH  of  thi-  i)ulilie 
service;  hut  this  is  not  a  matter  of  [)rei-o<^ative  (a  eonniion 
law  ri^ht)  hut  a  statutory  (Hscivtion. 

A  ruh'  fi'e(|ui'ntly  Uiid  down  in  the  authorities  tliat  a 
statute  is  not  to  he  construt'(l  to  deprive  the  (.'rown  of  any 
prm'ojLi'ative  rif^ht  unh'ss  the  intention  so  t(»  do  is  expresst^d 
in  explicit  terms,  or  aiMses  l»y  irresistihle  inference  ( y>) 
shouM,  perhaps,  he  here  adverted  to.  It  a])[)lies  to 
colonial  Itj^islation  (7)  >ih  well  as  to  Im[)erial,  and  the  cast^ 
of  Exchange  Bank  v.  lle^.  (/•)  is  a  ^ood  illuHtration  of  the 
"  irresistihle  inference  "  which  arises  in  cases  where  a  statute 
purports  to  he  exhiiusti\e  ieo-islation  in  riiference  to  a  [)ar- 
ticulai- subject  matter;  in  which  case  the  (^rovvn  is  limited 
to  the  ri^'hts  and  privile^-es  (if  any)  conferred  l)y  the 
statute.  Applying  this  to  the  B.  N.  A.  Act,  it  appeal's  that 
the  executive  government  of  Canada  is  to  he  carried  on  hy 
the  (}ovi!i-nor-General  (s)  and  the  executive  j^'overrnnent  of 
the  several  pi'ovinces  l>y  the  respective  Lieutenant-Oover- 
noj-s  thereof  (/),  an<l  that  the  Act  taken  as  a  whole  "  makes 
an  elahorate  distribution  of  the  whole  field  of  legislative 
authority"  ((()•  '^^^^^  it  follows  irresistibly  that  tlu;  preroga- 
tives of  the  Crt)wn,  so  far  as  they  are  exerciseable  in  Canada, 

(p)  Maxwell  "On  the  Interpretation  of  Statutes,"  p.  101.  And  see, 
as  to  appeals  from  the  colonies  to  her  Majesty  in  her  Privy  Council, 
Reg.  V.  Bertraud,  L.  R.  1  P.  C.  520. 

iq)  See  Maritime  Bank  v.  Ren.,  17  S.  C.  R.  ().57,  (affirmed  in  P.  C— 
see  note  (ij)  p.  144  poxt)  and  the  "  Interpretation  Acts  "  of  the  Dominion, 
and  the  various  provinces,  of  Canada. 

(r)  Ante,  p.  141.      (s)  Sec.  10;  and  see  notes  to  sec.  5).         (()  Sec.  62. 

(«)  Bank  of  Toronto  v.  Lambe,  12  App.  Ca".  at  p.  .587. 


I'UEHoriATIVES  OF   THE   CllOWX.  1 4H 

())•  in  uiiy  proviiK;*'  tlii^roof,  must  he  exorcised  —  in  lici* 
Majesty  s  luiiiie  (')  — l>y  the  officer  who  hy  the  B.  N.  A.  Act 
is  enti'usted  VMtli  "the  caiiyiii^j  on  c'"  ^^overniiieiit,"  jukI 
oiiinot  he  exercised  hy  tht;  <^iieeu  —  i.e.,  thi'ou;^h  the  Iiii- 
periMl  Huthorities— except  in  matters  over  which  none  of 
our  K't^dslatures  have  h'i;islative  p(»vver. 

We  shaU  have  occasion  to  I'et'er  witli  consi(K.'rahIe  tVe- 
(|uency  to  the  limitations  upon  colonial  h'^^islative  power 
arisin;^  from  the  colonial  sfuhis,  und  it  is  to  he  ohsei'vcd 
that  the  prero^^atives  of  the  Crown  relatin^^  to  "Foreign 
x\tfiiirs  "(<('),  including;  some  as  to  military  mattei-s,  have 
not  been  placed  within  (rolonial  le;ri,slative  pow*;i",  hut  are 
under  tlu'  control  of  the  Imperial  parliament  for  the 
reasons  (whicii  indeed  are  ohviouH)  indicated  in  an  earliei" 
chaptei'  (.»•).  But  we  attain  icjjeat  -  if  hapi)ily  repetition 
may  in  this  instance  emphasize  the  pi'inciple  which  appeals 
to  us  so  impoi'tant — that  in  every  case  the  power  which 
makes    the    law    upon    any    ^iven     suhjeet    matter,    must 

(r)  B.  N.  A.  Act,  seo.  !>  and  noted  thereto,  ;jm7. 

(ic)  See  note,  ante,  p.  135. 

(.(•)  And  see  notes  to  sec.  !)  of  the  B.  N.  A.  Act,  post.  The  prerof»iitivef* 
vested  in  the  Crown  as  the  Foiiiitdin  (;i/' //oxoc  are  looked  upon  as  (so  to 
speak)  prerof^atives  at  large  and  not  connected  with,  any  particular 
department  of  e.xecutive  government.  The  dispute  as  to  the  position  of 
provincial  Q.C.'s  would  seem  to  narrow  itself  down  to  the  (luestion, 
whether  the  appointment  is  one  connected  with  the  administration  of 
justice,  or  simply  an  honorary  title.  If  the  former,  then  both  the 
Dominion  and  Provincial  e.xecutives  would  appear  to  have  the  power — 
each  in  relation  to  the  courts  of  Dominion  or  Provincial  creation,  as  the 
case  might  be.  If  the  latter,  tlien  neither  would  appear  to  have  it,  any 
more  than  either  could  make  a  man  a  knight.  If  there  were  no  "  bound- 
less crop  of  venerable  learning "  to  prejudice  one's  judgment,  and  if 
members  of  the  bar  are  really  officers  of  tiie  courts,  it  would  seem 
reasonably  clear  that  the  prerogative  is  one  relating  to  the  organization 
of  courts,  as  to  which  both  governments  have  powers  conferred  upon 
them  by  the  B.  N.  A.  Act.  See  poxt,  Chap.  XI.  In  Reg.  v.  Amer^ 
42  U.  C.  Q.  B.  391,  the  power  to  issue  commissions  of  Oyer  and  Terminer 
seems  to  have  been  treated  as  a  prerogative  at  large  ;  but  it  is  submitted 
there  arc  none  such  in  relation  to  our  self-government ;  certainly  none 
are  conferred  on  the  Gorernor-General  by  his  commission. 


I  U  TiiK  <AN.\i»i.\\  f'oNs'irnriuN, 

Hccordiii^'  til  l'jn;;lisli  luw  lie  tin-  jMtsvcr  wliicli  coiiti^il.s  the 
rxtfution  t»r  tlint  liiw  in  every  detail.  WC  \\n\^•  tried  to 
niuke  this  cleniHs  ti)  the  ('(dotiicH,  and  where  tho.si'  coloiiii's 
ha\e  w  hat  han  lieen  termed  a  "  unitarian  "  torni  nl'  o^ovei-ii- 
nielit  the  rule  would  seem  to  l)e  icconiiized  hy  judicial 
deci.-tion,  and  the  universal  practice  ot"  the  legislatures  ol" 
such  "  unitarian  '  colonies.  A  cleai*  appreciation  of  the 
principle  will  make  it  apparent  that  it  apjdies  to  the 
ditlei-eiit  ;jovennnents  of  ( 'ana^la:  and  that  when  we  tin<l  the 
ley,islat»n"e  of  the  Dominion  (empowered  to  make  laws  u))on 
nny  eiveii  suhject  matter,  an}'  preroeutiNt'  ri;4ht  caj)altle  of 
exercise  in  relation  to  such  mutter,  nnist,  and  can  only  he 
exercised  hy  the  executive  of  the  Dominion,  and  so  of  tiuch 
of  the  l'ro\incial  ^on ci-nments  (//).  The  dixision  of  the 
tield  of  e()vonnnent  hetween  the  Dominion  and  tin;  pro- 
vinces is  therefore  a  tli\ision  alony,'  the  line  of  sul>je(!t 
niattei's,  and  the  wholi'  power  of  eovernment,  le;^islative 
an<l  executi\t',  in  relation  to  any  ^iven  subject  matter. 
rests  in  that  i'()vernment  to  which  it  is  assiened  for  lei>is- 
lativo  puri)oscs. 

(//)  See  /)(■*•  Burton,  J. A.,  in  AttorneyGenoral  (Can.)  v.  Attorney- 
(ieneral  (Ont.),  1!)  O.  A.  U.  iit  p.  88.  Since  ihe  above  was  written,  the 
report  of  the  judjinient  of  the  Judicial  Committee  of  the  Privy  Cour.jil 
in  Liquidators  of  Maritime  Bank  v.  Receiver  General  of  New  Brunswick 
has  appeared.  It  affirms  the  text.  See  Times  Lint-  luportx,  (>  July,  1H!)2. 
We  shall  have  occasion  to  refer  to  it  again. 


ciiArTi:H  VII. 


KAKCITIVI-:    ClIKCKS   ON    COLONIAL    LEGISLATION. 

The  position  of  tlic  crown  as  u  lirandi  oT  tlic  Iiii|H'riuI 
|)ai"Iiuni('Mt,  Hiid  the  reason  therefor,  is  very  dearly  ex- 
pressed in  a  work  to  whidi  fre(jiU'nt  reference  was  made  in 
the  last  chapter  (a): 

"  Tlie  i<ing  is,  therefore,  very  properly  a  constituent  part  of 
pavliamont,  in  whicli  caj)acity  he  possesses  the  means  of  preserv- 
inij:  inviolate  his  rij^dits  ami  prerofi;atives  as  supreme  executive 
nia^^'istrate,  hy  withhoklinj,'  his  assent  at  pleasure,  and  without 
stating'  any  reason,  to  the  enactment  of  provisions  tending  to 
their  prejudice  {h).  It  is  however  ouh/  Jor  tlic  /lurpose  of  firtttevt- 
iii'i  tlif  iiii/dl  t'xevutirc  nuthoritii,  that  the  constitution  has  assijjfued 
to  the  knig  a  share  in  legislation;  this  purpose  is  sufficiently 
insured  hy  placing  in  the  crown,  the  negative  power  of  rejecting 
suggested  laws.  The  royal  legislative  right  is  not  of  the  delib- 
■erative  kind;  the  crown  has  no  power  to  propound  laws. 
Important  therefore  as  this  prerogative  of  rejection  is  as  a  shield 
against  rebellious  encroachments,  as  a  preservative  of  the  royal 
•executive  functions,  it  is  in  other  points  of  view  of  a  limited  and 
negative  luiture." 

We  have  nlready  (r)  (|Uoted  from  the  connnission  to 
(governor  Cornwallis,  of  Nova  Scotiu,  the  clause  which  so 
fi'ankly  states  the  same  reason  foi'  the  ne^-ative  voice  ^iven 

((/)  Chitty,  "  On  the  Preroijatives  of  tlie  Crown,"  p.  3. 
{l>)  Hee  Chap.  VI.  (c)  Ante,  p.  US. 

Can.  Con.— 10 


U(l  Till-:   CANADIAN   <  nNSTITITloN. 

to  tin-  t'ui'ly  ;;ov«'nioi'M.  Tt  must  !»<•  l»onu'  in  iniinl.  Imw- 
cviT,  that  ill  tlioMf  ilnys  tlif  "  iitcraiv  tiu'ury  "  |»rrvailt'<|. 
wliicli  asMi;;iitM|  totlic  It'^^isliitivf  ami  cM-ciitiNi'  <lt'|iartiii<ntH 
(»!"  ;^n»vcniiiM'iit,  not  only  distinct  l>ut  iinlf|u'inlt'nt  powcrH, 
With  tln'  ;;ro\vtli  in  Kny^laml  an<l  tin-  colonicH,  of  tin-  |»rin- 
ciplf  ol'  icHpunMiMc  ;:o\('rniii('iit  tliroii;;li  tin*  iiit'diiini  ol 
un  i'Xt'cuti\'«'  itH|»onsililt',  tlnoiiuh  parliaiiH'iit,  to  tlif  t'lcc- 
torat*' ^tlir  iK'i'ativc  Noicc  allowctl  to  tlir  ifovcrnor  of  n 
C'oKdiy  \<'ry  lar;;»'ly  crascfl  toHml  nttcraiifc  in  preservation 
of  prci'ouativc,  and  caiiK'  to  lie  cniplitycd  us  tin-  updioldtT, 
I'atlu'i-,  of  tln' supremacy  of  the  Iniprrial  parliament.  And 
HO  with  ivft'ivnce  t(»  the  mccoihI  ne;jative  allowed  hy  the 
coiiiiiH)!!  law  to  the  occnjonit  of  the  throne,  over  all  acts  of 
Hul)ordinate  let^islati\'e  liodies  tlironeh(»nt  the  Kinpire  («/); 
that  seeolid  ne^ati\e  came  to  he  exercised  sllhject  to  the 
"conventions  of  the  constitution"  which  limit  the  interfer- 
ence of  the  Home  u()\cniiiient  with  colonial  le^^islation,  to 
interference  in  i-elation  to  matters  (»f  Imperial  concern  -to 
securin;;  unity  of  national  purpose  and  method  throii;;'hout 
the  \arious  i)arts  of  a  world-wide  Kmpire.  In  other  wor<ls, 
the  true  feileral  itlea— the  reconciliation  of  national  unity 
with  local  si'lf-;;ovenmient  (<')- — <lominates  this  phase  of  our 
relationship  to  the  mother  country,  just  as  it  now  deter- 
iiiinc;-»  the  extent  to  which  the  Uritish  parliament  shall 
le<;;islate,  as  an  /luprrinl  j)arliament,  for  the  colonial  por- 
tions of  the  iMiipire.  This  is  the  conventional  as[)ect. 
What  is  the  le^al  position  ! 

In  former  chapters  the  paramount  legislative  authority 
of  the  Imperial  parliament  has  heen  pointed  out,  and  the 
necessity  for  a  careful  distinction  hetween  its  unlimited 
extent,  lej^ally  speakinj;,  and  its  limited  operation,  "  conven- 
tionally "  con,sidured,  insisted  upon.  And,  just  as  we  may 
have  laws  en»icte<l  for  uh  by  an  authority  entirely  external 
HO    we    may  have   the  deliberate    utterances  of    what   we 

(d)  See  Chitty,  at  p.  25 — passage  quoted  ante,  p.  138. 
(f)  See  ante,  p.  8. 


EXECl'TIVi:   cjlKi  KS   ON'    ('(»|,n\  |AI,    I.KiilSI.A  ||oN.       147 

miiy  call  tlic  two  coluninl  linmolu-N  of  our  ('anuiliiui  |)ailiii- 
iiM'Ht — IuIIh  uhicli  liiiNt'  pa.sst'tl  Im>Mi  Coiiimiuiim  and  Suiuitt' 
— (Iniictl  |('y;al  operation  as  Acts  of  |iarliaiiu'nt,  l»y  the 
iH'fuMiiI  of  lit  r  Majcsty^^  it'iuTsentativt'  to  aMsciit  thereto  in 
her  name. 

Hy  expreMs  i)i'ovision  of  the  H.  X.  A.  Act  (y),  the  Quttu 
is  a  constituent  la-anch  of  the  parliament  of  (ana<la,  an<l 
Her  assent  is  necessary  hefon^  a  hill  can  heccane  law.  Her 
I'epresentative,  the  (ion ernor-(ieneral  of  Canada,  may  refuse 
such  assent:  or  he  may  reserve  the  hill  for  the  considn'a- 
tion  of  the  (^ueen  in  Council  (that  is  t«)  say,  of  the 
Imjierial  e;()vernment),  and  upon  such  considerati<ai,  assi'Ut 
may  he  withheld;  or,  the  (lovei-nor-CJeneral  having  as- 
sented and  the  hill  having-  passed  into  Act  of  parliament, 
it  may,  within  two  years  from  its  receipt  hy  tlie  Secretary 
of  State  in  h^nelanil,  hi  disidlowecl,  and  "such  disallow- 
ance .  .  .  heinj;' si^^nitied  liy  the  (iovernor-(ieneral 
shall  annul  the  Act  from  and  after  tlie  day  of 
such  si;^niHcation."  Now,  it  matteis  not  what  may  be  the 
reasons,  assi;^qie<|  or  unassi^ned,  for  w  ithhohlinj^  the 
(^uet'u's  as.seiit  to  a  hill,  oi"  for  disallowing'  an  Act  of  the 
Canailian  parliament:  the  effect  is,  that  in  the  former  case, 
the  liill  is  as  if  it  never  had  heen ;  in  the  latter,  it  is 
repealed  hy  the  Impei'ial  government. 

To  deal  with  the  different  phases  of  this  subject,  more 
in  detail,  we  (piote  first,  section  ,5.5  of  the  H.  N.  A.  Act: 
■  "  Where  a  hill  passed  hy  the  houses  of  the  parliament  is  pre- 
sented to  the  Govenior-Cieneral  for  the  Queen's  assent,  he  saall 
declare  according'  to  his  discretion,  hut  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  withholds  the 
Queen's  assent,  or  that  he  reserves  the  bill  for  the  signification 
of  the  Queen's  pleasure." 

C/j  Sec.  17 ;  and  see  also  sec.  2.  The  Crown  is  also  a  constituent 
branch  of  the  provincial  lef^ialative  assemblies — see  notes  to  sees.  .58  and 
69,  post. 


148  'IIIK    CANADIAN    coNSllTI  TinN. 

TIm'  ('Xfrcisf  hy  tli<' (lovcriioi'dciKijil  n\'  t.lii.s  <iiHci*('ti')n- 
nry  |«)\vit  nawmi  lie  Ici.f.illy  <|insl.i<)ii(M|.  hoiiltt,  Ims  iii;^f  liccii 
cxprt'HH''*!  us  to  tiM'  \t'<^!\\  fllicMcy  " »i'  (•( »l( )i I i;i I  ciwictmcnts 
Nvlicn  )iss»'iii('<|  to  liy  ;i  ( !(i\fi-(iitr,  cfditiiiry  tc  liis  iiiHtruc- 
tioiis,  til  it.  <loiil>t  wjis  si't  at  r<'st  l>y  the  ('oloniiil  lifiws 
\'jili<lity  Act,  ISli;"),  tin-  roiiftli  section  <»t'  wliicli  fiuicts : 

"No  coloniiil  law,  piisscd  with  the  cfjiiciirrcricc  f-f  or  iih- 
H«;MtC(l  to  liy  l.li(,'  ^'OV((rrioi'  of  iiny  (tnlony,  or  to  be  iKtrciil'tci'  so 
imHHcl  or  iissciitcd  to,  sliiili  he,  or  lie  (li'diicd  to  liiivc  \n-eri,  void 
or  iiioix.'rativo  l)y  roiiHon  only  oT  iiny  instructions  with  ref'('r('n(M' 
to  Kiifh  law,  or  the  siihject  tlicrcr)!',  which  may  hav(!  Ix-cn  given 
to  such  f,^oVfinor  l»y  or  on  hehiilfor  Her  Majttsty,  hy  any  instrn- 
nicnt  oth(-r  th;ni  the  lett(!rs  patenL  or  iiiHtiiiinent  !i,ulhori/,in<< 
such  (ioverni/r  to  concur  in  passing',  or  to  assent  to  laws  for 
the  p('!ice,  order,  and  j.{ood  ;4r)verniiieiit  of  such  (udony,  even 
tiiougli  sucii  instriiclion-;  niiiy  h<-  iwderied  to  in  suidi  letters 
I  ateiit,,  ()!■  liist  nietilionud  inslruuient." 

S  ),  t';  -/iv'-ire,  while  the  ussenf  of  the  <  Ji)\  ernoi'-(  ieneral 
ill  the  (j)nee|)'s  MHine,  or  in  the  cuse  of  ;i  reseiNed  hill 
his  si;4iiiJiratioii  of  the  (jJiieen's  ussent,  is  JiKsolntely  essi-ii- 
tial  to  till'  Nfilidity  ..f  ull  Acts  of  the  )))iili)inient  of  ('nnada, 
that  asHCMit  once  j^iveii  to  any  Act,  sindi  Act  (if  within  the 
le^^jsiati'e  co'npeteiice  of  j)ai'lianient)  heconies  law,  silhjt^ct 
<»nly  to  the  power  of  disallowance  liy  the  (Jfijeen  in  (Jonncil. 

This  |.ioU('i"  is  I'ecoj^ni/ed,  and  the  mode  of  it,s  exerctise 
<!elined  hy  the  ."ititli  He(;tion  of  the  I"!.  X.  A.  Act: 

"  Win  re  i!;e  (iovi;rnor-(ien(;riil  assents  to  n  hill  in  th(! 
(Queen's  iiiiiiie,  he  shall,  hy  the  first  convenient  opportunity, 
send  an  authentic  copy  of  tlicf  Act  to  one  of  Her  Muji.-sty's 
Principal  Sccrctarios  of  Slate,  and  if  the  (^ueen  in  Council, 
within  two  years  aficr  rt!C(;ipt  thereof  hy  the  Secretary  of  State, 
thinks  lit  to  disallow  the  A(d,,  such  disallowance  (with  ii,  cerlifi 
cate  of  the  Secretary  of  State  of  the  day  on  which  the  Act  was 
received  hy  hiiiij  heing  si;,'nified  hy  the  (iovernor-Ocfruiral,  hy 
speech  or  !nessa;^'e  to  each  of  the  houses  of  tin?  parliament,  or 
hy  proclaniati(jii,  shiill  annul  the  Act  from  and  after  the  day  of 
Kuch  siyni.'ication." 


KXK'  TTIVK   cilKrKS  <)\   r(»i,( »N'| .\f,    f j;(;isi„\Tlo\.       I  |i> 

III  tliis  Hcctioii  it>  is  iiifitcriiil  to  uoU-  tin;  liinibitioii  of  ilif 
tiiiK'  witliiii  vvlii<'li  till'  <liHallovvaiicr  niuHfc  tukf  plnci-.  At- 
(•<)iiiiiioii  law,  MO  siH'li  tiiiir  limit  <'xiHt<'<|,  ainl  this  is  (tiic  ol' 
tliosi!  instaMCtiH  (to  wliicli  rd'crciicc  was  inafjc  in  tin-  hst 
cliaiitcr)  ol"  tilt'  coiivcM'sioii  ol'  a  coiiiiiioii  law  prcro^ativ'r 
into  a  statutoiy  power.  TIk!  two  y<  ars  liciii^  allowffj  to 
pass,  witlioiit  siKtli  flis/illowancM  l>y  or<l('i'  in  council  Tor 
tliat  is  tlic  iii»!tlio<l  pr(^s(;ril){!(| — tlic  executive,  <lepartiiient 
of  tlie  Iiii|)erial  ^^overniiient  can  no  lonj^er  interfei-e  with 
tli(^  operation  of  tlie  A(;t;  nothing  short  of  "  rej)uirnant 
linpeiiMl  legislation  can  weaken  its  vali<lity. 

The  ( Jovernor-( Jeiieral,  however,  as  has  heen  noti(M'<l, 
may,  in  the  case  of  ;uiy  hill  presented  to  him,  exercise  lii< 
discretion,  l»y  m^ither  ;^iviri^  nor  withholding  the  assent  of 
the  ('I'owii  thereto;  a  third  cours*;  is  ex])ressly  allowed 
him  ;  namely,  to  reserve  the  hill  for  the  si;^nitication  of  the 
Queen's  |)leasure  (^j ;  and  hy  section  57  of  the  H.  X.  A. 
Act,  it  is  (Miacted  : 

"  A  hill  reHorvt'd  for  the  Hii^'iiification  of  the  Qiicon'H  pleaHine 
Hliall  not  have  any  force  unless  and  until  within  two  years  from 
the  day  on  which  it  was  presented  to  iIkj  (iovenior-fieii(;ral  for 
th('  (Queen's  ai-tHeiit,  the  (ioveriior-(ieM(;ral  si<,'iiirH'H  hy  speeidi 
or  messa^'e  to  each  of  the  houses  of  the  [)arliament,  or  hy 
proclamation,  that  it  has  received  the  assent  of  the  Queen  in 
council   .    .    .    ," 

As  W(!  are  now  dealin;;-  with  f|UestionH  whi(;h  iwlsc  out 
of  our  colonial  relation  to  (Jreat  Hi'itain,  it  is  jiei'haps  hetter 
to  defer  consideration  of  the  powei"  of  the;  Lictutenant- 
(}ov(!j"nor  of  a  province,  to  withhold  tin;  Quisen's  asscuit 
from  hills  passed  hy  tin;  l(!;^islative  assemhiy  of  his  province, 
and  of  the  pow<!r  of  tlu;  (j!ov«!rnor-(j(;neraI  (in  (Jlouncil)  to 
disallow  Acts  of  the  provincial  lej^islativt;  assemhlies,  until 
we  (!om<!  to<lisciiss  tin;  (yanadian  constitution  in  its  internal 
asjiect  (/i). 
(!))  Bee.  r,r,. 

(//)  Bee  next  cliapter,  wliere  will  hIbo  bo  found  Home  further  oV>ncrva- 
tions  on  the  "conventiomil  "  limitH  set  to  the  exerciHe  of  the  Imperial 
power  of  rliHiillowiince. 


CHAPTER  VIIT. 


THE    C0NN1':CTIN0   LINK—THE    (lOVEKXOR- 
(iENEHAL  00- 

1m  j)()|mlHi'  ])lii'jisc()|();;'y,  the  (lovcninr-i jlciid'al  is  tlu; 
"Queen's  represt'iittitiNe "  in  Canndji.  and  in  the  populjir 
mind  tliei'o  is  un  ideji,  vji^ue  no  floubt,  but  still  deeply- 
iniii'iuned,  that  lit;  is  clothed  with  laiye  and  xice-ieoal 
attrilmtes,  standing'  to  us  in  mucli  the  same  position  as  her 
Majesty  occupies  towards  Jiei"  subjects  within  the  liordei's 
of  the  United  Kin<rdom.  But  to  the  constitutional  lawyer 
learned  in  the  Dryasdust  precedents  (as  Carlyleaii  laymen 
would  doubtless  term  theia)  which  define  the  lei;al  j»osition 
of  a  Colonial  (lovernor,  he  a])pears  in  the  lii^ht  of  an  oHietii' 
clothed  with  an  authoi-ity  strictly  limited  {!>),  whose  e\ery 
act  as  governor  must  he  le(,'ally  justified  ('■)  hy  tlu.^  tei-ms  of 
liei"  Majest3''s  conniiission  apj)ointin<;'  him  to  fill  the  office, 
and   whose  capacity  as  i-epresentative  is  not  general,  hut 

(./)  See  liroom,  "  Const.  Law,"  y.  (122,  et  kc(i.  ;  Forsytli,  p.  S4  ct  .sw/.  ; 
Todd,  "  Pari.  Gov.  in  Brit.  Col."  It  would  appear  that  Mr.  Todd's  work 
was  written  in  order  to  inculcate  a  proper  appreciation  of  the  importance 
of  the  oflice ;  see  p.  584  of  his  book.  See  also  Art.  in  Law  Maj^.  for 
Nov.,  1M()1  (Vol.  12),  at  p.  1H2,  c^  .svy.,  (juotin<i  with  approval  the  lauj^uaije 
of  '  a  very  able  colonial  lawyer" — A.  Stuart,  advocate,  Montreal— in  a 
work  published  in  18S2,  "On  the  functions  and  duties  of  the  governor  of 
a  British  province." 

{h)  Cameron  v.  Kyte,  8  Knapp,  P.  C.  .332;  Hill  v.  Bigge,  3  Moo.  P.  C. 
4f)5  ;  Mu8>^rave  v.  Pulido,  L.  R,  5  App.  Cas.  102. 

{<•)  Oliver  v.  Bentinck,  3  Taunt.  400  ;  Raphael  v.  Verelst  2  W.  Black. 
lOSO  ;  and  cases  in  last  note. 


Tur:  (;ovf:i{\(»|{-(jf:nlhai,.  161 

,s|)('ci!il, — ill  |)riiK'i])lt'  not  nioi'c  ;4t'nt'r;il,  ami  not  less  sjicc'iJil, 
tliJiM  t'liit  of  tilt'  nio.st  uiil('ttt'!'t'(l  |)o<<li(^.i-i-\- oil  the  iii{ii''is- 
t«'ri)il  licmli  of  ii  liHck  towiisliij)  (»/),  tlic  |)o\VL'rs,  autlioritics 
and  functions  of  cacli  ajipcarin^'  in,  and  ht'in^  limited  l)y, 
Mic  terms  of  their  resjiective  commissions. 

A  WMi-d  of  caution  should  pei'haps  In-  Mi-itteii  at  this 
.stai-f  of  our  iiKiuirv.  In  oi'der  that  tlu'  readei'  mav  not  he 
led  to  underrate  the  importance, — from  a  ])olitical  stand- 
point— of  a  governor's  jiosition,  tuiil  the  \aried  and  respon- 
}-ihle  duties  which  are  put  upon  him  hy  her  !\hijesty's  com- 
mission {('),  it  may  he  a^'ain  ohsei'ved  that  we  are  now 
looUini;'  at  his  position  fi'oiii  the  staiulpoint  of  the  lawyer, 
and  not  that  of  the  statesman.  In  some  respects  it  may 
indeed  he  ,sai<l  that  the  law  )"eco_niiizes  as  Ic^^ally  etfectivt,-, 
various  acts  of  a  governor,  which  Constitutional  usa;^«! 
would  emphatically  condemn,  and  the  doin^' of  which  would 
att'ord  am})le  o-round  for  his  recall :  wliile  on  the  othei' linnd, 
a  ;4()\('rnor  mny  hy  one  and  the  same  act  incur  ci\il  or  even 
criminal  liahility,  and  win  the  approl>ation  of  his  Imperial 
superioi-s.  We  cannot  too  I'io-orously  insist  on  the  distinc- 
tion frei|uently  pointed  out  in  the  foreii'oino'  jia^'es,  between 
the  Icjiil  and  the  nnrrrntloiKil,  under  the  British  .system  of 
eoNO'iiiiient.  We  shall  ha\'e  occasion  to  i'ef(,'r  more  at 
lenL;th  hereafter,  to  the  limits  within  wliicli  the  let>al  poM'ers 
».»f  a  Governor  should  find  scope  for  "conventional"  exei'cise; 
hut,  as  was  pointed  out  in  reference  to  the  exercise  l»y  the 
Im[)erial  |/a)-liament  of  its  le^a)  power  to  enact  laws  for  a 
colony,  a  proper  recot;nition  of  the  lethal  position  will  greatly 
tend  to  strentrthen  colonial  statesmen  in  their  insistence 
upon  the  "conventional"  limits  l>eing  accurately  defined 
and  observed. 

('/)  Finlayson,  "  Review  of  the  Authorities  a:s  to  Repression  of  Riot," 
110.  Compare  with  thi.j  the  language  of  Taschereau,  J.  (in  reference  to 
the  jiosition  of  a  Lieut. -Governor)— The  Queen  v.  Bank  of  Nova  Scotia, 
11  H.  C.  R.  at  p.  24. 

(f)  That  commission  refers  to  the  B.  N.  A.  Act,  under  which  (see  sec. 
iO)  he  is  described  as  an  executive  officer  "carrying  on  the  government 
of  Canada." 


152  THE   CAN'ADrAX    COXSTITmoX. 

In  the  early  dnys  of  coloiiiul  lustoiy,  there  .seeiuH  to 
have  been  a  disposition  on  the  part  of  ;^overnors  ajip»>inte(l 
to  distant  portions  of  the  Knipire,  to  set  thenisehes  above 
th«  hiw  (/),  and  to  insist  upon  the  applicability  to  their 
case  of  tlie  maxim,  "  The  Kin^  can  do  no  wron^.'  As  in 
Kn^land,  the  Soverei«^n  cannot  J)e  arrested  by  virtue  of  any 
U'pil  })rocess,  or  be  impleaded  in  any  court  of  justice  in 
reference  to  any  act,  public  or  private  ((j) — so  these  early 
colonial  governors,  claiming'  a  delen;ated  st)verei^nty,. 
attributed  to  themselves  a  correspondini^  sacredness  of 
person,  and  an  ecjual  innninnty  from  the  jurisdiction  of 
courts  of  justice.  It  is  a  very  interesting  study  to  trace 
the  course  of  the  decisions  by  which  the  attributes  with 
which  they  had  in  fancy  clothed  themselves,  were  one  by 
one  stripped  from  them,  until  now  their  position,  as  let^ally 
reco<^nize<l,  is  as  above  stated.  It  would  appear  frojii  the 
earlier  autiiorities,  that  the  pretentions  of  the  early  j^over- 
nors  to  the  innnunities  of  a  dele<^ated  soverei<;nty,  were 
not  paraded  out  of  the  territorial  limits  of  their  colonial 
government,  and  when  proceede<l  a<;ainst  In  Eii<jU(iul,  they 
defended  themselves  by  pleas  in  bar,  and  not  in  aV)atement — 
by  defences  on  the  merits,  justifying  their  acts  under  their 
connnissions,  an<l  not  denying  the  jurisdiction  of  the  Enji^- 
lish  courts  to  entertain  suits  V)rout(ht  against  them  (A). 
And,  when,  in  1778,  (Jovernor  Mostyn  did  allege,  as  a 
plea  to  the  jurisdiction  of  an  English  court,  that  the 
acts  complained  of  in  the  action,   were   done   by  him   as. 


(/)  See  preamble  to  11  &  12  Wm.  III.  c.  12,  cited  post. 

(g)  Steph.  Comm.  Vol.  II.  498;  Chitty,  "  Prerog.  of  the  Crown  "  374. 

(h)  In  Fabrigas  v.  Mostyn,  1  Sni.  Ldg.  Cas.  (8tli.  ed.)  652,  Lord  Mans- 
field cites  three  instances  of  actions  brought  in  England  against  governors 
in  respect  of  acts  done  in  the  Colony,  during  their  term  of  office,  in  none 
of  which,  so  far  as  appears,  was  there  any  plea  to  the  jurisdiction — 
Lord  Bellamont's  case,  2  Salk.  625 ;  Comyn  v.  Sabine  (not  elsewhere 
reported) ;  and  a  third  case  mentioned  by  Powell,  J.,  in  Way  v.  Yally, 
6  Mod.  194. 


THE   (JOVEHXOH-OEXEKAL.  ]o'.\ 

(JoviTiior  oF  MinoiVfi,  Lord   .Munstit'ld  thus  disposes  of  tin- 

plea  (/*) : 

•'  The  two  grounds  which  are  enforced  to-day,  are,  if  I  take 
them  right,  first,  that  the  defendant  was  governor  of  Minorca, 
and  therefore  for  no  injury  whatsoever  that  is  done  hy  him, 
right  or  wrong,  can  any  evidence  he  heard,  and  that  no  action 
can  He  against  him;  secondly,  that  the  injury  was  done  out  of 
the  realm.  I  think  these  are  the  whole  amount  of  the  questions 
that  have  heen  laid  before  the  court.  Now  as  to  the  first,  there 
is  nothing  so  clear  as  that,  in  an  action  of  this  kind,  which  is  for 
an  assault  and  false  imprisonment,  the  defendant,  if  he  has  any 
justification,  must  plead  it;  and  there  is  nothing  more  clear  Jian 
that  if  the  court  has  not  a  general  jurisdiction  of  the  matter,  he 
must  plead  to  tliat  jurisdiction,  and  he  cannot  take  advantage  of 
it  upon  the  general  issue. 

"The  point  that  I  shall  begin  with,  is  the  sacredness  of  the 
person  of  the  Governor.  Why,  if  that  was  true,  and  if  the  law 
was  so,  he  must  plead  it.  This  is  an  action  of  false  imprison- 
ment ;  priimi  fiiciv,  the  court  has  jurisdiction.  If  he  was  guilty 
of  the  fact,  he  must  show  a  special  matter  that  he  did  this  by  a 
proper  authority.  What  is  his  proper  authority  '?  The  King's 
commission  to  make  him  governor.  Why,  then,  he  certainly 
must  plead  it ;  but,  however,  1  will  not  rest  the  answer  upon 
that.  It  has  been  singled  out  that  in  a  colony  that  is  beyond 
the  seas,  but  part  of  the  dominions  of  the  Crown  of  England, 
though  actions  would  lie  fo/  injuries  committed  by  other  persons, 
yet  it  shall  not  lie  against  the  governor.  Now  I  say  for  many 
reasons,  if  it  did  not  lie  against  any  other  man,  it  shall  most 
emphatically  lie  against  the  governor.  In  every  plea  to  tha 
jurisdiction,  jou  must  state  a  jurisdiction;  for  if  there  is  no 
other  method  of  trial,  that  alone  will  give  the  King's  Courts 
jurisdiction.  Now  in  this  case  no  other  jurisdiction  is  shown, 
even  by  way  of  argument ;  and  it  is  most  certain  that  if  the 
King's  courts  cannot  hold  plea  in  such  a  case,  there  is  no  other 
court  upon  earth  tiiat  can  do  it ;  for  it  is  truly  said  that  a  gover- 

{/)  Fabrigas  v.  Moatyn,  Cowp.  1(11.  It  will  be  noticed  that  the  C.J. 
animadverts  upon  the  indednite  n  iture  of  the  plea  in  this  case,  but 
treats  it  as  a  plea  to  the  jurmliction. 


154  THK   CAXAIHAN   (ON'STITl'TIOX. 

nor  is  in  the  nature  of  a  Viceroy  (./),  and  of  necessity  part  of  the 
privileges  of  the  King  are  coninuniicated  to  him  during  tlie  time 
of  liis  government.  No  criminal  prosecution  lies  against  him, 
and  no  civil  action  will  lie  against  him,  because  what  would  the 
conserpience  be  ?  Why,  if  a  civil  action  lies  against  him,  and  a 
judgment  is  obtained  for  damages,  he  might  bo  taken  up  and 
put  in  prison  on  a  vdjiini^.  And  therefore  locally  during  the 
time  of  his  government,  the  courts  in  the  island  cann"t  hold 
plea  against  him.  If  he  is  out  of  the  government,  he  leaves  it ; 
he  comes  and  lives  in  England,  and  he  has  no  effects  there  to 
be  attached;  then  there  is  no  remedy  whatsoever  if  it  is  not  in 

the    King's   Courts There   may  bo  some  cases  arising 

abroad,  which  may  not  be  fit  to  be  tried  here,  but  that  cannot 
be  the  case  of  a  governor  injuring  a  man  contrary  to  the  duty  of 
his  office,  and  in  violation  of  the  trust  rej)osed  in  him  by  the 
King's  commission.  And  therefore  in  every  light  in  which  1  see 
this  matter,  it  holds  emphatically  in  the  case  of  a  governor  if  it 
did  not  hold  with  respect  to  any  other  man  within  the  colony, 
province,  or  garrison.  But  to  make  (juestion  upon  matters  of 
settled  law,  where  there  have  been  a  number  of  actions 
determined  which  it  never  entered  into  man's  head  to  dispute — 
to  la)  down  in  an  English  court  of  justice  such  monstrous  pro- 
])ositions  as  that  a  governor  acting  by  virtue  of  letters  patent, 
under  the  Great  Seal,  can  do  what  he  pleases  ;  that  he  is  account- 
able only  to  God  and  his  own  conscience, — and  to  maintain  here 
that  every  governor  in  every  place,  can  act  absolutely  ;  that  he 
may  spoil,  plunder,  aftect  their  bodies  and  their  liberty,  and  is 
accountable  to  nobody — is  a  doctrine  not  to  be  maintained.  .  .  . 
How  can  the  argument  be  supported  that  in  an  Empire  so 
extended  as  this,  every  governor  in  every  colony,  and  every 
province  belonging  to  the  Crown  of  Great  Britain,  shall  be 
absolutely  despotic,  and  can  no  more  be  called  in  question  than 
the  King  of  France  ?  And  this  after  there  have  been  multitudes 
of  actions  in  all  our  memories  against  governors,  and  nobody 
ims  been  ingenious  enough  to  whisper  them  that  they  were  not 
amenable." 

From  tluit  day  to  the  present,  no  plea  to  iJie  jiirmlldion 
has  ever  aii'ain  been  raised  to  an  action  brouo-lit  in  Enijland, 

(.;■)  This  proposition  is  untenable  :  see  pr>s^ 


TIIK   CioVEKNolJ-cJEXKIJAr-.  165 

hihI  many  {jfoveniors  luivc  Ih'ch  iiinlctiMl  in  danuin^cs  liy 
Kii;;'lisli  juricH,  foi'  acts  done  witliin  tlic  limits  uF  thcii- 
colonial  ^ovci'innt'iits  (/). 

It  will  1h'  notic»Ml  however  that  in  his  celehrated  Jud;;- 
ment  in  Fahrigas  v.  Mostyn,  Lord  Mansfield  lent  the  wei;4ht 
of  his  hiti^li  anthoi'ity  to  certain  projjositions,  which  if 
correct,  woidil  on  the  one  hand  lar^'ely  increase  the  ])owers, 
and  on  tlu'  other  hand  lar^^'ely  lessen  tiie  liahility  ol'  :i 
n()vei'noi' — l>oth  pro])OHitions  however  hein;;'  ivally  de[)en- 
dant  upon  the  first.  Adoptinn'  the  proposition  that  a 
( loN'ei'Uor  is  a  ''  Viceroy"  ivUh  u  cciialn  iHcusnir  of  (h'lc- 
j/iifcd  f^'ttrririf/nti/,  he  draws  IVom  it  the  Further  pi'oposition 
(not  necessary  For  the  decision  o**  the  case)  (/),  that  he  is 
not  amenable,  civilly  or  criminally,  to  the  courts  oF  the 
colony  oxer  which  he  presides,  durino-  the  term  of"  his 
^•overnment.  I'l-actically  considered,  the  position  oF  parties 
havini^'  claims  upon  the  ^•overnor,  would  in  this  \iew  l>e 
one  oF  much  hardshij),  and  in  many  cases  wouhl  work  n 
complete  denial  of  justice.  So  no  doui>t  Lord  Aylmer'.s 
house-keeper  thou^'ht,  when  the  Court  of  Kint^^'s  Bench 
in  Lower  Canada,  adoptint^-  Lord  IVIansfield's  dictum, 
declined  to  entertain  her  action  For  wau'es  due  From  His 
Excellency  (iii). 

It  is  now  however  clearly  settled  that  a  o-(uei'nor  is 
liahle  to  civil  action  in  the  courts  of  the  colony  over  which 
he  presides,  not  merely  (I)  in  respect  of  claims  upon  con- 
tracts entered   into,   and    torts   conunitted  by    him   in    his 

(/,)  Wall  V.  MacNanmra,  1  T.  li.  53(5;  Wilkins  v.  Despard,  5  T.  K. 
112  ;  Glynn  v.  Houston,  2  M.  it  G.  337;  Oliver  v.  Bentinck,  3  Taunt,  40(5 ; 
Wyatt  V.  Gore,  Holt  N.  P.  'iil'J  (defendant  was  Lieut.-Gov.  of  Upper 
Canada,  and  had  to  pay  i;300  for  libellint,'  plaintiff  in  the  colony).  It  is 
to  be  observed  that  the  commissions  of  some  of  these  Governors  con' 
ferred  military  authority,  and  the  first  three  cases  were  in  respect  of 
military  excesses,  bat  the  principle  of  the  cases  is  throughout  the  same. 
See  too  Phillips  v.  Eyre,  L.  H.  4  Q.  H.  22.-. ;  (1  Q   B.  1. 

(/)  See  Hill  v.  Bigge,  3  Moo.  P.  C.  4f)j. 

(/.'()  Harvey  v.  Lord  Aylniev,  1  Stuart  542. 


loij  rili:    CANADIAN'    ('•tNSITirilON. 

|)iiviiti'  cuiHicitv,  litit  iilsK  CJ)  in  r.-spfcf,  (»r  ;iii\-  clainr 
a;fiiinst  liiiii  lor  lU'ts  tluiii'  in  tin-  sij|»|i((sr(|  fxcrcisc  of  his 
j)i)VV('rH  lis  ^^ovi'iiHtr.  OT  tin-  Iuiiiht  cIhsh,  \V(*  iniiy  iiiHt;un'(? 
tlic  case  (»t*  till-  ( ION  iTimr  1)1'  Triiii<lM«l,  wlio  was  inrornifil  liy 
tli«'  .JiKliciul  ( 'uMMiiitt«'<'  <»l"  lit-r  Majt-stys  I'rivy  ("oiiMcil  (<»n 
a|)|)('Ml  from  tlu;  (•((IomIhI  court)  tlwit  In-  nnist  siiltinit  t>  tlif 
iiulif^iiity  of  •l<'f('!i<lin)^  an  action  l)rou;^Wit  in  tlicconrt  of  liis 
own  colony  l»y  c<'rtiiin  \'in<li('tivf  jt-wfllcrH  wliost-  l»ill  li<; 
liH<l  oniittt'il  to  pay  Itcforc  Icavin;;  Kn^lan*!  (n).  Since 
tlwit  time  tlic  pi'oposition  may  !«■  consiilcriMi  Hcttlcil,  that 
for  a  cauHc  of  action  wholly  unconnected  with  his  othcial 
cajiacity,  tin;  governor  of  a  colony  may  he  sued  in  the 
coui'ts  of  that  colony. 

"  They  vvlio  niaintuin  tiio  exemption  of  any  jhtsoii  from  tlie 
law  liy  which  all  tin;  Kiuf^'s  siihjectH  are  hound,  or  what  is  iho 
same  thin;,',  from  the  jurisdiction  of  the  courts  which  Hdminister 
that  law  to  all  h(;sides,  are  hound  to  show  some  reason  or  author- 
ily  leaving'  nodouht  upon  th(!  (xjiiit.  The  refen.'iice  to  aiialo^'i(!S, 
or  th(!  supposition  of  inconvenient  conseipwuces,  must  he  mucli 
more  pre},'nant  than  any  tint  can  h?.  ur^'(!  I  in  tills  case,  to  sup- 
port or  even  to  countenance  sucl)  a  claim.  If  it  i;e  said  that  tlie 
f^overnor  of  a  colony  is  iiiin.si  soverei^^Mi,  tiie  answer  is  that  he 
does  not  even  represent  the  sovereign  f,'eueridly,  having  only 
the  functions  delegated  to  hiin  hy  the  terms  of  iii.s  commission, 
and  heing  only  the  oflicer  to  execute  the  spe-citic  powers  with 
which  that  commission  clothes  him."— /Vr  Lord  Drougliam  in 
Hill  v.  Bigge. 

And  speaking  of  Kal»ri;;as  v.  Mostyn,  Loid  Jji'ou;.;!iani 
Hays  : 

"  It  is  only  a  decision  that  Ik;  was  lial)le  to  he  sued  in 
England  for  [)ersonal  wrongs  don<j  hy  liim,  while  (lovernor  of 
Minorca.  Nor  does  the  decision  thus  given,  rest  upon  any  doc- 
trine denying  his  liability  to  be  sued  in  the  island.  There  is  no 
doubt  a  dictum  of  Lord  Mansfield's  in  giving  the  judgment — 
'  that  the  governor  is  in  the  nature  of  a  viceroy,  and  that  tiiere- 
fore  locally  during  his  government,  no  civil  or  criminal  action 

(»)  Hill  V.  Big«c,  H  Moo.  P.  C.  4r,r,. 


TIIK  (inVi:HNO|{-(;K\KI{,\f,.  157 

\vill  lie  a^jaiiiHt  liiin.'  And  tin-  rca.sfjii  iiiid  tlic  only  r*  uson  ^\\eu 
lor  I  Ins  |>().sition  in,  Ih'cmuiso  upon  pnjccss  lie  would  he  .suhjcct  to 
iinpi'iHonniiiit.  With  Uk-  most  profound  rcHpcct  I'or  tlic  author 
ity  of  thiit  illuHtrious  jud^'c,  it  nnist  hcohscrvcd  that  ;ih  Iiiih  hcen 
shown,  the  f^'ovcnior  hcin;,'  hahlc  to  process  during'  liis  f^'ovcrn 
nicnt  wouM  not  of  any  ncc(  ssily  follow  from  his  hcin^'  liahlc  to 
action,  iind  that  tlic  same  aruuinr'nc  iui;^'ht  he  used  to  show  that  lUi 
action  lies  not  a{,'ainst  pC'i'Kons  enjo\in<^'  undouhled  freedom  from 
arrest  hy  reason  of  privile^^'e.  I'.ut  tlic  decision  in  the  case  does 
not  rest  ri)i  this  dictum.  .  .  .  The  conse<iueiu-es  inuijfined 
to  follow  from  holding'  the  ^'overnors  liable  to  net  ion  like  their 
ft.'llo w-suhjects,  are  incorrectly  stated,  and  if  true  would  not 
<lecide  the  i|uestion.'' 

Sinei-  the  dfcision  in  Hill  \.  liioof.  the  notion  thut  the 
oi)\  crnor  <»f  m  colony  is  in  the  nntiiir  of  n  NietToy,  nuiy  I"' 
<'onsi<|ere(|  us  rorcvei-  exploded.  The  extt-nt  of  u  o()\(.c- 
nor's  jiowers  hud  prcviouHJy  Keen  iiuHsed  u|)on  in  tlu^  cuHe  of 
<'!inirron  v.  Kyte  (o),  to  \vlii(di,  it  is  true,  the  ;^r()vernor  was 
not  !i  party,  l>nt  the  ^fovenior's  oiilcr  in  (•()uneil  heinj^  net 
nj)  us  a  (jefenee  to  the  action,  its  \  alidity  was  pfoj)eriy  as 
the  Judicial  ( "ouiinittee  of  the  I'rivy  Coiitudl  held — 
iufiuiicd  into  lt\'  the  (•<)intK  of  the  e<)liiii\-.  In  <dvin<r 
jud;.;ine!it,  I'arke,  !>.,  ,sa\'H: 

"  if  a  /^'overnor  had  by  virtue  of  that  appointment,  the  whole 
sovereif,'nty  of  the  colony  d(de^'ated  to  him  as  a  viceroy,  and 
represented  the  king  in  tht;  goviiriunctnt  of  that  colony,  there 
would  be  good  reason  to  contend  that  an  act  of  sovereignty  df;ne 
by  him  w(ud<l  l)e  valid  and  obligatory  upon  the  sul)ject  living 
within  his  govertiment,  provided  the  act  woidd  be  valid  if  done 
by  th(!  sovereign  himself,  tiiough  such  act  might  not  be  in  con- 
fonuity  with  the  instructions  which  the  governoi'  had  received 
for  tlu'  regulation  of  his  own  conduct.  Tlu;  breach  of  those 
instriuitions  might  well  be  contended  on  this  HU))position  to  be 
matter  resting  between  tlu;  sovereign  and  his  de])iity,  rendering 
tilt:  latter  liable  to  censui'e  or  punishnuMit,  Ijiit  not  allecting  the 
validity  of  the  act  done.  J>ut  if  the  governcu'  be  an  oilicer 
merely  with  a  limited  authority  from  the  crown,  his  assumption 

{«)  H  Kiiii,|)i).  ]'.  (;.  ;w2. 


158  TIIK  <  AN  A  1)1  AN   n  (NSTII  ITloN. 

of  iin  act  of  sovcrcii,'!!  power,  out  of  tliu  limits  of  tlif  power  ho 
given  to  liiiii,  would  hv  liiiully  void,  iiml  flu'  roiiits  i>i'  t/n  luluiiif 
iinr  ir/iii/i  lir  imsiiliil  nntlil  imt  i/iii'  il  iniif  li'ijul  i flirt.  We  think 
tho  ortlce  of  ^'ovcnior  is  of  the  latter  <lt'seri[)tioii,  for  no  authority 
or  (lictnin  has  been  cited  before  iis  to  show  that  a  governor  ean 
he  considered  as  having  the  delegation  of  the  whole  royal  power 
in  any  colony,  as  between  him  and  the  suhjec^t,  when  it  is  not 
expressly  given  him  hy  his  commission.  And  we  are  not  aware 
that  any  cnnnnission  to  colonial  Ljovernors  conveys  such  iin 
extensive  aiitlKuity." 

Finally  so  I'ur  ns  conccnis  cis  il  lial»ilitv  the  (|Mrsti(m 
of  a  {^oNcrnoi's  Hinenaiiility  to  the  eonrts  of  his  ccdony  i n 
I'cujU'ff  iif  ticfs  tlinit'  liji  II  nil  in  llic  sii  iiiidsciI  c.m'ri.sr  itf  Ins 
poitu'i's  lis  ijorrrinir,  eajne  lieforc  the  .hiflieial  ( 'onimittec  of 
the  I'rivy  Council,  on  an  a|»|M'al  (  /*)  fr«»m  the  colonial  court 
in  which  the  action  had  hern  lironnht ;  and  in  the  Judg- 
ment of  the  ('onnnittee,  the  authorities  are  resiewed  ami  a 
clear  decision  reacdicfl,  that  the  colonial  (rourts  ha\'e  as 
complete  juiMsdiction  to  entertain  an  action  against  a 
governor  as  a<^ainst  any  other  iidiahitant  of  the  colony. 
After  I'evicwin^  the  })n'vious  authorities,  the  judgment  of 
the  ('onnnittee  pl'oceeds  as  follows: 

"  It  is  apparent  from  these  authorities  that  the  governor  of  a 
colony  (in  ordinary  cases)  cannot  he  regarded  as  a  Viceroy  ;  nor 
can  it  he  assumed  that  he  possesses  general  sovereign  power. 
His  authority  is  de'rived  from  his  connnission,  and  limited  to 
the  powers  thereby  expressly  or  impliedly  entrusted  to  him. 
Let  it  be  granted  that  for  acts  of  power  done  by  a  governor 
under  and  within  the  limits  of  his  connnission  he  is  protected, 
because  in  doing  them  he  is  the  servant  of  the  crown,  and  is 
exercising  its  sovereign  authority  ;  the  like  protection  cannot  be 
extended  to  acts  which  are  wholly  beyond  the  authority  confided 
to  him.  Such  acts,  though  the  governor  may  assume  to  do 
them  as  governor,  cannot  be  considered  as  done  on  behalf  of  the 
crown,  nor  to  be  in  any  sense,  proper  acts  of  state.  When 
questions  of  this  kind  arise,  it  nuist  necessarily  be  within  the 
province  of  municipal  courts  to  determine  the  true  character  of 

(p)  MuHgrave  v.  Piilido,  L.  11.  5  App.  Cas.  102. 


TlIK  finVKUNoU-fJKXKHAL.  15!) 

tln'  acts  (lone  by  a  ^'ovcrnor,  though  it  may  be  that  wlieii  it  i;* 
('stiil)lislii'(l  that  the  parliciilai'  act  in  (|iicstioii  in  really  tin  act  of 
state  policy  done  imdfr  the  iiiithority  of  the  crown,  the  dct'enco 
is  complete,  and  the  courts  van  take  no  further  coj^ni/anct;  of  it." 

Krom  tliese  aiitlioritieH,  therefoif,  we  niiiy  <lni\v  thf 
f(»ll<)\vin;i'  conehisions  ; 

I.  The  |)»»weis,  jiutlioi'ities  .'iiiij  fnnetioM.s  of  eoldiiJMl 
^f(i\ cniors  lire  swell,  ami  such  only  us  are  eontaiiied 
cxpi'es.sly  or  impliedly  in  tlir  iom m issimi  umlei'  which 
the  other  is  hi'M  liy  him  (7):  lor  nwy  net  done  (|Uii 
ni»\cnior  and  within  his  uiithoi'ity  as  siudi,  In-  ineiiis  no 
lialiility,  eithei'  r.r  mill fiiil II  (/•)  (»)•  in  tort  (n). 

2. — For  any  act  tlonr  in  his  prixnte  capucity,  oi-  done 
(piji  ;^o\<'inoi',  hut  Itcyond  his  [towiji's  ms  su(di.  h  colonial 
n()\criior  is  ameiiaMc  to  the  ei\il  jurisdiction  (tf  Her 
.Maj»^sty  s  courts,  to  tin-  same  extent  as  any  other  indivi- 
ihial  :  and  no  distinction  can  he  drawn  l»etwe«'ii  the  courts 
in  KnnJuml  and  the  colonial  courts  in  respect  to  theii-  juris- 
diction to  entertain  an  action  a^^ainst  a  ;^'o\'ernor  (/). 

-S.-To  any  action  hrouj^ht  a^^ainst  him,  he  cannot  ])lea<l 
a  ])lea  of  personal  pri\  ile^^c  of  imnnniity  from  hein^'  im- 
pleaded except  as  pai't  of  the  lar;^'er  plea  that  the  acts 
complained  of  were  <lone  (pia  ;4()\«'ruor  and  as  "acts  of 
State,"  in  which  case  the  only  reme(|y  of  the  party 
aoMTi'ieved  is  liy  [x'tition  of  i"i;^ht  against  the  crown  {11). 

4.  —A  ;,^o\'('i'uor  must  plead  specially  his  justification  . 
in  other  woi-ds,  when  a  <;ovei"nor  justifies  any  act  as  Im-Imj^' 
within   the   powei-s   vested   in   him    hy   his  commission,   he 

(7)  ("iiiiieron  v.  Kyte,  ilill  v.  li'ni^c,  MiiH^rave  v.  Pulido,  iihi  stipid. 

(r)  Mncl)eatli  v.  ILaldimaiul,  1  T.  K.  l7iJ-  unltjsH,  imleed,  he  plud|{eu 
hJH  personal  credit. 

(s)  lte<,'.  V.  Eyre,  L.  R.  8  Q.  li.  4H7,  and  the  charge  of  Blackburn,  J., 
in  the  same  case,  reported  by  Finlayson  «h/^  tit.,  "The  proceedinj^H  in 
the  .laniaica  case'" ;  (Joniyu  v.  Sabine,  cited  by  Lord  Mansfield  in  Fabri- 
gas  V.  Moetyn,  Cowp.  1(51. 

(0  Hill  V.  Uigf^e,  Musgrave  v.  Pulido,  «6/  gupra. 

(n)  Musgrave  v.  Pulido,  sitprn. 


HiO  THE   C;AX.\I>I.\\    COXSTnT'TlOX. 

imist  pU'ud  the  coimnisHioii,  liis  powei-s  tli«'i'«'Uiul«'i',  und 
show  hy  projMT  uvt'i'iiH'utH  thnt  tlu'  uctH  ('(unplniiu'd  of 
were  (luiic  ill  the  [)r()|u'i'  cxiTcisc  of  tluwc  powers  (r). 

We  hnve  hitherto  considered  the  position  of  a  ;^overnor 
in  respect  to  his  liahility  to  civil  action;  how  stands  the 
hiw  as  to  his  criminal  liability  for  crimes  coiiimitte<l  hy 
him  while  j;<)vernor  :*  Lord  Mansfield's  dictum,  it  will  he 
seen,  lays  down  his  immunity  from  criminal  prosecution  as 
well  as  from  civil  suit  in  the  courts  of  the  colony,  hut  the 
very  same  course  of  reasoninj^'  which  resulted  in  the  ilecis- 
ions  in  Hill  v.  Bijjff^e,  and  Mus»i;rave  v.  Pulido,  would  seem 
equally  to  lead  to  the  conclusion  that  a  governor  is  amen- 
ahle  criminally  to  the  coui'ts  of  the  colony,  for  crimes  com- 
mitted in  the  colony,  whether  such  crimes  are  connected 
with  his  official  position  or  entirely  aside  from  it. 

Let  us  consider  this  (juestion  a  little  more  fully.  The 
])ream])le  to  the  statute  li  k  12  Will.  IIL  c.  12— "An 
Act  to  iiunish  j^overnoi>i  of  plantations,  in  this  Kin<j;dom 
for  crimes  hy  them  committed  in  the  plantations  " — charac- 
terizes the  ^overnoi-s  of  those  days  as  "  not  deeniint;  tlieni- 
selves  punishable  for  tlie  same  here  (*/'),  uor  accountable 
for  such  their  crimes  and  ott'ences  to  any  pei-son  within 
their  respective  governments  " :  for  remedy  whereof,  prt)- 
vision  Wfis  made  by  the  statute  for  the  tiial  of  any  oti'end- 
injjj  ^overnoi^s  in  Eiufhiml.  This  statute  was  extende*!  so 
as  to  ftppl}'  to  )ther  ])ersons  holdinjjf  colonial  appointments, 
by  42  Geo.  IIL  c.  .S5,  and  both  statutes  are  to-day  in  force. 
How  far  do  they  apply  ^  And  do  they,  so  far  as  they  do 
apply,  ne*;ative  the  jurisdiction  of  the  colonial  courts  f 
Apart  from  these  statutes,  and  adoptinj>"  the  doctrine  of 
Hill  V.  Big*;;e,  and  Muspave  v.  Pulido,  the  juri.sdiction  of 
the  colonial  courts  would  seem  beyond  (piestion,  and  it  is 
submitted  tlutt  these  statutes  are,  so  far  as  they  do  apply, 

(v)  Oliver  v.  Bentinck,  3  Taunt.  460 ;  and  cases  cited  mipra,  p.  150. 

(h)  Crimes  being  local,  and  triable  and  punishable  locally.     See^Jos/, 
Chap.  IX. 


'INK   (;(»VKKN<»l{-(iKNKH.\I,.  161 

cuiimlfitivf  mihI  not  exclusive.  ()\viii;>'  t<»  tlir  ri<fi<l  j-ulcs  cF 
tin-  ('(UMiiinii  Inw  us  to  Vfiiuc  ill  criiiiiiuil  prosecutions,  it 
i'e(|uire<l  statutes  to  I'eiide)-  leoal  tlie  trial  in  one  county  of 
an  oft'ence  conniiittetj  in  another:  <i  /ortinri,  the  trial  in 
Kni;lan<l  of  otiences  connnitte"!  (»n  or  Ueyond  seas  (,/•).  An 
eai-ly  statute,  -V-i  Henry  VIII.  c.  2'i,  jtrovided  lor  tlie 
a|»j»ointnient  ot"  a  sjiecial  C(»niniission  Tor  the  trial  of 
pei'soUH  charm'ed  with  murder  on  or  hi'yond  the  seas,  and  it 
was  under  this  statute  that  (Jovernor  Wall  was  trit.'d,  con- 
denuHMJ,  and  executed  (//).  A  eovernor,  ther«'foi'e,  oncti 
ile[)ai'te«l  tVoni  his  colony  woulil  lie  entii-ely  tVet'  I'roni 
dan^'e)',  unless,  indeed,  he  could  lu'  sent  liack  to  stand  his 
trial.  The  nioi'e  practical  I'eniedy,  howexer,  would  seem  to 
have  heen  ad(H)ted,  and  under  the  statute  ot*  William  III., 
the  olijection  in  )'espect  to  \'enue  was  taken  away.  The 
|)reanilile,  nior«'o\-ei',  speaks  of  the  y;ovcrn()rs  as  "  deeniinj^' 
themselves  not  accountahle  "  to  the  colonial  courts,  and  the 
statute  is  in  no  sense  declai'atory  that  such  is  the  law.  So 
we  conclude  that  even  in  those  cases  in  which,  undei"  this 
statute,  a  »;()Vei'nor  may  ))e  tried  in  Knuljin<l  for  ott'ences 
counnitted  in  the  colony,  he  is  •. (|ually  amenahle  to  the 
courts  of  the  colony. 

Hut  thest'  statutes  have  been  lield  not  to  apply  to 
ftdonies,  and  only  to  misconduct  in  office.  Ellenboi'ouoh, 
(\.J.,  thus  characterizes  (c)  the  latei*  statute  : 

"The  ohject  of  this  Act  was  in  the  same  spirit  with  the  Act 
of  11  it  12  William  III.,  to  protect  His  Majesty's  subjects 
against  the  criminal  and  fraudulent  acts  committed  by  persons 
in  public  employment  abroad,  in  t/n-  e.rerciat'  of  their  nnjiloiiinvnts; 
to  reach  a  class  of  public  servants  which  that  statute  did  not 
reach  and  to  place  them  in  imri  thiicto  with  governors.  It  has 
no  reference  in  spirit  or  letter  to  the  commission  of  felonies.  .  . 
The      ison  of  the  thing,  a  firiari,  would  lead  us  to  conclude  that 

(j)  See  note  to  Keighley  v.  Bell,  4  F.  &  F.  at  p.  490,  and/joxf,  Chap.  IX. 
(//)  Reg.  V.  Wall,  28  St.  Ir.  51 ;  see  Broom,  "  Const.  Law."  ()52. 
{z)  Reji.  V.  Shaw,  5  M.  *  S.  403,  the  only  reported  authority  on  it. 

Can.  (Jon.— 11 


I(j2  '  THE   CAXADIAX    CnXSTITr  IION. 

tlio  jurisdiction  as  to  trial  of  felonies  sfiaulil  lie  rt'stniiiwil  to  t/ir 
local  roiiitn.'' 

Although  the  pi'iHoiH'i'  in  tluit  can*'  vva.s  not  a  governor 
but  a  sulK)r«linat«'  otficor  in  tlu'  civil  snvico,  tlic  ica.soninjr 
would  (in  the  li^ht  of  the  (U'cisiouH  as  to  a  j^oNcrnor's  civil 
liability)  Hconi  to  lead  to  a  clear  conclusion  that  the  Juris- 
diction of  the  courts  of  a  colony  to  try  a  "i^oveiiior  for 
felonies  conunitted  within  the  colony,  or  niisdeiiM'anois 
unconnected  with  his  office,  there  conunitted,  is  beyond 
((uestion.  And  for  the  reasons  before  ^iven,  it  is  subjnitted 
that  there  is  like  jurisdiction  in  respect  of  offences  fallin;^ 
within  the  statute  of  William  III. 

It  is  beyond  the  province  of  this  woi-k  to  discuss  the 
(piestion,  what  is  necessary  to  affix  criminal  chaiacter  to 
acts  of  a  {governor  done  in  the  supposed  exercise  of  his 
powei's.  We  are  merely  interested  in  showinj;'  that  the 
same  criminal  and  civil  liability  exists  in  the  case  of  a 
governor  as  in  the  case  of  any  other  officer  of  the  crown 
acting  under  a  limited  authority,  leaving  the  student  who 
desires  to  pursue  this  subject  further  tt)  consult  wi'iteis 
who  deal  with  this  larj;er  subject  (o). 

Havinjjf  now  pointed  out  that  for  the  powers  and  duties 
of  a  colonial  ^overnoi',  we  must  look  to  the  terms  of  his 
conunission,  we  must  follow  the  CHmi-se  in<licated,  and  for 
the  powers  an<l  duties  of  the  Governor-Cieneral  of  Canada, 
look  to  the  terms  of  tlu*  conunission  under  which  that 
office  is  held.  We  shall  hereafter  have  to  point  out  certain 
changes  which  have  from  time  to  time  been  made  in  the 
terms  of  the  conunission,  but  for  our  present  pui'pose — an 
incjuiry  into  the  le^al  powers,  as  now  existing,  of  the 
Governor-General — it  will  suffice  to  say  that  in  bSTS, 
Letters  Patent  under  the  (Jreat  Seal  of  the  United  Kin^- 

(ti)  Broom,  "Const.  Law,"  649,  et  neq.,  ()56,  et  xeq.  It  may  be  noted  that 
the  cases  in  which  f^overnors  have  been  prosecuted,  have  involved  the 
question  of  their  liability  as  military  officers — in  command  abroad — 
rather  than  as  civil  servants.  The  Letters  Patent  constituting'  the  office 
of  Governor-General  of  Canada  convey  no  military  powers.    See  ]io!it. 


THE   (i(»VEHN<)U-(iE\EUAL.  1<).'J 

tloiii.  NVi'it'  JHsui'djind  ni'i'  still  in  force,  "iiuikin^t'rtectuiil  ami 
pcnnancnt  ])i'()viHi<»n  for  the  office  of  (Joveriior-Genenil  "  of 
C'aiuuia.  pi'ovidiii}^  for  the  api)ointinent,  from  time  to  time, 
l.V  CommiHsioii  under  the  Si^Mj  Manual  and  Si^rnet,  "of 
the  person  who  shall  till  the  said  office,"  and  enumerating^ 
the  ]M)\vers  and  duties  which  sluaild  devolve  upon  such 
person  (/>).  He  is  authorized  and  connnanded  to  <lo  and 
execute  in  due  manner  all  thin^^s  that  belong  to  his  com- 
man<l  and  trust,  according: 

I.  To  the  several   powers    and   authorities  granted  or 
appointed  him  l>y  vii'tue  of: 

(a)  The  British  North  America  Act,  1807. 
(h)  The  letters  patent  (now  bein^'  recited), 
(c)  His  Conunission. 

II.  To  sucli  instructions  as  may  from  time  to  time  be 
j;iven  to  him, 

(a)  Under  the  Si^n  Manual  and  Signet. 

(b)  By  order  of  her  ^Majesty's  Privy  Council. 

(c)  ^rhi"ou<^h  one  of  the  Secretaries  of  State. 

III.  To  such  laws  as  are,  or  shall  hereafter  be  in  force 
in  Canada. 

Now  although  in  the  last  analy.sis,  the  powei-s  of  the 
G()vernor-(»eneral  are  derived  from  Iniperial  authority,  it 
will  neverthele.ss  much  facilit»ite  our  incpiiry,  if  we  divide 
these  powers  (as  the  Letters  Patent  practically  divide 
them)  namely,  with  reference  tt)  their  bnmeiJUite  source, 
thus  : 

1.  Powers  conferred  from  without  the  Dominion — i.e., 
by  Imperial  authority. 

2.  Powers  conferre<l  by  Canadian  enactments. 

And  with  respcict  to  this  division  we  may  say  that  tlu^ 
powers  directly  conferred  by  Imperial  authority,  are — with 
cei'tain  few  exceptions,  to  be  hereafter  discussed — powers 
not  re(|uirin}^  for  their  exercise,  their  legally-effective  ex- 
ercise, the  concurrence  of  any  other  person  or  body  ;  while, 

(h)  See  the  Letters  Patent  printed  in  Appendix. 


1()4  TIIK   CANADIAN    <  ( »NSTI  ITTIoN. 

US  11  rule  (tlif  cNcrptions  t  >  wliit'li  niust  jiIho  Ik-  jKhcrtcfl  to 
luM'caFtfr)  tilt'  powers  ('oiil'crrf<l  l»y  ('uiuKliuii  cimctniciit 
i-f(|uir»'  tlif  coiicurrciu'c  of  tlic  (^Juci'ii's  Privy  ('ouiicil  for 
(Viiiulfi,  in  oi'ilrr  to  tlirir  ctU'ctivc  t'xcrcisc,  or  in  otlu'i- 
words  can  om1\- l>c  Icnullv  fxcrciscd  li\ Order  in  Council. 
III  considering;  tlit'sc  suiiic  powers  from  a  "  coiiNcntionul  " 
Htundpoint,  an  entirely  different  principle  of  division  must 
lie  adopted,  if  indeeil  tlu-re  is  any  dixision  so  far  as  re<;'ards 
their  "conventional  "  exei'cise.  Followin;^'  then  the  line  of 
division  adopted,  as  likely  to  aH'ord  assistance  in  arriN'in;;' 
at  a  correct  \iew  of  the  (iovernor-(ilenerarH  powers— from 
the  standpoint  of  the  lei;al  efficacy  of  tlu'ir  exei'cise  we 
proceed  to  discuss  shortly,  the  ])rero^'ative  rii^hts  and 
]M)wers  with  which  the  ( Jovernor-(Jieneral  is  entrustiMl  hi/ 
ilii'crf  I miK'i'Kil  o  iillnn'il  jj. 

We  liJiN  t'  already  discussed  the  (piestion  of  the  extent 
to  wiiich  the  Crown's  preroy,ative  rights  are  extM'cisihle  in 
tlu!  colonial  possessions  of  the  Empire,  l>ut  we  may  here 
a<4"ain  ohserve  that  those  ri^i'hts  are  in  every  poi'tion  of  the 
Kmpire  to  he  exercised  according'  to  law, — that  hy  ijxpress 
wonls  or  necessary  intendment,  an  Act  of  the  Imperial  ])ar- 
liameiit  may  either  entirely  take  away  from  the  Crown 
{I.e.,  the  executi\e)  a  prero^^ative  ri;;ht  theretofore  exei'cise- 
nl)le  I»y  and  under  the  common  law  without  the  concurrence 
of  parliament,  or  may  fetter  its  exercise  witli  any  terms  oi* 
conditions  which  parliament  may  deem  necessary  in  the 
puhlic  interest, — and  that  a  "  confirmed  "  Act  of  a  colonial 
lei^islature  is  iMpially  effective  to  thos(^  ends  so  far  as  con- 
cerns tlu!  exercise  of  the  prero^'ative  ri^^'ht  in  the  colony  (*■). 
It  will  i>e  noticed  that  the  lan^ua;;e  emi)loyed  in  the  Letters 
Patent,  constitutin<i'  the  officii  of  (jove)-nor-(ieneral,  reco<^- 
iii/.es  the  existence  of  leji;al  limits  to  the  exercise  (even  by 
the  s()verei*;n  in  pt^rson)  of  the  prero^^ative  ri<;lits  therein 
mentioned.  With  this  perhaps  unnecessary  caution  wt; 
proceed  to  enumerate  the  pren)gatives  of  the  Crown,  the 

((•)  See  Chap.  VI  ,  ante,  p.  13'.),  <t  seq. 


THK   (iOVKHN'uH-fJEN'EISAl..  165 

|)i)\vt'r  to  I'xcrc'isc  wliicli  in  (,'an»i«la  is  //y  ilincf  I iiiixrinl 
jiutlioritv  ♦'iitnistt'd  to  tin;  (Jovernor-:!  Jt'iu'ral. 

I.  By  the  i.etteus  patent,  constitntin*;  tin-  ortic  of 
(tovrnior-Ca'iK'Pal,  he  in  aiith()rize<l  ami  t'lnpowt'ivil : 

(ii)  "III To  constitute  and  appoint  in  our  niime, 

nnd  on  our  behalf,  all  such  ju(]f,'e3.  commissioners,  justices  of 
the  peace,  ami  other  necessary  officers  and  ministers  of  our  s;iid 
Dominion,  nx  nun/  he  luirfulli/  roiistitiUi-il  or  njifiointeil  hi/  us. 

"IV Snt'iirt(s  »v  Idiij'nlh/  III 'iij,  \\\ion  surti- 

cient  cause  to  him  appearing,  to  remove  from  his  office  or  to 
suspend  from  the  exercise  of  t!ie  same,  any  person  exercising 
any  office " 

The  exercise  of  the  prerogative  ri^ht  of  the  Crown 
(as  the  fountain  of  Justice)  in  the  ajjpointnient  t )  and 
renjoval  from  office  in  ('(inii(lo,\H  now — with  the  exception 
of  this  one  office  of  (lovenK^r-Ueneral — entirely  regulated 
l»y  statutes  ('/),  Im[)enal  and  Colonial,  so  that  it  will  he 
necessary  to  rele<^ate  to  a  f'lture  statue  the  consideration  of 
this  branch  of  a  j;()vernor's  general  powers. 

(b)  "V To  exercise  all  powers, /«n(7/<//)' /y.7o;/////7 

tu  IIS,  in  respect  of  the  summoning,  proroguing  or  dissolviu ,'  of 
the  parliament  of  our  said  Dominion." 

Of  these  powers  in  relation  to  the  ])}irliament  of  Canada, 
it  may  he  oljserved  that  the  exercise  of  the  power  of  >iiim- 
iiioii'nuj  hanhinin  the  subject  of  legislative  rej^ulation  (f^) ; 
the  other  two — of  prorofjitinij  and  dixmlviv^i — exist  as  at 
connnon  law.  The  "  conventional "  limitations  are  many, 
the  lej^al  ri^ht  is  absolute.  For  whatever  reason,  or  with 
whatever  want  of  reason,  parliament  is  prorogued  or  dis- 
solved, such  prorogation  or  dissolution  puts  an  end  to  the 
session,  or  the  parliament,  as  the  case  may  ba ;  and  the 
assembling  of  the  members  without  new  summons  would 

((/)  See  the  opinion  of  Sir  James  Scarlett  (Lord  Abinger)  and  Sir 
N.  C.  Tindal  (C.J.,  C.P.),  on  the  power  of  the  Crown  to  create  the  office 
of  Master  of  the  Rolls  in  Canada  (1827)— Forsyth,  172. 

'e)  B.  N.  A.  Act,  18fi7,  ss.  20  and  38. 


!(>()  THE   CANADIAN    CoNSTnTTKiN. 

In;  l)Ut  as  tlu'  ^futlu'i'in;;  oF  a  molt,  uml   tlu-ir   Acts  Itiit  as 

II. —  HV  HIM  "INSTIU'CTIONS"  (/').' 

We  neetl  onl}'  di'iiw  jittcntioii  to  tlu'  5tli  cIhusl',  makiii;^ 
{H'ovisioii  as  to  the  excrciHt'  oF  tlir  j)rt'i"();;ati\<'  of  jtiir'loii. 
Thu  ()ovL'i'nor-(  u'iK'ral  is  dcUarrefl  From  t'xci'cisiii;;'  tills  ])1'«j- 
r*»<;ativ»'  without  tii'st  ivcoivino-  the  advice,  in  capital  cases, 
oF  the  Privy  C^mucil  For  ('aiiada:  in  other  castjs,  oF  one  at 
least  oF  his  ministers :  except  in  cases  where  the  inteii'sts 
oF  the  Empire,  or  oF  some  country  other  than  ('anaWa  mi;4ht 
he  directly  att'ected  ;  in  which  exce})tional  casi's,  the  (lover- 
nor-General  shall  "take  thost;  interests  specially  into  his 
own  personal  consideration,  in  conjunction  with  such  advice 
as  aForesaid."  In  other  words,  in  those  exceptional  cases, 
ho  may  disrej^ard  the  ailvice  offered  (//):  in  all  othei-  cases 
he  must  Follow  it.  4t 

III.  Bv  THE  B.  N.  A.  Act.  1.S()7.  the  (lovernor-CJeneial 
is  entrusted  with  the  Following;'  prero<;ativeH,  and  the  man- 
ner of  their  exercise  is  to  some  extent  defined. 

A. — Aftpointmevtii  to  office. 

Tlie  vast  majority  (jF  offices  in  connection  with  the 
{jfovernnient  of  Canada  are  filled  b}'  persons  appointed, 
under  statutory  authority,  l)y  the  Governor-General  lit 
Council;  hut  there  are  still  a  Few  offices  to  which  the 
Governor  may  legally  make  appointments  without,  or  even 
contrar}^  to,  the  advice  of  the  Queen's  Privy  Council  tor 
Canada,  althouiifh,  of  course,  the  making-  oF  such  a})point- 
nients  laern  ipsluf<  motii,  would  be  a  flagrant  Itreach  oF 
"  conventional"  usage,  a  complete  subversion  of  the  right 
of  local  self-government,  long  since  fully  accorded  to  Can- 
ada.    To  give  anything  like  a  full   enumeration  of   the 

(/)  i.e.,  the  general   "instructions"   which  accompany  the  Letters 
Patent ;  see  appendix, 

((f)  That  is  to  say,  he  acts  in  such  case  as  an  Iinparial  officer,  and  is 
supposed  to  act  upon  Imperial  considerations. 


Tin:  (i'»vKiiN(tH-(;KM;iiAr,.  107 

fornu'i'  t'hiss  oF  others  would  lU'Ct'HHitHtt'  n  Hurvcy  <>t'  the 
cntiit'  CMvil  Service  of  C^iiuulu.  Hut  coiiHuiii;;'  our  iittoii- 
tioM  to  tlu'  B.  N.  A.  Act,  tin-  (»nly  orticcr  therein  nieiitioniMl 
in  whose  iippointuieiit  th*- (Jovenior-denei'iil  uud  the  Privy 
Council  nuist  concur  is  the  Lieuteniint-Oovei'nor  of  a  I'ro- 
viuce.  or  his  position  when  H|»[)ointe(l  nnich  must  he  here- 
aftei'  said  (A),  hut  us  to  the  iippointnient  itself  it  suttices 
n(»w  to  siiy  that  it  must  l»e  ma<le  hy  Order  in  Council  (/). 
Of  the  few  officers  whose  appointment,  uiuh'r  the  B.  N. 

A.  Act,  is  in  the  hands  of  the  (lovernoi-'ieneral  personally, 
the  following;'  is  a  complete  list: 

I.   Mt'udtejs  of  the  Qui'en  s  Privy  Council  foi- Canada. — 

B.  N.  A.  Act,  s.  II.  In  various  Acts  of  the  parliament  of 
Canada,  pi'o\isions  are  contained  as  to  the  appointment  of 
the  ministers  (or  other  officers)  who  shall  preside  over  the 
various  departments  of  state  (^') ;  hut  in  all,  the  appoint- 
ment is  left  in  tlu;  hands  of  the  (Jovernor-CJencral  person- 
allv.  This  is  (',;•  iii'cvssitdtf,  in  the  case  of  a  chanu'e  in  the 
entire  administration,  hut  tlu?  position  is  the  same  in  every 
case — the  appointment  is,  ^'//"///y  voitsiih  inl,  the  act  of  the 
Uovernor-Cieneral  alone.  But  there  may  he,  and  usually 
are,  mend»ers  of  the  Privy  Council  who  hohl  no  })()rtfolio, 

(//)  See  notes  to  sec.  58,  B,  N.  A.  Act,  poKt. 

((■)  See  R.  S.  C.  (188(1)  o.  19,  as  to  the  use  of  the  Great  Seal  of  Canada 
hi  the  appointment  to  certain  offices. 

(,y)  Minister  of  Justice—                    R.  S.  C.  c.  21,  s.  1. 

"            the  Interior—  "  c.  22,  s.  1. 

"            Agriculture —  "  c.  24,  s.  1. 

*•            Marine'and  Fisheries —  "  c.  25,  s.  1. 

Secretary  of  State—  "  c.  26,  s.  1. 

Minister  of  Finance—  "  c.  28,  s.  2. 

Auditor  General—  "  c.  29,  s.  21. 

Minister  of  Customs —  "  c.  32,  s.  3. 

"            Inland  Revenue—  "  c.  34,  s.  2. 

Post-Master  General —  "  c.  35,  s.  5. 

Minister  of  Railways  and  Canals—  "  c.  37,  s.  2. 

Public  Works—  "  c.  3«.  s.  3. 

"            Militia  and  Defence—  "  c.  41,  s.  4. 


KIrt  TMK   CANADIAN    < '.  t\STITl  TION. 

und  it  imiy  Ik-  said,  tlirn't'orc  tliiit  tin'  |)(>w»'i'  <»f  iip|>uiiitiii;^ 
iu«'tnl«'iH  of  the  Piivy  ( 'oiuicil,  Hiniply  ii.s  .such,  is  t\'tt«'n'(l 
Ity  no  statutory  liinitatioiis. 

2.  Senators.— B.  N.  A.  Act,  s.  24. 

3.  Speaker  of  the  Senate.— B.  N.  A.  Act.  s.  :U. 

4.  Ju<ljx«'«- — As  enmnei'ated  in  B.  N.  A.  Act,  s.  !Mi 

fy.  Deputy  (}overnor-(ien«'ral. — B.  N.  A.  Act,  s.  14,  and 
Letters  Patent,  chiU;ie  VI. 

B. —  The  sn III iiionl in/  <>/  fxi rl i<i iiit'iif. 

Refi'rence  has  ah'eady  (/•)  heen  niadt^  to  the  clause  in 
the  Letters  Patent  constituting  the  office  of  (lovernoi- 
(ieneral  of  Cana(hi,  by  wliich  the  person  Hilin;;'  that  ofHce 
is  empowered  to  exerci.sO  the  prerogatives  of  the  Crown  in 
reference  to  the  smninonin;;,  i)roron-uinj^,  and  dissolvin;^;  of 
parliament;  and  it  has  heen  j)ointed  (Uit  tliat  tlie  only 
statutory  repilation  as  to  the  exercise  of  this  prero;,oitive 
is  in  reference  lo  the  muiwumlnij  of  parliament.  Tiisitin;; 
the  j)arliament  of  Canada  as  one  hody,  the  B.  X.  A.  Act 
provides  (/) : 

"  There  shall  be  a  session  of  the  parliament  of  Canada  once 
at  least  in  every  year,  so  that  twelve  months  shall  not  intervene 
between  the  last  sitting  of  the  parliament  in  one  session,  and  its 
first  sitting  in  the  next  session." 

and  there  can  ha  no  douht  that  a  (Jovernor-General  who 
should  disrej^ard  this  imperative  provisicm,  even  upon  the 
advice  of  her  Majesty's  Privy  Council  for  Canada — i.e.,  his 
Ministei's — would  be  guilty  of  a  plain  violation  of  his 
duty  ;  and  if  it  can  be  imagined  that  le^al  dama^^e  could 
be  suffered  by  any  individual  by  riiason  of  such  violation  of 
duty,  such  individual  would  have  a  right  of  action  in 
respect  of  such  damage,  in  accordance  with  the  principles 
heretofore  laid  down  (on).  The  similar  provision  {ii} 
necessitating  annual  sessionH  of  the  legislative  assemblies 

(k)  Ante,  p.  165.  (0  Sec.  20. 

(m)  Ante,  p.  158,  et  neq.  {»)  B.  N.  A.  Act,  sec.  8  J. 


INK   <fnVKI{Nn|<-(iK\Kir\l..  III!) 

ul'  till'  proviiu'cM  of  Oiitiii'io  aiid  (j)ut'lK'(',  Ims,  as  wr  write. 
Imm'ii  <liMr«';iHr<l«'<l  liy  tin*  Li«'Ut»'imiit-(iovi'ni»ir  i»t'  tlu-  lattci- 
piKviiici',  Itut  tin*  liittiTiu'MM  tlicrc  ul"  cimtt'iiiliii;^  tuctions  is 
such  tliat  it  is  liar<lly  posMihlc  to  tliscuMH  this  matti'i- 
further  uow,  without  aiUH-arin;;  to  advocate  a  paity's 
cause. 

Treatin;^  uow  the  parh'anieiit  of  Cauiuhi  as  coniposeil  of 
thre»'  hranches — the  Crown,  the  Senate,  ami  the  House  of 
Coiruiions  ('<) — attentuai  nuist  he  drawn  to  the  dirteience 
in  till'  duration  of  the  life  of  the  respective  hranches. 
The  Crown  and  the  Senate  are  innuortal  hranches,  while 
the  House  of  Connnons  niii^ht  he  nuav  aptly  termed  the 
folia;;e  of  parliainei\t,  a[)pearin<;  and  disa))peaiin;,',  sonie- 
tinicM  in  (piick  revolving;  seasons  (as  in  the  Antipodean 
Colonies),  hut,  at  the  lon;,fest,  in  i|uin(|uennial  recur- 
rences (/>).  The  analogy  holds  even  more  ftdly,  for  as  a 
tree  «;rows  and  does  effective  work  only  when  clothed  with 
foliage,  so  pailiament  recpiires  for  the  etiective  exercise  of 
its  functions  the  maj^ic  ^'all  of  ;;uhernatorial  sprin;,^  sum- 
moning the  nnn'muriu^  leaves  of  the  Connnons  into  le^^is- 
lative  l)ein;j. 

Analo;;ies  aside,  the  result  of  this  marki  d  distinction  in 
the  constitution  of  the  various  hranches  of  parliament  is 
apparent  in  the  B.  N.  A.  Act,  in  the  ahsence  of  any  provi- 
sio)i  for  the  callinj^  together  of  the  mend  tors  of  the  Senate, 
while  it  is  expressly  enacted  : 

"  88. — The  Governor-General  shall  from  time  to  tune  in  the 
Queen '.s  name,  by  instrument  under  the  Great  Seal  of  Canada, 
summon  an^l  call  together  the  House  of  Commons." 

This  section  however  would  seem  to  carry  the  j^overnor's 
powei-s  no  further  than  the  Lettei-s  Patent  alone  would 
have  carried  them,  and  therefore,  as  said  hy  Dr.  Bourinot : 
"  The  sunnnonin^,  prorogation,  and  dissolution  of  parlia- 
ment in  Canada,  are  governed  by  Enj^lish  couHtitutional 
usa{;.je.     Parliament   can   only    l)e    lej^ally   sunnnoned    hy 

(o)  B.  N.  A.  Act.  sec.  17.  (p)  B.  N.  A.  Act  sec.  50. 


170  TMK   <  ANAIH.W    <'n\,s  |"ITI  Tlo.V. 

iintliority  of  tin-  C'luwn."  Af'trr  tin-  rxjiiiy  of  the  House 
of  ( 'iiiiiiiiDiiH  liy  InpHt'  (tf  time  oi'  tlissuliitioii,  tlinc  luiist  lir 
II  new  House  electeil  l»y  the  people  Hf('ol<liii;r  to  law,  lii't'oie 
there  euu  l»e  till  eft'ectixe  exercise  of  the  prero;,oiti\  e  rinjht 
to  sunnnon  piiiliuiiieiit ;  iin*l  we  niiiy  here  note  that  in  coii- 
uectioii  with  Huch  eh'ctioii  certain  powei-s  are  veste<l  in  the 
(tovernor-(ieneral  an<l  C(>rtain  <hities  iniposed  upon  him  l>y 
(/anmlian  le^ishition,  in  the  exercise  ol'  which  he,  in  con- 
teniphition  ol"  law,  acts  |>ersonally.  V\h>\\  him  <levolves 
tlie  <luty  ol*  fixine;  the  date  I'or  the  hoMinn;  <>t'  such  election 
— the  rule  is  the  same  as  to  Kye-elections  —  and  l»y  him  the 
retiUMiin;;  otHcei'  for  each  electoral  <listrict  is  appointed  (</), 
This  howexcr  hy  the  way.  The  House  of  Commons  hein^ 
MO  elected,  parliament  can  meet  to;;ether  for  thetlespatch  of 
husiness  only  upon  the  sunnnons  of  the  (iovernor-(  ieneral. 
It  is  woi'thy  of  note  that  this  word,  "  sn  iinmni,"  is  used  in 
the  H.  N.  A.  Act,  in  I'eference  to  tiie  appointment  of  sen- 
atoix  (/•),  and  tliat,  as  has  Iteen  said,  there  is  no  le;^islative 
ree;ulation  of  the  method  hy  which  the  Senati'  is  called 
to;;ether  for  the  despatch  of  husiness:  while  in  relation  to 
the  House  of  C/onnnons  the  woi'd  is  used  to  indicate  the 
annual  callin;;  to^'«'ther  of  the  elected  memhirs  of  the 
House  for  the  exercise  of  their  functions.  As  a  matter  of 
usa;^e  (in  conformity  with  the  English  practice)  the  insti'U- 
nient  l»y  which  the  (Jovernor-(Jeneral  summons  the  House 
of  ConnnouH.  vi/.,  a  proclamation  inider  the  (treat  Seal,  is 
addressed  to  both  senators,  and  memliei's  of  the  House  of 
Connnons. 

C. — Thf  t'JTi'cisc    of  the  jH'mtt/tifirc   ri;//ifs  of  f/ic    (-I'ouui 
(tH  (I  consflfuciif  hrnnc/i  of  tin'  P<( linniu'nt  of  Htnindd. 

This  niattei"  has  heen  fully  dealt  with  in  tlie  last  chap- 
ter, and  we  need  not  thei'eforo  dwell   further  upon  it  here. 

|«if)  R.  S.  C.  c.  H,  H.  3.  (r)  s.  24. 


TMK  <JoVKHN<»H-nF;\KU.\F,.  171 

1). —  'llif  il istiUmrn  iirt'  of  I' mri uriiil  /Ir/s. 

No  |»r('ni;;iti\t'  ri;;lit  <»!'  tlic  (  'ikwii  is  nunc  fiiinly  cstiili- 
lishi'tl  tliiiii  tin-  riy;l  t  t(»  mujutn  isc  tin-  l(';;i.sliitiv(' rnuctiiM'iits 
ul*  iill  iniimr  Iri^islatiNc  ItoilifM  -tlic  riy-lit  is  iixltfil  liiit  tln( 
l)»y;i('iil  ifsiilt  of  the  rule  tlmt  tlit-  Crown  is  a  ('(.nNtitiicut 
|»ait  nf  cvrry  l»'M;isliiti\t'  Itoily  tliroii^lioiit  tin-  Kiiipiif  (") 
Kvt'ii  slioiiM  a  (lovcnior  "  tln'iTunto  liiwhilly  autlioii/rd" 
assent  in  tlir  i^iit'cn's  name  to  an  Act  ol'  a  colonial  Icnjsla- 
tui'c,  tlicic  is  Ity  tlic  common  law  of  Kn;;lanil  a  icscrvnl 
|M»wt'r  in  tilt'  Clown  to  rcpu<liat»'  tlic  action  ol'  tlic  Ciown's 
otHccr  in  the  colony  an<l  to  disallow  such  Act.  In  the  caM'.j 
ol'  ('anafja,  the  exei'cise  of  this  |H'ei'OHati\e  must,  to  l»e 
le;;iilly  etfecti\«',  take  |»lace  within  t»vo  yeai-s  after  the 
recei|tt  of  the  Alt  Ity  the  Secretary  of  State  foi*  the 
f'olonies  (0:  hut  the  rinht  once  exeirised  in  the  niethoil 
|)ointe<l  out  Ity  the  statute,  and  such  exercise  Iteinj;  <luly 
"sijLjniHed  "  here,  the  Act,  so  disallowed,  is  ahsolutely  an- 
nulled "  from  ami  aftei-  the  <lay  of  such  siy;nitication."  It 
is  to  lie  noticed,  howev*'!',  that  this  powei'  of  disallowance 
cannot  he  le^^fall}'  exeicised  hy  the  (^ueen  jiersonally,  hut 
onl\'  Itv  and  with  the  advice  of  her  I'rivy  Council. 

With  regard,  liowi'ver,  to  Acts  of  the  h'^dslative  assem- 
hlies  of  the  difi'ercnt  provinces  of  the  Dominion,  tlu;  ri;jht 
to  uxei'cise  this  jirei'oirative  has  heen  taken  awav  from  tlu; 
Queen  in  Council,  and  is  hy  the  JB.  N.  A.  Act  (n)  conferred 
on  the  (lovernor  in  Council — a  nuittur  fre(iuently  a<Iverted 
to,  as  indicating;  the  very  extended  rights  of  self-j^overn- 
ment  accorded  to  Canada.  Much  must  l>e  said  hereafter 
witli  leference  to  this  power,  and  tlie  proper  "conventional" 
limits  within  which  it  should  he  exercised;  ]>ut  viewing  it 
fron»  the  standpoint  of  the  le^al  etficac}'  of  its  exercise,  it 
would  appear  clear  that,  the  Oovernor-Oeneral   and   the 

((t)  Cliitty,  p.  2.5;  see.  Chap.  VI.  ante,  p.  J38;  Th6berge  v.    Landry, 
2  App.  (Jas.  102  ;  see  notes  to  8.  GD  B.  N.  A.  Act,  post. 

(0  B.  N.  A.  Act,  B.  5G.  '  '  • 

(«)  Sec.  00,  road  in  connection  with  ss.  55,  5(5,  and  57. 


172  THK   (ANAhlAX    CoNSTITrTION. 

Privy  C.\)unc'il  coiicuiTini^*  in  hucIi  <lisullu\viiiicc  .ukI  fxor- 
eisin^j  tlu'ir  powrr  in  tlio  nuinnt'r  ami  within  tlu-  tinif  indi- 
cated in  the  statute,  no  jaovincial  Act  is  U';;ally  exempt 
From  the  ()j)eiat!()n  of  this  pi-eroijative  of  disallowance. 

This  is,  perhaps,  the  proper  [)lace  to  advert  to  a  ylai'in^ 
error — <^larin^"  to  us  in  Canada  at  least — into  which  I'l-of- 
Dicey  has  fallen  in  the  work  to  which  we  have  fre((uently 
referred  ('•) — a  work  which,  in  its  elucidation  of  the  prin- 
ci})le  of  the  .siijirt'uKici/  (>f  ltiiv,iiH  the  fundamental  jirinciple 
of  An;;lo-Saxou  {government  the  world  over,  stands  to-day 
fiicile  i)ri.an'i»<;  hut  which,  in  its  references  to  the  colonies 
generally  and  to  C-anada  in  particulai',  displays  a  stran*^e 
lack  of  appi'eciation  of  the  tnie  ])osition  of  atiairs  {w).  To 
confine  our  attention,  however,  to  tliis  particular  error — 
Prof,  Dicey  is  completely  astray  in  layini;-  it  down,  that  the 
l()dt;"in}^  of  this  veto  power  in  the  hands  of  the  (Jovernor- 
(ieneral  in  C'omicil  —  ic,  with  the  J)ominion  (Jovennnent, — 
was  intended  to  ol>viate  the  necessity  for  resort  to  the 
courts,  for  the  decision  of  "constitutionar'  cases  involvini^- 
the  determination  of  the  line  of  division  between  the  sphere 
of  authority  of  the  Dominion  parliament  and  that  of  a  pro- 
vincial assembly. 

"The  futility  of  a  hope  j^rounded  on  a  misconception  of 
the  nature  of  federalism,"  is  a  pretty  stnm*;  expression,  and 
contains  a  very  direct  char<^e  that  the  Fathers  of  Confedera- 
tion did  not  know  what  they  were  about  in  this  matter. 
One  who,  like  Pi'of.  Dicey,  speaks  with  authority,  should 
not  have  penned  such  a  j^jrave  charge  without  tii-st  consult- 
ing the  debates  which  took  place  in  the  various  let;islatures 
upon  the  "C(m federation  Resolutions."  Ha<l  he  done  so,  he 
would  have  found  that  a  very  sharp  line  of  distinction  was 
drawn  between  the  exercise  by  the  Dominion  government, 
((>i  a  mtitter  of  poUfictd  (Wpcjflenc}/,  of  the  power  of  dis- 
allowance of  provincial  Acts,  and  the  exercise  by  the  courts 

(v)  "  The  Law  of  the  Constitution." 

(«•)  See  note  at  end  of  this  chapter.     And  see  Chap.  I.  ante. 


rilK    (ioVi:i{N(ili-(iKNKI!AI..  I  7M 

(if  ///'  jiiil irnil  J II  iirl mil  (if  (IcclMl'ili;^'  Jill  Act  nlfi'ii  riirs. 
As  cxju'cssimI  liy  tin-  ( 'liaiict'llor  ul'  Oiitjirio,  in  a  recent 
cdse  (.'■),  the  su|»er\  ision,  toucliin;^'  prnvincial  Ie;;islati(>n, 
entnisteil  t'»  tile  Dominion  e<»verninent,  works  in  tlie  plane 
of  ]ii»Iitical  exiiediency  as  well  as  tliat  of  Jural  capacity, 
while  the  (|iiestion  for  the  courts  is  as  t »  the  latter  merely. 
The  franiiiiti'  of  the  (^)uel>ec  llesolutions,  upon  which  the  H. 
N,  A.  Act  is  founded,  was  the  worU  of  the  most  eminent 
leual  minds  of  that  da\'  in  Canada:  and  a  jjl'ince  at  the 
deltates  upon  those  Resolutions  will  show  that  they 
thorou^l'lily  apjireciated  the  distinction,  pointed  out  in  these 
late)'  days  liy  the  Cliaiicelloi-.  'riirouehout  the  deltates,  it 
was  clearly  recoeiii/ed  that  the  exercist'  ly  the  Dominion 
^•oN'ei'nment  of  the  power  of  disallowance,  was  to  l»e  exer- 
cised in  suppoi't  of  federal  unity,  c;/.,  to  preserve  the 
minorities  in  diti'ei'ent  parts  of  the  confe<lei-at«'<l  ])i-ovinceK, 
fi'oni  oj)prcHsion  at  the  hands  of  the  majorities.  Tliat  it 
was  not  intended  to  ol)\iate  the  nec«'ssity  for  vesort  to  the 
courts,  in  ajipareiit  from  the  following.;'  extract.  (Vmiplaint 
was  madi'  that  while  the  Dominion  j;'o\ernment  was 
inv<!sted  with  this  I'fto  ])ower,  nt)  authority  was  pi'o\ided 
to  supervisi'  its  exi'i-cise :  and  the  (piestion  was  further 
asked,  what  che(d<  will  thei"c  l»e  upon  Dominion  le<iisla- 
tion  ^  The  spi'aker  (//)  presumed,  for  the  j)urpos(!  of  his 
arnunu'iit,  that  in  each  of  these  cases,  the  oidy  check 
would  Ite  through  the  ImperifU  ^'overnment. 

"  Hon.  Attounky-Genku.\l  Cartiku. — Tlie  tl('le<,'ates  undor- 
stood  the  matter  better  than  that.  Neither  the  Imiurial  govern- 
ment nor  the  <,'eneral  government  will  interfere,  but  the  courts 
of  justice  will  decide  all  questions  in  relation  to  whicii  there 
may  be  diti'erences  between  the  two  powers. 

"  A  voicK. — ^The  Commissioner's  courts  ! 

"  Hon.  Mk.  Dorion. — rndonbtedly.  One  magistrate  will 
decide  that  the  law  passed  by  the  federal  legislature  is  not  law, 

(.1)  Atty.-Genl.  (Can.)  v.  Atty.Genl.  (Ont.),20  O.  K.  at  p.  215. 

(//)  Hon.  A.  A.  Porion ;  afterwards  Sir  A.  A.  Dorion,  Cliief  JuHtice  of 
•Quebec.     See  Confed.  Deb.  p.  090. 


174  THE   CAXAIHAX   cnXSTrnTlMN. 

whilst  another  will  dcciili'  that  it  in  law,  and  thus  the  diHerence, 
instead  of  heinj,'  hetvveon  the  legislatures,  will  he  hetween  the 
several  courts  of  justice. 

"  Hon.  Attounky-CJknkkal  Cartikh. — Should  the  ^'eneral 
legislature  pass  a  law  heyond  the  limits  of  its  functions,  it  will 
be  null  and  void,  iilitm  juir. 

"Hon.  Mn.  Dokion. — Yes,  I  understand  that;  and  it  i» 
douhtlcss  to  decide  (juestions  of  this  kind  that  it  is  proposed  to 
establish  federal  courts." 

The  fact  is  that  the  power  of  diHiillowancc  xcstcfl  in 
the  {}overnor-(n'iU'i"jil  in  Council,  is  pii'C'isely  unalu^ous  to 
the  power  of  disallowance  \estetl  in  the  (^uecn  in  Council 
over  Dominion  Ici^islation.  'V\\v  power  in  each  case  is 
suhject  to  the  limitations  j)rescril»e(l  by  those  "conventions 
of  the  constitution"  to  which  Prof.  Dicey  so  fre(|Uently 
refei's.  An  act  of  the  Dominion  [)arliament  may  run  the 
j^auntlet  of  the  home  ^ovenniu'ut,  and  yet  be  afterwards 
declared  by  the  coui'ts  to  be  invalid.  As  is  well  known, 
the  supervision  exercised  l>y  the  law  otticers  of  the  Crown 
in  England,  is  directed  to  seeinj>;  that  any  colonial  Act, 
submitted  for  their  c<^nsideration,  is  not  repugnant  to  any 
Imperial  let^islation  :  and  they  do  not  pretend  to  examine 
Dominion  Acts  in  or<ler  to  deteiniine  the  (piestion  of  their 
validity,  as  beinj;  within  the  ran^e  of  subject  matters  con- 
tided  to  the  parliament  of  Canada  by  section  f)l  of  the 
B.  N.  A.  Act.  And  with  regard  to.  the  disallowance  by 
the  govei'nor  in  council  of  provincial  Acts,  tht;  exeicise  of 
this  pt)wer  by  reason  of  the  provincial  Act  bein*^  thoujjfht 
iiltnt  vires,  has  fUmost  entirely  ceased,  and  the  supervisiiui 
now  works  alnu)st  exclusively  "  in  the  plane  of  political 
expediency." 

Note  to  p.  172  ante. — The  first  chapter  of  Prof.  Diceys  book — "  On  the 
Ni'^ure  of  Parliamentary  Sovereignty" — contains  nothing  which  might 
not  be,  with  equal  truth,  said  of  tlie  legislative  bodies  throughout 
Canada.  What  he  writes  at  p.  58  in  disproof  of  "  the  alleged  legal 
limitations  on  the  legislative  sovereignty  of  parliament," — namely, 
limitations  arising  out  of  the  precepts  of  the  moral  law.  the  prerogatives 
of  the  Crown,  and  the  binding  effect  upon   parliament  of  preceding  Acts 


THK   (J()VKUN()K-riK\i:i{.\l,.  17.") 

of  parliiiment  Ih  -ill  oiiually  uppliuiible  to  the  positio'i  of  Ciuuuliivi) 
h'>,M  Hint  urea.  And  with  reference  to  them,  too,  it  may  be  aaid,  that  there 
in  no  conipetinn  li'iiiKlntin'  power  eitlier  in  tlie  Crown,  in  either  branch 
of  tlie  lejjislature  (wliere  tlie  lej^islature  iiappens  to  be  bicameral),  in  the 
coiiHtitnencies,  or  in  the  hvw  courtw. 

Tlio  wecond  chapter  "  is  to  illtiHtrate  the  cl.  iracteriaticH  of  wnch 
Hoverei^nty,  by  comparin^^  tiie  esueuHal  featiireH  of  a  soverei>«n  parlia- 
ment like  that  of  EMj<lan<i,  witii  the  traitn  that  mark  non-aoverei^n  law- 
nnikinfi  bodies,"  -anion j{  which  he  claasea  colonial  lef^islaturea.  Yet,  on 
a  later  pat,'e  (10.5)  lie  laya  it  down  : 

"  When  Hnnlish  statesmen  j^ave  parliamentary  government  to  the 
colonies,  they  almost,  as  a  matter  of  course,  bestowed  upon  colonial 
le^ialatiireB,  authority  to  deal  with  every  law,  wln'lhcr  conxtitiitiDintl  or 
not,  which  affected  the  colony,  subject,  of  course,  to  the  proviso,  rather 
implied  than  expressed,  that  this  power  should  not  bt;  used  in  a  way 
inconsistent  with  the  supremacy  of  the  British  putliameut.  The 
colonial  le^^islatures  in  short  are,  within  their  men  sphere,  cojiiea  of  the 
Imperial  parliament.  They  are,  within  their  own  sphere,  overeinn 
bodies,  but  their  freedom  of  action  is  controlled  by  their  subordination 
to  the  parliament  of  the  United  Kint,;dom." 

To  charge  the  men  who  had  in  hand  the  framing  of  the  scheme 
of  confederation,  with  "  miaconception  of  the  nature  of  federalism " 
cornea  with  rather  bad  grace  from  Prof.  Uicey.  He  speaks  'y,  183) 
of  a  federal  state  as  "  a  political  contrivanco  intended  to  reconcile 
national  unity  and  power  with  the  maintenance  of  '  state  rights.'  "  The 
end  aimed  at,"'  lie  says,  "  H.\es  tlie  csscntinl  churdcter  of  federalism."  A 
very  clear  statement  this ;  and  yet,  the  Professor  apparently  faila  to 
note  that  'state  rights'  may  be  paraphrased  and  generalized  as  '  local 
aelf-government,'  and  that  his  definition  of  federalism  is  clearly  appli- 
cable to  those  "conventions"  of  the  British  constitution  which  regulate 
the  relations  between  Great  Britain  and  her  colonies.  We  might  refer, 
too,  to  another  passage  in  which  he  is  historically  inaccurate.  He  treats 
(page  144)  the  division  of  power  between  the  legislative  and  executive 
departments  of  government,  under  the  American  system,  and  the 
restrictions,  which  appear  in  their  "Constitution,"  upon  interference 
with  iiidivitlual  rights,  as  being  part  and  parcel  of — "connected  with" — 
the  same  federal  idea  of  division.  In  this  he  is  clearly  astray.  Several 
of  the  constitutions  which  existed  in  the  individual  states  prior  to  the 
adoption  of  "the  Constitution  of  the  United  States,"  exhibit  both  these 
characteristics— the  first,  because  that  was  thought  to  be  the  English 
principle,  and  the  second,  because  of  the  prevalence  then  of  the  doctrines 
of  Rousseau  and  Montesquieu.  • 


CHAITb:K  IX. 


COLONIAI.   LKCUSLATIVK    POWKR. 

\Vc  lm\<'  now  ]»(iiiittMl  otit  tlint,  in  common  witli  otlu'i" 
IJritisli  colonics,  Icoislutivc  jiowcr  in  CfinjKla  is  sulijcct  to 
certain  limitfitions,  arising-  IVom  the  colonial  I'elationsjii]*. 
Not  only  mnst  the  assent  of  the  Ci-own  as  a  constitu«'nt 
Inanch  ot"  the  lenislutni'e  he  ni\'en  (»/);  the  Act  so  assenti;(l 
to  tnust  inn  the  <;auntlet  of  the  Home  (Joveinment  (f)  5 
ha\  in<i<lone  so,  it  may  still,  hy  jn«liciHl  decision,  1k>  declared 
nlisolutely  Noid  and  inoperative  Ity  reason,  and  to  the  ex- 
tent, of  its  "  rejinnnancy  "  to  Imjterial  leoislation  ha\in»j^ 
the  force  of  law  in  Canada  (/>). 

Much  must  he  heicaftcrsaitl  in  lefercnce  to  tlie  division, 
in  Canada,  of  the  snhject  matters  j)rt)})er  for  legislative 
action,  hetwt'en  the  parliament  of  Cana<la  on  the  one  han<l, 
and  the  le;;;islative  assend)lies  of  the  lespective  provinces 
on  the  other:  hut  for  the  purpose  of  the  enquiry  to  whicli 
this  chapt«'r  is  to  l>e  devoted,  this  division  of  the  field  may 
he  diNi-et;ar(hMl.  We  desire  to  treat  of  the  powei-  of  lei^isla- 
tion  as  a  totality,  and  to  ascertain  what,  if  nny,  fui'ther 
boun«ls  aiv  set  to  tliat  power  in  this  British  colony. 

It  may  he  ai-^ued  thnt  this  ((Uestion  is  settled  hy  the 
Colonial  Laws  Validity  Act,  l<S()5  (r),  and  tliat  as  any 
colonial  hiw  is  to  l»e  held  inoperative  to  the  extent  of  its 

{<()  See  Chap.  VII.  ante,  p.  147.     (I>)  Sec  Chap.  IV.  ante,  p.  58,  el  xc'i. 
(t)  28  &  29  Vic.  c.  03  (Imp.). 


COI.OXIAI.    l,i:«{|SLATIVi:    I'oWKIt.  177 

r('|)ii;^imm*y,  !>>'(  nnt  itllirrn'isc,  it  iiiii)lit'(lly  tnllows  that  all 
(•iilniiiiil  luWH  not  o])t'ii  to  the  (.Imr;;t'  of  rc|iu;;iiaiK*v  inu:it 
lie  licM  oiK'rati\t',  aixl  that  thciM't'orc  the  ixiwcr  ol'  legisla- 
tion is — Hiiltjrct  only  to  the  h'lnitations  ah'i-ady  advcitt'd  to 
— as  full  as  that  of  tht<  IniiH'i'ial  parliament,  ami  that 
colonial  laws  are  e(|naliy  olili;;atory  on  courts  of  justict*. 
Hut  a  i)ro|)osition  formerly  (*/)  laid  down  nnist  not  lu'  ovi-r- 
look('(l :  namely,  that  in  the  last  analysis  oin-  ri;;hts,  lenally 
speakin;;',  are  held  under  Imperial  ;;rant,  and  to  oui'  i-i^ht 
to  le;^islate  this  proposition  is  particularly  a])plical»le.  In 
otiier  wonls,  we  must  always  i-efer  to  the  colonial  "Charter  ' 
— proclamation,  conniiission,  or  Imperial  Act — containing' 
the  ^rant  of  leoislatixe  power,  to  ascertain  its  extent;  and 
heyond  the  limits  therein  laid  down,  the  power  cannot 
extend.  F<>i"  us,  this  C'hai'ter  is  the  H.  N.  A.  Act,  and  the 
terms  of  tlie  erant  are  of  the  widest  poHsil>le  description 
(.saving  always  Imperial  soverei<;nty),  and — suhject  to  the 
division  of  th<'  field  hetween  the  Dominion  and  the  pro- 
vinci's  and  suliject  always  to  the  checks  to  which  wr  have 
referred — the  power  of  h't^islation  is  supreme  in  I'elation  to 
all  matters  within  the  limits  of  colonial  le^dslative  power. 
This  principle  is  fully  recoj^ni/ed  in  the  jud<;-ment  of  the 
.Judicial  Connnitteeof  the  Piivy  CVamcil  in  a  ca.se  involving- 
consideration  of  the  position  of  the  Le^jislatnre  in  In<lia — 
(^)ueen  v.  Bui'ah  (').  Lord  Selborne,  delivering-  the  unani- 
mous o[)inion  of  the  Conunittee,  referred  to  the  Judgment  of 
theccau't  helow,  as  in  effect  treatini;- the  Indian  Legislature 
as  an  a^ent  or  delet^ate,  actinj^'  under  a  mandate  from  the. 
Imperial  parliament,  and  dissented  from  that  judgment  in 
the  following;  forcil)le  lanj^uai^e  : 

"  But  their  Lordship-s  are  of  opinion  that  the  doctrine  of  the 
majority  of  the  court  is  erroneous,  and  that  it  rests  upon  a 
mistaken  view  of  the  powers  of  the  Indian  Lef,'islature,  and 
indeed  of  the  nature  and  principles  of  legislation.  The  Indian 
Legislature  has  powers  expressly  limited  by  the  Act  of  the  Im- 
perial parliament  which  created  it,  and  it  can,  of  course,  do 

((/)  Chap.  IV.  ante,  p.  o().  (<)  L.  R.  3  App.  Cas.  !I04. 

C.\N.  Con.— 12 


17H  THK   <  ANAIHAN    <(>N.S  11 IC  IK  »N, 

notliing  beyond  tho  Uniits  which  clrcuuiscrihL'  those  powers, 
lint  when  ftctinj,'  within  those  Uuiits,  it  is  not  in  anv  sense  nii 
ii^'ent  or  (hlcij^ate  of  the  Inipcriiil  piirlinnient,  but  hits,  iiml  was 
iutcnded  to  Imve,  pk'niiry  powirs  of  k'Lfisiiition,  ns  larL,'e,  and  of 
the  same  nature,  as  those  of  l*arlianient  itself.  The  cstuhhshed 
com'ts  of  justice  when  n  (juestion  arise;  whether  the  presnibtd 
limits  have  lieen  exceeded,  must  of  necessity  determine  that 
«|Uestion  ;  .Mid  the  only  way  in  which  tiiey  can  properly  do  so,  is 
by  lookiU.i,'  to  the  terms  of  the  instrument  by  which,  atlirma- 
tively,  tlie  legislative  powers  were  cre.ited,  and  by  which, 
neyativJy,  they  are  restricted.  If  what  has  been  done  is  legis- 
lation within  the  general  scope  of  the  allirmative  words  which 
give  the  power,  and  if  it  violates  no  express  condition  or  restric- 
tion by  which  that  power  is  limited  (in  which  category  woidd  of 
course  be  included  any  act  of  the  Iuii)erial  parliament  at  variarce 
with  it)  it  is  not  for  any  court  of  justice  to  iiuiuire  further,  or 
to  enlarge  constructively  those  onditions  and  restrictions"  (/ ). 

In  an  earlici-  case  in  the  C'.)iii't  ol*  (^hicen's  Bench,  ami 
uftei'wards,  on  ;i|)])eal.  in  the  l'2xcli('(HU'i'  Ciiunilu'i' — the 
riiiisr  crlihr,'  of  l'hilli[)s  \-.  Kvre  (f/) — tlu'  jud^ies  of  thosi' 
(•>)Uit-  had  to  consider  till'  position  and  powiM's  of  a  ODJonial 
Ic^ishiture,  anil  the  extent  of  the  operation  of  ei)lonial 
rnactnients.  As  a  defence  to  the  action,  which  was  l)rou;nht 
in  Eii<;land,  for  trespasses  alle(;ed  to  have  l)een  conimitte«l 
in  .Jamaica,  tlie  defendant,  j^overnor  of  tlie  island,  [lieaded 
an  Act  of  Indenniitv  passed  hv  the  Jamaica  Le^iislativo 
Assenddy.  The  })lL'a  was  ilenuirred  to,  and  the  ((Uestion 
was  thus  raisffl,  (1)  as  to  the  power  of  tlie  colonial  assemldy 
to  pass  an  Act  of  Indemnity,  ar.d  (2)  as  to  the  extra  teri'i- 
torial  operation  of  that  Act.  For  the  defendant  it  was 
ai'g,ue(l  tiiat  l>y  the  law  of  Ent>-land  the  legislature  of  a 
colony  is  supreme  within  the  houndaiy  of  the  colony:  that 
the  courts  in  this  country  are  hound  to  reeouni/e  the  laws 

( /')  C'omimre  tlie  liin>^ua^e  of  MurshiiU,  C.J.,  in  McCuUoch  v,  Mary- 
land, 4  Wheat.  421  (United  fi^tates  S.  C.  Rep.),  quoted  at  p.  1»2  of  tlie 
I\Iich.  University  Lectures  of  18S',),  pullished  nnh.  tit.  "Const.  Hist,  as 
seen  in  American  Law." 

{0)  L.  K.  4Q.  13.  -.'So;  f)  Q.  B.  1. 


(•U|.(»XI.M,    LK(ilS|,.\TIVK    I'OWKH.  17!) 

Nvliicli  tilt'  coloniiil  It'Mislatun'  nmkf  us  part  o|"  tlir  Kii^i'lisli 
law:  that  the  Crown  may  rrfuMi-  its  ('(Hisi'nt  to  u  cohaiial 
Act  :  tilt'  liiipt'rial  parHaiiifnt  may  intfrtV-rt-,  antl  tlu"  laws 
wliicii  tilt'  colonial  Ic^iislaturc  make  must  not  Itc  "  I'cpuy,- 
nant  to  tlic  law  of  Kn;4lan(l,  as  that  word  is  (■vplainctl  in 
SJS  (S:  2!>  Vic.  e.  (I.S:  luit,  snltjcct  to  those  t|naliticatit>ns,  the 
laws  passt'tl  l)y  the  colt)nial  legislature  ami  nunle  with 
iderence  to  acts  coniniitted  within  tliei)'  jurisdictitm.  are  as 
liindin^' as  the  laws  t»r  the  lmj)erial  parliament:  that  Kn;^- 
lish  ctan'ts  rcco^'ni/e  them,  not  throu;;h  international 
t'oiirtt'sv,  hut  hccause  thcv  nnist  he  taken  tt»  he  i»art  of  the 

It  1 

law  t»t'  Kn^land  (A):  untl  that  it  may  woll  he,  that  the 
col(»nial  It'Mislatui'e  lia\i'  no  power  to  take  away  a  remedy 
from  a  Hi'itish  suhicct,  Imt  the\-  ma\'  dischar<i'e  a  cause  of 
actitai  which  has  accrued  within  the  limits  of  their  terri- 
tory. 

In  deiiverint^  the  unanimous  juil^nient  t)f  the  Ci)urt  of 
(Queen's  Bencli,  Chief  Justice  Cocklairn  says: 

" It   cannot    he   disputed  that  the  Jamaica 

Li'gishiture,  having  full  legislative  authority  within  the  limits  of 
tiie  colony,  subject  only  to  the  assent  of  the  Crown,  had  full 
power  to  pass  the  statute  in  question,  so  far  as  to  take  away  the 
right  of  action  before  the  local  tribunals  ....  but  it  is 
centended  on  the  part  of  the  plaintitt",  that  a  right  of  action 
being  given  before  the  courts  here,  in  respect  of  personal 
wrongs  connnitted  in  a  colony,  this  right  cannot  be  taken  away 
by  an  Act  having  no  legislative  effect  beyond  the  limits  of  the 

local  authority It  may  be  useful  to  consider  what 

would  have  been  the  effect  if,  instead  of  legislating  <m'  /instjavto, 
the  Legislature  of  Jamaica  in  anticipation  of  future  events,  had 
passed  a  statute  authorizing  the  acts  which  have  given  rise  to  this 
iiction.     ^Ve  cannot  doubt  that  in  such  a  case,  no  right  of  action 

would  arise  here It  remains  to  be  seen  how  far 

this  principle  will  apply  where  an  act,  adndtted  to  have  been 
unlawful  when  done,  is  legalized  and  divested  of  its  tortious 
character,  and  immunity  is  afforded  to  the  wrongdoer  in  respect 

(//)  See  Reilpatli  v.  Allen,  cited  pnnt. 


ISO  THE   lANADlAN    ( '<  »\.STn  ITHi.V. 

of  it,  hy  i-.r  I'ltst  I'lirt't  \vi^'\Aixt\un Wl' uro,  however, 

of  opinion  that  the  sanio  principK;  wliicli  wo  Imvo  statod  to  by 
uppliciiltli!  to  an  act  mad*'  lawful  by  fornior  lo>,'islation,  is  oinially 
applical)lt.'  to  an  act  ori^'inally  wi-ongful,  hut  logali/cd  hy  ai) 
,■,(•  iHtst  f'lii'ti)  hiw.  Local  liOi^  laturi'.s  havinj,'  lH>on  I'staliHsiuMJ  ii> 
o\ii'  colonies  with  plenary  powers  of  le;,M3lution,  the  same  comity 
wliich  obtains  between  nations,  should  bo  extended  to  tlieni  by 
the  tribunals  of  this  country,  wiien  their  law  conflicts  with  ours, 
ni  respect  of  acts  done  within  their  juiisdiction.  .  .  .  lMt.nary 
power  to  nuike  laws  having'  been  conferred  on  the  local  lej,'is- 
laturc,  subject  to  the  assent  of  the  sf)vereifj[n,  it  cannot  bo 
disputed  that  it  was  within  its  competence  to  pass  the  law 
referred  to  in  the  plea,  and  the  only  (juestion  is,  whether  the 
effect  of  it  is  to  deprive  the  plaintiff  of  the  right  which  he  wouM 
otherwise  have  had,  of  maintaining  an  action  iti  this  country. 
For  the  reasons  we  have  j,'iven,  we  are  of  opinion  that  such  is  it?) 
effect,  and  conseijuently  that  on  the  denmrrer  to  the  plea,  oui* 
jud<,'ment  must  be  for  the  defendant." 

In  tlu!  Ex(,*h('(|ner  Chjiinhcr  (')-  thi-  cdurt  was  un'niu 
niianinious.  un<l  Mr.  Justice  Willes,  i.i  delivi'i'iiio-  the  jinit;- 
nu'nt  of  the  seven  judii'i's  of  which  the  court  was  eonii)ose(l^ 
savH  : 

"  It  seems  to  be  plainly  within  the  competence  of  the  legis- 
lature, which  could  have  authori/ed  by  antecedent  legislation  the 
acts  done  as  necessary  or  proper  for  preserving  the  pul)lic  peace, 
upon  due  consideration  of  the  circumstances  to  adopt  and  ratify 
like  acts  when  done,  or  in  the  language  of  the  law  under 
consideration,  to  enact  that  they  shall  be  'made  and  declared 
lawful  and  confirmed.'  Such  is  the  effect  of  the  Act  of  Indem- 
nity in  ijuestion,  which  follows  the  example  of  similar  legislation 
in  the  mother  country,  and  the  other  dominions  and  colonies  of 

the  Crown The  Crown  has  in  numerous  instances 

granted  charters  under  which  houses  of  assembly,  and  legislative 
councils,  have  been  established  for  the  government  of  colonies, 
whether  conquered  or  settled ;  and  such  councils  and  assemblies 
have  from  time  to  time  made  laws  suited  to  the  '  emergencies 

(i,  L.  R.  ()  Q.  B.  1.     Counsel  for  the  plaintiff  referred  to  the  B.  N.  A. 
Act  as  conferring  xnpn'tnc  powers. 


(itl.nNlAL    I.K(i|Sl..\TIVr;    I'oWKU.  IS| 

of  the  colony,'  wliicli,  of  oiirso.  iiicliidf  all  iiU'iisui'eH  iH'Cossiiry 
for  tlio  conservation  of  peace,  onlt  r  and  nlltj^'iance  therein.     . 
xuhject  to  tlu'  approval  of  the  Crown,  and  the  control  of  the 

Impel ial   le;j;islatnre We    are   satisHed    that   a 

confirmed  Act  of  the  local  leL'ishitiiro  lawfully  constituted, 
whether  in  a  settled  or  compured  colony,  has  as  to  niattern 
witliin  its  competence,  and  the  limits  of  its  jurisdiction,  the 
operation  and  force  of  sovereijjn  legislation,  th()U<,'h  subject  to 
lie  controlled  hy  the  Imperial  parliament." 

The  MulisiMjiu-nt  pa.Hsiines  in  the  iinl;;nieiit  distiiK'tly 
attirni  that  colonial  le;;islation  will  lu-  ;ii\eii  effect  ti»  l>y 
Knulish  Courts  on  the  same  |»iMM('i|»l»'  of  comity  as  iniluces 
those  courts  to  reco^ni/e  f(U"ii;;n  law. 

The  same  \iews  are  expreMsetJ  in  the  opinions  of  the 
Ju  l;:'»'s  of  the  Court  of  Appeal  for  Ontario  in  a  case  which 
c;imt'  hi'fore  them  in  1S72  ( /').  It  may  he  olisci-Nrd  that 
tlii'ir  It-marks,  althou;;h  made  in  reference  to  an  Act  of  the 
lv';L:Mslative  Asseml>l\-  (tf  Ontario,  are — at  least  ("luallv — 
npplicahle  to  le;;islation  hy  the  j)arlianient  of  C'anatla  n])on 
,s\il.jfcts  within  its  legislative  competence.  The  (|Uestion 
which  arose  for  decision  was  as  to  the  power  of  the()ntario 
lejiislature  to  pass  an  Act  contirmin;^'  and  Nalidatin;^',  .-is 
a;L;ainst  infants,  a  deeil  of  settlement  made  li\'  triisti-es  under 
a  will,  the  contention  l»eii»^'  that  s^ich  le^dsjation  had  the 
<  rt'ect  of  depi'i\in<j,-  one  man  of  his  propei'ty  and  jLi'iviujLi"  it  to 
aiiothei'.  Draper,  ( '.J. .uses  very  clear  and  emj)hatic  lan^ua;^;)' 
as  to  the  I'iii'ht  of  the  L  )cal  leo-islaLure  to  pass  pi'ivate  Acts  : 

"  As  in  England,  it  is  a  settled  principle  that  the  legislature 
is  the  supreme  power,  so  in  thi.s  province,  I  apprehend  that  within 
the  limits  marked  out  l\v  the  authority  which  gave  us  our  i)re- 
.sent  constitution,  the  legislature  is  the  supreme  power.  It  is  on 
this  principle  that  private  Acts  of  parliament  are  upheld  as 
connnon  modes  of  assurance,  being  founded  upon  the  actual  or 

implied  assent  of  those  whose  interests  nre  afleetel 

I  think  nothing  is  to  be  gainel  by  a  theoretical  distinction,  which 
has  bpen  suggested,  between  the  authority  of  the  legislature  to 

U)  Ii>-  Goodhue,  1')  Grant,  8GG.  • 


I.S2  TIIK   CANADIAN   rnNsTITITInN. 

pRHH  tawH  upon  iM-rtnin  K\ilijocts.  tunl  tlir  liulit  to  exorcini'  tlmt 
powi'i"  iH  tlioy  iiiiiy  tk'i'iii  titling'.  Wln'tlifi'  it  hv  calltil  ii  power 
or  11  ri^lit,  it  coiiu's  to  tin-  siiiiu'  tiling';  Mince  IIioukIi  our  l»%'iH. 
lafiiro  is  limitt'tl  by  the  C'or.Hiitutioiml  Act  to  certain  flelinetl  siili 
jei  H,  the  Act  iniposofl  no  limit  to  the  exercise  of  the  power  on 
thoMo  snl)ject3.  ...  If  the  new  law  hu  within  tho  chn^  of 
snhjectH  conunittotl  to  the  provincial  legislature,  I  know  of  no 
authority  in  provincial  trilMnnils  to  refiis»'  tot,'ive  it  elTect.npply- 
in;^'  to  its  limgiinLfe  the  same  rules  of  construction  that  are  appli- 
cahle  to  any  other  statute  passed  hy  comjietent  authority." 

The  snine  (|Uesti<»n — uinl  M;;»iiii  in  referenc*'  t<»  the  leyiisln- 
ti\e  pKSver  of  a  Proviiicinl  AsseniMy — came  liel'ore  the 
.In<lieial  Conimittee  of  the  j'livy  ('onneil  in  the  celeltrated 
case  of  Hiidy;*'  v.  The  (^)ueen  (/).  The  ('!)mmittee  very 
emphatically  re-afHnned  the  doctrine  Iai«l  dnwii  in  (^)ueen  v. 
Ihnah  (/),  ami  held  that  the  pi'ov  incial  leyislatni'e  was 
within  its  powers,  in  entrnstin;;'  to  a  Hoard  of  License 
('ommisHionei'M,  anthoiity  to  enact  re;jnlationM  in  reiVi-encti 
t(»  taverns  antl  hilliard-rooms  in  coiniection  therewith,  an<l 
tluTcliv  to  create  oflences  and  annex  iieiialties.  The  cues- 
tion  was  thus  disposed  oj*  : 

It  appears  to  their  lor(lshi[)s,  however,  that  the  olijectiou 
raised  by  the  appellants,  is  founded  on  an  enlu'e  miscoucei)tion 
of  the  true  character  and  position  of  the  provincial  legislatures. 
They  are  in  no  sense  delegates  of,  or  acting  under  any  mandate 
from  the  Imperial  parliament.  .  .  .  The  H.  N.  A.  Act  con- 
ferretl  powers  not  in  any  sense  to  be  exorcised  by  delegation  from, 
or  as  agents  of,  the  Imperial  parliament,  but  authority  an 
plenary  and  as  ample  within  the  limits  prescribed  by  section  !>2,. 
as  tho  Imperial  parliament  in  the  plenituile  c*'  its  power  possessed 
and  could  bestow.  Within  these  limits  of  subjects  and  area,  the- 
local  legislature  is  supreme,  and  has  tho  same  authority  as  the 
Imperial  parliament,  or  the  parliament  of  the  Dominion  would 
have  had  under  like  circumstances  to  confide  to  a  municipal 
institution  or  body  of  its  own  crc'ation,  authority  to  make  bydaws 
ov  resolutions  as  to  subjects  specified  in  the  enactment,  and  with 
the  object  of  carrying  the  enactment  into  operation  and  eft'ect.    It 

{k)  1)  App.  Cas.  117.  (/)  >tiitt;  p.  177. 


rnlnSIAI,    l,K«ilsl. ATIVK   PnWKH.  IM.J 

U  ol)vi()iH  that  such  lui  imthnrity  is  ancillury  to  l»'.ri«iliUion.  nul 
without  it  nil  iittiMiipt  to  pi-oviilo  for  viirviii^  il«>tiilH,  uml 
iiiiu'liiru'i'V  to  ciu'ry  lln'iu  out,  might  ln-conu'  oppifssivi'  or  uli-to- 

hitely  fail It  \va>4  iirKHi'd  at  the  bar,  that  a  \en\n- 

lattiro  coiiuiiittin^'  important  ri'^iihitions  to  agents  or  ileleuati's, 
ett'acch  itself.  That  in  not  so.  It  rotains  its  powers  intact,  and 
can,  whenever  it  pleasi  s,  destroy  the  a^oney  it  has  created,  and 
Hi't  lip  another,  or  take  thi'  matter  directly  into  it^i  own  hands. 
Ilow  far  it  sliall  seek  the  aid  of  siiliordinate  a^'encies,  and  how- 
Ion;;  it  sliall  contiinio  th  'ni,  are  n>;Uler-»  for  each  legif^latllre  and 
n«)t  for  courts  of  hiw  to  decide." 

In  the  still  jnon-  ret'ent  cusf  of  Powtdl  v.  A)>ollo  Candh' 
("».(/(»),  the  .ludieiiil  C'unniittee  of  the  Privy  (' unieil  ex- 
pi'eMHeil  their  continueil  mlherer.fe  t »  tlu' opinions  laid  <1  »\vn 
ill  th'-  eiirlicr  cnses  to  which  \vc  Im\f  rid'eiTed. 

The  |»o\\ri(d'  the  Dominion  i»arliamt'nt  t  »  le;;Islatt'  for 
tlu'  peace,  onler,  and  ;;o(m1  ;;overMment  of  the  North-West 
Tenitia'it'M  (conferred  liy  ."U  \'  :{.'>  \'ic.  c.  2iS,  Imp.),  \va««  held 
to  lie  the  same  ph'naiy  power  of  Ie;;'islation  as  is  possessed 
l»y  the  Imperial  [)arliament  ( /* ). 

Applyin;^',  then,  the  nile  so  clearly  laid  down  '  y  Lord 
Selli»rne  in  the  earliei*  casi- (o),  we  have  t>  looU  t»  tlio.se 
terms  of  the  H.  X.  A.  Act: 

1.  Hv  which,  aHirmativtd\',  the  le;;islative  powers  are 
created. 

2.  Bv  which,  ney:ativelv,  thev  are  restricteil  : 

ami  we  have  to  note  that  affirmatively  the  lee;islative 
power  is  of  verv  wide  ranije,  namidv,  to  "make  laws  in 
relation  to"  the  various  matters  enumei'at«'d  in  the  Act. 
and  that  of  ex})ress  ne;,jative  restriction  there  is  no  si^ii 
within  the  fcair  cornel's  of  the  Act. 

Hut  as  we  are  a  I)(jminion  "uinler  the  Crown  of  the 
United   K.iii<^dom "  ( //),   there   must    he   in   any   Canadian 

(m)  10  App.  Cfts.  '282. 

(ii)  Kiel  V.  Re>,'.,  10  App.  Ca3.  ()75 ;  s^^e  put.  (a)  ant,',  p.  178. 

(p)  See  preamble  to  B.  N.  A.  Act  and  n  itcs  tlierdto, ;» >it. 


1N4  TMK   fAXAIHAX   cnNsTITI  TloN. 

IcM^lMljitiiiii  II  Miiviii;;  ut'  tin-  Mi»\i'ri'iy;iity  uF  Kii;^'liiii<l  In  tin- 
<,Mul.'c  |{ts,.lutiitiiM,  npMii  wliicli  tin-  M.  N.  A.  A<'t  is  t'lMiinlt'il, 
this  irstrictiMii  is  cxpit'ss  {tf).  Init  i  »  tlif  Act  itsdl'  it  was 
ii(H|niil)t  tifi'iiii'tl  uiiiit'Ct'NHiiry  ti»  iiiHt-rt  iiiiy  woi'ils  ol"  exprt'ss 
I't'stiiction  u|MMi  tliis  ptiint,  iis  it  is  an  iniplinl  rrstiicf ion 
ii|Miti  nil  coluiiial  lf;;i.slati<>ii  (/•).  In  a  vriy  ••iirly  c»is»' (w), 
Cliirf  .liistin*  \'uii;;liiiii,  umiIit  tlif  ln'mlin;;  "  What  tiii-  pir- 
liaiiitiit  ut'  IrrJatui  caniint  do,"  HiiyH : 

1.  It  niinintulicii  itsfll', m-  any  part  i»t'  itself,  tVoin  lijny; 
iimhT  thi-  tloniiiiiuii  nl'  Kii;^laii<l :   \\<>v  chaii;;*'  its  sMltjt'cti'in. 

2.  It  cannot  nuikf  itself  not  snlijtct  to  thf  laws  of  an<l 
siihortiinatf  to  th**  parliaim-iit  of  i'ji;^'lanil  (/). 

M  It  cannot  clian;;f  thf  law  of  iuivinij  .M*'..,''"  '"tn  tlwrc 
irivcn,  ii'ViTMcil  for  «'rror  in  liniManil ;  ami  others  ini^ht  '»«' 
nanif)l  (n  ). 

4.  It  cannot  <liHpo.sc  the  (^rown  of  Irclaml  t  >  the  Kin;; 
of  J'!n;ul'HnrM  second  son,  oi*  any  other  lait  to  tlu'  Kin;;  of 
Kn^^land. 

And  in  a  Canadian  case  it  is  laid  down,  that  le^iislation 
inconsistent  with  its  relation  to  the  Kinjiire  of  which  it 
forms  a  pai-t,  would  he  '  un('onstituti(tnal  "  and  Noid  (') 

The  second  and  third  propositions  laid  down  hy  C.'iiief 
.Instice  \'an;ihan,  have  been  already  discnsseij,  with  tlu) 
exception  of  the  (piestion  as  to  the  prero;4;ati\e  i'i;;ht  of  the 
Cntwn  to  hear,  in  the  I'rivy  Council,  appeals  fi-oni  Colonial 
Jud;;inents  ;  this  must  lu' dealt  with  hereaftei-.  Propositions 
I  and  4  relate  no  douht  to  extreme  cases,  which  can  hardly 
arise  in  this  ae-t-,  hut  there  an-  many  matters  in  resjJL'ct  to 

(7)  R'.'Holution  No.  '2().  (/)  Dicey  '  Liw  of  tlie  Count.'  10'). 

(i*)  Craw  V.  Rivmsiiy,  Vaii<ili.  '21»2.     (f)  Fee  (!Iiap.  IV.  miti'. 

{it)  i.e.,  it  cannot  loj^islate  in  roferdnce  to  tlr->  prero.,'iitivori>;ht  of  tlio 
Crown  to  hear  and  dttermine  appeals  from  colonial  courts  ;  or  cluuj^c 
a  Irvw  of  express  colonial  application. 

((")  International  Briil^je  Co.  v.  Can.  Southern  Ry.,  2R  Grant,  at 
p.  184;  see  also  Tully  v.  Principal  Offij^'rs  of  H.  M.  Ordnance,  5  TI.  C. 
Q.  B.  0. 


rnl.nNI.M.    I.KUlHl.ATIVK    I'nWKII.  |H.") 

\vlii<'li  Wf  pKMHi'Ms  tin  li'^^ixliitiNi'  powrr  iM't'iiusf  itM  «'N«'iri.s«» 
\v.»ul»l  !•»•  a  iism|tMtiiiii  of  H((\iTci;xiity  in  it^  iDtiriiittiuniil 
HVUsv  { "•). 

'rii«-n>  is  a  t'ui'Hirr  implinl  rrMtiictimi  U|ii)ii  oui-  li';:iM|ii- 
tivr  |>ii\v«'r,  vi/..  that  Ity  tlif  \t'iy  t»*riiiM  of  tin-  ;4;iaiit  that 
\»t\\i'V\Hf»i'i'lf<ii'iiilli/\'\n\\U'i\  (,»');  uikI  this  hianch  (»l"  uu:' 
Miliji'ct  is  uf  HO  much  iiintiiitaMci'  that  wc  iiiUMt  ^/wr  it 
cai'i't'ul  aiti'iitioii  (//),  It  will  hilp  to  a  sulutioti  of  oiti' 
|iroli|t'iii  if  \vc  coMsiiltT,  tirsl.  the  lro;isJati\  ••  pow»'i*M, — 
t«'rritorially  cousiili'i-iMl  - df  th«'  Iinpnial  pailiaiiM-iit.  That 
hody  is  thr  authorized  cspoiH'ut  ot"  thr  will  of  the  nation 
ill  its  international  sense,  anil  so  fai-  as  other  nations 
are  conctTn*'"!,  its  enactments  are  of  ciMnse  inojeratiN«' 
heyond  the  Itorders  of  the  Km])irt',  includin;:  within 
those  liordei's,  till'  "  lloatin;;  islands"  of  tin-  Mritish 
na\y  and  mercantile  marine  ( : ).  In  a  woi-k  of  reco«_j- 
ni/ed  authoi-ity  ("),  certain  canons  of  construction  are  laid 
down  as  applicnlth'  to  Imperial  statutes,  which  may  In- 
shortly  stated.  /'/•////('  /(/r/r,  enactments  of  the  parliament 
of  the  I'nited  Kin;^dom  are  operative  only  within  the 
Tnitid  j\in;;dom.  and  do  not  extend  to  the  colonies  (//), 
noi'  to  Hritisli  suhjects  (noi-,  a  forlitirl.  to  forei;,'ners)  (»ut 
of  the  I'nited  Kin^^dom  (r) :  unh'ss  there  is  the  intention 
"clearly   expressed    or   to    he    inferred    either    from    its 

(ir)  Hae  li.  N.  A.  Act.  ss.  1»  n\u\  13'2. 
(x)  See  l»  App.  Cas.  117,  i-assa^e  (juotacl  (Uitc,  p.  is'J. 
(//)  No  text  writer  yives  tliin  mutter  more  tluin  a  passing  notice.     See 
l>icty.  '•  Law  of  the  Const."  p.  '.)",  note  (H). 

(:)  Von.  V.  Amkr»on,  L.  R.  1  C.  C    H.  Idl;  lien.  v.  Ciirr,  L.  H.  10 
g.  15.  P.  7(1. 

(<i)  Maxwell,  "The  Interpretation  of  Statutes,"  Chap  VI. 
('')  See  Cliap.  IV.  <in><',  p.  r)7,  it  hcii. 

('•)  Arnold  v.  Arnold,  2  Myl.  iV  Cr.  at  p.  270;  Jeffreys  v.  Boosey,  1 
H.  L.  Cas.  81o;  Cope  v.  Doherty.  2  DeG.  iV  J.  (U4  ;  cr  pnih'  Rlain,  L.U 
12  Chy.  D.  o22.  Laws  as  to  iroc.diire  in  nctions,  incliulin>{  the  linjitiv- 
tion  of  a  time  within  which  prjc?^din>;s  are  to  be  taken— /<'.'/<'i  ./on'— are 
of  course  bindin>i  on  all  litijjants.  subjects  or  foreij;ners  ;  Lopez  v  Burs- 
lem.  t  Moo.  P.  C.  40'). 


186  I'lli:   (  ANAIH.W    (ONSTITirriO.N. 

lMii;;im^t'  or  IVoiii  tlu'  (thjcct  or  HuKjt'ct  nmttt'V  oi*  lii.stoiy  of 
the  citMctnu'iit  "  ('/).  Tlir  ('  (Idiiiiil  Liiws  \'uli<litv  Act.  Ist!."), 
;>i\<'s  tlic  ''iiiioii  (»r  const luctioii  in  rct'ciciicc  t(»  lMi]n')i.'il 
ciiiu'tnu'iits  wliicli  )irt'  to  lie  held  to  cxtcn"!  to  u  colonv 
llicrt'  iimst  lie  tlif  "  cxprt'ss  \vor<l.s (»r  ncct'ssury  iiit»'ii<luu'iit  ' 
of  the  Act.  I5ut  ill  tiny  oimc,  if  the  Ifinn-nMi;'!'  of  an  lni)»rrifil 
Act  of  |iMrli)inifiit,  nn)iiiil)i^iioM.sly  Mini  without  reus  )n)iMy 
Mihiiittin;^'  of  any  other  mcaiiinn',  applies  to  forci^^iiers 
al>r()a<I,  courts  t»f  justice,  the  IOMi]»ire  o\'ei',  must  ohey  and 
a<hiiinister  it  as  it  stands,  for  tliey  cannot  <|Uestion  the 
authority  of  the  Iinpeiial  iiarliaineiit  or  assi^^ti  any  limits 
to  its  powers  (r).  The  entire  ;;round  would  seem  to  lie 
covered  I»y  the  laneuae-e  of  llrett,  .).,  in  delivci'in;^'  judiiiiient 
in  a  late  Kn;;'Iish  case  (  /  )  : 

"  (ieiieral  words  in  ii  statute,  liiivo  novt-r,  so  far  as  I  am 
awiu'e,  been  interiJivted  so  as  to  extend  the  action  of  the  statute 
hevoud  the  territorial  aiithoritv  of  tli-j  lt'''!slat.ure.  All  criininal 
statutes  are  in  their  terms  g«!iieral  ;  hat  they  apply  only  to 
ollt'uces  coiumittud  within  tho  territory,  or  by  iJritish  suhjects. 
When  the  lej,'islat'.u'e  intends  the  statute  to  apply  beyond  tho 
ordinary  territorial  authority  of  the  co'.nUry,  it  S)  stiites  expr.'ssly 
in  tlu,"  statute,  as  in  the  Merehiuit  Shippin<,'  Act,  and  in  some  of 
the  Admir,df,y  Acts.  If  the  licgislature  of  I'hi^daiid,  in  express 
terms,  ai)plies  its  legislation  to  matter.s  beyond  its  le<,'islatorial 
capacity,  an  Euf,dis^h  court  nuist  obey  the  English  legislatu:e, 
however  contrary  to  international  comity  such  legislation  nuiy 
be.  JUit  unless  there  be  definite  express  terms  to  tho  contrary, 
the  statute  is  to  be  interpreted  a.s  a,)i)licabl<.',  and  as  intended  to 
apply  only  to  matters  within  the  jurisdiction  of  the  legislature  by 
which  it  ..i  enacted." 

l»ut  we'  may   he  allowe<l   to  (juote  also  fiom   the  oi»inions  of 

((/)  Maxwell,  10<>-70;  The  Susse.K  Pterai^e  Case.  11  CI.  iVr  F.  at  p.  UO; 
Jeffreys  v.  Boosey,  4  H.  L.  Cas,  Hi.")  ;  IJrook  v.  Brook.  !l  H.  L.  Ca-i.  I'Xi  ; 
Cope  V.  Doherty,  2  DeG.  A  J.  014.  And  see  Ke.;.  v.  Keyii,  L  K.  2  Ex. 
D.  (IH  ;  Runtled^'e  v.  Low,  L.  R.  1  Cliy  App.  42,  3  E.  &  I.  App.  118  ;  Atty.- 
Genl.  of  Hoiig-Koni!  v.  Kwok-a-Hint,',  L.  K.  5  P.  C.  i;)8. 

{e)  Maxwell,  179--0. 

if)  Nib:iyet  v.  Niboyet,  L.  II.  4  P.  D.  at  pp.  19-20. 


r(i!,o.MAI.    l.l.'llSLATIVi;    l'(»\Vi;i«  |,S7 

two  vciT  ciiiiiit'iit  hjiiilisli  .hidnt's,  wlio  in  siicccssion, 
«)('(Mir»i('il  tilt'  position  of  L  >r<l  ('liicl"  Justice  ol'  Kn;;liin<l — 
in  11  Vi-rv  ci'lclii'iiti'd  cmsi-  ai'i.sin;^,"  out  oF  the  sinUin;;'  ol'  tin* 
l']n;4liMli  stcuintT  "  Stiatli<'ly<lc  "  liy  the  (ici-nwin  stouni'r 
"  h'lJinconia,"  oH'  Dovci-,  in  IS7()  (,7).  ('hi*'!'  .iusticf  ('olc- 
riil^f  ,s)i\'s  : 

•'  I  ilo  not  of  coursj  hv^'t  that  it  is  fVoi'ly  atlmittcil  to  be 
within  the  conipetoncy  of  piu-liament  to  extend  the  reuhn  how 
far  so  cvtif  it  pleases  to  extend  it  by  eniictnients,  at  least  so  as 
to  hind  the  trilnnials  of  tin;  C(juntl'y." 

Child'  .)ustic«5  C'ockhurn  hjivs  : 

"  Now  no  pm))osition  of  law  ean  bo  more  incontestable,  or 
more  universally  admitted,  than  that,  according?  to  the  i^'cnoral 
law  of  n;tlions,  a  forei,L,nu'f  tlioii'j;h  criminally  responsible  to  the 
law  of  a  nation  not  his  own,  for  acts  done  by  Inn)  while  within 
th((  limits  of  its  territory,  cannot  be  made  responsible  to  its  law 
for  acts  done  beyond  such  limits.  .  .  .  This  ride  must 
however  be  taken  s;d)je'jt  to  this  <iualilication,  namely,  that  if 
the  leLjislature  of  a  particular  country  shoidd  think  lit,  by  express 
enactment,  to  render  for(,'i<jfn(i's  subject  to  its  law,  with  refei-ence 
to  olVences  connnitted  beyond  the  limits  of  its  territory,  it 
would  be  incumbent  on  the  courts  of  such  country  to  give  elVect 
to  such  enactment,  leavinj,'  it  to  the  state  to  settle  the  question 
of  international  law  with  the  govennnents  of  other  nations." 

l''rom  these  uutliorities,  we  nuiy  (roiudude  that  it"  the 
lhi])erial  parliament  should  enact  that  any  person,  Ihitish 
subject  or  I'oreienci',  connnittin^"  sueli-and-sueli  an  act 
altroad,  should,  if  found  within  Hritisli  territory,  sutler, 
upon  conviction,  a  certain  punishnient(A );  or  that,  in  deci<l- 
iuL;  a  ci\ii  action  in  respect  to  contracts  niadi;  abroad,  to 
be  |)erfo)'me(J  abi'oad,  Enelish  law  should  e()vern;  there  is 
on  doubt,  every  Hj'itish  court  of  Justice  would  he  ol)Ii<;ed  t  > 

in)  libji.  V.  Keyii,  L.  It.  2  Kx.  I).  V>:i,  at  p.  1.52  and  p.  HiO. 

(/*)  See  sec.  2(57  of  the  Merjli-.int  Hhippinj,'  Act,  1854  ;  Reg.  v.  Ander- 
son, L  R.  1  C.  C.  R.  1(11.  It  reijnired  statutes  to  authorize  a  trial  in 
Olio  county  of  En^'land  for  an  offence  committed  in  anotlier  county.  Kee 
the  vahiable  note  to  Kuighley  v.  Hell,  i  F.  iV  V.  at  p.  T'.tO. 


ISH  THK   (AVAIHA.V   (ONSTHI   r|(  »\. 

;,'i\»'  •Ml'ct  to  the  fiiuctiiii'iit.  .May  \\r  liiy  down  tin-  suiiic 
rule  ill  rf;^iir<l  to  u  '  ('oiiliriiiffl  "  Act  of  a  coloiiiul  lt';4;isla 
tiir«' !*  W't'  tliiiik  not.  I'litil  st-ry  recently,  tlicrc  was  no 
juflicial  decision  directly  upon  this  »|iiestion,  lait  there  was 
hij^h  authority  in  HU|i|iort  ol'  the  \iew  here  adopted  that 
a  '•  iloiilal  le;^dshiture  cannot  affix  a  criniinal  character  to 
HctH  conuiiitted  l»eyoiid  the;  terj'lttjrial  liinits  ot"  the  colony: 
iind  there  wouM  appear  to  he  no  ar;^Miiiient  in  TaNor  of  this 
\  iew,  which  would  not  l>e  eipially  appiicahle  to  the  case  of 
(•olonial  leniHlatioii  all'ectin;;- ci\il  ri;,dits  "accrued"  aluttad  ( i) 
<ir  we  may  use  the  expression).  The  hiu^h  authority  to 
which  we  rel'er  as  to  criniinal  legislation,  is  that  ol'  the  law 
otlicers  ol' the  ( 'rowii  in  l'in;;land.  In  IHOI ,  the  pjuliaiiieiif, 
ol'  (Old)  (  anada  pas.sed  an  A(  t  to  ij;\\i-  jurisdiction  to 
('anadiaii  nia;,^iHti'ateH  in  rerereiare  to  certain  offences  coin 
niitted  in  New  HriinNwi(d<.  This  Act  was  disallowed  hy 
<»rderol'  the  (^Mieen  in  ('ouiicil  upon  the  report  (»!'  the  law 
officei's  ol'  the  (  rown,  who  advised  that  "such  a  clian;;;e 
<-aiiii<»t  li«^  leo;Hlly  eM'ected  l»y  an  Act  of  the  colonial  ie^^isla- 
tuie,  the  jurisdiction  of  which  is  conlined  within  the  limits 
of  the  colony  "  (  /'). 

And  a^^aiii,  the  l)oniinion  ]>arliaiiient,  in  IS(i!),  passe(| 
"  All  Act  reHpectin^j  perjui'y,"  the  third  .sectii»ii  of  which 
I'eads : 

"8.  Any  ixrsoii  who  will*'>,lly  and  corruptly  makes  any  fiiho 
alliduvit,  aniniiiition,  or  (lechuatiun  out  (jf  Caiiiulu,  or  out  of  any 
l'ro\ince  ol'  (liiuada,  hefore  any  fiinclioiuiry  uiitliori/eil  to  tali(.' 
the  same  for  llie  jjurjio.se  of  hcin^'  used  in  C'anada,  or  in  hucIi 
I'i'ovince,  shall  h'.;  deoint'd  ;,'uilty  of  perjury,  in  like  iniiniier  as  if 
sutrh  false  aflidavit,  allirmalioii  ov  dec^luration  had  hi-iMi  made  in 
Cniiada,  or  in  such  i'rovijice,  hefore  competent  authority;  and 
.siuii  1  e ';ioii  may  he  dealt  with,  indicted,  tried  and  if  convicted, 
I).' seiitenct'J,  and   th(;  o'func  m  ly  bt;  laid  and  charged  to  have; 

(/)  Tile  legal  ri;4litH  ftrisinv;  out  of  u  contract,  are  jjoverned  l»y  tlio 
Ji:r  liici  idiitnictUH ;  the  lex  fari  noverus  aw  to  tlie  n;itiirc  extent  iiiui 
<^:!iivracter  of  the  remedy,  Forsyth,  '2U'J,  '2i\t. 

0)  Jonr.  Lcf,'.  Aas.  Can   1H(»2,  p   101. 


(•n|,n\i\i.  i.i:<;isi,\i  i\  i;  i'(»\vi;n.  |.S'> 

ht'i'ii  coiiiiuilU'il,  ill   tliiit  (liMti'icI,  coMity  or  plac*'  when-  lie  Im^ 
Itccii  iippifln'iKlt'il  or  is  ill  c'stody." 

Ill  ii  <|i',s|)ul('li  (/)  J<»  tlif  ( HIS criiur-C  Jciiriul,  tin-  ("i»l<iiiial 
Sfcri'tiuy  julvfjts  to  this  section  us  ussiiiniii;^  "  fo  uflix 
criiiiiiiiil  clianictcr  to  acts  coiMinittcil  licy((ii(|  tlir  limits ol'  tin* 
|)oiiiiiiioii  ol'  ( .'aiiaila, "  aii<l  "  as  siicli  a  proxisioti  is  Ih-\-oii(| 
tlic  |i';4islati\  •■  power  of  tlic  (  "aiia<liaii  |iai'liaiiiciit,"  lie 
sii^;f<'sti'(|  aiiit'ii<liiitiit.  'I'lif  Act,  wjis  not,  <lisallo\vt'<|,  Imt 
tlif  aci|iii«'sci'iicr  ol"  tlic  Minister  of  Justice  in  the  correct- 
ness of  the  law  laid  <lown  \>y  the  ('olonial  Se('ret,ary,  is 
.•\i(|encei|  l)\'  tin-  Tact  that  the  Act  was  aiiieni|e<l  in  the 
\ers'  next  session,  so  as  to  limit  the  ojieration  of  the  thir<l 
section  1,0  atii'lasits  made  in  one  |iro\  ince  ol' the  Dominion 
Tor  use  in  another  |(ro\ince  (/). 

{''orsytli  (//'),  in  his  collection  of  o|)inions  on  constitn- 
lional  law,  cites  an  o|»ini<»n  ;;i\cn  l»y  the  law  ollicers  ol'  the 
("row  11  ( (/ ),  in  l'Ji;^r|ainl,  in   IS.')"): 

"  W'e  concei\e  that,  the  ('olonial  Le;j;islatuie  cannot 
|iu,i||y  exercise  it,s  jnris<lictioii  heyonil  it,s  territorial  limits 
three  miles  Irom  shore  or,  at  the  utmost,  can  only  <lo 
this  o\er  persons  <loniicilei|  (o)  in  the  colony,  who  may 
oU'eniJ  aj^ainst  it,s  (tr<linances  e\en  l»eyon<l  tliose  limits,  Itiit 
not  o\er  other  [lersoiis  "  (  /<). 

In  the  case  ol'  I'eak  v.  ShieMs  (</)  the  (juestion  was 
<liscusse<l  in  our  courts,  hut  owin^f  to  the  <iiver;^ence  of 
\  jew    on     the     ))art    ol'    the    .iu<l;,4es    (particularly    in    the 

(/,)  (,'.111.  HcHH.  I'aperK.  1870,  No.  H'.l;  Hue  To-ld,  "  I'url   Govt,  in  JJrit, 

(/)  H;1  Vic  c.  '2(1,  luneiuliiiK'  H'2  s:i  Vic.  c.  '2H,  h.  ;} 
{ill]  [).  '2  J ;  sue  aJHO  p.  2'M 

[it]  Kir  J.  Harfliii>^,  Quwjii'h  Advocate;  Kir  A.  li.  (.'(jclthuru,  A.(i. 
(uflerwurdH  I.or(t  (^iiiet  JuHlioi!  of  Kii^laiid) ;  and  Kir  K.  liotiicll,  K.G. 
(iifturwardH  Lord  ('liancollor  Weatbury). 

(o)  See  poHl,  p.  I'M. 

(//)  Hee  alHo  Atty.-CJeii.  of  Ilonj^  Kon«  v.  Kwok-a  Siii^',  L.  K.  5  P.  (". 
17'.t,  and  /c  Goodhue,  !'.»  (Jlraiit  HHC,  at  pp.  101  and  liVi. 

(7)  ;U  II.  G.  C.  p.  112;  (i  (),  A.  K.  OIW;  H  H.  C.  It.  571). 


|!»0  THK   CAXAIHAX   cnNSTIirTlnN. 

Sii|irfiiif  ('iiiirt)  till-  jnsv  oiii  liiii<ll\'  In-  coiisidfrrfl  nn 
iiiitliority  (/■).  'I'lii'  plniiititfis  iiiNokctl  ii;i)iiiist  tin-  «lct"fii- 
duiits  II  clause  in  tlu*  JiiMolvont  Aci  oF  liS?.'),  whicli,  slioitly 
stjit«'<l,  i»ru\  idt'il  tluit  wlifii  it  was  I'ttuiul  on  tln'  trial  nl'  an 
action  a^iainst  an  insolvent,  that  the  tielit  sne<l  t'oi\  Iwul 
lieen  Contracted  liy  liini  when,  to  his  knowledy^e,  he  was 
unaMe  to  nu'et  his  en;^'!iM(. incuts,  he  ini;;lit  he  inijii-isoned 
for  two  years  nnh'ss  tlie  deht  and  costs  wcjv  sooner  paid. 
In  the  case  in  (juestion,  the  delit  had  lieen  contracted  in 
Kni^land.  A  majority  of  the  Jud;;'es,  who  lendered  opin- 
ions in  the  case,  held  that  the  statute  di<l  not  affix  a  o'ini- 
inal  chai'acter  to  an  act  connnitted  ahi'oad:  that  the  law 
enacted  hv  the  section,  was  a  law  fis  fn  f/u  iniidli/  <iniil- 
<i\)lc  III  niif  cdii I'fs,  and  therefoiH'  valid  (s).  Of  the 
►Supreme  CVau't.  the  majority  who  expressed  un  opinion 
on  this  constitutional  point,  decided  against  the  ap])lica- 
Itility  of  the  section,  invoking'  the  rules  of  interj)retation  to 
which  we  ha\e  l)efore  refenx-.l,  as  linn'tino-  the  section  to 
<U'lits  contracted  in  Canada:  hut  at  tin-  same  time  serious 
doultt  was  expressed  hy  each  of  these  judges  as  to  tlu' 
validity  of  the  enactnu-nt,  in  case  its  unamhi^'uous  mean- 
ini;'  had  admitted  none  hut  the  wider  interpretation.  The 
position  is  thus  clearly  ]nit  hy  Mr.  Justice  Strong-  (/) : 

"  By  the  01st  section  ot  the  B.  N.  A.  Act,  tlie  parliament 
of  Canada  is  empowered  to  make  laws  for  the  peace  ordtr 
and  jj:ood  government  of  Canada.  Does  this  warrant  the 
enactment    of  statutes   binding  British  subjects  in   respect  of 

()•)  As  to  the  questions  arising;  in  this  case,  whicli  involved  consicleni- 
tion  of  the  B.  N.  A.  Act,  nee  post,  notes  to  s.  01,  s-s.  21.  etc. 

(«)  Somewhat  analogous  questions  arise  under  the  "  Act  respecting 
Arrest  and  Imprisonment  for  Debt"  (R.  S.  O.  c.  07).  It  is  submitted 
that  80  far  as  these  statutes  make  provision  as  to  tlw  rimedij  to  secure  the 
perjormance  of  the  obligation  created  by  the  contract  sued  on,  they  apply  to 
the  case  of  proceedings  for  a  debt  contracted  abroad ;  but  that  so  far  as 
they  are  punitive— whether  technically  "criminal"  or  not — they  do  not 
(as  a  matter  of  interpretation)  so  apply,  and  could  not  (as  a  matter  of 
jurisdiction  to  enact  them)  be  made  so  to  apply. 

it)  8S.  C.  R.at  p.  59()-7. 


(cF.nNlAI.    I.K(;is[.  \TIVK    |'n\Vi:i{.  |!l| 

iiits  (lone  without  till'  tcnitoiy  of  tlit-  Doiuinioii,  uit-rt'ly  bt'cause 
tliev  liiiitiK'U  at  tlu'  tiiiif  to  liavt'  a  doiiiicik'  iii  ihe  Dominion? 
()i  are  not  such  in-rsons,  like  nil  other  suhjects  of  the  (^Jueen, 
JiiiMe  to  lie  atVected  by  no  k'j,'islation  icgulatinj,'  their  personal 
I'onducl  without  the  limits  of  the  Pominion,  save  such  as  may 
he  enacted  hy  the  Imperial  le<,'islature.  the  |;ailiament  cf  the 
I'nited  Kin,i,'(loni '.'  I  think  these  wei,L,'ht\  and  important 
questions  would  arise  and  have  to  he  determined  in  the  present 
case,  if  we  found  in  the  enactment  under  consideration,  either 
from  express  words  or  necessary  inii)lication,  that  it  was  the 
intention  of  the  le,irislature  to  apply  it  to  traders,  domiciled 
inhabitants  of  C'anfi<la,  makin.ir  jiurchases  without  the  ]H)minion. 
r>ut  as  there  is  not  the  sli,i,'litest  indication  of  such  a  desi,i,'n,  as 
resjiects  this  IHOth  section,  we  are  relieved  from  the  obli,L,'ation 
((f  determinin<,'  such  a  grave  question  of  constitutional  law.' 

The  only  otliei'ca.se  in  our  courts,  is  Keoiufi  v.  Hrierh  (  n  ) 
involving'  the  validity'  of  section  4  of  the  "Act  lesjiectint; 
(tflenceH  rel;  ♦^inj;  to  the  Law  of  Marriage  "  (H.  S.  C.  c.  Kil ) : 

"  [\'.  Kvery  one  who  being  married,  marries  any  other  per- 
i^on  durinij:  the  life  of  the  former  husband  or  wife,  whether  the 
second  marriage  takes  place  in  Canada  or  elsewhere,  is  guilty 
of  felony  and  liable  to  seven  years'  imprisonment : 

"2.  Nothin''  in  this  section  contained  shall  extend  to- 
(a)  Any  second  marriage  contracted  elsewhere  than  in  Canada 
by  any  other  than  a  subject  of  Her  Majesty,  resident  in  Canada, 
leaving  the  same  with  intent  to  commit  the  offence ;     .     .     ." 

This  section  was  lieM  valid  l»y  the  Divisional  Coui't  of 
the  Chancery  Divison,  hut  in  view  of  the  decision  ahout  to 
he  referred  to,  it  would  appear  that  this  jud<;inent  can  only 
he  supported  as  to  forei^^n  niarriayes,  upon  the  view  that 
the  ottence  dealt  with  l»v  the  section,  is  the  leaviuii'  Canada 
with  intent.  Tlie  opinion  of  tlie  Chancellor  in  that  case,  i.s — 
if  to  say  so  he  permissilde — a  clear  niarshallin*;-  of  all  that 
can  he  uro-ed  in  support  of  the  jurisdiction  of  a  colonial 
leoislatnre  to  pass  such  an  enactment ;  and  were  it  not  that 
Heyina    v.   Briei'ly  must  he  considered   overrule<l    hy  the 

{ID  14  O.  R.  .5-2 ->. 


|!)2  rill-:   CANADIAN   ('((NsTITrrinN'. 

(U'cisioii  ol'  tlu'  .Iinliciiil  ('niimiittcf  ol'  the  I'livy  C'ouiu'il  in 
tlu'  cast'  aliout  to  lie  iiotvil,  it  iiii;;lit  Ih'  tlt'cMU'il  an  ai-t  ot" 
jirt'smnptiini  to  t|Ut'stion  tli«'  con'i'ctiu'ss  <»t"  tlit-  priiicijdcs 
fiiMiiciatfil.  Willi  all  <l('l'»'n'UCT.  it  is  siil>niitt('<l  that  the 
limitation  of  tlu'  iiiu's  of  jiKliciai  invt'sti;iatioii  ojtfii  to  a 
Canailiaii  jii"!;^,*'.  to  a  coiisidrration  of  the  ('X|)r«'ss  jtro- 
visions  of  the  H.  X.  A.  Act  on  tli«'  one  liaiul,  aixl  of  the 
Colonial  Laws  N'alitlity  Act  on  the  (ttluT,  is  t<»  Ifavo 
unttaiclu'tl  those  iniplieil  restrictions  to  which  reference 
has  heen  niatle  in  an  earlier  part  of  this  chapter — such.'.//., 
as  those  in<licate<l  in  Craw  v.  Hanisay('')-  The  mean in;i" 
e'iveii  to  the  phrase,  "  extra  territorial  le;iislation  "  sei-ms 
also  un<hilv  limited:  in  the  hooks  it  is  constantly  used  to 
descrihe  the  attempt  l»y  the  lei^islatuic  of  one  state,  to 
determiiu'  the  le^i'al  relation  to  ari.se,  in  that  stati',  fi'om 
acts  done  and  contracts  entered  intt>  in  another. 

V'eiy  oj)portunely,  the  ri'port  of  the  case,  McLeod  v. 
AttoiMiey-CJeneral  foi-  New  South  Wales  (yr),  hefore  the 
Judicial  Conniiittee  of  the  Privy  C(unicil,  comes  to  hand. 
The  leoislatur*'  of  that  colony  ha<l  upon  its  statute  hook 
the  following-  iMiactment : 

"  Whosoever  bein*,'  nianiod,  marries  another  person  during 
the  life  of  the  former  husband  or  wife,  wliere.soever  such  second 
marriage  takes  place,  shall  be  liable  to  penal  servitude  for  seven 
years." 

By  apj)lyin;4'  to  this  enactment  the  rules  of  interpreta- 
tion alreatly  discusst-d,  the  Committee  construed  the  wt>rd 
"  wdieresoever,"  as  nieanin^j;  "  wheresoever  in  this  col  ,ny." 
The  (juestion  of  jurisdiction  is  thus  dealt  with  : 

"  Their  Lordships  think  it  right  to  add,  that  they  are  of 
opinion  that  if  the  wider  construction  had  been  applied  to  the 
statute,  and  it  was  suppo.sed  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  Lordships  are  far  from  suggesting 

(r)  See  ante,  p.  181,  et  seq.  (it)  App.  Cas.  (1891)  455. 


HU.ONIAI.    I-K«JI.S|,ATIVK    I'nWKK.  ID:{ 

tliiit  the  lo,f,Msl!ititri'  of  the  colony  (lid  nioim  to  givf  to  iheinsolvea 
HO  wile  ii  jurisilictiou.  The  more  reiMomihli'  theory  to  iKlopt  is, 
thiit  the  hiMi,'Uii.,'e  was  iisimI  siihject  to  tht.'  woU  known  and  well- 
couHidiTi'd  hniitatioii,  that  they  were  only  le<,Mslatin,L,'  for  those 
who  were  actually  within  their  jurisdiction,  and  within  the  limits 
of  the  colony.  " 

It  will  Im'  noticed,  |)t'rhii{)s,  timt  the  i-eport  nl'  tliis  case 
lines  not  disfdose  whether  or  not  the  a[)p(dliint  was  a 
Hiitish  sjihjeot,  or  whether  lie  w'us,  or  was  not,  a  resilient 
of  the  colony.  His  first  niarriajfe  took  place  in  \e\v  South 
Wales,  and  it  would  apjjear  that  in  the  United  StatoH, 
where  the  second  mari'iao-c  was  celehrated,  he  had  in  some 
way  pi-ocured  a  divoi'ci!  from  his  first  wife.  As  to  his 
nationality,  the  name  is  perhaps  sn<r<j:estive.  It  mav  there- 
fore  1k'  thou;;,ht  that  there  is  still  nxan  for  ar;,;ument  as  to 
the  [)owei'  of  a  colonial  legislature  to  afHx  criminal  cluwacter 
to  acts  done  ahroad  hy  a,  Britisii  suhjeet,  whose  domicih?  is 
in  the  colonv,  hut  there  is  nothin'f  in  the  iudi;ment  of  the 
Connnittee  to  sui)j)ort  such  a  view. 

In  this  connection  it  may  l>e  remarked  that  in  re;;aril 
to  Imperial  Acts,  the  ipiestion  is  one  of  ct)nstructi()n 
merely  ;  with  us,  it  is  a  ([uestion  of  jurisdiction,  or  of 
construction  to  sa\'e  juri.sdiction.  If  the  jnr'sdiction  he 
wanting',  the  legislation  is  void — is  not  law — and  would 
hav«'  t)  lie  judicially  so  ludd  (,/).  Such  an  Act  would  he 
unconstitutional,  in  the  proper  sense  of  that  term — i.r.,  con- 
trary to  lau'  constitution — and  the  very  same  doctrine 
whicli  lays  down,  that  it  is  the  ri<i^ht  and  duty  of  a 
(-anadian  jud^e  to  declare  void  an  Act  of  a  provincial 
leuislative  assemhly,  trenching  upon  ^nmnd  sacred  to  the 
parliament  of  Cana<la,  lays  down  with  e(|Ual  force,  that  it 
is  also  his  rinrht  and  duty  to  declare  void — as  nlfrii  rircn — 
any  Act,  provincial  or  Dominion,  which  in  its  territorial 
scope  exceeds  the  power  of  a  colonial  le<^islature  (//). 

(.r)  See  Reg.  v.  Brierly,  14  O.  R.  525. 

(i/)  See  the  judjjrnant  of  Marshall,   C.J.,  in  Marbury  v.  Madison,  1 
Cranch,  137;  Political  Science  Lectures,  18S9,  University  of  Michigan, 
p.  77,  et  .leq, ;  re  Goodhue.  19  Grant,  at  p.  45 i. 
Can.  Con.— 13 


194  TIIK   c.WAI'IAN    <'(i\SirirrinN, 

All  tin-  liiiiitiitiouM  up  »ii  I)  ir  It'^islativr  jnnvcr  (ulwiiys 
t'oiiKiilcnMl  JIM  to  its  Miiiii  ti>tiil)  \m\i'  now  pruliilily  luiii 
udvcrttMl  t"»,  Hiul  wr  limy  u;;ain  rett  r  tn  tin*  |M».sitii»ii  t'or- 
iiutIv  tiikfii  (:),  iiiid  iniiv  siiniimirizc  l»v  suviii;;- :  Witliiii 
th«'  limits  liiifl  iluwn,  i-xprrsslv  or  iiiipli«<llv,  liy  our  c'liJiitiT 
— tlif  IJ.  X.  A.  Act — fiml  sul»i<'ct  always  to  Iinpnial  coii- 
ti-ol  as  Itct'orc  iiitlinittMl  (</ ),  tlif  pown-s  of  h';;isIatioii  pos- 
Mcsst'il  l»y  tlu'  various  l(';;islatiN»'  luxlics  cxistin;;  in  Caiiaila, 
aiv  plriiary  jiowcrs,  ami  that,  ' juiisdiction  com'tMlcij,  tlic 
will  of  the  h'<;iHlatur»'  is  oiimipotnit  ac'cor«liiiy;  to  liritish 
tlu'ory,  ami  knows  no  .su[»frioi' ""  (/»).  Paraphrasing  thclan- 
yfuau'*'  of  Chief  .lustic*'  Marshall  in  a  \frv  crh  hrati-tl  case 
which  canif  hefoiv  the  Supnnie  Court  of  the  I'liitcil  States 
(r),  Wf  ailniit.  as  all  must  ailmit.  that  tin-  powers  of  a  colonial 
;;overninent  are  limit«'tl.  an<l  that  its  limits  are  not  to  he 
transcentleil :  hut  the  souml  construction  of  the  W.  X.  A. 
Act,  must  allow  to  the  legislatures,  that  discretion  with 
respect  to  the  means  hy  which  these  ]»owers,  citnferred  hy 
it,  are  to  he  carried  into  exi'cution,  which  will  eiiahle  those 
hodies  to  pei-fovm  the  hi^^h  duties  assinned  to  them  in  the 
manner  dt.'emed  most  heneticial  to  the  peoph*.  Let  the  end 
1h'  lee;itimate,  let  it  he  within  tla*  scope  of  the  constitution, 
and  all  means  which  are  not  prohihited  hut  consistent  with 
the  letter  and  spirit  of  the  constitution,  are  leeal.  Where 
the  law  is  not  prohihited,  to  undertake  to  eiKpiire  into  the 

(z)  Ante,  p   177.  ('/)  Antr,  Chap.  VII. 

{h)  Per  Mowat,  AG.,  aifjiieiKln,  lieg.  v.  Severn,  2  S.  C.  K.  at  p.  8l. 
The  theory  is  not  e.xchiaively  British,  for,  juriadiction  conceded,  the 
eiime  rule  applies  to  Acts  of  Con;4res3  and  of  the  State  Legislatures  in 
the  adjoining  Republic. 

(f)  McCuUoch  V.  Maryland,  4  Wheat,  421.  Note  that  Con^^resa  is 
fjiven  certain  "enumerated  powers  "  and  also  power  ''to  make  all  laws 
which  shall  be  necessary  and  proper  for  carryin}^  into  execution  "  those 
powers,  etc.  The  B.  N.  A.  Act  gives  to  each  le;4i3lature  power  to  make 
laws  "in  relation  to"  the  various  matters  as  distributed  between  the 
various  legislative  bodies.  If  there  is  any  distinction,  ours  is  the  wider 
phrase,  and  the  principle  of  the  decisions  of  the  U.  S.  Supreme  Court  on 
this  subject  of  "  implied  powers  "  is  applicable  a  fortiori  to  the  powers  of 
our  legislatures. 


cnhnXIAI.    LK(ilsl,A'IIVK    I'nWKH.  lf»5 

(l(';;irr  of  its  lU'C't'MNlty,  Wolllil  Im'  to  pHMs  tllf  line  which 
circ'UinscrilH's  the  jtiihciul  <lt>|)iii-tinfiit,  niid  to  trt-uil  on 
h'^'islutivt'  j;i'ouii<l. 

Ill  courts  of  ju.stict'  ill  Kii;^'hiinl  ninl  otht  r  Ihitish  colonics, 
our  liiw  (statutory  iukI  coimiiioii)  is  I'lititlol  to  iit  It'ust  us 
lull  r('Con;iiitioii  mill  ctfl'ct  us  tin*  laws  of  uiiy  l"or»'i;;ii  iiutiou 
— ill  iicconliiiit't'  with  the  piinciph's  of  coinity  {«/).  On 
ii|»|K'als  to  Mcr  Majesty  in  Ihr  Privy  Council,  Ju<licial 
ii'('on;nitioii  is,  ol"  course,  acconleil  them  (r) ;  in  other  cases, 
they  must  he  proNi'd  as  /(/«7,  hut  it  shollM  he  nhserved  that 
ill  ivy;ar«l  to  the  proot'  ol'  our  law,iisemho<Iie<l  in  le^^islative 
enactment,  the  (ith  section  ( /)  of  the  ( 'oloiiial  Laws  \'ali<lit\ 
Act,  lS(i.'),  provides  for  a  simple  inethtnl  of  proof,  \i/.,  a 
copy  of  the  Act,  certified  as  such  hy  the  proper  officer  of 
the  lee;islature  whose  enactment  it  is. 

In  a  late  case  (//)  hefore  the  .Judicial  Committee  of  the 
Privy  Council,  it  was  very  hroadly  laid  down  hy  Sir  K. 
Phillimore.  in  deliverine;  the  jud;,niient  of  the  Committee, 
that  the  law  contained  in  an  Act  of  the  le<>islature  of  a 
ci)lony,  and  ratified  hy  the  exjM'ess  sanction  of  her  Majesty, 
is,  in  every  ca.se  to  which  it  is  u))plicahle,  of  hindiii;; 
authority,  e(|ually  in  the  <>)ue«'n's  Hieh  Courts  in  Kn^land, 
and  in  Vice-Admiraltv  Courts  in  the  colonies.  W'v  are  safe 
therefore  in  .saying  that  in  an  action  in  an  Kn<;lish  court, 
or  the  court  of  another  colony,  the  law  of  Canada,  statutory 
or  common  law,  would,  on  proof  in  the  manner  hefore 
indicated,  he  {^iveii  effect  to,  either  on  the  doctrine  of 
Comity,  or  on  the  strony;er  doctrine  enunciated  in  Redpath 
V.  Allen. 

((/)  Phillips  V.  Eyre,  L.  It.  4  Q.  B.  at  p.  '2U  ;  Rej?.  v.  Brierly,  14  O.  R. 

at  p  o'M. 

(' )  Cameron  v.  Kyte,  3  Kuapp,  P.  C.  at  p.  34'5. 

(0  -is  ,v  29  Vic.  c.  fiS  (Imp.).    Is  this  section  in  force  in  the  colonies  ? 
or  docs  it  merely  affect  the  method  of  proof  in  the  Kinjli-ih  courts  ? 
{:!)  Redpath  v.  Allen,  L.  R.  4  P.  C.  511. 


PAirr  III 


TIIKOKIOINAf.  GHOUP. 


riTAITKIl  X. 


TIIK  DIVISION  OF  THK  VWAJ). 

Ill  till'  I'liilit'r  I'lmptfrM  nt*  tliis  liook.  tin-  piactii'jil 
Kiii'iit'SM  tit'  the  MpluTt's  n|'  iiiitlmrity  <>t'  tlu'  lt';;isliitivt'  iiii<l 
»'Xt't'Utivt'   <lt'i»irtiiit'Mts   of  ;;.>v«'nuiii'Mt  Ims   It'i-ii    iiisisti'«l 

UlMM,  ami  tllf  lt';,'ill  SU|ili'll|jU'V  of  till'  t'oniUT  over  till'  liltt*'!' 

|ioiiit»'<l  out(").  Kx|)i«'SM«'i|  in  unotln'r  way  ainl  in  rt't't'i- 
ciu'i'  to  a  y;ov»'niiiifnt  of  liiiiitt'il  autlioi'itv,  it  may  '»t'  sai«l 
that  to  tix  tlu'  splu>r»'  of  aiitli uity  of  the  l«';^iMlativt'  tlt'part- 
iH'iit  of  such  a  ;(ov»'niiiu'nt,  is  to  fix  at  the  sanu'  tijia*  the 
splu'ro  of  authority  of  the  t'xecutiN*'  <lt'i)artiiu'nt  of  that 
;,fov»'rmii('ut.  A[)i)lyin;;'  that  priiiciph'  to  the  Caiiaclian 
t'oiistitutioii,  it  will  1k'  at  oiicv  seen  how  iiu|)(a'taiit  it  is  to 
Hx,  if  possiMf.  the  exact  line  which  is  to  <livitle.  fo»'  N';;is- 
lativc  puj'poses,  the  HeM  of  colonial  authority  hetween  the 
Dominion  parliament  ami  the  I'rovincial  le;;islative  asseni- 
lilies.  For,  that  line  fomul,  we  have  likewise  cstaltlishetl 
tlu'  line  of  division  hetween  the  I)omini(a»  and  the  Pro- 
vinces for  the  pi'rposes  of  executive  ;;overnnient. 

Before  enterini;  upon  an  examination  in  detail  of  the 
sections  of  the  B.  N.  A.  Act  which  provide  for  the  distribu- 
tion of  lej^islative  power,  we  may  shortly  advert  to  the 
laws  and  lei^al  institutions  existin^j  in  the  different  prov- 
inces at  the  time  the  B.  N.  A.  Act  took  ett'ect,  an<l  to  some 
;;eneral  principles  which  have  heen  authoritatively  estab- 
lished in  reference  to  the  nature  of  the  divisiiai  effected  by 
the  Act. 

(d)  See  ante,  p.  12,  p.  22,  et  seq.,  p.  4(t,  ,t  neq.,  and  Chap.  VI. 


200  THE   CANADIAN   CONSTriTTIoN.  ' 

1. — WIiL'ii  till'  Union  t(t(»k  crt't'ct,  tlvt-ro  was  in  fxistcnce 
in  each  of  the  individual  pi'ovinces,  a  k'^-al  sysU-ni — a 
'■l»(»dv"  oi'  laws  and  k'^'al  institutions.  -Bv  sec.  12!)  of  tliu 
H.  N.  A.  Act,  it  was  provided  that  all  laws,  etc.,  in  existence 
in  the  diti'ei'ent  provinces  at  the  time  of  the  Union,  "shall 
continue  ....  as  if  the  Union  had  not  heen  made, 
suhject  nevertheless  (except  with  respect  to  such  as  are 
enacted  It}'  or  exist  under  Acts  t)f  the  parliament  of  Ciieat 
Britain,  or  of  the  parliament  of  the  United  Kin;^dom  of 
(Jreat  Britain  and  Irelan<l)  to  l»e  repealed,  ahojished  or 
altered  hy  the  parliament  of  Canada,  or  hy  the  Le;,nslature 
of  the  respective  province,  (iranuHnr/  to  f/ic  <iaf/i(irlf>/  of 
the  jun'llii itipnf  or  of  ilmt  hyislnturi'  vixlcr  this  Act." 

This  mass  of  laws  and  lei^al  institutions  mav  he  con- 
sidered  tlie  raw  material,  so  to  speak,  upon  which  the  legis- 
latures of  the  Dominion  and  the  respective  provinces  were 
to  operate,  cdc/i  accoi'd i luj  io  its  (infhoritt/  iiinlcr  ihc 
H.  N.  A.  Art;  and  it  must  be  Itorne  in  mind  that  we  have 
laws  (connnon  law  and  statutory  enactments)  on  many 
sultjects  which  have  come  down  to  us  from  pre-Confedera- 
tion  days,  and  these  can  l»e  repealed  or  altered  only  l»y  that 
le«^islati\e  Ijody  which  could  now,  were  they  non-existent, 
enact  tliem  (/>).  The  division,  therefore,  efi'ected  hy  the 
B.  N.  A.  Act,  was  a  present  division  of  the  whole  l);)dy  of 
existing  Imv  (in  its  widest  sense),  as  well  as  a  division  of 
the  field  for  future  exercise  of  authority  (r).  Of  course, 
tlie  l»ody  of  law  in  existence  when  the  B.  N.  A.  Act  came 
into  force  v.'as  of  provincial  creation,  Imt  at  once  upon  that 
Act  takiui^'  effect,  that  portion  of  existing  laws,  etc.,  which 
fell  within  the  sphere  of  authority  of  the  Doniinion  par- 
liament, Itecame  Avhat  we  may  call  a  body  of  Dominion 
law,  while  the  remainder  might,  not  inaptl}',  1)6  designated 
a  body  of  provincial  hiws. 

{h)  Dobie  V.  Temporalitijs  Board,  7  App.  Cai.  lan. 
(c)  Sea  a)\te,  pp.  4:),  50. 


THK    DIVISION    (»K   THK    FIKI.Ii.  2Jl 

II. —  Tln'  (lirlsioii  ('(^'crfcil  hi/  tlir  li.  X.  A.  Art  1m  f.v- 
Jid  list  ire.  The  limitatioUM  upnii  our  |)ow(M's  of  si'lf-yovri-u- 
iiifiit,  nrisiny  from  our  eoloniul  status,  havr  \tvvu  alri-ady 
dealt  with  ('/).  Tlif  power  to  leeislate  alony  certain  lines 
and  in  reference  to  ci'i'tain  matters,  deemed  to  l>e  mattei's 
of  Imperial  conc<'rn,  has  heen  ex|)ressly  oi-  is  implie(lly 
withheld:  l>ut  of  all  the  matters  in  respect  to  which  we 
have  ])ower — i.e.,  of  the  entire  field  of  self-yovernment 
alloted  to  US — the  H.  X.  A.  Act  etiects  a  division,  r>ssiynini>' 
certain  classes  of  those  mattei's  to  tlie  Provincial  assem- 
lilies,  and  the  Italance  to  the  parliament  of  Canada. 

The  following  passan'e  fi'om  a  I'ecent  judninent  of  the 
.ludicial  C'onnnittee  of  the  Privy  Council  discloses  the  con- 
tenti(»n  to  the  contrary  which  had  Iteen  raised,  ami  finally 
disposes  of  it  :  {i) 

"  It  only  remains  to  refer  to  some  of  the  grounds  taken  by 
the  learned  judges  of  the  Lower  Courts  which  have  been  strongly 

ohjected  to  at  the  r)ar It  has  been  suggested 

that  the  provincial  legislatures  possess  powers  of  legislation 
either  inherent  in  them,  or  dating  from  a  time  anterior  to  the 
Federation  Act,  and  not  taken  away  by  that  Act.  Their  Lord- 
ships have  not  thought  it  necessary  to  call  on  the  respondent's 
counsel,  and  therefore  possibly  have  not  heard  all  that  may  be 
said  in  support  of  such  views.  But  the  judgments  below  are  so 
carefully  reasoned,  and  the  citation  and  discussion  of  them  here 
has  been  so  full  and  elaborate,  that  their  Lordships  feel  justified 
in  expressing  their  present  dissent.  .  .  They  adhere  to  the 
view  which  has  always  been  taken  by  this  Committee,  that  the 
Federation  Act  exliausts  the  whole  range  of  legislative  power, 
and  that  whatever  is  not  thereby  given  to  the  provincial  legisla- 
tures, rests  with  the  Parliament  (t'y 

III. — The  parliament  of  Canada  and  the  provincial 
assenddies   possess,  each   within  the  sphere   assiMiied  t(»  it, 

(d)  See  Chap.  IX. 

((')  Bank  of  Toronto  v.  Lambe,  12  App.  Cas.  at  p.  587. 

(.0  See  further  upon  this  point,  the  notes  to  the  oi;ening  clause  of 
*ec,  SU  jwst. 


202  THE   CANADIAN'   ("oNsTITrTIoN. 

plenary  powers  of  le;;'islation.  This  nttrilmte  <»!'  coloniur 
le-iislatures  has  heeii  examined  at  some  length  in  the  last 
chapter,  and  we  need  here  only  eniphasize  this  fact,  that 
there  is  no  distinction  whatever,  in  this  re«;ard,  hetween 
tlie  Dominion  parliament  and  theassend»lies  of  the  different 
provinces.  The  principle  has  been  applied  alike  to  the 
le;^nslative  power  of  each — to  nphold,  for  example,  the 
"  local  option  "  clauses  of  the  Canada  Temperance  Act  (,'/), 
and  the  delegation  of  power  to  license  connjiissioneix,  \uider 
the  Ontario  Licpior  License  Acts  (A). 

IV. — In  a  country  under  the  rule  of  law,  it  necessarily 
devolves  upon  the  courts  which  administer  law,  to  ent|uire 
and  determine,  in  any  ^iven  case,  whether  an  Act  of  a 
ley:islature  havin<>'  authority  over  a  limited  ran<>e  of  suli- 
ject  matters,  is  within  or  without  its  powers, — is  or  is  not 
l<iw.  As  we  have  already  pointed  (ait  (/),  lon^' he  fore  the 
ptussa<(e  of  tlie  B.  N.  A.  Act,  English  and  Colonial  judges  had 
1)een  called  on  to  consider  colonial  Acts,  and  to  determine 
the  (piestion  of  their  legal  validity  ;  and  the  duty  of  the 
courts  to  determine  like  (|uesti(ms  under  the  B.  X.  A. 
Act,  was  no  new  jurisdiction,  although  full  appreciation  of 
the  extent  of  their  judicial  authority  in  this  regard,  seems 
to  have  (Uiwned  on  Canadian  judges  with  something-  like 
surprise.  It  serves  to  indicate  how  small  is  the  range  of 
matters  with  which  colonial  legislatures  are  unaVjle  to  deal>^ 
that  we  find  colonial  ju<lges  almost  forgetting'  that  any 
limits  exist  (J).     After  twenty-five  yeai^s  of    experience 

(//)  Russell  V.  Reg.,  7  App.  Cas.  829. 

(/()  Hodge  V.  Reg.,  9  App.  Cas.  117.  See  also  Reg.  v.  O'Rourke,  1 
O.  R.  405,  32  U.C.  C.  P.  388,  as  to  the  adoption  by  the  Dominion  Parlia- 
ment, for  purposes  of  criminal  procedure,  of  Provincial  Acts  respecting 
jurors. 

(i)  See  Chap.  IV.  and  Chap.  IX.,  ante. 

(j)  In  this  connection  we  may  point  out  that  in  L'Union  St.  Jacques 
V.  Belisle,  L.  R.  6  P.  C.  31,  the  reporter  states  the  question  involved  ta 
be  whether  the  Act  there  impugned  was  or  was  not  repugnont  to  the 
B.  N.  A.  Act—&  strictly  accurate  way  of  putting  it,  but  in  these  days  not 
followed. 


THK    DIVISION    OK   THK    h'lELI).  2011 

un<U'r  our  tV'<U'nil  syHtt'in,  the  (.'xeix'i.sc  l»y  tlio  t'lmrtH  of 
this  function,  cxciti'.s  no  ivnuirk,  and  the  ciiHes  on  this  hrancli 
of  Can»i<Uan  Jurispnulence  now  till  many  volumes.  Under 
the  lepil  system  of  the  British  Empire,  the  "  last  word  " 
upon  these  (piestions  rests  with  the  Judicial  Committee  of 
the  Privy  Council,  and  so  far  as  that  tribunal  has  spoken- 
and  so  far  as  the  principles  enunciated  in  its  judt^jments 
extend,  its  decisions  are  bindinj;'  upon  <air  '  urts.  In  a 
number  of  cases  they  luive  determined  the  po.  .  m  of  tlie 
line  of  division  in  rej^ard  to  the  subject  mutters  immediately 
involved  in  those  cases,  and  they  liave  likewise  enunciated 
certain  principles  which  must  hereafter  guide  us  in  deter- 
mining the  line  of  division  as  to  many  subject  mattei-s  with 
which  they  have  not  directly  dealt.  Our  tii-st  duty  there- 
fore is  to  examine  tlieir  ju<ljjfments.  Next  in  onler  of 
authority  will  conje  the  judj^nuents  of  the  Supreme  Court 
of  Canada;  then,"  for  each  province,  the  provincial  Court 
of  final  resort  in  the  province,  and  so  on  tlu.mgh  the  whole 
ranin'e  of  the  judiciary. 

Apart  from  certain  sections  which  confer  legislative 
powers  in  reference  to  the  conduct  of  business  in  the  dif- 
ferent legislatures  (/.),  and  in  reference  to  elections  (I),  the 
•  listi'ibution  of  legislative  power  is  provided  foi",  in  sections 
!U-{)5  of  the  B.  N.  A.  Act.  We  deal  in  this  place  with 
sections  91  and  92  only,  and  have,  for  convenience  of 
reference  an<l  comparison,  placed  them  side  by  side. 

(k)  See  sees.  18,  35,  47,  78,  87,  etc.;    see  also  28  &  29  Vic.  c.  63,  s.  5 
(Imp.),  and  particularly  notes  to  sec.  35. 

(/)  See  notes  to  sec3.  40,  41,  51,  80,  83,  and  84,  post. 


20+  tiik  caxaihax  (•(•nstititiox. 

Powers  of  thk  Pammamext. 

91.  Tt  nIiiiII  1m-  liiwfiil  fur  tlic  <^iu'i-ii,  liy  mid  witli  tlif  a<lvi(!f  and  cuiisont  of 
tlif  SciiHtc  and  lloiiMf  (if  f'oniiiions,  to  iiiakf  LawH  for  tlic  pfacc,  ordtT,  iuid 
g(K»d  Kovfiiiint'iit  (if  Canada,  in  plation  to  all  matters  not  foniiiiK  within  the 
chiMws  (if  MulijcftH  liy  this  Act  assigned  cxcliisivjdy  to  the  LoKi'^l'ituri's  of  the 
Provinces;  and  for  preater  certainty.  Init  not  so  as  to  restrict  the  ^^eneiality 
of  the  foregoin).?  terms  of  this  section,  it  is  hereliy  declared  that  (notwith- 
standing' anythin),'  in  this  Act)  the  exclusive  Legislative  Anth(aity  of  the 
I'arliamtnt  of  Canada  extends  to  all  matters  coining  within  the  classes  of 
>u))jt'cts  next  hereinafter  enumerated  ;  that  is  to  say  : — 

1.  The  puhlic  del)t  and  imiperty. 

2.  The  regulation  of  trade  and  commerce. 

M.  The  raising  of  nmney  by  any  mode  or  system  of  taxation. 

1.  The  Itorrowing  of  money  on  the  public  credit. 

."i.  Postal  service. 

i\.  Tlie  census  and  statistics, 

7.  Militia,  military  and  naval  service,  and  defence. 

M.  The  fixing  of  and  providing  for  the  salaries  and  allowances  of  civil  .ind 

other  olticers  of  the  (lovernmeiit  of  Canada, 

it.  Beacons,  buoys,  ligiithouses,  and  Salile  Island. 

10.  Navigation  and  shipping. 

11.  (Quarantine  and  the  establishment  and   maintenance  of  Marine  Hos- 

pitals. 

12.  Sea  Coast  and  inland  fisheries. 

1.3.  Ferries  between  a  Province  and  any  Uritish  or  Foreign  Cuuntiy,  or 

between  two  Provinces. 
14.  Currency  and  coinage. 
1').  Banking,  incori)oration  (jf  banks,  and  the  issue  of  paper  money. 

16.  Savings  Banks. 

17.  Weights  and  measures. 

18.  Bills  of  exchange  and  promissory  notes. 
lit.  Interest. 

20.  Legal  tender. 

21.  Bankruptfjy  and  Insolvency. 

22.  Patents  of  invention  and  discovery. 

23.  Collyright^. 

24.  Indians  and  lands  reserved  for  the  Indians. 

25.  Naturalization  and  aliens. 
2(5.  Marriage  and  Divorce. 

27.  The  Criminal  Law,  except  the  Constitution  of  Courts  of  Criminal  Jur- 

isdiction, but  including  the  procedure  in  criminal  matters. 

28.  The  establishmeiit,  maintenance,  and  management  of  penitentiaries. 
2!),  Such  Classes  of  subjects  as  are  expressly  excepted  in  the  enumeration 

of  the  classes  of  subjects  by  this  Act  assigned  e.xclusivel}'  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  i)rivate  nature  comprised  in  the  enumeration  of  the  classes  of  .subjects  by 
this  Act  assigned  exclusively  to  the  Legislatures  of  tiie  Provinces. 


THE    DIVISION'   ((F    llji;    IMKM).  205 

KXCM'SIVIC    l*(»Wi:i{S    <»K    I'UOVIXCIAL    LKfJlSl.ATrilKS. 

92.  Ill  t'licli  I'roviiien  tli»'  Li-Ri^latiin'iiiay  t'xeliiHivHly  make  Iuwh  in  rcliitioii 
to  iiiattiTM  ciiniiiiK  within  the  classfs  of  subjoctM  m-xt  lii'ivinafttr  enunii-rated, 
that  is  to  say  :  - 

1.  The  ataeiulineiit  from  tiiiu'  to  time,  iiotwitlistandinHr  anytliiuK  in  tliis 
Aft,  of  tlu'  Constitution  of  the  I'rovinw',  exct'pt  aM  ivKanN  tin- 
ottiee  of  Iiitnit»'imnt(to'  <'rnor. 
'J.  Direct  taxation  uitliin  tlic  Province  in  order  to  t!i«  raising  of  a  revenuf 

for  I'rovinoial  jmriioseM. 
A.  The  l)orrowinf<  of  money  on  tlie  sole  credit  of  the  Provinci-. 

4.  'I'iie  estalilislinient  and  tenure  of  l'ro\incial  ortices,  and  tlie  ii|i|ioint- 

ment  and  paj-ment  of  Provincial  otticers. 
T).  Tlie  manaj,'einent  and  sale  of  the  public  lands  helongin^r  to  the  Province 

und  tlie  tiniher  and  wood  thereon. 
(I.  The  estahlishment,  maintenance  and  ninnajirement  of  Public  and   l{e 

fornuvtory  Prisons  in  and  for  the  Province. 
7.  The    establishment,     maintenance,    and    management    of    Hospitals, 

AsyluniH,   Charities,  and  Eleemosynary  Institutions  in  and  for  the 

Province,  other  than  Marine  Hospitals. 

5.  Mimicipal  Tn.stitutions  in  the  Province. 

il.  .Shop,   saloon,   tavern,  auctioneer,  and  other  licenses  in  order  to  the 
raisinjc  of  a  Keveiuie  for  Provincial,  Local,  or  Mimiciiial  purposes. 

10.  Local  works  and  undertakinj^s  other  than  such  as  are  of  the  following 

classes,  - 

".  Lines  of  steam  or  other  ships,  railways,  canals,  tele^craphs, 
and  other  works  and  undertakinj^s  connecting  the 
Province  with  any  other  or  others  of  the  Prcjvinces,  or 
extending  i)eyond  the  limits  of  the  Province  ; 

h.  Lines  of  steamships  between  the  Province  and  any  IJritish 
or  foreign  country ; 

c  Such  works  as,  altliough  wholly  situate  within  the  Province, 
are  before  or  after  their  execution  declared  by  tho  Parlia- 
ment of  Canada  to  be  for  the  general  advantage  of 
Canada,  or  for  the  advantage  of  two  or  more  of  the 
Provinces. 

11.  Tht!  incc)r|)oration  of  Companies  with  Provincial  objects. 

12.  The  solemnization  of  marriage  in  the  Province. 

13.  Property  and  civil  rights  in  the  I'rovince. 

14.  'liii.  ;'dministrati(m  of  justice  in  the  Province,  including  the  constitu- 

tiui.,  maintenance  and  organization  of  Provincial  Courts,  both  of 

civil  and  of  criminal  jurisdiction,  and  including  procedure  in  civil 

matters  in  those  Courts, 
li").  The  imposition  of  punishment  l>y  fine,  penalty,  or  inn)ri.sonment  for 

enforcing  any  law  of  the  Province  made  in  relation  to  any  matter 

coming  within  any  of  the  classes  of  sulijects  enumerated  in  thi.s 

section. 
10.  (ienerally   all   matters   of    a    nu>rely   local   or   private   nature   in   the 

Province. 


'20G  THE  CANADIAN   C'(»NSTITrTl<iN. 

A  penisal,  the  nioHt  curHoiy,  of  the  cliis.st's  oimnicj-iited 
in  tlu-  various  Hult-st'ctioiiH  ( m )  oF  tlu'so  two  si-ctions,  reNt'iils 
tliiit  if,  in  evory  cusc,  tlic  full  niitinul  incnninj;-  is  to  lu'  <;ivun 
to  tlu'  words  I'niployi'd,  the  classi's  nuist  incvitaKIy  o\t'r- 
la|).  Hut  the  Act  is  cii'ar  tl\at  tlu*  Juiistliction  in  each 
case  is  r-.n/^'N/rr  (/*),  and,  thrri'foiv,  in  the  case  of  one  of 
the  sections,  or  of  the  other,  or  of  l»oth,  that  full  natuivil 
meanin;;'  cannot  he  <;iven.  If  either  one  of  the  sections  is 
to  he  so  read  as  to  ^ive  to  the  lan^uat;'i'  used  in  every  one 
of  its  suh-.sections  its  full  natural  meaning,  the  other  sectiiui 
must  necessarily  he  read  as  a  suhoi'dinate  secti<»n,  and  the 
meaning  of  its  various  suh-st'ctions  so  limited  as  to  exclude 
those  suhject  matters  monopolized  hy  the  various  suh-sec- 
tions  of  the  favored  section.  If  neither  section  is  t<»  he 
set  up  as  a  favorite,  l»y  what  rule  or  rules  are  we  to  he 
j,>uided  in  reconcilinjj;'  them  :*  For,  reconcile  them  we  must, 
if  the  jurisdiction  in  eacli  case  is  exclusive.  The  first 
method  was  favored  hy  the  earlier  decisions  of  our  Supreme 
Coui't.  Section  f)l  was  set  up  as  the  predominant  section, 
and  this  fornuila  was  suggested,  and  practically  adopted 
hy  the  majority  of  the  court,  as  an  unerring  guide  to  the 
detei'mination  of  tlie  line  (tf  division  as  to  any  given  suh- 
ject matter : 

"  All  suhjects  of  whatever  nature  not  exclusively  assigned  to 
the  local  legislatures,  are  placed  under  the  supreme  control  of 
the  Dominion  parliament ;  and  no  matter  is  exclusively  assigned 
to  the  local  legislatures,  unless  it  be  within  one  of  the  subjects 
expressly  enumerated  in  section  92,  tnul  tit  the  same  tiinr  dnrs  ni>t 
inrolie  mv/  interj'ereuci'  with  muj  of  the  suhjects  emoiierateil  in 
Ht'ction  91"  (<>). 

(m)  Strictly  speaking,  they  are  not  sub-sections,  but  it  is  convenient 
to  speak  of  them  as  such. 

(h)  See  ante,  p.  67,  for  a  suggested  interpretation  of  this  word.  In 
addition  to  the  authorities  there  referred  to,  see  Todd,  "  Pari.  Gov.  Brit. 
Col."  p.  189,  et  seq. 

(o)  Per  Gwynne,  J.,  in  City  of  Frederickton  v.  Reg.  3  S.  C.  R.  at  p. 
568;  and  see  Citizens  v.  Parsons,  4  S.  C.  R.  at  p.  330. 


IIIK    DIVISION    (»r   THK    I'IKLK.  207 

H)i"l  tilis  I'iyid  t'oniiula  Iti-eii  tiimlly  »ulo[)t»'<l,  tlu'  pusi- 

tiiili  nl'    H    prdVilHM'    would    llUM'   iict'll    tllllt  of    U  VtTy  llliliol' 

iMiiiiiciioility,  mill  tin-  miioii  ot*  the  pro\inces  K'^islutiNc 
nitlicr  tliiui  tViU'iJil.  Its  mloptioij  ity  the*  Supivuif  Court 
WHS  Ijii'^t'Iy  owinn  to  a  iiiise(»nstrut'tion  of  tlu-  closiiijn'  words 
of  srt'tion  !M.  "  TIk'  clfiss  of  ninttt'i's  of  n  local  ^tv  j>ri\att' 
iiatiirc  '  WHS  lit'ld  to  wW'V  to  and  cmhracc  the  whole  of  the 
suit-sections  of  sectif»ii  !>2,  altliou^ili  the  siny,"ulai'  miniheris 
used  in  immediate  contradistincti(»n  to  the  plural — "the 
class  .  .  ,  coni[)rised  in  the  eiunneration  of  the  classes" 
— and  although  this  i;ranMnaticHl  reference  to  suh-sectioii 
Ktonlv  of  section  M2,  had  heen  dearly  I'ecoynizi'd  in  an 
eai'lier  jinl^inent  of  the  Judicial  Committee  of  the  I'rivy 
Council  (y).  The  lahors  of  tlu'  courts  would  certainly 
ha\t'  lieei)  matej-ially  lightened,  had  that  Cianmittee  ac- 
cepted this  formula.  While,  in  a  sense,  it  reconciled  sections 
U]  ami  {)2,  it  did  away  with  any  necessity  for  an  attempt 
to  reconcile  their  res[)ective  sul (-sections.  F(trtunateiy  for 
the  provinces,  the  Connnittee  has  decisively  rejected  this 
formula,  while  at  the  same  time  (as  we  shall  see)  adopting' 
it  up  to  a  certain  point  as  a  meth(jd  of  incpiiry.  The  view 
of  the  Connnittee  is  set  f»ut  in  a  case  (7)  which  nuist  now 
lie  consiilered  classic  on  this  vital  question,  in  the  ft)llowing 

ianyuau'e: 

"  The  scheme  of  this  legislation,  as  expressed  in  the  first 
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 
stopped  here,  and  if  the  classes  of  subjects  enumerated  in  section 
92,  had  been  altogether  distinct  and  different  from  those  in  sec- 
tion 91,  no  conflict  of  legislative  authority  could  have  arisen. 
The  provincial  legislatures  would  have  had  exclusive  legislative 

(/>)  L'Union  St,  Jacques  v.  Belisle,  L.  R.  0  P.  C.  at  p.  3.5.  See  the 
reporter's  way  of  putting  it  at  p.  33  ;  and  see  notes  to  the  final  clause  of 
sec.  91,  post. 

i'l)  Citizens  v.  Parsons,  7  App.  Cas.  96,  at  p.  107,  et  seq. 


20H  IHK  (  ANAIU.W    <  itNsini    lloS. 

power  over  the  sixteen  cliiaseH  of  Hiil)jeet:j  iiHsi^^'neil  to  tluin,  and 
tlie  HoMiinion  parliament  exulu.sivo  power  over  uM  othci'  niatter-< 
relating'  to  the  ^'ootl  ^'ovennnent  ot'  Canathi.  Hut  it  must  have 
hecM  t'oieseen  thiit  this  sharp  and  definite  distinction  hail  not 
heen  and  could  not  he  attained,  and  that  some  of  the  classes  of 
Huhjects  assif,'ned  to  the  provincial  !e<^'islatures  unavoidahly  ran 
into,  and  were  emhraced  hy  some  of  the  enumerated  classes  of 
subjects  in  section  1)1  ;  henct!  an  endeavor  appears  to  havt;  heen 
madt'  to  provide  for  casosof  apparent  conflict ;  and  it  would  seem 
that  with  this  object  it  was  declared  in  the  second  hninch  of  the 
Ulst  section,  "  for  ;,'reater  certainty,  hut  not  so  as  to  restrict  the 
}j;enerality  of  tin;  forei^'oiiif,'  tei'ms  of  this  section,"  that  (notwith- 
standing anything  in  the  Act)  the  exclusive  legislative  authority 
of  the  parliament  of  Canada  should  extend  to  all  matters  coming 
within  the  classes  of  subjects  er.  imerated  in  that  section.  With 
the  same  object,  apparently,  the  paragraph  at  the  end  of  section 
1)1  was  introduced,  though  it  may  be  observed  that  this  para- 
graph applies  in  its  gramnuitical  construction  only  to  No.  1(5  of 
section  5)2. 

"  Notwithstanding  this  endeavor  to  give  pro-eminence  to  the 
Dominion  parliament  in  cases  of  a  conflict  of  powers,  it  is  obvlou;* 
that  in  some  cases  where  this  apparent  conflict  exists,  the  legis- 
lature could  not  have  intended  that  the  powers  exclusively  as- 
signed to  the  provincial  legislature,  should  he  absorbed  in  those 
given  to  the  Dominion  parliament.  Take  as  one  instance,  the  sub- 
ject 'marriage  Jind  divorce,'  contained  in  the  enumeration  of 
subjects  in  section  91  ;  it  is  evident  that  solemnization  of  mar- 
riage would  come  within  tliis  general  description  ;  yet  'solemni- 
zation of  marriage  in  tluj  province  '  is  enumerated  among  the 
classes  of  subjects  in  section  SJ2,  and  no  one  can  doubt,  notwith- 
standing the  general  language  of  section  !)1,  that  tliis  subject  is 
still  within  the  exclusive  authority  of  the  legislatures  of  the 
provinces  (r).  So  '  the  raising  of  money  by  any  mode  or  system  of 
taxation  '  is  enumerated  among  the  classes  of  subjects  in  section 
01 ;  hut,  though  the  description  is  sutlioiently  large  and  general 
to  include  '  direct  taxation  within  the  province,  in  order  to  the 
raising  of  a  revenue  for  provincial  purposes,'  assigned  to  the 

()•)  See  3  B.  C.  R.  at  pp.  .'>(>8'.»,  wliere  Mr.  Justice  Gwynne  seelts  to  lit 
the  formula  above  (juoted  to  tlicse  two  sub-sections. 


riii:  DIVISION  (»t'   iiiK  riKi.h.  2()!> 

proviiK'iiil  lo;,'iHl:ituret»  by  section  !)2,  it  obviously  could  not  Imvo 
boon  iiittiitlL'tl  thnt  in  this  instiuieo  also,  the  general  powt-r  should 
ovfi-ridt'  tho  piu'liculiir  ono  {■■<).  With  rt',L,'ar<l  to  certain  classes 
of  subjects,  thorefoi't',  generally  described  in  section  i)l,  IcLjisla- 
tive  |ii)\ver  may  reside  as  to  some  matters  fallinj.;  within  the 
^'eneral  description  of  these  subjects,  in  the  le<,'islatures  of  the 
provinces.  In  these  cases  it  is  the  duty  of  tiio  courts,  however 
dirtieult  it  may  be,  to  ascertain  in  what  degrtfe,  and  to  what  ox* 
teut,  authority  to  deal  with  matters  fallint,'  within  these  classes 
of  subjects  exists  in  eacli  legislalun',  and  to  detine  in  the  partic- 
ular case  before  them,  the  limits  of  tiieir  respective  ))owers.  it 
could  not  have  been  the  intention  that  a  contlict  should  exist  ; 
and  in  order  to  prevent  such  a  result,  tlw  tno  sirtions  mnst  be  nnil 
tofii'tficr,  ititil  tfir  liimiiitiiif  of'  mic  iiitt'riintiil  inul,  n/nrr  nevcssni't/, 
iimtlitiiul  III/  that  nf  t/ir  ntlnr.  Ill  this  Way  it  may,  in  most  cases, 
be  found  possible  to  arrive  at  a  reasonable  and  practical  construc- 
tion of  the  lanj,nm^'e  of  the  sections,  so  as  to  reconcile  the  res- 
pective powers  they  contain,  and  <,Mve  etl'ect  to  all  of  them.  In 
performiiif,'  this  ditlicult  duty,  it  will  bo  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  (piestion 
in  hand. 

The  first  question  to  be  decided  is,  whether  the  Act  impeached 
in  the  present  appeal  (/)  falls  within  any  of  the  classes  of  sub- 
jects enumerated  in  section  92,  and  assigned  exclusively  to  the 
legislatures  of  the  provinces ;  for  if  it  does  not,  it  can  be  of  no 
validity,  and  no  other  question  would  then  arise.  It  is  only  when 
an  Act  of  the  provincial  legislature  iirinid  I'mie  falls  within  one 
of  these  classes  of  subjects,  that  the  further  (luestions  arise,  viz  : 
whether,  notwithstanding  this  is  so,  the  subject  of  the  Act  does 
not  also  fall  within  one  of  the  enumerated  classes  of  subjects  in 
section  !)!,  and  nhitlwr  tlie  jxtirer  of  the  jiroriurini  It'i/islntuiy  is,  nr 
in  not,  t/icrcliii  ttri'rhonu'." 

The  purt  italiciztMl  constitutes  the  essential  «listincti()n 
between  the  formula  alrea«ly  (pioted,  and  tlie  method  of 
eii(|nii'y  adopted  hy  the  Judicial  Coniinittoo  of  tliu  Privy 

(•-)  See  notes  fo  sec.  91,  s-s.  3,  post,  (0  A  provincial  Act. 

Can.  Con.— 14 


210     '  r»iK  <AN.\in.\N  rnNsiin  rrn\. 

(.^»Ull('il.  'I'lif  tuniiulii  <liil  iiwav  witli  nil  iM-ccsMitN-  \'ur  tin* 
tliinl  tiHUiiiy,  mul,  l>y  t'oiiM»'(|M«'iK't',  with,  us  \vr  lia\r  >n'\i\, 
all  iH'CfHsity  Jul- u  ri'C'<»nfiliiitii>ii  nf  tli*-  MiiimiM  Huli-M»'i'tii»iis 
of  Ht'ctitniN  !M  utnl  !»2. 

Till'  stjitiitf  iiii|»ii!niir(|  ill  tilt'  C'liHr  h'oiii  which  wr  ha\f 
«|Ui>t«'<l,  was  a  prnviiicial  Act,  Imt  in  aimtlHT  casr  in  the 
Haiiit'  \oluiiit' (<»).  the  MTV  Naiin-  intthnij  of  enquiry  was 
a<l<»|)t»'il  ill  rt'ft'rciicc  to  a  Duiiiinioii  Act,  ami  has  sine*'  Imtii 
n-aHinii('<l  Ky  (Ik-  sniii*'  triluiiiMl  as  ]a'ii|u'i'  in  rcHin-tl  toltnth 
Ddiiiiiiioii  and  Provincial  lt';;islation,  'i'hc  j»ro|nit'ty  of  this 
nit'thoil  of  riKinir}-  was  Unally  tstalilishcil  when  tlu' 
I'xhaustivt' character  of  the  division  t'tli'ctt'ti  hy  the  li,  N.  A. 
Act  was  tIcHnitcIv  enunciated  ('). 

Altlmunh  the  .hulicial  ('(»iiiniitt f  the  I'riNy  Council 

hm  fre(|Uentl\"  reiterated  the  caution  against  ■  eiiterinj'- 
iih'ie  lai'u'ely  upon  an  interpretatiiui  of  the  statute  than  is 
necesMary  for  the  decision  of  the  |»artieular  «|Uestion  in 
hand,  an<l  in  a  late  case  O'V  has  laid  <lown,  tliatc«airtsof  law 
'■  must  treat  the  jaovisions  of  tiie  Act  in  (|Uestion  liy  the 
same  metht>ds  of  construction  and  ex)>osition  which  tlu-y 
ajiply  to  other  statutes,"  their  iud;^inents  do  lay  down  a 
iiumher  of  rules  of  construction  applicalile  to  the  elucidation 
<»f  these  two  sections  of  the  H.  N.  A.  Act,  which,  even  if  not 
exclusively  applicalde  to  this  statute,  are  certainly  peculiarly 
helpful  in  interpreting  its  meaning'. 

(a)  T/ie  sect  lolls  htnsf  hr  rt'iiil  tdi/cl/wr,  ti  ml  the  l<i  iif/niii/c 
>i)f  thf  (Htf  I Dfci'pretcil  mnl,  ir/tcrc  iwccisoi't/,  itu)d[f\c(l  hi/ 
that  off/if  i>f/irr(j'). 

This  rule  is  not  t(»  he  limited  to  a  comparison  and 
reconciliation  of  one  suh-sectioii  of  section  fH,  with  an 
jip})arently  contiictinn-  suh-sectitm  (»f  section  02.     In  order 

(u)  Russell  V.  Reg.,  7  App  Cas   H'2'.i  ;  at  p.  !^3I1. 

(i)  See  ante,  p.  "201. 

(ic)  Bank  of  Toronto  v.  Lambe,  1"2  App.  Cas.  at  p.  57!». 

(.t)  Citizens  v.  Parsons,  7  App.  Cas.  S»0 ;  see  the  entice  passage  quoted, 
HJite,  p.  '207,  ('(  neq. 


TIIF.    hfVlHloV   OK  THF.    FIELD  211 

in  arrivi'  at  tin-  iiifiiiiin;;  nf  any  sult-Hrctioii  of  (say)  section 
Ml,  tin-  oIImt  Mul»-H«'cti<»ns  (if  tliat  saiiic  srctiMn  imist  lu* 
fxainiiinl.  As  a  rfsult  <»t'  such  rxainiimtion,  there  h<is  hec'ii 
siiLiyt'stcM  what  may  I'e  callefl  a  sul>-nile  nf  eoiistriK'tiou 
which  has  Ik'cii  a))|>lieil  in  a  uuiiiIht  uf  caneN  to  limit  the 
M('u|ie  of  Hotiie,  at  least,  ol"  the  suh-sectiuus  nf  sec'tiitll  !M. 
Ill  Idle  of  the  earliest  cases  (//)  which  came  hefure  the 
.liniieiiil  ( 'omiiiitt«'e  of  the  l'ri\y  Council,  iiiMiKini;'  con- 
siijeiation  of  suh-section  21,  of  section  MI, — "  liankruptcy 
)in<l  insolvencN'  " — the  C'onunittee  speaUini''  ^eneraiU'  of 
section  Ml  sav  : 

"  Their  Lonlships  ol)Herve  that  the  scheme  of  eninneratiou 
in  tliat  section  is  to  mention  various  ciitej,'orie3  of  general 
Huiijects  which  nuiy  he  dealt  with  hy  le;,'islation.  There  is  no 
iutliciition  in  uni/  /■>^><^/»<vof  anythin<,' heiu},'  contemplated,  except 
what  may  he  properly  described  us  general  lej,'islation  ;  such 
le^'islation  as  is  well  expressi'd  hy  Mr.  Justice  Caron,  when  he 
speaks  of  the  ^'cneral  laws  governing  Faillite,  hankruptcy  and 
insolvency,  all  which  are  well-known  legal  terms  expressing 
systems  of  legislation,  with  which  the  subjects  of  this  country 
and  probably  of  most  other  civilized  countries  are  perfectly 
familiar. 

This  lany'uaye  was  used,  as  we  have  said,  in  ivfeivncc 
to  section  Ml  jjfcnerally,  and  has  never  been  adversely 
criticized  in  sul)sei|uent  jud;;inents  of  the  Committee.  The 
principle  has  been  applied  to  a  numher  of  the  other  huI>- 
sections  of  section  Ml.  In  the  very  case  from  which  the 
lule  is  (juoted,  the  meanine-  of  the  terms,  "  regulation  of 
trade  and  connnerce  "  (:)  was  restricted:  (1)  because  their 
collocation  with  classes  of  sulijects  «»f  national  and  general 
Concern,  affords  an  indication  that  reuulations  relatin}"'  to 
general  trade  and  commerce  were  in  the  mind  of  the  legis- 
lature when  conferrini;  this  power  on  the  Dominion  par- 
liament: and  (2)  because  unless  intended  to  have  a  limited 
meaning  they  would  have   rendered  unnecessary'  the  .sub- 

(;/)  L'Union  St.  Jacques  v.  Belisle.  L.  R.  6  P.  C.  31  at  p.  36. 
(:)  9-9.  '2;  &e3  the  notes  to  this  s-s. 


•212  Till;   CANADIAN   CUN.M  1 1  L  TH)N. 

MfctioiiH  ilt'iiliiiy  with,  «'.//.,  I>iiiikiny,  \v«'i;;litH  uimI  inriiMUiVH, 
ii«';ii»tiiil)l«'  iiiHtiMiUH'iitM,  «'t«'.  (").  So  ill  ri'ft'i«'iic«'  to  li'y;iHlu- 
tioii  I'l'liitiii;*  to  imvi^jiitioii  uiitl  sliipiiiiiM  (/«);  hut  jiiMt  liow 
t'ur  this  I'uh'  of  coiiMtnictioii  is  to  he  iipplinl  to  I'uch  our  of 
tht'  vjiiioiis  suh-sfctioiis  ol'  s»'('tioii  !M,  is  iiitittci' of  i|oiilit> 
us  a  rcltit'iicr  to  the  \iirions  cjiscs  which   hiivr  uiisfii  miii 

hrj'll  i|t'C'i<h'tl  UlltliT  those  VlU'ioUS  Mllh-srct  i<  »MS  will  fhsclosf. 

Ki'Vi'i'tiii;;'  howt'VtT  to  the  nih'  iil>ov»'  liiid  <Iowm,  so  Ihp 
us  it  I'lijoiiis  II  coiiipurisoii  of  th«*  vurioiis  siih-scctions  of 
section  !M  with  uppnreiitly  coiitlictiiiy  suh-Heetions  of 
section  !)2,  Mini  rirr  nrsit,  we  liiuy  point  out  tliut  the 
pussu^je  we  hiiM'  (|Uote<l  from  Citi/.eiis  V  Pui-Hoiis  uHiinl.H 
two  inMtances  of  its  npplicution,  uiul  we  nee<|  not  in  thin 
pluce  eiilur^ie  Upon  the  rule,  US  Very  few  cases  urise  which 
<lo  not  cull  for  its  upplicutioii. 

(1»)  /it  niulir  In  ili'i'ii'r  ill  llir  jirofU'i'  iiiril  ii  I  inf  nf  tin' 
lun'imls  siih-srri iDiis  itf  l/irsr  I irit  serf  imis,  itlhri'  niii'lx  nf  lln' 
Ii.  A.  A.  All,  ililil  nf  nl/ii'f  I  III  jiri'iill  Alls,  in  iiili'i  uiillri'iil 
iiiil  11  III'  Innhril  ill  (r). 

K<»i' exuiiiple,  in  construing- suh-sectioii  2  of  sectit»u  !)l, 
the  iiieunin^  propi'r  to  he  ;^iven  to  the  terms,  "re;^ulution  of 
tru<le  uml  commerce,"  wum  to  a  certain  extent  determiiu'tl 
liy  the  meaning'  ^iveii  to  a  somewhat  similar  [ihra.se  in  the 
Union  Act  which  Joined  Scotland  to  Kn;L;'land  in  legislative 
union  (</).  i^^^^^  the  meanine'  t  >  he  eivj-n  to  the  J.Sth  suh- 
section  of  ,scction  1)2,  "pro[)erty  and  civil  rij^hts  in  tlie  pro- 
vince," wa.s  elucidated  l>y  reference  to  tlie  saim;  phra.se  in 
section  1)4  of  the  \^.  X.  A.  Act,  and  in  section  H  of  the 
(^lehec  Act,  1774  (^')- 

(c)  Thi:  Inn:  nulnrr  uinl  c/m I'lirlrr  of  flu'.  Icfftsluf inn  i ii 
llii'  ixii'tlciild r   iiisfuiiiT    II  ii(h'r  il isciiHsioii,  niiisf  diii'ii ijx  he. 

{a)  7  App.  Cu8.  at  p.  112. 

(b)  See  notes  to  sec.  01,  s-a.  10,  pout. 

(c)  Citizens  v.  Parsons,  7  App.  Cas.  %. 

((/)  See  the  passage  (pioted  in  the  notes  to  sec.  i)l,  s-s.  2,  pont. 
(<')  Sea  note  (e)  ante,  p.  ltd ;  and  notes  to  sec.  92,  s-s.  13,  pout. 


THK    DIVISION   OK  TIIK    KIKI.D.  2|.'i 

ih fn'itii ni''f  ill  ni'ihr  ^»  iiMtri'ttt} II  llir  rliiHH  of  miUii'vt  tit 
vhli'h  if  I'fiilhf  Itflniii/s, — (>»',  In  nfln'r  il'miln,  irjnil  is  f/if 
jn'i  niiifil  iiiiiffrr  itt'iilt  ii'lf/i  f  (f). 

Applying  ^'''^  lulr  nf  coiiMtniclioii,  tin-  .linlit'iu!   Cniii- 

iiiittt I"  tlic  Privy  Cotiiicil  Ih'M  («/)  that  tin- ( 'iiimiln  Tt'iii- 

pmiiK't'  Aft  wiiM  tu»t  IcHislittiuii  on  the  Mulijfct  of  licenses 
oi-  ri'liitiiiy  to  cIn  il  riylitN  in  a  pruN  iiicr,  Kiit  m  lu-rul  li-yisln- 
tiiMi  tor  tlif  nrdci'  a  lit  I  muud  yuxcrmin'iit  of  tlu'  Doiniiiinij;— 
that  the  Act  r«'sp«'('tiii;;'  iiiiifoiiii  (•(aulitiniis  in  tir»' insinanct' 
pnli('i«'M,  was  l«';;ishitinii  rfMpi'ctin;^'  "  pruprrty  and  civil 
liuhtM  in  thi'  province,"  ami  imt  n-spcctin;;'  "the  rf;4nhitiun 
<»f  trade  and  cnniineicr"  in  thr  proper  Hcnsc  of  the  hitter 
Mtih-Hfctioii  (A); — that  the  iinpn.sitinn  of  a  stamp  duty  on 
|Mtlici»'s  i.f  insurance  was  nut  a  lici'nse  Act,  alth(»u;;h  so 
caMiMl  in  the  iinpuyiieil  statute  (/): — that  an  Act  for  h-vy- 
in^'  a  rate  to  pay  a  honus  to  an  existing;'  railway,  was  not 
an  Act  respectiiiy  "local  works  and  undertakin;;s,"  and 
therefore  was  not  sultject  to  tin*  exci'ptions  nu'utioned  in 
the  sul»-secti<»n  dealiny'  with  those  matters  (/") — that  an  Act 
ill  re;;ulation  (»f  the  internal  affairs  of  a  particular  corpora- 
tion was  not  a  hanUiuptcy  or  insoKency  Act  {/,•). 

(d)  If,  mi  the  il III'  nmsfriKtiini  of  the  Act,  n  Ici/lKlnfi I'c 
linii'/r  1)1'  finniil  to  full  irif/iin  ilf/icr  .srrtioii,  if  ivoiilil  In' 
(ji'lfi  ii'i'oiiif  to  ili'iiji  its  r.iiKtrnri'  Item  Use  hi/  mnnc  fuissihi- 
lilil  it  mil  11  In'  iihnsi'il.  or  iiii'i/  limit  tlir  I'li iii/r  which 
ofliii'ii'isr  iroiilil  hi'  ofH'ii  to  the  other  li'i/isliitti re  (/). 

(e)  Siihji'rf.s  which  in  one  Hxpcct  mu J  for  one  inirpot^e 
full  within   section   U.i,  may,  in  iinofhrr  iis^tect  uml  for 

'11  iiofhi'r  jiii r/iosc,  foil  within  section  Ul  (»*). 

(/)  Russell  V.  Re«.,  7  App.  Cas.  829;  at  p.  839. 

,(,'/)  Russell  V.  Reg.,  uhi  xiipni. 

•(/()  Citizens  /  Parsons,  7  App.  Cas.  0(5. 

•(/)  Reed  v.  Atty.-Genl.  of  Quebec,  10  App.  Cas.  141. 

.(j)  Dow  V.  Black,  L.  R.  0  P.  C.  '272 ;  see  notes  to  sac.  92,  s-s.  2. 

■{k)  L'Union  St.  Jacques  v.  Bolisle,  L.  R.  0  P.  C.  31. 

(l)  Bank  of  Toronto  v.  Lambe,  12  App.  Cas.  at  p.  587. 

^w)  Hodge  V.  Reg.,  U  App.  Cas.  at  p.  130, 


214  THE   CANADIAX   COXSTITrTIOX. 

Wo  (U'lil  witli  thi'se  two  nih's  ti»<jvtlu'i",  l^'ouuso  tlu'V 
both  siiiij^vst  tho  oxistt'iJC*'  of  possibly  coiicunvnt  powers  ( //)• 
probably  the  iii<»st  jK'rpk'xiiii;'  i|nc'sti<»ii  whieb  arises  uiuUr 
these  sections  of  the  B.  N.  A.  Act.  In  oi'dor  to  deal  intel- 
ligently with  tliis  (|iiestion,  we  must  t  ndeavor  tf»  <;et  a  dear 
idea  of  the  meaning  of  the  plirases  "  nnifflrt  of  Itnrs,"  and 
"concurrent  jxuvcrn."  Any  case  which  conies  u])  tor 
judicial  (lecision  involves  the  application  of  law  to  facts- 
The  law  applicable  may  i)e  uiujuestionecb  and  the  dispute 
be  aH  to  the  facts,  or,  the  facts  bein<^'  determined,  the  dis- 
pute may  be  as  to  the  law  applicable  tliereto.  This  latter 
aspect  is  the  one  with  which  we  have  to  deal.  As  Von 
Savigny  puts  it,  out  of  any  given  state  of  facts  aiise 
"  legal  relations,"  one  or  more,  capable  presumedly  of  a 
definite,  ab.solutely  correct  determination.  As  to  any  one 
of  these  legal  relati(ais  there  cannot  l>e  a  contiict  of  law- 
Of  any  nuniber  of  laws  put  forward  as  determining  the 
"  legal  relation,"  one  only  is  the  law  which  governs.  The 
views  of  advocates,  and  even  judges,  may  conflict,  but  the 
law  though  it  may  l»e,  from  time  to  time,  varied  at  the  will 
of  the  law-making  body  in  tlie  state,  is,  at  any  given  moment 
of  time,  a  thing  certain.  It  follows  that  there  cannot  be 
two  statutes  (k^termining,  in  «lifierent  ways,  any  one  of  the 
legal  relations  which  is  to  arise  from  any  given  state  of 
facts.  If  there  be  two  statutes  purporting  .so  to  do,  one  of 
them  must  l.)e  of  no  legal  effect,  either  because  rejtealed  by 
the  other  (o),  or  by  some  rule  of  law  made  subordinate 
thereto  as  to  the  particular  legal  relatimi.  It  follows,  too, 
that,  unless  '  chaos' ha.s  come  again,'  there  cannot  be  in 
two  legislative  bodies  concurrent  powers  of  legislation  in 
reference  to  the  .same  legal  relation,  in  the  sense,  that  in 
the  same  moment  of  time  the  enactment  of  each  is  law^  ( i>). 

(n)  Jessel,  \I.R.,had  su^jgested  this,  in  Atty.-Gen.  of  Quebec  v.  Queen 
Ins,  Co.,  3  App.  Cas.  at  p,  1097. 

(o)  This  is  sometimes  discussed  as  a  conflict  in  tn»w ;  the  other  as  a 
conflict  in  space. 

(p)  See  however  per  Wilson,  J.,  in  Reg,  v.  Taylor,  3G  U.  C.  Q.  B.  at 
p.  206. 


THi:    KIVISION    (»K   TIIK    FIELD.  215 

This  is  rec(»;;iiizi'<l  in  tlif  li.  N.  A.  Aet,  lor  in  SL'cti<»n  !>•';, 
xvlitTf  puwors  of  U'j^isliitioii  aiv^^'ivfu,  over  the  .suiiie  snlijt'Ct 
inattfr,  to  lioth  the  Doiiiinictn  an<l  the  Provincial  Ic^isla- 
tureH.  there  is  the  express  provision  that  the  legislation  is 
not  to  he  concurrent;  that  the  enactment  <»t"  a  Provincial 
lejjislature  is  to  1>e  law  (»nlv  in  the  altsence  of  Dominion  leu- 
islation  upon  the  suhject  matter.  The  first  of  the  two  rules, 
at  the  head  of  this  para;.ira])h,  would  seem  to  indicate  that 
in  the  view  of  the  Judicial  Connaittee  of  the  Pri\ y  Coun- 
cil, the  ahsence  of  let;islatit»n  hy  oiu'  legislature,  Dominion  m- 
provincial,  u|ion  the  particular  suhject  matter  may  inci'easc 
the  ran^'e  open  t(»  the  othei".  This  view  has  to  he  reconciled 
with  the  use  of  the  term  "exclusive  powoi',"  in  reference  to 
each  enumeration  (tf  clas.ses  of  subjects:  or,  if  there  is  tio. 
l)ossihle  mode  of  reconciliation, the  view  of  the  Privy  C<aincil 
must  he  an  unsoun<l  ohifci'.  The  way  of  esca})e  seems  to  lie 
su^nested  l>v  the  second  of  the  I'ules  at  the  head  of  this 
[)arai;i'a[)h.  The  different  aspects  any  ^^iven  suhject  may 
jiresent,  have  reference  to  the  different  'le<^al  relations'  tliat 
may  arise,  or  (from  a  le;;'islative  standpoint)  1»l'  created  in 
eoiniection  with  that  suhject.  Now,  those  two  sections  of 
the  B.  X.  A.  Act,  deal  with  the  various  enumerated  classes 
of  suhjects,  not  as  divisions  of  facts,  1  tut  as  divisions  of  le^al 
relations.  Insolvency,  for  example,  is  not  a  fact  at  all  : 
civil  rights  are  not  facts — hotli  a)-e  leu'al  relations  arisin!>' 
out  of  a  certain  juxtaposition  and  co-relation  of  facts 
Without  unduly  enlaru'inu-  upon  this  theme  it  seems  to  us 
that  a  correct  appreciation  of  this  principle  of  division  will 
help  to  make  clear  just  in  what  sense  legislation  l)y  one 
legislature  (Dominion  or  Provincial)  may  lessen  the  range 
<»pei^  to  the  other  ;  in  what  sense  the  legislation  of  o)ie  may 
interfere  with  the  leiiislation  of  the  otlier.  In  the  case  from 
which  the  first  of  the  rules  now  being  discusse<l  is  quoted^ 
that  rule  was  applied  to  uphold  the  taxation  of  lianks  by 
provincial  legislation  (under  section  02,  s-s.  2),  notwithstand- 
ing that  "banking,  the  incorporation  of  banks,  and  the  issue 
of  paper  money,"  is  one  of  the  classes  of  subjects  assigned 


21(1  THK  CAXADIAN   fnN'STITrTinN'. 

to  tlic  cxclnsivi'  kfii  of  tlic  Doiniiiion  parliaiiiciit.  Should 
the  Dominion  |)iirliaMit'nt  n'|)fjil  all  cxistiny-  laws  u|)(»n  this 
hoad,  the  h'n'nl  relation — a  hank— would  he  non-existent, 
could  not  l)e  created  hy  provincial  leuislation,  and  coidd 
not  he  seized  Upon,  theret'oie,  in  ordei-  to  attach  to  it  the 
Further  leyal  relation  of  liahility  to  pay  taxes  t(»  the  j»ro- 
\  incial  treasury.  And  on  the  (»ther  hand,  an  excessive  tax 
upon  hanks  nii<;ht  possihly  operate  to  prevent  the  co- 
rtdation  of  facts  ai'isiny-  in  any  particular  instance,  upon 
which  l^oniinion  legislation  might  attach.  No  suhject 
matte)'  has  lieen  more  fruitful  in  produciny-  cases  for 
decision  under  tlie  B.  X.  A.  Act,  than  the  li(pior  trattic  (q), 
The  Jn<licial  Connnittee  of  the  Privy  Council  has  in 
effect  held  ( i')  tliat  the  I)omini<»n  parliament  may  create 
such  legal  relations  out  of  the  facts  of  the  li(|Uor  traftic,  as 
to  prevent  the  creation  l)y  provincial  legislation  (»f  other 
legal  relations  out  of  t!»e  same  facts:  or  perhaps  we  should 
rather  say,  the  Dominion  i^arliament  has  power  to  prevent 
the  facts  themselves  from  having  an}'  existence  capable  of 
legislative  ivcognition  by  a  provincial  legislature. 

In  an  earlier  case  the  extent  of  the  power  of  the  Do- 
minion parliament  along  the  line  of  bankruptcy  an<l  insol- 
vency was  authoritatively  (enunciated  by  the  same  tribunal 
(x),  and  the  power  of  the  provincial  legislatures  along  the 
same  line,  (now  that  we  have  no  Dominion  law  upon  this 
subject)  has  been  fre(|uently  discussed.  It  is  submitted 
that  in  the  absence  of  legislation  by  the  Dominion  parlia- 
ment, creative  of  any  such  legal  relation  as  bankruptcy 
<»r  insolveriicy,  the  provincial  legislatures  have  full  power 
(under  section  02,  sub-section  13 — "property  and  civil  rights 
in  the  province  ")  to  create  such  legal  relations  out  of  the 
facts  of  commercial  life  as  to  ensure,  if  deemed  expedietit, 

[q]  See  notes  to  sec.  91,  s  s.  2,  and  sec.  92,  s-s.  8  and  9. 
(r)  Russell  v.  Beg.,  7  App.  Cas.  829. 

(s)  Gushing  v.  Diipuy,  5  App.  Cas.  409,  at  p.  415 ;  and  see  L'Union 
St.  Jacques  v.  Belisle,  L.  R.  G  P.  C.  31,  at  p.  3(.> ;  and  notes  to  sec.  91» 
S-3.  21,  vost. 


THK    DIVISION    OK   TMK    KIKMi.  217 

tilt-  t'i|uitiil»K'  ilistrihution  (»t"  tin-  ('stutc  of  a  man  wli<»s«' 
assfts  do  not  covtT  liis  lialtilitics,  and  to  onHiiiv  also  tlu'  dis- 
charge of  the  <l('l»toi'  fi'oni  tlu'  lialancc  <»f  sncli  lial»ilitit's. 
In  tlic  aliHonce  of  legislation  ]\y  the  Dominion,  no  set  of 
facts  can  constitute  a  le^al  r«'lati(»n  to  l»c  known  as  l)aid<- 
niptcyo)- insolvency  (t).  By  creatin<;' such  a  leyal  relation, 
to  arise  from  such  co-relation  of  facts  as  to  the  Dominion 
parliament  mi<iht  seem  meet,  the  })ower  of  the  provincial 
legislatures  would  he  curtailed.  Any  attemjtt  to  state  the 
rsscnfiiil  elements  of  l)ankruptcy  and  insolvency  legislation 
outside  of  a  le;^islative  definition  of  those  terms,  leaves  one 
ahout  as  nuich  in  the  dark  as  d<tes  Milton's  (lescrii)tion  ()f 
Death. 

(f)  The  /n'csutiipfton,  In  <ntt/  i/lrcn  ctisc,  is  lu  favoi'  of 
f/ic  rulUHhj  of  (I  U   iti'juUfiH'd  Act. 

In  the  celebrated  case  (a)  involving  the  validity  of  the 
Dominion  Controverted  Elections  Act,  liS74,  the  Judicial 
Committee  f)f  the  Privy  Council  laid  down  the  rule  in  this 
lanuua»ie  : 

"  It  is  not  to  be  presumed  that  the  legislature  of  the  Dominion 
lias  exceeded  its  powers  unless  upon  grounds  really  of  a  serious 
character." 

In  numerous  suhsequent  cases  the  principle  has  been 
invoked.  One  of  the  latest  expressions  of  the  rule  is  that 
"in  cases  of  doubt  every  possible  presumption  and  intend- 
ment will  be  made  in  favor  of  the  constitutionality  of  the 
Act"  (r).  It  does  nf)t  apply  to  an  Act,  the  language  oi 
which  is  unambiguous,  and  the  effect  (if  the  Act  be  held 
valid)  clearly  l)eyond  the  competence  of  the  legislature  1)} 
which  the  Act  was  passed.  It  indicates,  rather,  a  principle 
of  interpretation,  and  may  be  put  thus :  If  possil)le  such 
a  meaning  will  be  given  to  a  statute  as  to  uphold  its  validity, 

(t)  "  Persons  who  may  become  bankrupt  or  insolvent,  according  to 
rules  and  definitions  prescribed  by  law  "— L.  H.  6  P.  C.  at  p.  36. 
(")  Valin  V.  Langlois,  5  App.  Cas.  115. 
(i)  Reg.  V.  Wason,  17  O.  A.  R.  221 ;  per  Burton,  J. A  ,  at  p.  235. 


21H  THE   CAX.'DIAN    rnXsTITrTloN. 

for  »i  k';;islativi'  Ixtdy  must  Ik'  IicM  t»»  iiitoml  to  k('i'|)  witliiii 
its  powHTs.  No  strong  !•  instancv  of  tlio  ajiiilicatioii  of  tins 
jiriiicijilf  of  iiiti'rpi'ctation  couM  \\v  eit('<l  than  that  aHonlnl 
hy  tlic  very  rt'cent  case  whicli  canu'  ln-fort'  the  Ju<lii'ial 
(.'oininittt'o  of  the  I'rivy  Council,  from  New  South  Wales 
( ir).     The  legislature  of  that  colony  lunl  enacte<l : 

"  Whosoever  bein^'  marrieil,  marries  another  person  diu-ini,' 
the  life  of  the  former  husband  or  wife,  wheresoever  such  seLoml 
mnrria<,'e  takes  place,  shall  be  liable  to  penal  strvitude  for  seven 
years." 

The  Lor«l  Chancellor  (Loril  Halsltury),  in  <leliverinn  the 
jii«l«;nient  of  the  Connnittoe,  says: 

In  the  first  place  it  is  necessary  to  construe  the  word  'whoso- 
ever' ;  and  in  its  proper  moaninj,'  it  comprehends  all  persons  all 
over  the  world,  natives  of  whatever  country.  The  next  word  which 
is  to  be  construed  is  '  wheresoever.'  There  is  no  limit  of  person 
according  to  one  construction  of  '  whosoever,'  and  the  word 
'  v»'herescever,"  is  equally  universal  in  its  application.  Therefore, 
if  their  Lordships  construe  the  statute  as  it  stands,  and  upon  the 
bare  words,  any  person  married  to  any  other  person,  who  marries 
a  second  time  anywhere  in  the  habitable  globe,  is  amenable  to 
the  criminal  jurisdiction  of  New  South  Wales,  if  he  can  be 
caught  in  that  colcny.  That  seems  to  their  Lordships  to  be  an 
impcssible  construction  of  the  statute  ;  the  colony  can  hii\e  no 
such  jurisdiction,  and  their  Lordships  do  not  desire  to  attribute 
to  the  colonial  legislature  an  eti'ort  to  enlarge  their  jurisdiction 
to  such  an  extent  as  would  be  inconsistent  with  the  powers  com- 
mitted to  a  colony,  and,  indeed,  inconsistent  with  the  most 
familiar  principles  of  international  law.  It  therefore  becomes 
necessary  to  siiurli  fm-  liinitatiitiis  to  see  what  would  be  the 
reasonable  limitation  to  apply  to  words  so  general ;  and  their 
Lordships  take  it,  that  the  words,  'whosoever  being  married,' 
mean,  '  whosoever  being  married,  and  who  is  amenable,  at  the 
time  of  the  offence  committed,  to  tlie  jurisdiction  of  the  colony  of 

New    Soi'th    Wales.' '  Wheresoever  '  may 

be  read,  ■  wheresoever  in  this  colony  ' It  appears 

to  their  Lordships  that  the  effect  of  giving  the  wider  interpretation. 

(if)  Macleod  v.  Atty.-Genl.  of  N.  S.  W.,  A.  C.  (1891)  loo. 


THK    l)IVISI(»\   OK   THE    FIKIJ).  'il!* 

to  tliis  st;ituto  wi)iilil  1).;  ....  that  tho  stiituto  w.is  iilti'i 
tins  of  tlu'  ctdoniiil  legislatufo  to  pass.  Tlu'ir  liordships  nw  far 
from  siigijostiii!,'  that  t!iu  le^'islaturi'  of  tho  colony  did  mean  to 
^ive  to  themselves  so  wide  a  jurisdiction." 

a  m-at  way  of  "  K'ttiiii;'  thiMii  down  easy  I  '  Wluit 
tlu-  colonial  k'nislatm-i-  tli<l  rcallv  intcml  can  hanllv 
111'  niatU'V  of  <l»ml»t,  Init,  in  favor  of  validity,  it  was  la'hl 
that  they  conhl  not  be  even  .sn])i)ose<l  to  have  intended  to 
yo  lieyond  the  limits  of  their  le;nislative  competence  (./•). 

The  H.  X.  A.  Act,  as  we  all  know,  is  largely  foinided 
on  the  resolntions  of  the  (^nehec  Conference,  and  the 
(juestioii  naturally  arises,  how  far  may  these  resolutions  lie 
looUed  at  in  inter[)retin^'  the  B.  N.  A.  Act  ^  Canadian 
judges  have  fre(|Uently  quoted  from  the  resolutions,  and 
have  utilized  them  to  aid  in  the  construction  of  douhtful 
nassaye-*  in  the  Act:  hut  it  is  worthy  of  note  that  the 
triliunal  of  last  resoi-t — the  .ludici;d  Connnittee  of  the 
:*rivy  ('(unicil — has  never  made  reference  to  tlu-m  in  its 
juduuients.  In  the  di'cision  of  (piestions  strictly  Ie;^al — 
such  as  would  come  liefore  the  c<turts  rather  than  hefore 
the  lei.'.islatures — these  resolutions  can  afi'ord,  at  all  events 
at  this  date,  verv  little  assistance,  and  at  tlie  most  onlv  in 
the  altsence  of  all  li^ht  from  other  parts  of  the  statute,  or 
in  cases  perhaps  where  these  resolutions  might  clearly  sup- 
])ort  or  negative  one  of  two  possible  interpretations.  The 
fact  that  the  B.  N.  A.  Act  nnist  i>e  judicially  interpreted  as 
expressing  the  will  of  the  Imperial  parliament,  rather  than 
of  the  federating  provinces,  tends  to  make  it  very  doubtful 

(.r)  See,  also,  Atty.  Genl.  for  Canada  v.  Atty.  Genl.  of  Ontario,  '20 
O.  11.  at  pp.  '24o-(5,  and  19  O.  A.  R.  at  p.  SH.  Many  other  canons  of  con- 
struction will  be  found  throu'^hout  the  cases  which  have  involved  con- 
sideration of  the  B.  N.  A.  Act.  See  notes  to  the  various  sections,  po^t. 
In  this  place  wi  hav3  endeavjrjd  ti  gather  into  one  chapter  the  most 
important  of  those  rules  which  aid  in  the  determination  of  the  line  of 
ilivision  between  the  Dominion  and  the  Provinces.  It  should  perhaps  be 
noticed  here  that  the  Judicial  Committee  of  the  Privy  Council  have  not 
been  unmindful  of  the  large  political  character  of  the  B.  N.  A.  Act. 
See  Atty.  Genl.  of  Ont.  v.  Mercer,  8  App.  Cas.  at  p.  773. 


±H)  THE  CAXAIUAN   foXJSTITrTlnN. 

li«i\v  far,  if  at  all,  it  is  j>ru|H'i'  to  i-ctVi'  to  tln'sc  I'csolutioiis. 
Tilt'  t'aot,  too,  that  tlu'y  wcii-  suli'n'fti'il  to  itn  isioii  liy  tlif 
<lt'k'yat('H  tVoiii  tlif  \arious  pi'oviut'cs,  at  London,  n-ndrrs 
tlicni  still  niorc  nin't-lialilf  as  Iri/n/  HuiiU-s  to  the  intcrprt'- 
tation  of  tilt'  l>.  N.  A.  Act. 

'rin'if  is  anotli«'i'  matter  wliicli  merits  int'ntion  in  this 
jilacc,  tlu'  extent,  namely,  to  wliicli  we  may  avail  ourselves 
of  the  judicial  decision.s  of  the  Anu'iican  CNaiits — particu- 
laily  of  the  Sui»i'eme  Court  of  the  Unite»l  States — upitn 
cases  involvintj;'  in(|uiry  as  to  the  powers  of  Con^i'e.ss  and 
the  State  leyislatures  respectively.  They  are  not,  of 
course,  authorities  l»indinn'  u])on  (an*  ctairts,  hut  undei" 
proper  safeguards,  are  \-ery  valuahle  aids  to  the  study  of 
4 air  Act  (//).  The  real  ditficulty,  the  risk  even,  in  utili/,in^' 
them  for  purpo.ses  of  illustrati(»n,  ai'ises  from  the  difiei'ence 
not  only  in  the  princii)le,  lait  also  in  the  method  of  division. 
There  are  certain  matters  on  which  neither  tlie  Dominic »n 
pailiament,  nor  a  provincial  leyislature  can  legislate  (z); 
and  so,  under  the  American  system,  there  are  certain  laws 
which  neither  Congress  nor  a  State  legislature  can  pass. 
Hut  thei'e  is  not  the  slightest  grcamd  for  comparison  as  to 
the  nature  and  character  of  the  subjects  which  are  with- 
held from  the  legislative  competency  of  our  legislatures 
and  theirs,  respiictively.  We  are  debarred  from  legislating 
upon  certain  matters,  because  those  matters  are  deemed 
to  he  of  Imperial  concern,  while,  on  the  contrary,  the  legis- 
lative power  of  both  Congress  and  the  State  legislatures  is 
circumscribL'd  in  favor  of  individual  lil>erty  (a):  and  in 
some  of  the  State  constitutions,  more  lately  adopted,  the 
limitations  on  the  legislative  power  of  the  State  legislature 
certainly  go  to  very  extreme  lengths  (h).  It  cannot  be 
.said,  therefore,  in  reference  to  the  American  system,  that 

(y)  See  the  remarks  of   Hagarty,  C.J.,  in  Leprohon  v.  Ottawa,   2 
O.  A.  R.  at  p.  533. 

{z)  See  Chap.  IX.  ante.  (a)  See  Art.  I.  sees.  0  and  10. 

(b)  Bryce's  "  American  Commonvealth,"  Appx. 


Tin:  I ti VISION  (IF  riii;  hikld.  2-21 

it'  powiT  ifvrr  II  ci'i'taiii  swlijtct  matter  is  n(»t  with  (*i»nj;ivss 
it  luu.st  Ito  with  th»'  State  legislatures,  for  it  may  he  with 
neither,  'lue  "penplt'  ot"  the  UiiiteM  States,"  as  n  jurainl 
anMi».u,ite,  Iiave  hmite"!  the  |)(»wer  <»r  Citiij^^ress,  and  the 
jieopK'  <>r  the  intlivi»hial  states,  viewed  as  smaMer  a;;';;r»'- 
•  •ates,  have  likewise  limited  the  sjihere  of  authoi-itv  <>f  tlu^ 
ditierent  State  leyislatinvs.  Tlu'  mattei's  allotted  t*> 
('onu'ress  are,  in  a  sense,  siiecially  enumerated,  the  uneini- 
mei'att'd  residuum  hcini;'  reserved  (sultjeet  tt>  e»'itain 
prohihitions  set  out  in  the  Constitution  of  tlu'  l'nite<| 
States)  ('■)  to  the  States  or  to  the  peojile  ;  hut  tlie  Statt; 
leu'islatuiH's  ayain  may  hr,  and  in  manv  cases  an*,  under  the 
State  (,'onstituti«»ns,  hodies  with  specially  enumerated 
powers.  In  short,  in  the  American  system  there  ai'o 
matters  over  which  no  Itody  has  li'^islative  ])ower,  matters 
held  in  i'eser\'e,  as  it  were,  liy  the  people  of  the  United 
States,  or  hy  the  people  of  the  respective  States.  Confin- 
ing' our  attention  to  Congress,  we  have  to  point  (Uit,  what 
has  heen  hefore  referred  to  (il),  that  after  the  enumeration 
of  the  special  matters  (tliemselves  described  in  very  com- 
prehensive terms)  over  which  Congress  is  to  have  legisla- 
tive power,  there  follows  this  clause  {«')  : 

"  To  make  all  laws  which  shall  be  necessary  and  proper  for 
carrying  into  execution  the  foregoing  powers,  and  all  other 
powers  vested  by  this  Constitution  in  the  government  of  the 
United  States,  or  in  any  department  or  officer  thereof  "  : 
an<l  under  this  clausi*,  as  construed  l>y  Marshall  an<l  his 
successors,  the  powers  of  Congress  in  relation  to  the 
National  government  of  the  United  States  can  hardly  ]>e 
sai<l  t(»  l)e  specially  enumerated  powers  only. 

Nothing  .short  of  the  most  thorough  mastery  of  the 
United  States  constitutional  system  would  warrant  one  in 
drawing  analogies  between  the  line  of  tlivision  they  have 
adopted  and  that  drawn  hy  the  B.  N.  A.  Act.  The  Judicial 
Connnittee  of  the  Privy  Ctnuicil,  while  not  slow  to  express 

(c)  Art.  I.,  sec.  10.  {d)  Ante,  p.  !>.  (e)  Art.  I  ,  sec.  8. 


2'2'2  THE   CANADIAN    (  nNSTITI   I  InN. 

tliiii-  inliiiinitioii  for  tin-  SujirtiiH'  (Vmi't  of  tlic  Unitrtl 
Stiiti's,  iudI  tin*  nuiiH'ut  jui'istM  who  from  tiiiu't<t  tiino  ]m\v 
ofcupictl  scjits  ill  tluit  triliuiiMl,  Iimnc  hIwhvh  (li'|ui'Oiit«'<l 
liny  uttt'iiipt  to  draw  iiimltt«;it.'N  lii'twccii  the  Cnimtliiiii  uikI 
the  Aiiiericiin  systt'iuH.  The  y'ww  of  the  Coiimiittct'  is  thus 
i'Xprt'sst'd  ill  n  lute  cuhc   ( /') : 

"  Thoir  Lordships  have  hi'en  invittMl to  apply 

to  the  construction  of  t!io  FediTution  Act  the  principles  laid 
down  for  tlu'  United  States  by  Chief  Justice  Marshall.  Kvery 
one  would  <,dadly  accept  the  guidance  of  tliat  {,'reat  jiulge  in  a 
parallel  case.  \U\t  he  was  dealing,'  with  the  constitution  of  the 
I'nited  States.  I'nder  that  constitution,  as  their  Lordships 
understand,  each  State  may  make  laws  for  itself,  uncontrolled 
hy  the  Federal  power,  andsuhject  only  to  the  limits  placed  hy 
law  on  the  range  of  subjects  within  its  jurisdiction.  In  such  a 
constitution,  Chief  Justice  Marshall  found  one  of  those  limits  at 
the  point  at  wiiich  the  action  of  the  state  legislature  came  into 
conflict  with  the  power  vested  in  Congress.  The  appellant 
invokes  that  principle  to  support  the  conclusion  that  the  Feder- 
ation Act,  must  be  so  construed  as  to  allow  no  power  to  the 
provincial  legislatures,  under  section  1)2,  which  may  by  possi- 
bility, and  if  exercised  in  some  extravagant  way,  interfere  with 
the  objects  of  the  Dominion  in  exercising  their  powers  under 
section  9L  It  is  quite  impossible  to  argue  from  the  one  case  to 
the  other." 

Thi.s  passaoo  su<;^ests  that,  in  the  view  of  the  Com- 
mittee, the  absence  of  the  power  of  diHallowin^^  State 
legislation  may  have  led  the  United  States  courts  to 
scrutinize  that  le<(islatic)ii  more  closely,  and  may  have 
caused  the  adoption  of  the  wide  interpretation  of  tiie 
article  of  the  "  Constitution  "  above  (luoted. 

(/)  Bank  of  Toronto  v.  Lambe,  12  App.  Cas.  at  p.  587. 


(MIAITKH   XI. 


()V\{  .ll'DICIAL  SVSTKM. 

W'v  \\n\v  thus  far  trt'iitfil  of  yovcniinrnt  as  (li\isililt' 
into  two  diu'f  (IcpartiiH'iitH — law-iiiakiiiin'  aii«l  la\v-«'.\fiMitiiiy' 
— ami  liaM'  not  «k'i'nu'(l  it  expt'dicnt  to  eonii)licute  the  <liM- 
C'Ussion  liv  ivfi'iH-nct'  to  unv  further  Hnh-<livisions  of  tlicsc 
two  ilc|)artnn'nts.  There  is  however  a  very  distinct  division 
(if  the  executive  department  into  branches,  aihninisti'ative 
and  judicial  ;  the  former  concei-ned  with  what  we  may  call 
the  ordinary  administration  of  puhlic  nfiairs,  while  upon 
the  latter  devolves  the  duty  of  exjioundino',  applyinj^'  and 
enforcing-  law  l)etween  litiyants  (f/). 

Ti'ihunals  foi*  the  administration  of  justice  are  an  indis- 
jMiisahle  adjunct  of  any  system  of  '.'ivilized  oovennnent, 
antl  if  there  can  he  degrees  of  importance  in  connection 
with  such  a  matter,  we  would  say  tliat  in  every  country 
where  government  is  a  government-according-to-law,  due 
recognition  of  the  authority  of  the  courts  is  of  vital  im- 
jMirtance  to  good  government;  and  particularly  is  this  the 
case  where  the  field  for  the  exercise  of  the  functions  of 
government,  both  leg'islative  and  executive,  is  divided,  and 

(«)  Of  late  years  there  is  apparent  a  tendency  to  clothe  the  judiciary 
with  what  may  be  termed  "  advisory  "  functions,  in  aid  of  the  Executive. 
Hee  R.  S.  C.  c.  135,  ss.  37  and  38,  and  cases  noted  in  Cassel's  Dif^.;  K.  S.  O. 
c.  44,  8.  52,  8-8.  2  ;  Attorney-General  for  Canada  v.  Attorney-General  for 
Ontario,  20  0.  R.  222  ;  19  O.  R.  31.  Also  see  R.  S.  O.  c.  225  ;  In  re  R.  C. 
Separate  Schools,  18  O.  R.  60(5.  The  policy  of  this  innovation  is  ques- 
tionable. The  Courts  of  the  United  States  have  steadily  declined  to 
exercise  any  such  functions.     See  Mich.  Univ.  Law  Lectures,  1889. 


224  rilK  <  AXAIHAN  <  oxs-miTiox. 

wIhtc,  in  (•oiisrinimcc,  tlir  courts  Ikivc  iicccsMaiily  ttMltriilc 
oil  till'  viiliility  <»i-  iiiMiliility  ••!'  lf;iiMliiti\i'  t'lmctinciits,  ami 
ol"  »'Xt'<'Mti\t' lU'tioti  t'iiinnl('t|  tln'icuii  (A). 

Tlic  <li'('i,siuii  ul"  imy  ciisc  wliicli  may  I'niiif  Itcfitrr  a  court 
III'  \i\\y.  iii\(il\t's  the  a|t|>li('Mtioii  ol"  law  to  the  Tacts  as  tlh-y 
iiiav  Im'  admitted,  or  iiiiJicialU' <lt'ti*riMiii('<|,  to  cxi.st.  <  )iit 
of  fvcrv  I'act.  or  set  of  tacts  there  arise  "  lemil  I'eiations," 
aiiij,  as  was  ]>oiiite<l  out  in  the  last  chajiter  (r),  there  can 
lit'  no  foii/lirl  <»!'  law  in  reference  to  any  i;iven  leyal  rela- 
ti<ai,  for  the  law  aj)|tlicaMe  to  any  ^liven  circumstanccH — 
to  any  stated  facts — Is  presumedly  capaltle  of  dtlinite 
expositi«ai.  It  may  happen,  thei-efoi'e,  that  in  a  case  arisin;^' 
in  a  Canadian  court,  the  law  which  governs  the  le;^al  rela- 
ti(ais  which  arise  out  of  the  facts  of  the  case  may  he.  not 
the  law  laid  down  in  either  I )ominion  or  Provincial  statutes; 
not,  sti'ictly  speakly  (*/),  the  law  of  ( 'anada  at  all  ;  not  e\  en 
Imperial  law:  l»ut  the  law  of  a  foreinn  country.  In 
accordance  with  that  comity  hetweeii  nati«ais,  which  is  now 
reci»^ni/ed  hy  thi'  tiihunals  of  all  civili/ed  counti-ies,  those 
trihunals  do  not,  where  the  facts  out  •)f  which  the  liti;^ation 
arose  occun-ed  in  a  ftireinn  coinitiy,  limit  the  enipiiiy  to 
what  is  the  law  which  wcadd  ;^'(»vern  in  case  those  facts 
had  occured  within  its  own  territory.  Indeed,  in  rri mi md 
matters,  that  is  t»»  say,  whei'e  a  person  is  hein*;'  pro.secuted 
for  acts  c<anmitted  ahroad,  Kn;4lish  courts  have  laid  down 
the  ruh;  that  such  ].)rosi'cution  can  oidy  he  had  in  the 
ciauitry  where  the  crime  was  committed.  The  ndministra- 
titMi  of  international  Justice,  if  we  may  use  the  expression, 
is  secured  in  such  a  case,  l»y  handin;^'  over  the  alleged 
ort'ender  to  tlu^  officers  of  the  country  in  which  the  ortcnce 
is  alleu'ed  to  have  l»een  committed  :  and  the  jurisdiction  of* 
Knji;lish  ti'ihunals  has  hei'u  limited  to  a  preliminaiy  eiKpiiry 
as  to  the  (!xistence  of  a  priiiHi  facie  case.  With  regard  to 
rii'il  matters,  the  trilainals  of  most  civilize*!  states  do  not 

{h)  See  niitc,  p.  17'i.  (c)  See  onte,  p.  214. 

((/)  In  a  seuse,  the  rules  of  ititernatioiial  law  are  part  of  the  jurispru- 
dence of  nearly  every  civilized  state. 


ni  u  ,iri>i<  I  \l,  sYsiKM.  22ii 

\rvn^\u/A'  ni\y  Miu'li  Itu'nl  vi'imr  tor  tlu-ir  triiil.  It  in  'H>yoii«l 
iIm'  Ht'njM'  of  tliiM  Work  to  t'limiM'nitf  tlw  vniinUM  cniiilitiniis 
)ii'«'<*iMlciit  til  iiii'iHilictioii,  liii'l  ilowii  ill  tlif  jurispriiilriicc  of 
till'  'litllrciit  t'i\  ili/f(|  stntt-s,  Itiit  in  nil  such  iictiuus  mm  tlir 
(•((Hits  <|i»  t'littTtiiiii,  tlii'V  >/\\f  t'Hrrt  t<t  lt';;al  liylitM  ami 
ul»li;;atiniis  wliicli  iiiay  arise  out  ul"  traiiNactiniiM  uj-ciirriii;;' 
nlx'oail:  aiiil  it  may  liapjx'it,  tliri-i<t'iin>,  that  any  iiumIi-i'Ii 
trihiiiiai  may  Im-  callnl  ii|)mii,  at  tiiiii's,  to  <h*ti'niiiiit',  aii<l 
|»ni('ti('iilly  tn  ailministfi ,  tlu'  law  <»!'  a  Torci^ii  cnuiitry  {«). 

Kst-ry  tiiltuiial  is,  in  a  snisf,  siilijcct  to  territori.il  limits 
i.r  jiirisilictioii.  It  woiihl  Im*  inconsistent  with  the  sover- 
i'i;^iity  of  the  tlitreieiit  states  into  which  this  wi>rM  is 
iliviiletj,  were  tile  jinl^^iiients  ol"  the  coiirts  of  any  one  state 
ellforcilile,  />r'7»/-/'(»  rii/nrf,  ill  the  others.  Hilt,  e\e|i  within 
the  same  state,  the  territorial  Jurisiliction  of  courts  i»f  law 
limy  Im-  limiteij  Their  jurisiliction,  t»»o,  may  lie  in  many 
'■IJier  ways  limiteil  nml  <letinei|,  I ly  reason  of  the  snliject 
matter  in  litigation.  Some  courts  may  hase  jurisiliction 
o\er  all  classes  of  matters,  ami  throui^hoiit  the  ei, tin- 
territory  of  the  state,  others  anain  may  have  the  .same 
wide  territorial  jurisiliction,  hut  may  he  restricted  to 
matters  of  minor  importance,  or  invoKinn-  smaller  amounts. 
Iiut.  however  their  juri.sdictioii  may  he  limited,  territorially 
or  otherwrse,  there  may  ai'i.se  for  determination  hy  them, 
ca.ses  in  which  the  law  to  he  applied  is  not  law  laid  down 
'ty  till'  power  to  which  they  owe  their  creation. 

There  is  h.'irdly  any  line  of  division  found«'d  upon  the 
iiatiire  of  the  suhject  matter  in  liti;;ation,  which  may  not 
he,  nr  has  not  heen,  adoptt'd  in  .some  one  country  or  an- 
Mther:  hut  it  is  not  of  importance  here  to  pursue  this 
general  iiKpiiiy  furtlu'r.  It  is  of  importance  to  note  that, 
I'ltth  in  the  United  States  and  in  Canada,  the  jurisdiction 
"f  a  court  may  l»e,  and   in  many  cases  in   the  foriiUM'  is, 

(<■)  What  18  the  foreij^n  hvw  in  such  cases  is,  in  British  jurisprudence, 
bmjuired  into  iis  a  matter  of  fact,  and  must  be  proved  by  the  evidence  of 
experts  versed  in  such  foreign  law. 
C.KN.  (Jon.  — 15 


22(1  rilK  CAN.vmAN   rnNhTniTloX. 

rniiit»'tl  tn  til'.'  iitrnnlicMtiuii  of  I'liusi-s  ariHiit;;'  out  oF  innttt'i'M 
\vitliiii  tlt«  tX('Uisi\»'  CDniiM'tciK'c  of  one  or  otlu-r  of  tlu» 
«lifti-r«'iit  Iryi.sliitixt'  KotlicM  cxiHtin.;  tln'ri'iii.  Akh  ifiifxtlini 
tif  jii  rimliifinn,  tlnTi-fori',  in  niicIi  niMr,  it  inny  '••'  ih'ci'smiu'V 
to  dftmiiiiM'  JuMt  w  luTc  tin-  liiif  of  )li\  ision  iM'twriii  tin* 
«litl«Ti'iit  li'^^iHliiturcM,  mIiouM  In*  <lni\\ti.  In  this  coinifction, 
W'v  may  notr  too,  timt  it  nuiy — tlioii;jli  not  of  coui'Ht'  its  a 
<|U«'Ntion  of  Jniistliction — ili-xoKf  upon  Camulian  courts  to 
ilctrrmiiif  likf  iiut'stions.  as  ti'  tlic  linr  of  <li\ision  1m  twrcii 
thf  ft'ilt'ial  and  statr  ifnislaturrs  in  tin- ailjoinini;  Hf|»Mlili('. 
It  is,  howt'Vi'i',  only  in  rxccptional  cast's  that  the  jurisijic- 
tion  of  a  ('anailiiin  coMit  of  law  will  <lt>|)i>n<l  upon  thf 
tlftfiniinatiiin  of  thf  line  of  <li\  ision  hi'twcfu  the  ilitt'trt'nt 
('(inailian  hiiislatiM-  Itoilirs  ( / ).  W'c  jia\f  dwelt  upon  thesf 
•  litli-rmt  I'onsjdri-ations  in  oidip  tu  niake  clear  that  e\ery 
coinl,  l>\'  w  liutfNei'  authoritN*  created,  ttr  whatever  its  iin'is- 
diction,  tei-ritorially  or  otht-rwisi'  may  lie,  may  he  called  upon 
to  fletermine,  and  piactically  tf»  administer,  Imperiid  liiw, 
Dominion  law,  Pr<t\incial  law.  oi*  cNcn  foreign  law,  in  order 
to  deierndne  tin'  rifhts  of  litiyants. 

I'uttiny'  it  lir<»adly,  a  ccturt  of  law  may  he  said  to  he 
an  organization  created  with  a  \  iew  to  the  determination 
of  facts,  and  the  exjtositiou  and  t-nfoixu-ment  of  the  law 
applieahle  to  thos*-  facts,  hetween  pai'ties  who  ai'e  at 
variance  ujjou  these  points.  In  the  performance  of  its 
4luty,  certain  proc«'dure  has  to  he  adopted,  and  a  ci'rtain 
administrativi'  star!"  has  to  he  made  part  of  this  or;;ani/a- 
ti(»n  in  (»rder  t.»  secui'e  the  enforcement  of  the  judj;nients 
«tf  the  Court.  ()v(;r  these  a;;ain  may  l»e  estahlished  appel- 
late courts.  Hut  \vhate\er  the  details  of  the  oi'fauizatioii 
may  he,  and  aside  altogether  from  the  question  what 
j;overnn»ent  should  create  courts,  or  whether  lioth  Dominion 
an<l  Provincial  goveriunents  should  have  such  power,  it 
would  seem  expedient,  to  say  the  least,  that  the  whole 
matter  of   the  constitution  of  any  fiven  court  should  he  in 

(/■)  See  i>ost,  p.  220. 


nlU   .11   l»l«  lAl,   sVMKM.  227 

tli»'  Imii'l.H  <»t'  (tiu'  iiikI  tilt'  NjiiiH'  p>v»'nmifiit  (»/).  II'  tlitlei'- 
nit  pat'tM  lit'  tlir  iiiacliiiiriy  ••!'  any  coiirt  niv  Nii;i))liri|  tn  it 
l>\-  tlitli'n'nt  aiitln>iiti«'M,  it  muMt  iii'0«'SHarily  !•<•  a  swy 
tlitHciilt  iiiattrr  to  fix  rrs|M»iisil»ility  \'n\-  a  miscaniayr  fit' 
jiistic*'  ill  any  j;i\rn  caMc,  iiiiI«'mm  llu-  can.si'  <»t'  hucIi  niis- 
rarriiUf  can  Ik*  "It'tinitt'ly  Incatt'd,  ami  !•"  flrcisivi'ly  aHNiyiu'tl 
in  Huiiif  particiilnp  |iart  of  tlir  iiiacliiiiiTy  nf  the  CMiirt. 

Tlir  Iin)it*i'ial  iiailiaiiiciit,  as  tli<-  siipri'inc  pnwcr  in 
MiiM-niiiitMit  tliriiti;4liniit  tin'  lli-itisli  Kiii|iirf  (A),  imiy 
cstaMisli  courts  within  tin*  limits  nl' any  <int' ol'  tlic  cnliinics 
(if  (iirat  Hiitaiii,  and,  as  a  matter  oF  tact,  wc  lia\»',  in 
CaiuHla,  Vic«'-Ailminilty  cnurts  of  ImjM'rial  crciitinn,  tlw 
jnristlictidii  dt'  which  istlftiiH'd  Ky  Iniju'rial  statutes  What 
we  must  imtf  is  that  in  ailministfriiiu  law  within  the  sjihcrc 
nl'  their  Jurisdiction,  tlu'se  Vici-Admiralty  courts  are  not 
limiteil  to  the  eiit'oi'cemeiit  of  Im|ieriul  law,  liut  must, 
nhoiild  occasion  arise  (as  it  may  in  any  court  of  law), 
expound  and  practically  adminiKter  Canadian  law  (/). 
Hut.  with  the  exception  of  the  special  cla.ss  of  cases  which 
come  liefore  those  courts,  the  administration  of  justice, 
iisiii^-  that  term  in  its  widest  sense,  in  Canaila.  is  left  to 
courts  of  Canadian  creation. 

At  the  ilate  of  Confederation,  there  were  in  existence,  in 
the  different  provinces,  a  laryc  numher  of  courts  of  law  ; 
and.  for  some  years  thereafter,  the  administration  of  justice 
throunhont  Canada  was  in  the  hands  of  these  provincial 
courts,  sec.  121)  of  the  B.  N.  A.  Act  exjiressly  providing,  that 
all  laws  <ii></  oil  en  (I  lis  nf  cirll  <nnl  crlmmdl  Jurimliction, 
and  all  leyal  commissions,  powers,  and  authoriti«;s,  and 
all  ottieers,  judicial,  administrntive  and  ministerial,  existing 
in  tlu'  diti'erent  provinces  at  the  I'nion,  should  continue  as 
if  the   Union  had  not   heen   nia<le.     Except,  therefi  :v,  as 

(//)  Hee  po»t,  p.  234  and  notes  to  B.  N.  A.  Act,  sec.  ill,  s-s.  27,  aud  seo. 
1*2,  8-8.  14.  and  sec.  96,  et  seq. 

(//)  See  Clmp.  IV.,  ante. 

(/■)  Wedpath  v.  Allen,  L.  R.  4  P.C.  511 ;  see  ante,  p.  193 


22S  TIIK   (ANA  1)1  AX    cnN'STITL'Tlo.V. 

otlienvise  provitk-il  in  tliu  Act(,y),  iiii<l  subjuct  to  Jiny 
eh»in!;es  whirl*  hiive  since  ln'on  niiidc  in  tlu'  orj^nnization  of 
tlii'sc  eonrts,  tlu'  limits  of  tln'ir  jui-is<lic'tion  arc,  in  pnnci[)lo, 
in  no  wise  iiltt'rf'<l.  Any  aitiTution  in  the  jarisdicfloii  of 
these  pie-Confe'denition  provincial  courts  over  matters 
within  the  lei;islative  competence  of  the  Parliament  of 
Canada  can,  it  is  suhmitted,  he  eti'ected  only  hy  Dominion 
lei^islation  (/.').  Until  so  altered  their  jurisdiction  coiitnincx 
'' suhject  nevertheless  .  to  he     .  altered  hy  the 

I'arliament  of  Cana(hi  or  hy  the  legislature  of  the  respective 
\n'i)\\\\w,iivc(>i'<rnifi  fit  the  iiufhorifij  of  the  Pti li'm inruf  in'  itf 
f/iiif  If'i/lsltifii  re  luxh'i'  this  Act."  It  wouM  unduly  swell  this 
N'olume  if  we  were  to  attempt  to  enumerate  these  ditl'erent 
courts,  or  to  indicate  their  ditt'erent  jurisdictions.  We 
may  say,  however,  that  there  were  in  all  the  provinces, 
courts  modelled  upon  the  principle  of  the  Superior  Courts 
of  law  \n  EnjL;land,  whose  jurisdiction  territorially  was 
limited  only  hy  the  boundaries  of  the  respective  provinces 
in  wdiich  thev  were  established,  and  under  these,  and  as  a 
rule  sub(/rdinate  to  them,  were  various  other  courts  whose 
jurisdiction  was  limite<l  as  to  the  class  of  matters  which 
mi^ht  be  entertained  by  them  (without  territorial  limita- 
tion) (/), or  wassubjecttolimitationsaion*;' both  lines  {nf);  but> 
it  is  almost  unnecessary  to  sav,  there  was  no  limitation  of 
jurisdiction  in  any  provincial  c(au't,  along  any  line  identical 
with,  or  in  any  sense  analogous  to,  the  line  of  division  now 
existing  between  matters  within  the  legislative  competence 
of  the  Dominion  parliament,  and  the  provincial  legi>''ative 
assen}blies,  respectively. 

If  it  be  permissible  to  express  an  opinion  as  to  wiiat 
was  anticipated  l)y  the  framers  of  the  B.  N.  A.  Act,  we 

(j)  See  sec.  101  of  the  B.  N.  A.  Act  and  notes  thereto ;  also  post,  p.  229. 

(k)  See  re  Boucher,  noted  in  Gassel's  Dig.  S.  C.  p.  181,  and  referred 
to  in  the  judgment  of  MacMahon,  J.,  in  Reg.  v.  Toland,  noted |o«t,  p. 236. 

(I)  e.g.,  County  Courts  in  Upper  Canada. 

(in)  e.(j.,  Division  Courts. 


oL'U  .irinc'iAi.  svsrLM.  229 

hIiouM  SUV  that  it  whs  intended  that,  in  the  main,  tlie 
adnunisti'ati(»n  <>t'  justice,  thrctuiihout  Canada,  shimhl  he 
thr.>n;4h  the  medium  <»f  these  j)r(»vincial  courts,  thus  con- 
tiiuu'il.  This  is  clearly  Menced  hy  the  assiyinnent  to  the 
provinces  (»!:"  the  power  t(.  exchisividy  make  hiws  in  rela- 
tion to  'the  administration  oi  justice  in  the  province,  in- 
chitliuL;-  the  constitution,  mainti^nance  and  orL;anizati<»n  of 
]»r<»\incial  courts,  Itoth  (»F  civil  and  criminal/nirisdicti<»n"  {n). 
As.  however,  cases  would  ine\ital>ly  arise,  involving  con- 
sideration of  tlie  powers  of  the  Dominion  and  Provin- 
ci;i!  legislatures  respectively,  and  with  a  view,  pei'haps,  to 
secui'inn  uniformity  of  tlecision  on  such  imi>ortant  (pies- 
tions  throughout  the  whole  l).)minion,  the  B.  N.  A.  Act 
pio\ides  (section  101),  that  "the  parliament  of  Canada 
ma\'.  notwithstandin!-'  anvthinL-'  in  this  Act,  from  time  to 
time,  proviile  for  the  constitution,  maintenance  an<l  oi';;ani- 
zation,  of  a  general  Court  of  Ai>pL'al  foi'  Canada  (a),  and 
for  the  estalilishment  of  any  additional  C(»urts  for  the 
hetti'i"  administrati»»n  of  the  laws  of  Canada."  The  phrase- 
ology of  the  hist  clause  of  this  section  is  a  clear  recognition 
of  the  fact  that  the  provincial  courts  would  neces.sarih'  lie 
called  upon  to  administer  the  laws  of  Canada  (ii)  (as  dis- 
tin;4uished  from  the  laws  of  the  \ari(^us  provinces),  an<l 
the  provision  was  inserted  with  a  view  to  the  hettei-  admin- 
istration of  those  Dominion  laws  throuoh  the  medium  of 
additional  courts  estahlished  by  the  Dominion  t^'ovemnnent, 
shoultl  occasion  arise.  The  jurisdiction  of  such  additional 
courts,  estahlished  l>v  the  Dominion  i^'overnment,  nnist  he 
a  special  jurisdiction,  liniited  to  cases  arising'  out  of  tliose 
matters  only  which  are  within  the  competence  of  the 
Dominion  parliament.  This  is  the  only  case  in  Canailian 
Jurisprudence  where  the  jurisdictional  line,  if  we  may  use 

(n)  B.  N.  A.  Act,  s.  'J2,  ss.  14. 

(o)  See  R.  S.  C.  c.  135.  The  Suprems  Court  of  Can.'  cla  was  es- 
tablished by  38  Vic.  c.  11  (Dom.),  and  became  a  court  on  January  11, 
187tj;  see  Reg,  v.  Taylor,  1  S.  C.  R.  «5. 

ip)  See  Resolutions  Nos,  31  and  32,  printed  in  Appx. 


2.S0  Tin:   rAXADI.W   coXSTlTrTInN'. 

tilut  L'xpivssion,  is  eo-inciWt'ut  with  tlio  line  which  dividi's^ 
the  IcgiHlfitive  powers  of  the  Dominion  and  the  provinces  (7). 
The  provinces,  in  estiihlishini;'  ctturts,  may,  hut  are  not 
hound  to  adopt  any  such  jurisdictional  line.  The  ])ominion 
is  so  limited  except  in  the  case  of  its  "general  Court  of 
Appeal" — the  Supreme  Coui-t  of  Canada. 

What  has  taken  place  .since  Confederation,  serves  to 
support  the  view  we  have  expressed  as  to  what  was  an- 
ticipated hy  the  Fathers  «»f  Confederation.  The  only 
additional  courts  which  have  been  estahlishetl  hy  the 
Dominion  government,  are  the  Exchecjuer  C<airtof  Cana<la> 
and  the  Maritime  Court  of  Ontario,  each  with  a  specially 
limited  Jurisdiction,  sufficiently  indicated  I)y  its  name(/')- 
But  any  duly  created  court,  no  matter  by  what  authority 
created,  or  hy  what  authority  the  different  parts  of  its 
machinery  may  he  supplied,  may  he  called  on  to  determine 
cases  involving  the  application  of  either  Dominion  or  Pro- 
vincial law;  and  this  oh.servation  applies  even  to  the  special 
courts  of  Dominion  creation,  for,  although  of  limited  Juris- 
diction as  above  indicatetl,  incidental  legal  relations,  depend- 
ing upon  provincial  laws,  may  have  to  be  determined  in 
order  to  indecision  in  any  given  case. 

Any  i'overnment  uiav  take  advantage  of  the  actual 
existerce  within  its  territorial  limits  of  an  organized  court 
of  \ii\\,  to  impose  on  its  judges  and  administrative  statt* 
duties  (in  relation  to  matters  witliin  its  "sphere  of  author- 
ity") other  than  those  imposed  upon  them  hy  the  power 
which  created  the  court,  and  wiiether  this  action  is  to  be 

(q)  See  ante,  p.  225-6. 

(/•)  Note,  however,  in  re  The  Bell  Telephone  Co.,  7,  O.  R.  (105  ;  in 
which  it  was  held  by  Osier,  J. A.,  that  a  court  or  judicial  tribunal  was 
established  by  sec.  28  of  the  Patent  Act  of  1872,  which  provided  that 
in  case  disputes  should  arise  as  to  the  validity  of  patents  (in  certain 
cases),  such  disputes  should  be  setthd  by  the  Minister  of  Agriculture  or 
his  deputy,  whose  decision  should  be  final ;  and  that  the  constitution  of 
such  a  court  was  intrx  vire-i  of  the  Dominion  parlianiant.  See  B.  N.  A. 
Act,  sec.  yi,  B-s.  22.  See,  however,  9  O.  R.  2SK  We  should,  perhaps,, 
refer  also  to  the  Revising  Otticsrs'  Courts  under  "  The  Electoral  Franchise 
Act  "  as  to  which  see  post,  p.  240. 


(»ri{   .IIDKIAL   SVSTKM.  231 

c'i)iisi(lt'r('<l  us  tlic  fivjitioii  <»t'  )i  new  court,  with  tlie  nmehiii- 
cry  of  the  <»1<1,  oi-  as  the  out'en-iuij;-  uF  a  new  jurisdiction 
ujion  tlie  !)lil,  seems  to  hj  considered  by  the  .Jmlicial  Com- 
mittee of  the  Privy  C  mncil,  a  matter  of  inditterence  (,.vi. 
Tlie  <|uesti<tn  has  come  up  in  various  ways,  and  the 
principle  must  now  be  considered  as  autlioritati\ely  estah- 
lislit'il.  As  an  extreme  instance  of  its  appHcatimi,  we 
may  cite  the  case  of  Attorn('y-(  Jeneral  v.  Flint  (0,  in 
which  it  was  held  by  tlie  Supreme  Ccau't  of  Canada,  that 
it  was  competent  for  the  Dominion  parliament  to  confer 
upon  the  Vice-Admiralty  Court,  existing;'  in  Xova  Scotia 
under  ImperiiU  authority,  Jurisdiction  to  entertain  pi-o- 
ceedinn's  for  enforcing  payment  of  penalties  for  breaches  of 
the  Inland  R'.'vemie  Act.  It  appears  to  have  been  the 
opinion  of  some  at  least  of  the  Judges  of  the  Sui)reme 
Court,  that  a  Ju<lge  of  a  \'ice- Admiralty  court  minht 
decline  to  take  upon  himself  the  burden  of  such  cases,  but 
the  jui'isdiction  s<j  to  do,  they  held  to  l)e  l)eyond  (juestion. 
It  cannot  of  course  be  (h>ubted  that  if  the  Imperial 
parliament,  in  the  exercise  of  its  legislative  supremacy, 
were  expressly  to  prohibit  such  ccatrt  from  entertaining 
other  than  matters  arising  under  Imperial  legislation,  such 
prohibition  would  l)e  operative,  but  in  the  absence  of  such 
prohibition,  it  is  difficult  to  see  how,  as  Canadian  citizens, 
the  iudii'es  and  stati'  of  the  court  could  lawfullv  decline  to 
perform  the  duties  inipose<l  upon  them  by  Canadian 
law  iiO. 

Prior  to  Confe<leration,  the  decisicm  of  controverted 
election  cases  had  been  entirely  in  the  hands  of  the  differ- 
ent Provincial  legislatures,  and  after  Confederation  the 
Dominion  parliament  exercised  the  same  jurisdiction  over 

(<)  Viilin  V.  Langlois,  5  App.  Cas.  115,  passaj^e  quoted  jjost,  p.  232. 

{t}  U)  S.  C.  R.  707.     See  also  "  The  Farewell,"  7  Q.  L.  R.  liSO. 

{>()  "Judges  as  citizens  were  bound  to  perform  all  the  dutiea  which 
are  imposed  upon  them  by  either  the  Dominio.i  or  Local  LBgislature  " — 
per  Dorion,  C.J.,  in  liruneau  v.  Massue,  23  L.  C.  Jur.  CO. 


232  THE   CANADIAN   CnNSTnirM  )N. 

elections  to  the  I)niiiini<)i!  Housf  ot"  Coimnoiis ;  Imt  in 
lS7*i-4,  the  Dominion  iiurlinnient  (leci«le<l  to  transiVr  this 
Jurisiliction  to  the  provineiiil  eoni'ts.  Theii'  power  so  to  <lo 
was  distinctly  u^jheM  l»y  the  Judicial  Committee  ol'  the 
I'rivy  Council,  (aHirminu'  the  decision  oF  the  Supreme 
C'ourt  of  Canada)  in  the  well-known  ease  <>F  Valin  \ .  Lan- 
jflois  (/•),  in  which  Lord  Selhoi'ue  in  deliveiin^'  the 
Judgment  oF  the  Connnittee  says  : 

"  There  is  therefore  nothin<jr  liere  to  raise  a  doubt  about  the 
power  of  the  Dominion  parliament  to  impose  new  duties  upon  the 
existing'  provincial  coiu'ts,  or  to  give  them  new  powers  as  to 
matters  which  do  not  come  within  the  classes  of  subjects  assigned 
exclusively  to  the  legislatures  of  the  provinces." 
and  he  afterwards  characterizes  the  distinction  which 
was  en<leavored  to  I'e  drawn  ln'tween  tiie  Act  of  iST.'i, 
Aviiich  entrusted  the  trial  of  election  petitions  to  the  Jml^^es 
of  the  Supreme  Court,  and  the  Act  of  1S74,  which 
entrusted  this  juris<liction  to  the  provincial  courts,  as  "  hut 
a  nominal,  a  verbal,  and  an  unsiihstantial  distinction." 

Tlu'  validity  of  the  Act,  lil  Vic.  c.  7()  (Dom.),  which  ])ro- 
vided  for  utilizing-  the  macliinery  of  the  provincial  courts 
for  tlie  taking  of  evi<lence  for  use  Itefore  foi'eign  tribunals, 
luiH  been  atlirmed  by  the  courts  of  both  Ontai'io  ;ind 
Quebec  (w). 

Somewhat  the  .same  (juestion  arose  in  Ontario  in  the 
cases  of  Wilson  v.  McOuirc  (,'),  and  Gib.son  v.  IMcOonall  (>/)• 
C^»unty  Court  jmlges  in  that  province  are  appointed  by  the 
])ominion  government  (c).  Division  Courts  existed  in  the 
various  counties  of  tliat  province  prior  to  Confederation- 
and  had  always  l»een  presi<led  over  by  the  judge  of  the 
County  Court  of  the  particulai-  county.     By  an  Act  of  the 

(i)   ')  App.  Cas.  115,  affirming  3  S.  C.  R.  1. 

(if)  In  re  Wetherell  &  Jones,  4  O.  R.  713  ;  Ex  parte  Smith,  1(5  L.  C. 
Jur.  140;  and  see  notes  to  the  opening  clause  of  sec.  91  of  the  B.  N.  A. 

Act,  pout. 

(.»•)  2  0.  R.  118.  iij)  7  O.  R.  401. 

{z)  B.  N.  A.  Act,  sec.  OC. 


(Hit    .iri>K"IAL   SVSTKM.  2'M\ 

Pi'dviiiciul   AssL'iiilily   (</),  it   whs   providt'd,   in  rft't'ct,  tlint 
two  (•!•  inojv  ewUMtirs  minlit  l»t*  j^rouped  t<»;L;'t'tlH'i'  F<»r  tho 
luirposL-  of  fiicilitatiii;;'  the  conduct  »»F  Imsincss  in  the  Divi- 
sion courts  of  tlic  uroiipcd  counties,  and  that  the  judp's  of 
the  County  courts  of    th<»se  countii's    niiyht    arrange    for 
takinn'  the  work  in  rotation  throughout  the  entire  yroup. 
The    \ali(Hty    of    this    Act    was    upheM    in     Wilson    v. 
Mc(}uire  •(/>).     In  (lihson  v.  McDonaM,  it  was  held    that 
a  somewhat  similar  ai-ranu'e-ment  as  to  the  (Jeneral  Sessi(»ns 
of   the   Peace  in    the    difi'erent   comities    of    Ontario,    was 
in\alid,  and  there  is  no  douht  that  the  C(»rrectness  of  the 
earlier  decision   must  In.'  deemed  Home\\hat  impunned  l>y 
this  case.     The   point  on   which   the  bitter  dt.'cision   rests, 
however,  is  the    very   Jiarrow  one,  that   the  judn'e  of   the 
County  Court  (»f  one  county  was  sitting-  as  Chaii-man  of 
the  ( ieneral  Sessions  in  another,  ''  <n)<l   not  of/tcnrisr  (Infn 
liij  rliiiir  of  /lis  offiir  <i.s  jiuhjr  of  flic  Con  iif//  Coiirf  of  /us 
oii'ii  codnf)/,"  and  that  this  lie  had,  under  his  commission, 
no  riL;ht  to  do.     Armour,  C.J.,  exjiressly  reserved  the  (|Ues- 
tioii  as  to  the  powi-r  of  the  provincial  assemhly  to  provi(Ui 
that  the  judge  of  tlie  C<auity  Court  of  one  county  shall  l>e 
Chairman  at  tlie  General  Sessions  of  the  Peace  in  another, 
and  the  decision  therefore  only  goes  to  this  length,  tliat  a 
County  Court  jn<lge  can  act  dsstich  only  in  the  county  for 
which  he  '■   appointed,  l>y  the  Goveriior-( Jeneral  in  Coun- 
cil, under  section  fXi  of  the  B.  X.  A.  Act.     Taken  together, 
these  two  cases   support  our  proposition.      A    Provincial 
gdvenimeiit  can  impcKSe  upon  the  indivi<lual  who  is  County 
Court  judge,  duties  (falling  of  course  within  the  range  of 
matters  of  provincial  cognizance)  other  than  those  covered 
liy  his  commi.ssion  from  the  Governor-General,  care  lieing 
necessary  perhaps  in  detining  that  tho.se  super-added  duties 

('()  R.  S.  O.  (1877)  c.  42. 

('')  2  O.  R.  118,  Arniour,  J.,  dis32nt>ng.  It  is  to  ba  noterl  that  the 
majority  of  the  Court  expressly  limited  their  jiulj^meut  to  aftirming  the 
validity  of  the  Act,  in  its  beariiin  on  Dirigion  CoiirtK. 


234  THi:   CANADIAN    (•  (XSTnTTION. 

»uv — wlu'ii  i'\t'reisjil»l«'  utlicrwisf  tluni  in  his  dwu  ('  uinty 
('<»m-t — to  111'  »'\i'iris(Ml  l»y  liiiii,  imt  (Hi;i  County  (.'ourb 
judyt',  Itut  (|ua  proviiifial  ofHci-i'. 

With  ivj-'iird  to  thi'  crcfition  of  courts  liv'  tht-  Doiniiiion 
( Jovt'iniiH'nt,  thi'  scht'iiit'  <»f  tht.-  II  X.  A.  Act  is  loL;'ical, 
while  as  to  those  Provincial  courts  uicntiontMl  in  section  !>(i 
of  the  H.  N.  A.  Act,  the  scheme  is  t|uite  the  reverse.  We 
<lo  not  ri'ly  upon  any  possilile  conii)licati(»n  which  may 
arise  from  the  way  in  which  'procedure  '  is  treated  hy  the 
Act  ((•)•  It  is  (Htticult,  in  many  cases,  to  distinguish  he- 
tween  law  and  "procedure."  In  its  narrow  sense  "  pio- 
ce(hu'e  '  I'l'lates  simply  to  the  or;;iinic  working'  of  a  court, 
ami  is  not  su})i)osed  to  ati'ect  rights,  ov  to  alter  the  le^al 
j-elations  arisiiii-'  out  of  anv  yiven  facts:  while  in  a  wider 
sense  it  may  have  a  mo-it  potent  effect  alon^'  lioth  lines  (th. 
( )f  this,  however,  more  anon.  The  method  of  oi-puii/in;^' 
thosi'  pi-o\incial  Cfairts  menti<»ned  in  section  f)()  is  illouieal 
in  this,  that  the  machinery  of  those  courts  is  suit[»lied 
j)artly  hy  the  Dominion  u'overnment  and  partly  hy  the 
Pidvincial,  with  the  resultant  ditiiculty  in  lixiuL;'  res[)onsi- 
hility  t(»  which  reference  has  already  l)een  made  (r).  The 
power  to  a])point,  necessarily  carries  with  it  the  power  to 
determine  the  tenure  of  office  (sidiject,  as  to  the  Superior 
Court  Judju'es,  to  section  i)!)),  and  therefore  the  power  to 
dismiss.  This  power  of  appointment  and  dismissal  rests 
with  one  •government:  another  j;'overnment  defines  the 
duties  of  the  office — an  arrangement  certainly  uni(pie  inider 
a  British  constitution.  But,  except  in  so  far  as  this  peculiar 
arrangement  affects  the  law  of  our  constitution,  furtlier 
conniient  upon  it  is,  perhaps,  out  of  place  here. 

However  constituted,  the  Provincial  C(airts  liave,  we 
again  repeat,  to  administer  Dominion  as  well  as  Provincial 
law,  and  this  is  perhaps  the  proper  place  to  advert  more 

(c)  Compare  s.  91,  s-s.  27,  and  s.  '.».',  s-s.  14. 

((/)  See  Excliinj^e  Bank  v.  Reg.,  11  App.  Caa.  at  p.  1(59. 

((■)  See  ante,  p.  "i-iT. 


(HU  .iri)i<i.\i,  svsiK.M.  2;i5 

lullv  to  tlu'  tiut'stioii  (>r  "  i)i'((Ct'<l»uv  "  nlhult'il  to  in  tlu-  last 
l)aru;i'nil)li.  Hii  this  (|U('.stion  cniisifl»'ral»I»'  ilivcr^^vnec  of 
\ir\v  is  a|)i»art'nt  in  the  oasrs  (  /'),  ai-isiun'  lai-juvly  t'rnin  tin- 
(liHi'iiii";'  constructions  {)lacc(l  upon  the  words  "  |»rocc<hu'c  in 
(•i\il  matters  in  those  courts"  in  section  92,  sub-section  l-t. 
Takinj;  that  sul»-section  alone,  an<l  noting'  the  sharp  <listinc- 
tioM  (h-awn  hetween  criminal  an<l  civil  jurisdiction,  and 
that  to;^i'ther  they  are  exhausti\e  of  the  whole  field,  the 
|ilain  meanin;j;  is,  that  "  ])rocedure,"  in  all  matters  (tther 
than  criminal,  is  suhject  to  the  exclusive  le;;islative  power 
(if  the  provincial  legislatures,  and  there  would  appear  to 
lie  no  warrant  therefore  for  the  opinion  that  "  procedtu'e  in 
civil  matters  "  iti  this  suh-section  nuist  he  read  as  limited  to 
|iroceedin<4S  in  relation  to  matters  over  which  the  provin- 
cial legislatures  ha\'e  exclusive  legislative  power  (</).  Hut 
what  is  "procedure"  :*  We  have  already  uoted  that  the 
W'lyi]  is  ca})a!>Ie  of  two  very  different  inter[)retati(ais.  It 
is  only  usi'd  once  in  sectit>n  !H,  and  once  in  section  !>2,  ami 
a  comparison  of  the  two  suh-sections  in  which  it  occurs 
will  suffice  t(»  sliow  that  in  suh-section  27  of  section  i)l,  it 
has  the  wide,  and  in  sul>-sectiou  14  of  section  92,  the  nar- 
lower  meaninj;'.  "  The  criminal  law  .  .  I ncltuH u;/  t\u' 
procedure  in  criminal  matters,"  would  indicate  the  view  of 
the  framei-s  of  the  B.  X.  A.  Act,  that  "procedure  in 
criminal  matters"  is  an  essential  and  necessary  ]»art  of 
criminal  law;  while  "the  constitution,  maintenance,  and 
organization  of  provincial  ccairts,  hwliulhuj  procedure  in 
civil  matters,"  would  a})pear  to  point  to  the  "procedure" 
incident  to  the  organic  workin<>'  of  the  courts.  In  a  sense 
statutory  regulation  of  procedure  in  any,  the  most  im- 
material, step  of  a  cause  nuiy  afiect  rights  and  oliligations, 

(/')  See  notes  to  B.  N.  A.  Act,  s.  02,  s-s.  14,  where  the  cases  are  col- 
lected. 

([l)  See  Peak  v.  Shields,  8  S.  C.  R.  at  p.  591.  "  Matters  "  is  here  used 
in  two  very  different  senses.  "  Civil  matters, '  we  take  it,  is  but  another 
way  of  saying  civil  actions,  suits,  or  other  judicial  proceeding's ;  while 
"matters  over  which,  etc.,"  refers  to  subject  matters  for  legislative 
action. 


'2'M  Till':   CAXADIAX   CONSirnTinN. 

luit  only  ii)  a  vtTV  Hcoondiirv  sense.  \n  i<lt')i  oF  iilti-riiii'' 
thnse  Icn'iil  i't'I)iti(»ns  wliii'li  urist'  IVoin  any  facts  irrcspec;- 
ti\('  <»!'  any  liti;nati«>n  in  rcriTcnce  tlid'eto,  is  j)r»'st'nt  t<»  tlie 
niintl  oF  the  le^iislature  in  layin;;'  ilown  sucli  statutory 
reonlations,  and  it  is  this  sort  of  "  jd'ocH'ilui'e  "  that  is  re- 
ferred to  in  suli-section  14<tf  section  !>2:  while  as  to  criminal 
matters,  "  pj'ocedure,"  from  the  laying  of  the  information 
to  the  inllicti(»n  of  the  penalty,  is  carefully  treated  as  a 
('om))onent  part  of  criminal  law,  the  various  safeguards 
thereby  created  forminj;'  ])art  of  the  "  ri;;hts  "  of  persons 
accusi'd  of  crime  (//).  So  fai-  as  [)roci'dure  is  of  this  sort — 
a  necessary  and  pi'actically  com])ojient  part  (»f  legislation 
relative  to  any  (»f  the  classes  of  mattei's  within  the  com- 
petence of  the  Dominion  ])Mrlianient — it  is  an  nccessory 
which  follows  its  piincipal. 

The  cases  nnder  the  H.  N.  A.  Act  hear  us  out,  we  think, 
in  this  distinction.  As  t(»  ci'iminal  law,  section  !>I,  sul>- 
.section  27,  is  a  deai"  indication  that  "procedure  in  criminal 
matters"  is  .such  component  part  of  that  law,  although,  as 
will  appear  later,  the  term  "ci'iminal  law"  in  Caujidian 
jui"isj)rudence  is  a  term  of  limited  .scope:  hut  as  to  laws 
relating'  to  matters  other  than  ci'imes,  a  perusal  of  the 
vai'i(aiK  sub-sections  of  section  !)1  discloses  many  mattei's, 
any  legislation  on  which  mu.st  involve  procedure, — of  which 
matters,  jirocedure  is  a  com]ionent  part.  Maritime  law  is  a 
branch  of  jiu'isprudence  which  falls  within  "  Na\ination 
and  Shippinii '"(/'),  and  its  peculiarly  peremptory  in  irrii 
procedure  is  an  essentiid  part  of  any  such  law,  practically 
creative  of  )-i<>]its  and  obligations.  And  so  of  divorce  law, 
])atent    law  (7),    insolvency    law,    and    election    law;   and 

(/()  Since  the  above  was  written  Mr.  Justice  McMahon  has  handed 
out  his  judgment  in  Keg.  v.  Toiand,  holding  that  58  Vic.  c.  18,  s  2  (Out), 
giving  to  a  pohce  magistrate  jower  to  try  certain  offences  under  R.  S.  C. 
c.  165,  "  An  Act  respecting  ror;:ery,"  is  ultra  vires  of  a  provincial  legis- 
lature. (/)  Sec,  !tl,  s-8.  10  ;  see  "  The  Picton,"  4  S.  C.  R.  (US. 

(J)  See  In  re  The  Tell  TeVphone  Co.,  7  O.  R.  005,  cited  in  foot  note 
Jiiite,  p.  280.     Aitcliesou  v.  Mann,  9  P.  R.  253,  473. 


olU    JIDK  lAI,    SVSTK.M.  2M7 

jM'iliM|is  otlitT  liianc'lu'M  ol'  jurispiutlfiu'c  may  ''«•  t'ouinl 
\vrain>t'«l  n\>  in  tin*  various  hu  I  (-Hectic  )ns  of  section  !H.  Tin' 
Icaiiiii;^'  c.iHcs  on  the  siilijcct  arc  those  involvin;L;'  consiiU'r- 
atioii  ol*  iuMolveiicv  law  «ui<l  elccti(ni  law.  The  extent  to 
which  the  J)oniinioii  |»arliaineiit,  Ity  legislation  uHder  suh- 
scetioii  21  ol'  .-lection  !M,  "  haiiki'uptcy  and  insolvency,"  is 
einpowei'ed  to  iiitej't'ei'e  with  "procedure  in  civil  matters 
in  the  |n'ovince,"  came  up  I'or  consideration  hd'ore  the 
.Judicial  ("onnnittce  ol"  the  Privy  Council,  in  the  case  ol" 
Cushinu  v.  Dupuy  (/.')- »ind  was  disp(»sed  ol'  in  the  judgment 
i.f  that  ti'ihunal  in  these  words: 

"  It  was  stron','ly  contended  that  tlic  parUiunent  of  Cunada 
could  not  take  away  the  n;^dit  of  appeal  to  the  (^iieen  (rom  fund 
ja(lj,Mnent.s  of  the  Court  of  (Queen's  Bench,  which,  it  was  said, 
was  part  of  the  procedure  in  civil  matters  exclusively  assij^med  to 
till'  legislature  of  the  province.  The  answer  to  this  ohjection  is 
obvious.  It  would  he  impossible  to  advance  a  step  in  the  con- 
struction of  a  scheme  for  the  administration  of  insolvent  estates, 
without  interfering  with  and  modifying  somo  of  the  orignud 
riglits  of  property,  and  other  civil  rights,  nor  without  providAig 
some  mode  of  special  procedure  for  the  vesting,  realization,  and 
distribution  of  the  estate,  and  the  settlement  of  the  liabilities  of 
the  insolvent.  I'rondun'  must  Ufcissdrih/  fonii  mi  essmtinl  jtiat  of 
'III  11  liiir  ili'iiliiiii  iritli  insalioici/.  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  bankruptcy 
and  insolvency,  intended  to  confer  on  it  legislative  power  to 
interfere  with  property,  civil  rights  and  procedure  within  the 
provinces,  so  far  as  a  general  law  relating  to  those  subjects  might 
ati'ect  them." 

The  power  of  the  Dominion  parliament  to  regulate  the 
procedure  in  connection  with  the  trial,  Ity  provincial 
courts,  of  controverted  election  cases,  arising'  out  of 
elections  to  tlie  House  of  Commons,  has  scarcely  been 
((Uestioned.  The  lan«;uage  of  the  Judicial  Conniiittee  of 
the  Privy  Council,  in  Cusliing  v.  Dupuy,  applies  tnutatis 

(k)  5  App.  Caa.  409. 


2''\H  THE  (AXAIUAN   (  oNsTniTinX. 

niiittniiHn  to  IrnlHlatinii  )i])(iii  this  stilijt'ct,  wliicli  )»y  Ncotiun 
41  of  tilt'  H.  N.  A.  Act,  \H  cU'iirly  w  itii  tin-  Doiniiiinii  piirlin- 
iiu'iit  (/).  Tilt'  ('(iiitrttvt'rMy  wliirli  lias  arisen  ns  to  tin' 
|Mi\vfr  of  tilt'  Doiiiiiiioii  |»arliaiiit'nt  to  rrlVr  hiicIi  cmsi's  fur 
tiftiTiiiinMtitiii  liy  i>rt>\  iiicial  coiii-ts,  lias  lu'cii  .st'ttiftj  in 
atliniianc'f  »»!'  thf  powor  {m). 

So  Far  as  prttN'liicial  c'tturts  art*  concfniftl,  tlif  pj'ovin- 
clal  it'^isiatuit'M  liavf  rull  coiitrtil  ol'  tlifin,  suliit'ot  tuily  to 
tlic  a|>pointin;;'  powfi-  of  tlit-  Doiniiiioii  j^'ovt'iniiuiit.  in 
ri'frn'nct'  to  tliosf  nn'iitioiitMJ  in  .st'ction  !MJ  t>f  tin-  H.  X.  A. 
Act — tilt'  Su[H'i'iitr,  District,  and  County  ('(nirts  in  t-acli 
jtrovinct',  excepting'  tlif  i'l-ohatf  CourtH  of  Nova  Sctttia  antl 
Nt'W  hrunswick — antl  ti>  the  powt-rttf  tin*  l)oniini<ai  parlia- 
iiH-nt  tt»  I'cj^'ulatt'  tilt'  jn'oct'ilui't'  in  tlu'  Ncnsf  aliovo 
fxj>laiiu'(l.  This  Jurisdictitai  t»vt'r  prttvincial  courts  is  iit»t 
liniitt'tl  ti>  tlit)sc  which  Wfi'o  in  existence  at  the  l^nion,  hut 
fxtentls  tt»  the  creation  of  such  new  pri>vincial  courts  (/*)• 
with  such  Juris(lictit)n,  ami  with  such  jutlicial  and  adiiiinlH- 
trati\e  statt",  as  to  the  |)rovincial  lej^islature  may  seem 
])rtiper  for  "the  atlniinistration  of  justice  in  the  pi't)vince," 
which  phrase  is  usetl  in  its  wiilest  sense.  It  covers  the 
appointment  of  all  officers  connectetl  with  the  atlministra- 
titai  t»f  justice  {<>),  with  the  exceptions  notetl.  The  tpiestion 
has  l>een  much  discusseil  in  connectit»n  with  the  appoint- 
ment tif  ])olice  magistrates  ami  justices  of  the  })eace,  ami 
has  lieen  ctanplicatetl  somewhat  hy  considerations  as  to  the 
prerogatives  of  the  Crown  in  this  ctmneetion.  With  this 
phase  of  the  i|uestion  we  have  alreatly  dealt  ( p).  It  is 
now  settled,  subject  to  review  h}'  tair  Supreme  Court,  an<l 
the  Judicial  Connnittee   ,>f   the   Privy    Council,  that  the 

{I)  See  notes  to  that  section,  jiost. 

{m)  See  ante,  pp.  231-2,  and  notes  to  s.  41  of  the  B.  N.  A.  Act,  pont. 

(n)  Beg.  V.  Coote,  L.  R.  4  P.  C.  699 ;  Ganong  v.  Bayley,  1  Pug.  & 
Bnrb.  324. 

(o)  Reg.  V.  Bush,  15  O.  R.  398,  per  Street,  J.  See  passage  quoted 
post.  (p)  See  Chap.  VI.,  and  Chap.  VIII.  ante,  p.  105. 


mil  .11  nil  i\i.  .HVsiKM.  'i.'iM 

...  .    ,  II-  •    * 

a  »|ii>iiitiiii'iit  oC  jiistu't's  <>t  tlif  pi'iict'iiMu  |M»licr  iiiii'^'i>»tnitt's, 

rrliitt'M  to  "tlir  inliiiiniNtrMtiuM  of  justicf  "  (wliicli  tt-nii  is  to 

Im*  ivni\  in  it.s  Itpoiitj  NeiiNt',  ainl  i|Ualiti*'(|  only  l)y  the  power  ol' 

tlir  Dominion  parlianirnt  iiii<lt>i-  st-ctions  !Mi  ami  101),  ami 

I'fMtM  tlu'ict'orc  witii  tin-  |>ro\  inct's.     TIn'  situation  is  thus 

sinninnl  u|)  Ky  Arnioin-,  ('..I.,  in  Hti;.  \.  husli  (</): 

"  Laws  providing,' for  tlu' iippointnicnt  of  justicos  of  tln'  pt'iicc 
nil',  it  is  lontt  inU'd,  and  I  tliinU  iij,'iilly,  laws  in  ii'lalion  to  the 
administration  of  ju-sticc,  for  the  appointmont  of  justices  of  tin' 
pence  is  n  primary  requisite  to  the  administration  of  justice  ;  and 
if  this  contention  be  correct  the  passing  of  such  laws  is  exclu- 
sively within  the  power  of  the  provincial  le<j;islatures. 

•'  There  is  a  consideraMe  W('i<,'ht  of  judicial  opinion  in  favor 
of  this  contention,  and  althou^di  not  hinding  upon  ih,  yet  in  a 
matter  of  construction  such  as  this,  it  ou,i,'ht  not  to  be  li.yhtly 
dissented  from." 

And  he  ivfers  to  a  nunil»erof  aiithoritifs,  which  will  he 
found  colh'C'ted  in  the  notes  to  section  !>2,  sul»-section  14. 
.Mr.  .lustice  Street  savs,  referring  t(»  the  lan^ua;:!'  (d'  siih- 
section  14  : 

"  Now,  these  words,  standing:  alone  and  without  any  interpre- 
tation or  context,  appear  to  me  to  be  sutHcient,  had  no  otlu.'r 
clause  in  ihe  Act  limited  them,  to  confer  upon  the  provincial 
le,L,'islatuies  the  rij,'ht  to  regulate  and  provide  for  the  whole 
machinery  coiniected  with  the  administration  of  justice  in  the 
t)rovinces,  including  the  appointment  of  all  the  judges  and 
officers  requisite  for'  the  proper  administration  of  justice  in  its 
widest  sense,  reserving  only  the  procedure  in  criminal  matters." 

And  lie  refers  to  sections  J)0,  100,  and  101  as  the  only 
sections  in  any  wa^'  limitino-  tlie  niuanino-  to  l»e  given  to 
sul)-secti<ni  14,  and  tlien  proceeds: 

"Everything  coming  within  the  ordinary  meaning  of  the 
expression,  '•  the  administration  of  justice,"  not  covered  by  the 
sections  which  I  have  referred  to,  therefore,  remains,  in  my 
opinion,  to  be  dealt  wil;h  by  the  provincial  legislatures,  in  pur- 
suance of  the  powers  conferred  upon  them  by  paragraph  14  of 
section  92." 

('/)  15  O.  R.  .S9S. 


240  THE  CANAIUAN   i  oX.sTnrTloN. 

Tm  /v  SinimoUMaiiil  Dultoii  (>■),  it  was  lirltl  \>y  Mr.  Iu,stln» 
I'muiirnut  that  till'  lliyli  ('unit  of  .IiiMti«'«'  for  Ontario  — tin* 
"  Supt'iior  ( 'ourt  ol"  that  |tro\  inn'  has  juriMilictioii  in 
H\\\)vv\'\H{>  th«'  cxtTfisf  ol'  jiitlicial  I'lnictions  l»y  u  "  I't'ilt-ral  " 
( 'ouit —''.,»/.,  til"  Ht'Nisin;;  ( )Hi('»'iM  Court  nniN-r  "'lln-  KNt- 
toral  Kranrhisr  Act  (  K.  S.  ( '.  r.  i'))  lait  this  tli'dMion  has 
hcrii  ovcrrulol  liy  tlu>  Divi.sionatI  Court  of  the  Chaiicciy 
Division  {><). 

" 'IMui  ChiinciTy  DiviHion  han,  in  coinnion  with  tho  other 
lUvisionn  of  th»'  Hi^'h  Court  ol"  .lastici',  ijleuiiry  juriHiliction  to 
(U'ul  with  nmttrrs  of  prohiiiition  n/iir/t  iimi'itit  tin-  iiihiiiitistiiitinn 
lit  iHnliir  irifltiii  iiiitiiiin  lis  II  iniiiiiiiiiil  unit.  Tliis  (inhorj'nt) 
power  is  cirL'uuiscriht'd  by  the  ri'((iiiit)nii'nts  of  thi'  provinct!,  iiinl 
operator,  I  thiuN,  or.ly  us  to  hnis  lUiirtnl  In/  nr  in  Jhrrf  in  ihitmiit 
l>titiiiniiiii  to  niiitti'iH  lit'  jifnrinritil  rnifnivnitf  nmlir  tin  II,  .V.J. 
A,t:'—I\,  lioy.l.  C. 

( 'ourts.or  jmlifial  triliunals,  cstalilishrtl  nn<l«'i'  |)nniinion 
h'^i.slatio!! — liniit«'tl  as  their  fnnrtions  must  hi*  to  ailniinis- 
tciiujn'  hniit'i itiini  law  (/) — art'  entirely  outsiijc  of  ••tin* 
aijniinistration  of  justice  in  the  Pi'ovincc,"  and  "arc  not 
sulnatlinati' judicial  ('oui-ts  niuiml  tlic  Province."  (  "  )■ 

(*•)  VI  O.  H.  50'..  {«)  /,'  Noitli  I'fitli,  n  i).  it.  oilH. 

(0  Hoe  nut>;  p.  22'.t. 

(h)  '21  O.  H.  at  p.  r»i;<;  BGJ  furtlicr  on  tliiH  subject,  notu-*  to  s.  H  of 
the  D.  N.  A.  Act,  iioxt. 


CHAPTKR   XII. 


THM  B.  N.  A.  ACT,  1H07, 

80«1  Vic.  Cap.  8. 

An  Act  for  the  Union  of  Canada,  Nova  Scotia,  ancl 
New  Brunswick,  and  the  Government  thereof; 
and  for  Purpc<sew  connected  therewith. 

\2dth  March,  1807.  | 

Whereas  the  Provinces  of  Cauada, 
Nova  Scotia,  and  New  Brunswick  have 
expressed  their  desire  (i)  to  be  feder- 
ally (ii)  united  into  one  Dominion  under 
the  Crown  of  the  United  Kingdom  (iii) 
of  Great  Britain  and  Ireland,  with  a  Con- 
stitution simihir  in  principle  to  that  of 
the  United  Kingdom  (iv) : 

(i)  "  Have  ex^yrexm'd  t/irlr  ((rttirc." — This  exproHsioTi  of 
ilcsire  iH  to  Ix)  found  in  the  Quebec  Re.solutioiis,  which  will 
he  fcmnd  printed  in  full  in  the  appen<lix.     See  uiite,  p.  2. 

(ii)  "  Federally  " — The  uhc  of  this  term  would  seem  to 
imply  the  continued  existence  of  the  parties  to  the  /(iuIiih. 
See  chapter  III.,  dute,  p.  47  ;  and  see  also  the  judgment  of 
tile  Privy  Council  in  Liquidators  of  Maritime  Bank  v. 
Receiver-General  of  New  Biimswick  (<t). 

Ui)  At  present  only  reported  in  Times  Law  Reports  for  week  ending 
<')th  July,  1892  (Vol.  VIII.,  p.  677). 
Can.  Con.— 16 


242  THE    B.  N.  A.  ACT — PRE  A  MULE. 

(iii)  "  Ui\(hr  the  Crown  of  the  Unitetl  Ki»(/tl(mi" — See 
notes  to  sectioii  2,  postt ;  and  see  hIho,  as  to  the  iiecessaiy 
saving  of  Imperial  Hoverei^nty  in  colonial  lej^islation,  chap- 
ter IX.,  (iiite,  p.  183,  cf  w<i. 

(iv)  "A  constitution  shnUttr  in  principle,  etc." — For  a 
conipfti'iHon  and  contrast  of  our  system  of  «;(nernment,  wiih 
those  of  the  United  Kingdom  and  the  United  States,  see 
chapter  I.  As  to  the  limitation  of  this  preamble  to  the 
Dominion  government  only,  and  the  harndessness  of  such 
limitation,  see  (inte,  p.  3,  and  chapter  III.  It  is  submitted, 
however,  that  read  in  connection  with  clause  3  of  this 
preamble,  it  should  be  treated  as  a  general  reference  to 
the  type  of  governmental  machinery,  and  its  working 
principle  throughout  both  the  Dominion  and  the  various 
provinces. 

And  whereas  such  a  Union  would 
conduce  to  the  welfare  of  the  Provinces 
and  promote  the  interests  of  the  British 
Empire  : 

And  whereas  on  the  estabHshment 
of  the  Union  by  authority  of  Parlia- 
ment (i)  it  is  expedient,  not  only  that  the 
Constitution  of  the  Legislative  authoritj'' 
(ii)  in  the  Dominion  be  provided  for,  but 
also  that  the  nature  of  the  Executive 
Government  (iii)  therein  be  declared  : 

(i)  "  Bi/  ((uthorlti/  o/ jfy«W-i(n)i(?i?i." — As  to  the  legisla- 
tive supremacy  of  the  Imperial  parliament  over  Canada,  in 
common  with  all  other  parts  of  the  British  Empire,  see 
chapter  TV.  In  the  earlj'  days  of  our  colonial  history 
provinces  were  divided,  and  again  joined  together  by  the 
Crown  in  the  exercise  of  "  prerogative,"  but  as  representa- 
tive legislatui'es  were  in  existence  in  the  pre -Confederation 
proviuv  ?s,  any  attempt  to  effect  their  union  otherwise  than 
by  Act  of  the  Imperial  parliament  would  have  been  illegal. 


THE    B.  N.  A.  ACT — SEC.  1.  243 

See  ante,  p.  30,  and  chapter  VI.  avte,  p.  140;  and  see  also 
notes  to  section  3,  j)o.*t^ 

(ii)  "  The  ler/idntire  authority  in  the  Dominion" — As 
to  the  control  exercised  by  the  executive  department  of  the 
Imperial  government  over  Dominion  legislation,  see  chap- 
ter VII.  ante,  p.  145,  where  will  Ite  found  a  full  discussion 
of  sections  55,  50  and  57  of  the  B.  N.  A.  Act.  As  to 
colonial  legislative  authority  and  the  limitations  thereon, 
see  ?^^apter  IX. 

(iii)  "  The  nature  of  the  executive  fjovernnunt." — As  to 
the  necessary  co-extension  n.nd  practical  oneness  of  the 
spheres  of  authority  of  the  legislative  and  executive 
departments  of  government,  see  ante,  p.  12  et  seq.,  22  et  mq., 
45  et  seq.,  and  chapter  VI.  See  also  notes  to  section  9, 
post. 

And  whereas  it  is  expedient  that  pro- 
vision be  made  for  the  eventual  admission 
into  the  Union  of  other  parts  of  British 
North  America  (i) : 

(i)  "  The  eventual  admission  of  other  j^r^Ws  of  British 
North  America." — See  sections  146  and  147,^)osf,  and  Part 
IV.  of  this  book. 

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  follows : 

I. — Preliminary. 

1.  This  Act   may  be  cited  as  '' The  «i^°^'^^"^- 
British  North  America  Act,  1867  "  (i). 


244  TMK    It.  N.  A.  ACT — SEC.  2. 

(i)  'riin>u^h()iit  this  work  we  Iwive  adoptetl  tlio  sliorter 
iiioiU;  of  citation,  "tlie  15.  \.  A.  Act."  It  slioiild  Itc  pointed 
out,  liowever,  that  there  are  two  other  Acts  siniiljirly  entitled, 
namely,  the  B.  N.  A.  Act,  1.S71  (/>),  and  the  B.  X.  A.  Act, 
ISHG  (<•).  By  .section  .S  of  the  last-named  Act,  these  throe 
statutes  are  to  be  conHtrue«l  together,  and  may  he  cited  as 
"The  British  North  America  Acts,  I.S07  to  1880."  We 
•Iraw  attention,  too,  to  "  The  Parliament  of  Canada  Act, 
1875  (</),  as  to  which,  see  notes  to  section  18,  ^>(>«^ 

pvMouT^'        2.  The  provisions  of  this  Act  refer- 

Quee'ii*!  ^°  *^*  ring  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  (i). 

(i)  "KiiKjfi  (iiul  Queens  of  fhe  United  Kiiif/doin." — 
The  succession  to  the  Crown  of  England  is  now  regulated 
hy  the  Act  of  Settlement,  12  &  13  Wm.  HI.  c.  2.  By  the 
connnon  law  of  England,  upon  the  abdication  of  a  sovereign, 
parliament  might  re-settle  the  succession,  and  in  compar- 
atively modern  times  we  have  the  precedent  of  the  Bill  of 
Rights,  1  Wni.  &  Mary  (st.  2),  c.  2,  by  which  it  was  de- 
clared that,  l)y  his  flight  from  the  kingdom,  James  11.  had 
abdicated  the  throne,  and  the  crown  was  settled  upon  Wil- 
liam and  Mary.  Then  came  the  Act  of  Settlement,  to  which 
we  have  referred,  settling  the  succession  upon  the  Electress 
Sophia,  of  Hanover,  and  her  heirs,  being  Protestants.  The 
power  of  parliament  to  alter  the  succession  is  distinctly 
affirmed  in  6  Anne,  c.  7,  which  adjudges  traitors  all  who 
affirm  "that  the  kings  or  queens  of  this  realm,  with  and  by 
the  authority  of  parliament,  are  unable  to  make  laws  and 
statutes  of  sufficient  force  and  validity  to  limit  and  bind 
the  Crown  and  the  descend,  limitation,  inheritance,  and 
(jovernment  thereof."   While,  as  we  have  frequently  pointed 

(&)  34  (ft35  ViQ.  c.  28  (Imp.);  8eej70«t. 
(c)  49  &  50  Vio.  0.  36  (Imp.);  see  jfott. 
(<i)  38  &  39  Vic.  c.  38  (Imp). 


TFIK    H.  \.  A.  A( T— SKC    3.  245 

<nit.  t'ltlitiiial  I<';;iHliitiuvs  imv(.'  full  power  tocurtiiil  the  prc- 
i(»"nti\eH  of  the  Crown  in  connoction  with  the  oxociitivc 
^•overnnient  of  a  colony  (c),  this  does  not  extend  to  enal)le 
n  colonial  le;;islature  to  pass  an  Act  jiff'ectin;;'  the  position 
of  the  occu[)ant  of  the  throne  of  Knyland  as  Executive 
Hea<l  thnaiyhont  tlie  Knipire :  see  Ciaw  \.  Ramsay,  cite(l 
tmh .  p.  l!S4.     See  s.  !>,  /xtnf,  and  notes  thereto. 

II. — Union. 

3.  It  shall  be  lawful  (i)  for  the  Queen,  .Vf\S'"" 
by  and  with  the  advice  of  Her  Majesty's 
Most  Honourable  Privy  Council,  to  de- 
clare by  Proclamation  (ii)  that  on  and  after 
a  day  therein  appointed,  not  bein^,^  more 
than  six  months  after  thepassinf^  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  Do- 
minion (iii)  under  that  name  accordin.i^ly. 

(i)  "  If  shall  ho  l„vyfal."—Heo.  note  (i)  dvic,  p.  242  :  the 
Proclamation  of  Union  rests  upon  the  express  "authority 
of  Parlifinient,"  as  intimated  in  the  preamble. 

(ii)  Her  Majesty's  Proclamation  bore  date  22nd  May, 
1<S()7,  and  provided  that  the  U^nion  should  take  eti'ect  on 
Jidy  1st  of  that  year. 

(iii)  "  One  Dominioii" — i.e.,  for  all  purposes  of  govern- 
ment, legislative  and  executive,  in  relation  to  matters  of 
connnon  concern,  leaving  the  component  provinces  their 
full  rounded  autonomy  in  all  other  niattei*s.  "  The  object 
of  the  Act  wa.s  neither  to  weld  the  Provinces  into  one,  nor 

((')  See  ante,  p.  140 ;  Exchange  Bank  v.  Reg.,  11  App.  Cas.  157  ; 
Liquidators  of  Maritime  Bank  v.  Receiver-General  of  New  Brunswick, 
Times  Law  Rep.,  Vol.  VIIL,  p.  iMl. 


24G  THE   «.  N.  A.  ACT— SECS.  4,  6. 

to  8uVK)r(liiiato  provincial  <,^ovennnentw  to  a  central  author- 
ity, but  to  create  a  federal  o()venniient  in  which  they  shouM 
all  be  represented,  intruHted  with  the  excluwive  adniinistra- 
tion  of  ati'airH  in  which  they  had  a  common  interest,  each 
province  retaining  its  independence  and  autonomy." — Per 
Lord  Watson,  in  Maritime  Bank  v.  Receiver  General  of 
New  Brunswick,  Times  L.  R.,  Vol.  VIII.  p.  077.  See  the 
judgment  (juotetl  more  at  length  in  notes  to  section  OiS,  post. 

oSZ,u°"*  4.  The  subsequent  provisions  of  this 
i^roviaiouH  01  ^^^  shall,  uiiless  it  is  otherwise  expressed 

or  implied,  commence  and  have  effect  on 
and  after  the  Union,  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  is 
otherwise  expressed  or  implied,  the  name 
Canada  shall  be  taken  to  mean  Canada 
as  constituted  under  this  Act  (i). 

(i)  "Canada  as  constituted  under  this  Act." — This. 
Act  must  now  be  read  in  connection  with  the  various  Im- 
perial "  Orders  in  Council,"  passed  under  section  146,  post, 
and  having,under  that  section,  the  force  of  Imperial  statutes; 
and  with  the  Acts  in  amendment  of  this  Act.  See  note  to 
section  1,  ante. 

fn°ce8.^''°'"  5-  Canada  shall  be  divided  into  four 

Provinces  (i),  named  Ontario,  Quebec,. 
Nova  Scotia,  and  New  Brunswick. 

(i)  "  Fowr  Provinces." — For  the  boundaries  of  the 
Dominion,  and  of  each  of  the  different  provinces  of  which  it 
is  now  composed,  see  Houston,  "  Constituti(jnal  Documents  of 
Canada,"  appendix  B,  p.  271.  At  the  date  of  Confederation, 
there  were  in  existence  in  British  North  America  three 
other  provinces,  namely,  Newfoundland,  Prince  Edward 
Island,  and  British  Columbia, ;  the  balance  of  the  territory 


TIIK    M.  X.  A.  AC'I" — SEC.  tJ.  247 

Itfiii^  un(»r<;)inize«l,  except  in  ho  far  us  the  governiiit'iit  of 
the  Hu«ls(»n's  Hay  Company  in  llnpertH  Lan<l  nii;;ht  be 
deemed  an  or^ani/ed  Government.  Newfoiuidland  has  .so 
far  declined  all  invitations  to  unite  her  fortunes  with  the 
Dominion,  althoujiili  she  was  one  of  the  provinces  repre- 
sented at  tlie  Quebec  Conference.  Prince  Edwanl  [sland 
and  British  Columbia  have  since  joined,  and  the  remainder 
of  British  Ncjrth  America  has  lieen  annexed  to  Canada,  and 
the  province  of  Manitoba  erected  therein,  so  that  there  are 
now  seven  "provinces"  in  the  Dominion,  exclusive  of  the 
North  West  Territories.     See  Part  IV.  of  this  l)ook. 

6.  The  parts  of  the  Province  of  Can-  JiS^ald 
ada  (as  it  exists  at  the  passing  of  this  '^"^  '^"' 
Act)  which  formerly  constituted  respec- 
tively the  Provinces  of  Upper  Canada  and 
Lower  Canada  shall  be  deemed  to  be 
severed,  and  shall  form  two  separate  Pro- 
vinces (i).  The  part  which  formerly  con- 
stituted the  Province  of  Upper  Canada 
shall  constitute  the  Province  of  Ontario; 
and  the  part  which  formerly  constituted 
the  Province  of  Lower  Canada  shall  con- 
stitute the  Province  of  Quebec  (ii). 

(i)  "Two  separate  provinces." — See  Quebec  Resolu- 
tions, No.  2.  Aithougli  joined  in  legislative  union  under 
Imperial  Act,  3  &  4  Vic.  c.  85  ("  The  Union  Act"),  the 
diti'erence  in  race,  language,  and  legal  systems  justified  the 
popular  description  of  the  two  parts  of  old  Canada  as  "the 
two  Canadas."  For  an  interesting  sketch  of  the  devices 
resorted  to,  in  order  to  work  out  the  federal  idea  in  the 
government  of  these  tw'o  parts  of  Canada,  see  Bourinot, 
"  Parliamentary  Procedure  and  Practice,"  2nd  ed.  p.  89,  et  seq. 
The  necessity,  created  by  this  severance  of  the  tw<)  Canadas, 
for  the  establishment  of  new  governmental  machinery  in 
each  of  them,  and  the  argument  founded  on  the  clauses  of 


248  'IIIK    n.  X.  A.  AfT — SKCS.  7-'.». 

the  Act  which  innk«>  in'ovision  then;t'<»r,  will  l>c  found  (lis 
cuHHt'd  in  clmptt-r  I  IT.  )inf^\  p.  4(i. 

(ii)  See  the  JndniiK'iit  of  Rolrinson,  C..T.,  in  Doe  <h 
Andei-Hon  v.  Todd  ((|Uott'd  anfc,  p.  1()4-)  for  n  statement  in 
reference  to  the  honndaries  of  (old)  Quehec. 

I'o'lT^otil         1    The  Provinces  of  Nova  Scotiu  and 
MiT.nswick.     New   Bninswi(dv    shall    have    the    same 
limits  as  at  the  passing  of  this  Act  (i). 

(i)  See  foot-note  tn\U\  p.  4(). 

Sus.'^"'  8-  Ii^  the  general  eensns  of  the  popu- 

lation of  Canada  which  is  herehy  re(piired 
to  be  taken  in  the  year  one  thousand 
eight  hundred  and  seventy-one,  and  in 
every  tenth  year  thereafter,  the  respective 
populations  of  the  four  Provinces  shall 
be  distinguished  (i). 

(i)  "Shall  he  tUsti/nfjuifihpd." — In  order  to  a  re-adjust- 
ment of  the  representation,  in  the  parliament  of  Canada,  of 
the  respective  provinces.  See  section  51,  [lo.sf,  and  notes 
thereto. 

III.  Executive  Power  (i). 

ExSve"°'        9-  The   Executive    Government  and 
Queli.'"^'^  authority  of  and  over  Canada  is  hereby 

declared  to  continue  and  be  vested  in  the 

Queen  (ii). 

•  (i)  "Executive  2)ower." — As  to  tlui  necessary  suhordi- 
nation  of  the  executive  to  the  legislative  department  of 
government,  see  ante,  p.  12.  In  reference  to  the  govern- 
ment of  Canada  as  part  of  the  Brltlsk  Eviii>ire,  the  Queen's 
authority  as  executive  head  of  that  Empire  is  subordinate 
to  the  parliament  of  the  United  Kingdom,  the  supreme 
Imperial  legislative  power;  and  her  authority  as  executive 


TIIK    W.  N.  A.  ACT — HEC.  0.  24l) 

licml  <•!'  (^>iim*h'i  {I  Ik  if  is  in  rrfrrcurr  ti)  mil'  srlf-i/orci'i)- 
ii)fiif\  is  siiliordiimtL'  t<»  the  uutliority  ul"  CmuKliim 
]t)irliiniK'nts.  In  otlu'i'  Wfirds,  in  su  tai-  as  thf  liiipcrifil 
|i)H'liiini('nt  Iwis  i-cscrvt'il  t<»  itscIF,  control  (»ver  ccrtuin 
sul>j<'t't  ninttci's,  as  Itciny'  inattcrs  oF  Inipcriul  concern  (sncli 
r('Sfi'vati<»n  Itfiny'  evidenced,  eitliei*  l>y  express  oi-  implied 
limitfition  njjon  tlie  powers  of  tliu  colonial  legislature  over 
eel-tain  subject  mutters  (  /').  or  l»y  the  existence  of  Imperial 
legislation  upon  these  matters)  (//),  the  executi\e  authority  of 
the  (^)»ieen  is  exercised  suhject  to  the  control  (»f  the  Imperial 
])arliament,  //.,  hy  and  with  the  advice  of  the  executi\o 
committee  or  Cabinet  of  the  Empire  ;  while,  on  the  other 
hand,  in  so  far  as  leyislative  power  has  lu'en  conce(led  to  a 
Colonial  le^^islature,  the  executive  authority  of  the  Quoen  is 
exercise(l,  throuL;h  her  representative, suhject  to  tlie control 
of  the  colonial  lej^islature,  I.e.,  hy  and  with  the  advice  of  the 
executive  connuittee  or  Cahinet,  Dominion  or  Provincial, 
as  the  case  may  he.  We  may  here  notice  on(.'  particular 
Hiihject  matter,  whicli  for  obvious  rd'asons  is  treated  as 
matter  of  Iniperial  concern,  and  in  respect  to  which, 
tla-refore,  no  lee'islative  power  is  conceded  to  Canadian 
jiarliaments;  the  constitution,  namely,  of  tlie  connecting" 
links  in  the  cliain  of  executive  eovei-nment,  from  the 
Imperial,  through  the  Dominion,  to  the  Provincial.  The 
executive  government  of  the  British  Empire  is,  in  truth, 
in  its  Imperial,  as  well  as  its  English  aspect,  a  unit ;  and 
for  the  purpose  of  securing  luiity  of  national  jnirpose  and 
method  throughout  the  Empire,  the  appointment  of  the 
local  executive  heads  is  so  arranged-  that  the  execu- 
tive department  of  that  government  which  is  pos- 
sessed of  the  widest  territorial  juris<liction,  appoints  the 
executive  head  of  the  government  next  in  extent,  and 
exerci.ses  executive  supervision  over  its  legislation;  and  so 
on.  We  may  here  note  that  tlie  Imperial  government  can 
also  exercise  a  h'<ilM<itive  supervision  over  colonial  legisla- 
tion :    the  Dominion  government  is  limited  to  the  exercise 

(/)  See  Chap.  IX.  {o)  See  Chap.  IV. 


250  THE    H.  N.  A.  ACT— SEC.  !». 

of  I'.i'cciifirr  sn]H'rvisi()n — to  wit,  the  power  of  <li.sjillowimct» 
— over  proviiic'iiil  Ic^fisliition.  Leaving' out  of  eoiisidtTJition, 
however,  the  leni.sliitive  supreiimey  <»f  the  liii|»eriHl  jtiiiliu- 
ineut,  whut  the  .Fudieiiil  ('oiniiiittet'  has .sjiid  (A )  in  relercnce 
to  the  relation  hetwi-en  the  Doiniuion  and  the  Proviiu-fM, 
in  Canada:  "  No  one  of  the  })artH  can  pass  laws  for  itstdf 
except  under  the  control  of  the  whole,  acting;  thronyh 
the  (}overnor-(»eneral :  "  is  e(|ually  applicahle — suhstitutin;; 
the  Queen  for  the  (Jovernor-CJeneral — to  the  relation  of  the 
colonies  generally  to  the  Empire. 

Under  existing'  arran^eujents,  the  (^ueen  occupies  a  dual 
position,  lieing-  executive  head  of  the  Empire  and,  at  the 
same  time,  local  executive  head  of  the  United  Kingdom  : 
hut  the  union,  in  one  le^^islative  l»ody  with  one  executive 
connnittee  or  cabinet,  of  the  power  to  le^^islate  for  the 
whole  Empire  as  well  as  sj)ecially  for  one  of  its  territorial 
divisions,  leaves  the  line  of  division  a  purely  "conven- 
tional "  one — in  this  sense,  at  least:  that  the  ptjwer  of  the 
Imperial  parliament  to  alter  the  i)osition  of  the  line,  is 
restrained  only  hy  the  "conventions,"  and  not  l»y  the  law 
of  the  constitution  ;  but  at  any  «;iven  moment  of  time  the 
lino  of  division  is  a  leual  one.     See  (iiiff,  p.  11. 

The  Governor-Cieneral  of  Canada  again  occupies  a  dual 
position.  He  is  one  of  the  Imperial  executive  staff' as  well 
as  executive  head  of  the  Dominion.  In  the  former  capacity,, 
he  is  subject  to  Imperial  executive  authority,  which,  as  we 
liave  said,  extends  to  all  tl»ose  suV)ject  matters,  which,  at 
any  given  moment  of  time,  are  witliin  the  category  of 
matters  of  Imperial  concern,  controlled  by  Imperial  legis- 
lation, or — from  the  other  point  of  view — uncontrollable 
by  colonial  legislation.  In  regard  to  such  matters  his 
actions  are  regulated  by  instructions,  general  or  specific, 
received  from  his  official  superi<jr  at  home  or  by  Imperial 
statutes.  In  his  capacity  as  executive  head  of  the  Domin- 
ion, he  acts  by  and  with  the  advice  of  the  Queen's  Privy 
Council  for  Canada,  and  is,  in  the  exercise  of  his  executive 

(/)  Bank  of  Toronto  v.  Lanibe,  12  App.  Cas.  tit  p.  o87. 


THE    H.  N*.  A.  ACT— MEC.  0.  251 

jMitlinritv  ill  nlatioii  to  iiuittiTH  within  tin-  l«'<!isliitivi'  com- 
|M't('MC'i'  of  tliu  Dominion  piirhmiK'nt,  Hultjt'et  to  tlu*  control 
of  that  ImiiIv.  Hiw  |«»Hition  with  ivft-ivnc*'  to  the  Lifiitt'ii- 
aiit-(iovt'rnoi'H  of  thi'  Hcvt'i'iil  provinces,  inuHtnitt'H  tht*  dis- 
tinction wc  have  hccn  tryin;,^  t(»  ])()int  out.  The  Dominion 
piirliament  cannot  provide  any  method  for  the  appointment 
of  a  Lieiitenant-(Jovernor,  or  for  his  removal,  otlier  than 
that  provided  in  the  H.  N.  A.  Act.  It  is  deemed  matter  of 
Inijitiial  concern  that  there  should  he  a  sinj^le  executive 
hea(Mor  each  of  the  jn'ovinces :  that  the  Dominion  execu- 
tive committee  or  cabinet  should  appoint  him;  and  that, 
once  app(tinted,  he  sluaild  not  he  removed  except  for  cause. 
Any  dei)arture  from  the  mode  provided  in  the  B.  N.  A. 
Act  wouhl  he  illegal  and  nuyatory.  and  in  performance  of 
his  duties  in  this  ciumection,  the  Governor-Cieneral  must» 
as  an  lm}>erial  officer,  follow  the  Imperial  statute,  as  that 
statute  may  be  authoritatively  interpreted  by  his  otKcial 
sup«'ii(»r  in  Enj^land.  As  to  the  mode  of  appointment,  the 
I).  N.  A.  Act  is  explicit — the  a})pointment  must  be  by  order 
in  council — so  that  the  (piestion,  who  shall  fill  the  ])osition, 
is  K'ft  as  a  matter  of  local  Canadian  concern,  to  the  deter- 
mination of  the  Dominion  Cabinet;  while  as  to  the 
removal  of  a  Lieutenant-Governor,  the  B.  N.  A.  Act  is 
e(|ually  clear  in  giving  that  power  to  the  Oovernor-Cjeneral 
alone.  That  is  to  say,  the  Governor-General  cannot,  alone, 
legally  ap])oint,  but  he  can,  alone,  legally  remove  for  cause. 
This  (|uesti()n  is  perhaps  not  of  nuich  practical  importance, 
liecause,  in  the  Letellier  case,  the  Imperial  authorities  laid 
•  lown  the  "conventional"  rule  for  the  guidance  of  the 
Governor-General,  that  he  should,  in  this  matter  of  reiiunal, 
act  l>y  and  with  the  advice  of  the  Dominion  cabinet;  but 
should  he  at  any  time  undertake  to  act  upon  his  own 
judgment  a  Lieutenant-Governor  removed  would  legally 
cease  to  be  Lieutenant-Governor.  The  laving  <lown  of 
this  conventional  rule  has  certainly  very  largely  increased 
the  power  possessed  by  the  Dominion  executive  to  interfere 
in  the  afiaii-s  of  the  provinces;    but  it  was  necessary,  per- 


252  rm:  n.  n.  a.  a<t— mkc  ». 

hiipH,  tn  till'  loyiciil  imit'unnitv  nl'  tin-  t'olrnil  mcIwiih'.  It  in 
])frlin])s  iimrr  cunsniiiiiit  with  liiitisli  iiutiuiis  to  liiivr  the 
mil  |M»\vrr  CMiiplt'd  with  rciil  ifsiKHisiliility  to  the  wh»th» 
•'Icctoratt' of  the  I  )oniiiiioii,  ill  whost-  iiitrrrstM  |nT,suimil»ly 
thf  power  will  III'  csfrciMfil  in  any  ;;iv('H  casi',  A  political 
cynic  may  jM'ihaps  think  not  mot  oiirofinM  the  remark  of 
Mr.  Ihnnltlf  when  informed  that  a  hnsliaiKl  In,  in  law,  pre- 
Humeti  to  contrid  his  wife:  "  If  the  law  |)re.sum«'M  anylhin;;- 
(»f  the  sort,  the  law  H  a  fool — a  natural  fool."  It  is  indeed 
a  serious  (|UeHtion  whether  it  would  not  l»e  conducive  to 
the  impartiality  »»f  the  pro\iiicial  executive  heads  to 
make  them  entirely  independent  of  Dominion  executivj- 
HUthoritv;  or  whether  anv  yiiin  al(»ni>'  this  line  w(tuld  not 
l)e  mor«'  than  countt'rhalanced  hy  the  loss  of  one  item  of 
colonial  self-<;(tvernment.     See  not»'s  to  st'ction  r),S,  y>os7. 

(ii)  " ///  f/ir  IJiiccii." — This  section  is  declaratory 
merely,  and  was  inserted  sim]>ly  l»y  way  of  almndant 
caution,  for,  accord iny-  to  Chitty.  "the  kin;i;df  Kn^land  is 
not  only  the  chief,  Imt  pi'operly  the  sole  magistrate  of  the 
nation,  all  others  actin;;'  Ity  cominission  from,  and  in  <lu(^ 
sultordination  to  him  "  (h/i)-  lu  an  earlier  cha[)ter  we  liave 
treated  at  some  length  of  the  preroo-ativus  <»f  the  Crown  in 
their  relation  to  colonial  yovenuiient, — see  chapter  VI.:  and 
we  ha\('  endeavored  to  emphasize  this  leyal  principle  that 
tlu'se  prerogatives  of  the  C^'own  are  noti>iu<^'  mor«'  than 
powers  \ested  l»y  the  common  law  of  En;4land  in  the  execu- 
tive iiead  of  the  nation  in  aid  of  tin?  execution  of  the  law.s 
of  the  realm,  and  that,  by  Act  of  parliament,  these  preroj^- 
ative  riyhts  may  he,  and  in  a  ^reat  many  instances  ha\t' 
heen  modified — turned  into  statutory  powers — oi-  entirely 
witlulrawn.  The  (piestiori  has  heen  mooted,  although  per- 
hai)s  not  of  such  practical  importance,  whether  Her 
Majesty  could,  in  person,  carry  on  tlie  government  <»f 
Canada,  or  of  one  of  the  provinces;    it  is  suhmitted  that 

(hh)  See  the  jurl|.'ment  of  the  P.  C.  in  Liquidators  of  the  Maritime 
Bank  v.  Receiver-General  of  New  Brunswick,  as  yet  reported  only  in 
Times  L.  II.,  Vol.  VIII.  p.  ()77. 


THE    H.  \.  A.  ACT--.sk* •.   lU.  -J.^ii 

witliniit  r»'|M')il  ul"  tin-  h.  N.  A.  Act,  mIic  cuuM  not  Icyiilly 
•  |u  HO.  All  tli»'  |M»\v»'is,  uutliojitit's  and  ruiit'tioiis  nfi't'ssary 
t<  I  "  carry  in;;"  on  tin*  ^ovcrnnu'iit  "  of  the  Dopiinion  ami  of 
the  ivspcctivc  jnovinci'M  arc,  liy  the  cxprcHs  terms  ot"  the 
B.  X.  A.  Act,  vestetl  in  the  (lovernor-deneral,  or  th»'  I^ien- 
tenant-Ciovernor,  JUH  the  ease  may  recjuire  (/);  an<l  Ky  no 
Act  of  Imperial  rrcfutirr  anthority  con'd  these  express 
provisions  of  this  Imperial  statute  he  overrithlen.  In  the 
ahsence,  therefore,  of  further  Imperial  legislation,  we 
must  put  up  with  Her  Majt'sty's  representatives. 

The  power  (I)  to  <lisallow  colonial  le^^islation  ;  (2)  t<> 
Mppoint  tlu^  ()lovernor-(ieneral ;  (.S)  to  a{)point  a  I'om- 
inaniler  over  tlie  military  and  naval  forces  of  Canada:  (4) 
to  make  international  arrangements  which  will  Kind 
Canada;  and  (5)  to  liear  appeals  from  Canadian  courts  iu 
her  Privy  ('ouncil  (,/');  W(aild  seem  to  l»e  ahout  all  the. 
cnnnnon  law  prerogatives  of  the  C^rown  in  connection  with 
colonial  afiiiii-H,  over  which  colonial  le;;iNlatures  have  no 
It'nislative  power.  As  a  nuitter  of  fact,  some  of  tliese 
powers  can  hardly  l>e  tlesij^nated  preroj^atives  of  the  Crown, 
lis  their  exercise  is  entirely  controlled  by  Imperial  statutes. 
As  one  example,  we  may  note  the  power  to  disallow  Do- 
minion lef^'islation,  which  under  section  50  of  the  B.  N.  A. 
Act,  CMi  only  be  exercised  within  two  yeai*H  from  the 
recei})t  of  the  Act  by  the  secretary  of  state,  and  by  order 
in  c<anicil. 

10.  The  provisions  of  this  Act  referring  jM^nrre' 
to  the  Governor-General  (i)  extend  and  uovJiuoj- 
apply  to  the  Governor-General   for   the 
time  being  of  Canada,  or  other  the  chief 
executive   Officer   or  Administrator,   for 
the  time  being  carrying  on  the  govern- 

(0  See  notes  to  as.  10  and  62,  post. 

(j)  Cuahing  v.  Dupuy,  5,  App.  Gas.  409,  and  cases  there  cited ;  and 
see  Th4berge  v.  Landry,  2  App.  Gas.  102  (as  to  appeals  in  election  cases 
under  the  Quebec  Acta  of  1872  and  1875),  noted  pout,  under  s.  41. 


254  THE   B.  N.  A.  ACT — SEC.  10. 

ment  (ii)  of  Canada  on  behalf  and  in  the 
name  of  the  Queen  (iii)  by  whatever  title 
he  is  designated. 

(i)  "The  Governor-General." — We  have  already  de- 
voted one  chapter  of  this  book  to  a  consideration  of  the 
position  of  the  Governor-General,  and  need  not  therefore 
make  furtlier  reference  to  that  office  here.  As  was  pointed 
out,  the  B.  N.  A.  Act  contains  no  express  provision  for  his 
appointment.     By  R.  S.  C.  c.  3,  he  is  a  "corporation  sole." 

(ii)  "Carrying  on  the  government." — Compare  with 
this  section,  the  language  of  section  62  in  reference  to  the 
carrying  on  of  the  government  of  the  respective  provinces 
by  the  Lieutenant-Governors.  The  use  of  this  phrase  in 
reference  alike  to  the  Dominion  and  the  Provincial  govern- 
ments, has  been  much  utilized  in  argument  in  support  of 
the  contention  that  the  Lieutenant-Governor  is  within  his 
sphere,  an  officer  clothed  with  authority  as  complete  as 
that  of  the  Governor-General;  but  as  we  shall  have  to  deal 
with  this  matter  more  at  length  when  we  come  to  deal 
with  the  office  of  Lieutenant-Governor,  we  need  not  stay  to 
consider  it  at  length  here.     See  notes  to  section  58,  ])08t. 

(iii)  "On  behalf  and  in  the  nanw  of  the  Queen." — The 
absence  of  this  phrase  from  section  62,  has  been  utilized  in 
the  opposite  direction  in  Regina  v.  Amer  {k),  and  other  sub- 
sequent cases.  It  was  laid  down  by  Harrison,  C.J.,  tliat 
the  Governor-General  is  the  only  executive  officer  provided 
for  by  the  B.  N.  A.  Act,  who  answers  the  description  of 
"representative  of  the  Queen,"  but  it  is  submitted  that  the 
difference  in  the  wording  of  this  section  and  of  section  62, 
does  not  warrant  any  s  ich  distinction.  Any  pei*son  carry- 
ing on  government  within  the  British  Empire  must  do  so 
on  behalf  oi,  and  in  the  name  of,  the  executive  head  of  the 
British  Empire,  as  all  other  executive  magistrates  act 
under  commission  from,  and  in  due  subordination  to,  that 
executive  head.     If  reliance  is  placed  upon  the  fact  that 

{k)  42  U.  C.  Q.  B.  391. 


THE   B.  N.  A.  ACT — SEC.  11.  255 

the  Lieutenant-Governor  is  described  as  an  "  officer,"  it  will 
be  seen  that  this  section  uses  the  very  same  word  in  de- 
scrioing  the  po.-tition  ot*  the  Governor-General,  and  a  refer- 
ence to  chapter  VIII.  and  the  cases  there  collected,  will 
show  that  the  Governor-General  occupies,  in  this  respect,  a 
position  in  no  way  different  from,  or  superior  to,  that  of  the 
Lieutenant-Governor  of  a  province.  Very  opportunely,  there 
comes  to  hand  the  report  of  the  judgment  of  the  Judicial 
Committee  of  the  Privy  Council  in  Liquidators  of  the 
Maritime  Bank  v.  Receiver  General  of  New  Brunswick 
(Times  L.  R.,  Vol.  VIII.  p.  677),  which  authoritatively 
establishes  the  doctrine  that  the  position  of  the  Governor- 
General  and  the  various  Lieutenant-Governors  is,  in  prin- 
ciple, precisely  analogous.  "  A  Lieutenant-Governor  when 
appointed  is  as  much  the  representative  of  her  Majesty 
for  oil  purposes  of  provincial  government  as  the  Governor- 
General  himself  is  for  all  purposes  of  Domiinion  govern- 
ment." See  further  on  this  subject,  section  58,  et  seq.  and 
notes. 


Coustitution 
for 


11.  There  shall  be  a  Council  (i)  to^.Triyv 
aid  and  advise  in  the  Government  of  cauada, 
Canada,  to  be  styled  the  Queen's  Privy 
Council  for  Canada  (ii) ;  and  the  persons 
who  are  to  be  members  of  that  Council 
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  Governor-General. 

(i)  ''  There  shall  he  a  council" — Compare  with  this, 
the  language  of  section  63.  This  latter  section  seems  to 
"  take  it  for  granted  "  that  an  executive  council  would  be 
called  into  existence  in  Ontario  and  Quebec,  while  as  to  the 
Dominion  it  was  necessary  to  make  express  provision  there- 
for.   See  ante,  p.  50-1. 


256  THE   B.  N.  A.  ACT — SEC.  12. 

(ii)  "  The  Queens  Privy  Coimcil  for  Canada." — Fol- 
lowing the  English  practice,  members  of  the  Canadian 
Privy  Council,  are  not  removed  from  their  position  upon 
the  resignation  of  the  "ministry"  of  which  they  may  happen 
to  be  members ;  but,  of  courae,  those  membei*s  only  who  are 
of  the  cabinet  are  summoned  to  meetings  of  the  Privy 
Council.  See  Bourinot,  "Pari.  Proc.  and  Pract.,"  2nd 
ed.  p.  54  and  Todd,  "  Pari.  Gov.  Brit.  Col,"  p.  42. 

undeHctlto        12-  (i)   All  powers,  authorities,  and 

be  exercised      i»  ,•  /•■-\        i-v  t  k     l    /'"S       £ 

by  Governor-  luiictions  (ii)  which  Under  any  Act  (in)  of 

General  with  "  ^      ^ 

advice  of       the  Parliament  of  Great  Britain,  or  of  the 

Irnvy  Council  ' 

or  alone.  Parliament  of  the  United  Kingdom  of 
Great  Britain  and  Ireland,  or  of  the 
Legislature  of  Upper  Canada,  Lower 
Canada,  Canada,  Nova  Scotia,  or  New 
Brunswick,  are  at  the  Union  vested  in  or 
exerciseable  by  the  respective  Governors 
or  Lieutenant-Governors  of  those  Pro- 
vinces, 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  the  same  continue  in  exist- 
ence and  capable  of  being  exercised  after 
the  Union  in  relation  to  the  Government 
of  Canada,  be  vested  in  and  exerciseable 
by  the  Governor-General,  with  the  advice 
or  with  the  advice  and  consent  of  or  in 
conjunction  with  the  Queen's  Privy  Coun- 
cil for  Canada,  or  any  members  thereof,  or 
by  the  Governor-General  individually,  as 
the   case   requires,   subject   nevertheless 


THE    B.  N.  A.  ACT — SEC.  12.  257 

(except  with  respect  to  such  as  exist 
uiuler  Acts  of  the  Parlian^ont  of  Great 
Britain  or  of  the  Parliament  of  the  United 
Kingdom  of  Great  Britain  and  Irehmd) 
(iv)  to  be  aboHshed  or  altered  by  the  Par- 
liament of  Canada  (v). 

(i)  We  have  already  ha<l  occasion  to  treat  with  some 
fullness  of  this  section  and  its  companion  section  (Go) ;  see 
chapter  III.,  pp.  48,  et  seq. 

(ii)  "  All  po'wcrs,  etc." — Compare  the  language  of  sec- 
tion 65,  which  vests  these  same  "  powers,  etc.,"  so  far  as 
they  are  capable  of  being  exercised  in  relation  to  the  gov- 
ernment of  Ontario  and  Quebec,  in  the  Lieutenant-Gover- 
nors of  those  provinces  respectively.  The  B,  N.  A.  Act 
art'ects  no  division  of  these  powers,  but  of  the  tield  for  their 
exercise  merely. 

(iii)  "  Under  any  Act." — This  section  12,  refers  only  to 
statutory  powers  and  does  not  touch  the  common  law  "  pre- 
rogatives of  the  crown."  The  vast  majority  of  the  powers 
exerciseable  by  the  Governor-General  are  statutory  powers, 
that  is  to  say,  are  vested  in  him  under  Canadian  legislation. 
See  chapter  VIII.  anic,  p.  168,  et  seq.,  where  this  (|uestion  is 
fully  discussed. 

(iv)  "Except  witii  rexpect,  etc." — Tliere  are  no  Imperial 
Acts  conferring  powei-s,  authorities,  and  functions  on 
colonijd  governoi-s  generally:  as  to  Canada,  see  the  Consti- 
tuticmal  Act,  1791,  and  the  Union  Act,  1840.  All  the 
p()wei*s,etc., conferred  by  those  Acta — and  more — are  included 
in  the  B.  N.  A.  Act,  which  at  the  present  time  is  the  only 
Imperial  statute  which  in  any  way  defines  the  duties  of  the 
Governor-General  or  of  the  Lieutenant-Governors  of  the 
various  provinces. 

(v)  "  To  he  abolished  or  altered  by  the  parliament  of 
(Mnada." — This  of  coui-se  is  limited  to  the  abolition  or  alter- 
ation of  these  powei's,  etc.,  so  far  as  they  are  exerciseable  in 
Can.  Con— 17 


258  THE'  13.  N.  A.  ACT — SECS.  13.  14. 

relation  to  the  goveniiiieiit  of  Canada.  See  (section  05,  which 
confere  like  power  on  the  provincial  legislative  assemblies,  so 
far  as  these  powei*s  are  exerciseable  in  relation  to  the  govern- 
ment of  the  provinces  of  Ontario  and  Quel)ec.  See  also 
notes  to  section  129,  2)osf,  with  particular  reference  to 
Dobie  V.  Temporalities  Board,  L.  R.  7  App.  Cas.  13G. 

mS&e!  13.  The  provisions  of  this  Act  refer- 
ve7nof-Gone°'  Hiiff  to  thc  Govemor-General  in  Council 

ral  in  Council. 

shall  be  construed  as  referring  to  the 
Governor-General  acting  by  and  with  the 
advice  of  the  Queen's  Privy  Council  for 
Canada  (i). 

(i)  Compare  section  G6,  and  see  chapter  VIII.  unte^ 
p.  167,  et  seq.,  for  a  reference  to  those  matters  in  respect  of 
which  the  Governor-General,  in  contemplation  of  law,  acts 
alone. 

MaTesi^t^au-  14.  It  shall  be  lawful  for  the  Queen, 
eruol-Gen°eVai  if  Hcr  Maiesty  thinks  lit,  to  authorize  the 

tf  I  appoint  ''         '' 

Deputies.  Governor-General  from  time  to  time  to 
appoint  any  person  or  any  persons  jointly 
or  severally  to  be  his  Deputy  or  Deputies 
wdthin  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  functions 
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  appoint- 
ment of  such  a  Deputy  or  Deputies  shall 
not  affect  the  exercise  by  the  Governor- 
General  himself  of  any  power,  authority 
or  function  (i). 


THE   B.  N.  A.  ACT — SEC.   15.  259 

(i)  The  commission  to  Lord  Monck  (clause  8),  and  the 
Xetters  Patent  of  1878  (clause  6),  expressly  authorize  the 
oipi  ointment,  by  the  Governor-General,  of  a  deputy.  See 
■chapter  VIII.  ante,  p.  168.  In  the  case  of  Regina  v. 
Amer  (I),  which  came  before  the  court  upon  a  case  stated, 
a  commission  to  hold  an  assize,  attested  in  the  name  of 

*' ,  Deputy  of  the  Governor-General  of  Canada,"  was 

referred  to  in  the  "  case,"  and  Harrison,  C.J.,  assumed  : 

"  'L'hat  the  Queen  authorized  the  appointment  of  a  Deputy 
Governor,  and  that  the  prerogative  power  in  question  was  'jon- 
ferred  by  the  Governor-General  upon  the  Deputy  Governor, 
without  any  limitation  or  direction  on  the  part  of  the  Queen, 
and  so  that  it  has  been  exercised  by  the  proper  authority," — 

there  being  no  statement  to  the  contrary  in  the  case.  In 
tliat  case,  commissions  had  been  issued  both  by  the  Gover- 
nor-General, and  b}'  the  Lientenant-Governor,  and  the 
judgment  of  the  Court  affirmed  the  authority  of  the 
Governor-General  to  issue  such  commission ;  but  it  is  sub- 
mitted that  the  power  to  exercise  this  prerogative  is 
properly  with  the  Lieutenant-Governor,  and  not  with  the 
the  Governor-General — so  far  at  least  as  provincial  courts 
are  concerned — as  it  is  a  prerogative  directly  connected 
Avith  "  the  administration  of  justice  in  the  province," 
and  therefore  falls  within  the  class  of  matters  over  which 
a  provincial  legislature  is  exclusively  entitled  to  exercise 
legislative  authorit}'.     See  B.  N.  A.  Act,  s.  92,  s-s.  14. 

As  to  the  appointment  of  a  Deputy  Lieutenant-Gover- 
nor, see  notes  to  section  67,  jwst. 

15.  The    Command-in-Chief  of  the  ^^Zd'orces' 
Land  and  Naval  Militia,  and  of  all  Naval  be  vestedTn  ° 

tbe  Queeu. 

and  Military  Forces,  of  and  in  Canada,  is 
hereby  declared  to  continue  and  be  vested 
in  the  Queen  (i). 

(i)  This  is  one  of  those  mattei-s  in  respect  of  which 
colonial  legislative  power  is  subject  to  many  restrictions 

(I)  42  U.  C.  Q.  B.  391. 


20*0  THE    \i.  N.  A.  ACT — SECS.  l(i,  17. 

ttrisin*^  from  the  existence  of  Imperial  leyisiation  of  expreHK 
colonial  application.  See  chapter  IX.  (Uife.  So  far  us  such 
legislation  does  not  extend,  the  subject  is,  as  between  the 
Dominion  and  the  provinces,  exclusively  with  the  for- 
mer: see  B.  N.  A.  Act,  secticm  !)1,  sub-section  7,  and  notes 
thereto.  Oiu"  legislation  upon  the  subject  is  contained  in 
R.  S.  C.  c.  41,  to  which  the  reader  is  referred,  as  the  subject 
is  Ijeyond  the  scope  of  this  work — political  rather  than 
legal. 

ernmen?or         16.  Uiitll  the   Queeii   otherwlse   di- 
cauaaa.        ygcts,  the  Seat  of  Government  (i)  of  Can- 
ada shall  be  Ottawa  (ii). 

(i)  "The  .seat  of  (jocernment." — Compare  section  0<S, 
where  the  same  form  of  expression  is  used  in  reference  to 
the  provincial  capitals.  This  fact,  too,  strongly  supports 
the  view  that  the  position  (jf  the  provinces  is  the  same,  in 
principle,  as  that  of  the  Dominion. 

(ii)  "  Ottiiiva." — This  city  is  wholly  within  the  boun- 
daries of  the  province  of  Ontario.  See  the  powerful 
speech  of  Mr.  C.  Dunkin,  in  favor  oi  placing  the  Federal 
capital  entirely  under  the  jurisdiction  of  the  Federal  gov- 
ernment, just  as  the  District  of  Columbia  (within  which  is 
situated  the  city  of  Washington)  is  under  the  control  of 
the  Federal  government  of  the  United  States. — Confed. 
Deb.  p.  507.      • 

IV. — Legislative  Power,  (i). 

offrHament  17.  There  shall  be  one  Parliament  (ii) 
for  Canada,  consisting  of  the  Queen  (in), 
an  Upper  House,  styled  the  Senate  (iv), 
and  the  House  of  Commons  (v). 

(i)  "  Legislative  'poiveT." — See  chapter  IX.,  mjie,  for  a 
full  discussion  of  the  extent  of  the  legislative  power  of  a 
British  colony. 


THE   U.  X.  A.  ACT — SEC.  18.  261 

(ii)  " F<(rllument." — Tlie  use  of  tliis  term  in  reference 
Do  the  legiHlative  luxly  of  the  Dominion  only,  lias  l»een 
much  utilized  in  argument  to  l»elittle  tlie  position  of  the 
provincial  legislative  assemlilies  ;  but  their  co-onlinate  rank 
with  the  ])ominion  parliament  (each  supreme  within  its 
sphere  of  legislative  authority)  is  now  finally  estahlished  : 
Hodge  v.  Reg.  0  App.  Cas.  117  ;  Bank  of  Toronto  v.  Land>e, 
12  App.  Cas.  575:  Li(|uidators  of  the  IMaritime  Bank  v. 
Keceiver-General  of  New  Brunswick,  Times  L.  R.  Vol. 
\'III.  p.  677.  The  appellati(m  hestowed  upon  any  of  tliese 
Ixxlies  is  immaterial.  Tlie  (piestion  is,  have  they  Iccjl  slat  Ire 
powei-s  in  the  proper  sense  of  that  term  ? 

(iii)  "'The  Queev^ — The  position  of  the  Queen  as  a 
constituent  hrancli  of  parliament  will  he  found  discussed 
in  chapter  ^'I.  anie,  p.  132,  et  i^eq.,  where  we  liave  also 
pointed  out  that  the  Crown  is  also  a  constituent  branch  of 
every  colcmial  legislature.  As  to  the  position,  in  this  regard, 
r)f  tlie  legislative  assend)lies  of  the  province,  see  notes  to 
.section  69,  post. 

(iv)  "  The  Semite." — See  secti(m  21,  et  seq. 

(v)  "  The  House  of  Commons.'' — See  section  37,  ef  neq. 

18.  The  privileges,  (ii),  immunities,  ^f  Houfes'i*'' 
and  powers  (iii),  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  (iv),  but  so  that  any  Act  of  the 
Parliament  of  Canada  defining  such  privi- 
leges, immunities  and  powers  shall  not 
confer  any  privileges,  immunities  or 
powers  exceeding  those  at  the  passing  of 
such  Act  held,  enjoyed,  and  exercised  by 
the  Commons  House  (v)  of  Parliament  of 


2C2  THE   B.  N.  A.  ACT — SEC.  18. 

the  United  Kinf^doin  of  Great  Britain  andl 
Ireland  and  by  the  members  thereof.] 

(i)  The  section,  as  it  originally  stood,  limited  the  power 
of  the  Pariiainent  of  Canada  to  <lefininjj  its  orivileoes,  etc.^ 
by  its  own  enactment,  "  but  so  that  the  same  shall  never 
exceed  those  at  the  passing  of  thin  Act,  held,  enjoyed,  etc' 

In  1873,  the  parliament  of  Canada  passed  an  Act,  36  Vic. 
c.  1,  "  To  provide  for  the  examination  of  witnesses  on  oatli 
by  connnittees  of  the  Senate  and  House  of  Connnons. 
in  certain  cases."  At  the  date  of  the  passage  of  the  B.  N.  A. 
Act,  the  connnittees  of  the  Imperial  "  Connnons  House  " 
had  no  power  to  examine  witnesses  upon  oath  (although 
they  had  been  given  {no)  that  power  prior  to  1873),  and  for 
this  reason  the  Dominion  statute  was  disallowed  by  the 
Imperial  Privy  Council.  The  Act  had  been  passed  in  order 
to  facilitate  encjiries  into  what  is  popularly  known  as  the 
"  Pacific  Scandal,"  and  its  disallowance  created  some  excite- 
ment. The  result  of  negotiations  with  the  Imperial  author- 
ities (n)  was  the  passage  of  "  The  Parliament*  of  Canada. 
Act,  1875,"  38  &  39  Vic.  c.  38  (Imp.),  which  substituted  the^ 
section,  as  above  printed,  for  the  original  section  18  of  the 
B.  N.  A.  Act,  1867.  It  also  expressly  validated  31  &  32 
Vic.  c.  24  (Dom.),  "An  Act  to  provide  for  oaths  to  witnesses 
being  administered  in  certain  cases  for  the  purpose  of  either 
House  of  parliament,"  as  to  the  validity  of  which  doubts 
had  been  expressed.  "  Tlie  Parliament  of  Canada  Act, 
1875,"  contains  no  further  legislation  than  as  above  noted, 
and  it  is  therefore  not  thought  necessary  to  reprint  it  in 
full. 

(ii.)  "  Pi'Lviletjes,  etc." — The  law  which  defines  the 
"  privileges,  immunities,  and  powers  "  of  tlie  British  parlia- 
ment, and  of  the  members  thereof,  is  almost  altogether  paii:, 
of  the  ancient  law  of  England.     The  branch  of  English 

(m)  See  3i  &  35  Vic.  c.  83  (Imp.). 

(h)  See  Can.  Comm.  Jour.,  1873  (Oct.  Sess.),  p.  5;  Hess.  Pap.  (I8771v 
No.  89. 


THE   n.  N.  A.  ACT— SEC.  18.  263 

coimnon  law  wliich  deals  with  this  subject  is  known  as  the 
lex  cf  vonxaetiulo paii'urineiiii,  and  the  Judicial  C*(»iinnittee 
of  the  Privy  Council,  on  appeals  from  the  colonies,  have 
uniforudy  held  that  this  branch  of  English  connnon  law 
was  strictly  local  in  its  application,  and  referre*],  not  to  a 
supreme  legislature  in  the  abstract,  but  to  the  Parliament 
of  Cireat  Britain  in  the  concrete,  and  that  therefore  it  was 
a  branch  of  the  connnon  law  which  emigrating  colonists 
would  not  carry  with  them.  The  grant;  therefore,  of  a 
legislatui'e  to  a  colony  diti  not,  without  more,  invest  such 
body  and  its  members  with"  those  pnvileges,  immunities, 
and  powers  which  were  by  the  lex  et  consiietwlo  parlia- 
ment i  annexed  to  the  British  parliament  and  its  memljers. 
The  powers,  (^ther  than  legislative,  of  a  colonial  legislature 
(unless  expressly  extended  by  the  terms  of  the  charter, 
commission,  or  Imperial  Act  constituting  such  legislature), 
are  such  only  as  are  incident  to  or  inherent  in  such  an 
assendjly,  viz.,  "  such  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.  .s«. 

"  Whatever,  in  a  reasonable  sense,  is  necessary  for  these  pur- 
poses, is  impliedly  granted  whenever  any  such  legislative  body 
is  established  by  competent  authority.  For  this  purpose,  pro- 
tective and  self-defensive  powers  only  are  necessary,  and  not 
punitive.  If  the  question  is  to  be  elucidated  by  analogy,  that 
analogy  is  rather  to  be  derived  from  other  assemblies  not  legis- 
lative, whose  incidental  powers  of  self-protection  are  implied  by 
the  common  law  (although  of  inferior  importance  and  dignity  to 
bodies  constituted  for  purposes  of  public  legislation),  than  from 
the  British  parliament,  wdiich  has  its  own  peculiar  law  and 
custom,  or  from  courts  of  record,  which  have  also  their  special 
authorities  and  privileges  recognized  by  law." — Barton  v.  Taylor, 
11  App.  Cas.  at  p.  203. 

The  existence  of  these  limitations  upon  the  powers, 
privileges,  and  innnunities  of  a  colonial  legislature  was  the 
reason,  presumaldy,  for  the  enactment  of  the  above  section 


2G4  THK    It.  N.  A.  ACT — SEC    IH. 

of  tlie  B.  N.  A.  Act;  nud  that  eimctiueiit,  aii<l  tlio  huIwu- 
t|iient  oimctments  of  tliu  J)oiuinioii  purliaint'ut,  luive  had 
tlie  ert'ect — .so  far  as  the  Dominion  parlianieiit  is  ccjucoinud — 
of  relt'iiatinii'  the  numerous  authonties  wliicli  deal  with  the 
position,  in  this  retj;ar<l,  of  colonial  h'oislatures  to  the  realm 
of  the  constitutional  hi.storian.  But  ltecau.se  of  the  conten- 
tion advanced  in  certain  (|uarters  tiiat  the  provincial  leuis- 
latures  are  subject  to  the  law  as  laid  down  in  those  author- 
ities, we  ma}'  say  that  in  Barton  v.  Taylor,  11  App.  Cas. 
197,  the  result  oH  the  authorities  is  clearly  stated,  and  in 
Woodworth  V.  Landers  2  S.  C.  R.  loH  {<>),  will  he  found  a 
compendium  of  the  law  on  this  sahject  (y>). 

This  clause  of  the  B.  N.  A.  Act  has,  on  the  othei-  hand, 
had  the  effect  of  limiting'  the  wide  power  of  the  Dominion 
parliament  to  define  l>y  its  own  legislation  the  privileges. 
etc.,  of  itself  and  its  memhers.  c  tnferred  l»y  .section  5  of  the 
Colonial  Laws  Validity  Act,  lM()o.  as  t(»  which  see  note  (i) 
to  secti(»n  35,  and  note  (iii)  to  section  Hi), post.  It  can  never 
go  further  than  the  Tn»perial  parliament  in  this  direction. 
See  further,  on  this  aspect  of  the  case,  the  notes  to  section 

00,    /tOKf. 

As  to  the  nature  and  e>.tent  of  these  jjrivileges,  etc., 
reference  may  be  made  to  Ma}',  Hatsel!.  and  Bourinot. 

(iii)  ''Powei\s." — The  reference  is,  of  course,  to  powers 
other  than  legislative,  as  for  example,  the  power  to  commit 
for  contem])t,  to  compel  the  cattendance  of  witnesses,  and 
to  compel  the  production  of  papers,  etc.,  etc.,  '♦vhicli  may  he 
described  as  inquisitorial  and  punitive  powers,  in  aid  of 
intelligent  legislation.  As  to  thn  trial  of  electi(»n  petitioris, 
nee  notes  to  section  41,  ^jo.sf. 

(iv)  '' Deiined  hy  Act  of  f/ie  jKiiiiamcnf  of  Cf((V(id(i." — 
Dominion  legislation  upon  this  subject  is  contained  in 
R.  S.  C.  (188G),  c.  11,  ss.  3-8,  20-23 : 

(o)  The  "  apology  "  branch  of  this  case  is,  in  view  of  Barton  v.  Taylor, 
of  doubtful  authority. 

(p)  See  Anderson  v,  Dunn,  0  Wheat.  C04,  and  Kilbourn  v.  Thompson, 
103  U.S.  1G8,  as  to  the  position  of  Congress. 


'IHE    H.  N.  A.  ACT— SEC.  IS.  2()5 

"PRIVILEGES  AND  IMMUNITJES  OF  MEMBERS  AND       • 

OFFICERS. 

3.  The  Senate  and  tbe  House  of  Commons  respectively,  and 
the  members  thereof  respectively,  shall  hold,  enjoy  and  exercise 
such  and  the  like  privileges,  immunities  and  power*  as,  at  the 
time  of  the  passing  of  "  'I'hc  Ihitish  Xort/i  Aniericn  Act,  18G7," 
were  held,  enjoyed  and  exercised  by  the  Commons  House  of 
Parliament  of  the  United  Kingdom,  and  by  the  members  thereof, 
so  far  as  the  same  are  consistent  with  and  not  repugnant  to  the 
.'^aid  Act,  and  also  such  privileges,  immunities  and  powers  as  are 
from  time  to  time  defined  by  Act  of  the  Parliament  of  Canada, 
not  exceeding  those  at  the  time  of  tl;e  passing  of  such  Act  held, 
enjoyed  and  exercised  l)y  the  Commons  House  of  Parliament  of 
the  United  Kingdom  and  by  the  members  thereof  respectively. 

4.  Such  privileges,  immunities  and  powers  shall  be  part  of 
the  general  and  public  law  of  Canada,  and  it  shall  not  be 
necessary  to  plead  the  same,  but  the  same  shall,  in  all  courts 
in  Canada  and  by  and  before  all  judges,  be  taken  notice  of 
judicially. 

»>.  Upon  any  inquiry  touching  the  privileges,  immunities 
and  powers  of  the  Senate  and  of  the  House  of  Commons  or  of 
any  member  thereof  respectively,  any  copy  of  the  journals  of  the 
Senate  or  House  of  Commons,  printed  or  purporting  to  be 
printed  by  the  order  of  the  Senate  or  House  of  Commons,  shall 
be  -admitted  as  evidence  of  such  journals  by  all  courts,  justices 
and  others,  without  any  proof  being  given  that  such  copies  were 
so  printed. 

O*  Any  person  who  is  a  defendant  in  any  civil  or  criminal 
proceedings  commenced  or  prosecuted  in  any  manner  for  or  on 
account  of  or  in  respect  of  the  publication  of  any  report,  paper, 
votes  or  proceedings,  by  such  person  or  by  his  servant,  by  or 
under  the  authority  of  the  Senate  or  House  of  Commons,  may 
bring  before  the  court  in  which  such  proceedings  are  so  com- 
uienced  or  prosecuted  or  before  any  judge  of  the  same,  first 
giving  twenty-four  hours'  notice  of  his  intention  so  to  do  to  the 
prosecutor  or  plaintiff  in  such  proceedings  or  lo  his  attorney  or 
solicitor,  a  certificate  under  the  hand  of  the  Speaker  or  Clerk  of 
the  Senate  or  House  of  Commons,  as  the  case  may  be,  stating 


206  THE   B.  N.  A.  ACT — SEC.  18. 

tliat  the  report,  paper,  votes  or  proceedings,  as  the  case  may  be,. 
in  respect  whereof  such  civil  or  criminal  proceedings  have  been 
commenced  or  prosecuted,  was  or  were  published  by  such  person 
or  by  his  servant,  by  order  or  under  the  authority  of  the  Senate 
or  House  of  Commons,  as  the  cass  may  be,  tf)gether  with  an 
affidavit  verifying  such  certiftcate  ;  and  such  court  or  judge  shall 
thereupon  immediately  stay  such  civil  or  criminal  proceedings, 
and  the  same  and  every  writ  or  process  issued  therein  shall  be 
and  shall  be  deemed  and  taken  to  be  finally  put  an  end  to, 
determined  and  superseded  by  virtue  of  this  Act. 

T.  If  any  civil  or  criminal  proceedings  are  commenced  or 
prosecuted  for  or  on  account  or  in  respect  of  the  publication  of 
any  copy  of  such  report,  paper,  votes  or  proceedings,  the  defen- 
dant at  any  stage  of  the  proceedings  may  lay  before  the  court  or 
judge,  such  report,  paper,  votes  or  proceedings,  and  such  copy 
with  an  affidavit  verifying  such  report,  paper,  votes  or  proceed- 
ings, and  the  correctness  of  such  copy ;  and  the  court  or  judge 
shall  immediately  stay  such  civil  or  crimi  jal  proceedings,  and 
the  same  and  every  writ  and  proces?  issued  therein,  shall  be  and 
shall  be  deemed  to  be  finally  put  an  end  to,  determined  and 
superseded  by  virtue  of  this  Act. 

H,  In  any  civil  or  criminal  proceeding  commenced  or  prose- 
cuted for  printing  any  extract  from  or  abstract  of  any  such 
report,  paper,  votes  or  proceedings,  such  report,  paper,  votes  or 
proceedings,  may  be  given  in  evidence,  and  it  may  be  shown 
that  such  extract  or  abstract  was  published  huna  fide  and  with- 
out malice,  and  if  such  is  the  opinion  of  the  jury,  a  verdict  of 

not  guilty  shall  ba  entered  for  the  defendant, 

*  *  »  *  * 

EXAMINATION  OF  WITNESSES. 

UO.  Witnesses  may  be  examined  upon  oath  or  upon  affir- 
mation, if  affirmation  is  allowed  by  law,  at  the  bar  of  the  Senate, 
and  for  that  purpose  the  Clerk  of  the  Senate  may  administer 
such  oath  or  affirmation  to  any  such  witness. 

31.  Any  select  committee  of  the  Senate  or  House  of  Com- 
mons to  which  any  private  Bill  has  been  referred,  by  either 
House,  respectively,  may  examine  witnesses  upon  oath  or  affir- 
mation, if  affirmation  is  allowed  by  law,  upon  matters  relating 


THE   B.  N.  A.  ACT — SECS.  19,  20.  267 

to  such  Bill,  and  for  that  purpose  the  chairman  or  any  memher 
of  such  committee  may  administer  such  oath  or  affirmation,  ta 
any  such  witness. 

22*  Whenever  any  witness  or  witnesses  is  or  are  to  be 
examined  by  any  other  committee  of  the  Senate  or  House  of 
Commons,  and  the  Senate  or  House  of  Commons  has  resolved 
that  it  is  desirable  that  such  witness  or  witnesses  shall  be 
examined  upon  oath,  such  witness  or  witnesses  shall  be  exam- 
ined upon  oath  or  affirmation,  if  affirmation  is  allowed  by  law  ;. 
and  such  oath  or  affirmation  shall  be  administered  by  the  chair- 
man or  any  member  of  any  such  committee  as  aforesaid. 

2S.  Every  such  oath  or  affirmation  shall  be  in  the  forms  A 
and  B  respectively,  in  the  schedule  to  this  Act. 

(v)  "Commons  Houf<e" — The  House  of  Lords  in  Eng- 
land has  certain  judicial  and  other  functions  which  our 
Senate  does  not  possess.     See  notes  to  section  21,  ])ost. 

19.  The  Parliament  of  Canada  shall  ^/•;t^Sa. , 
be   called   together   not   later    than    sixnada."^*' 
months  after  the  Union. 

20.  There  shall  he  a  Session  of  the  Xl'par-'"'' 
Parliament  of  Canada  once  at  least  incauaX." 
every  year,  so  that  twelve  months  shall 

not  intervene  between  the  last  sitting  of 
the  Parliament  in  one  Session  and  its 
tirst  sitting  in  the  next  Session  (i). 

(i)  See  chapter  VIII.  ante,  p.  168,  for  some  observa- 
tions as  to  the  duty  oi  a  governor  to  insist  upon  the 
observance  of  this  section.  In  the  case  of  the  Dominion 
government  no  question  has  ever  arisen,  the  jiv  >visions  of 
the  section  having  been  uniformly  observed.  The  object  of 
the  section,  it  is  almost  unnecessary  to  observe,  is  to  pre- 
serve the  English  rule  of  annual  grants  for  the  public 
service.  In  England,  the  rule  is  guarded  by  the  passing  of 
the  Mutiny  Act  for  one  year  (mly. 


^fiS  THK    li.  \.  A.  ACT — Si:c.  21. 

f 

1'hk  Sknatk  (i). 

SmiorH''^  21.  The  Senate  sliall,  subjeet  to  the 

provisioiiK  of  tliis  Aet  (ii),  consiKt  of 
seventy-two  menihers,  wlio  shall  he  styled 
Senators.         -      . 

(i)  "  'lltr  »SV;/f//^'."— Stniii;4C  as  it  iisfiy  Jipftcui",  ii  pcnisal 
of  tln'  «K'l»!it«'S  oil  the  ('onriMlcriitioii  Rt'.sohitioiis  <lisflus«'s 
tlmt  lut  (|n('sti(»ii  was  rai.scMl  as  to  tlic  uscruliicss  <ir  uscIhsh- 
IH'HS  ol'  an  r|>]j('r  lloiisc.  'V\\v  hi-caiiuTal  system  would 
siTiii  to  liavL!  hetMi  at  that  time  universally  lavoivd,  s(t  I'ar 
at  least  as  tlie  coiuititutioii  oi*  the  Dominion  government 
was  concej'ned.  To  the  <lele<iates  to  the  (^Mieltec  Conrereiice 
of  |S(i4,  two  examjiles  ol"  an  Tpper  House  ]»resente<l  them- 
selves— the  Kniilish  House  of  Lords,  and  the  Tiiited  States 
Senate.  The  position  ol'  the  former  in  the  !*iii;4lish  t'oiisti- 
tutioiial  system  is  Ncry  cleMily  delineij   Ity  l>a<;'ehot: 

"  Since  the  lleforiii  Act,  the  Iloiiso  of  Lords  has  hccoiiie  a 

revisiiif,'  and  Huspoiidinj,'  IJousc Their  v(!to  is  a 

sort  of  hypotlieticid  veto.  They  say,  we  reject  your  hill  this 
once,  or  these  twice,  or  even  these  thrice,  hut  if  you  keep  on 
sending  it  up,  at  last  we  won't  reject  it." 

The  House  of  Lords,  to(»,  is  possessed  of  judicial  functions 
of  H  ci'itain  s(»rt,  hut  it  is  manifest  that,  lioth  histoiically 
ant!  in  actual  |»ractice,  the  House  of  Loi'ds  is  in  no  sense  a 
federal  element  ill  the  Imperial  scheme  of  o(»\(>i'iiuient,  that 
in  no  wjiy  does  it  staiul  out  as  the  guardian  of  colonial 
riehts.  The  IT.  S.  Senate  on  the  other  hand  was  institute(l 
as  a  part  of  the  feileral  scheme,  for  the  Vi^vy  j)ur[»ose  of 
prot<'ctiim'  "  state  riohts,"  and  to  that  end,  each  state,  lar^c; 
(»r  small,  is  entiile<l  to  two  senators  and  no  more.  I*y  tlu; 
fathers  of  our  ('onfech-ratioii,  the  Senate  of  ('anada  was 
announced  as  answerin<if  both  [)urposes  ;  as  att'oidiii;;-  a 
check  <»n  hasty  or  ill-di jested  legislation,  and  als(t  as  ])ro- 
tectiny  local  interests  and  the  autonoinv  of  the  provinces. 
Th(!  attainment  of  the  former  purjioso  was  supposed  to  he 


TIIK    It.  \.   A.  ACT — SKC.  21.  2<)J> 

iiifulc  s('cur«!  Iiy  ili^*  modoof  uppointiiHMit,  the  life  teuuie  ol" 
the  st'iiatorH  l)('iii;^liel(l  out  as  a  guarantee  for  iiul(;pen<l«!nce 
ill  the  exeici.se,  of  tlieir  lej^ishitiv*!  Wiitiiss;  vvhihi  the  n/iud 
repiesiuitatioii,  in  the  Senat(%  of  each  of  the  distiiietly 
(jiffereiitlated  jiortioiiH  of  the  J)oiiiiiiioii  wouM  make  that 
liody  th(!  ^uaidian  of  "  provincial  rights,"  or  at  h*a.stof  local, 
as  distinct  from  ;^eneral,  interests. 

"  In  order  to  protect  local  intereHts,  and  to  prevent  sectional 
joalousies,  it  was  found  reqiuHife  that  th(i  three  great  divisions 
into  which  IJritish  North  America  is  separated,  should  he  repre- 
sented in  the  Upper  House  on  the  principle  of  equality.  There 
iuo  three  great  sections,  having  (hft'erent  interests,  in  this  pro- 
poHcd  Confederation.  We  have  Westcsm  Canada,  an  agricultural 
country  far  away  from  the  sea,  and  having  the  largest  population 
who  have  agricultural  interests  principally  to  guard.  We  have 
Lower  (,'anada  with  other  and  separate  interests,  and  especially 
with  institutions  and  laws  which  she  jealously  guards  against 
absorption  hy  any  larger,  more  numerous,  or  stronger  power. 
And  we  have  the  Maritime  Provinces,  having  also  different  sec- 
tional interests  of  their  own ;  having,  from  their  position, 
classes  and  interests  which  wo  do  not  know  in  Western  Canada. 
Accordingly  in  the  Upper  House — the  controlling  and  regulating, 
hut  not  the  initiating  hranch  (for  we  know  that  here,  as  in  Eng- 
land, to  the  Lower  House  will  practically  belong  the  initiation 
of  matters  of  great  public  interest)  in  the  House  which  luis  the 
sober  second- thought  in  legislation — it  is  provided  that  each  of 
those  great  sections  shall  be  represented  equally  by  twenty-four 
members.  .  .  .  The  provision  that  each  of  the  great  sections 
shall  appoint  twenty-four  members  and  no  more,  will  prevent 
the  Upper  House  from  being  swamped  from  time  to  time  by  the 
ministry  of  the  day,  for  the  purpose  of  carrying  out  their  own 
schemes  or  pleasing  their  partizans.  The  fact  of  the  govern- 
ment being  prevented  from  exceeding  a  limited  number,  will 
preserve  the  independence  of  the  Upper  House,  and  make  it,  in 
reality,  a  separate  and  distinct  chamber,  having  a  legitimate  and 

controlling  interest  in  the  legislation  of  the  country 

There  is  this  additional  advantage  to  be  expected  from  the  limi- 
tation. To  the  Upper  House  is  to  bo  confided  the  protection  of 
sectional  interests  ;  therefore  it  is  that  the  three  great  divisions 


270  THE   B.  N.  A.  ACT — SEC.  21. 

•are  there  equally  represented  for  the  purpose  of  defending  such 
interests  against  the  combination  of  majorities  in  the  Assembly. 
It  will,  therefore,  become  the  interest  of  each  section  to  be 
represented  by  its  very  best  men,  and  the  members  of  the 
administration  who  belong  to  each  section  will  see  that  such  men 
^re  chosen,  in  case  of  a  vacancy  in  their  section.  For  the  same 
reason,  each  State  of  the  American  Union  sends  its  two  best 
men  to  represent  its  interests  in  the  Senate." — Per  Sir  John  A. 
Macdonald,  in  Confed.  Deb.  p.  35,  et  seq. 

The  Senate  of  Canada  exercises  no  judicial  functions 
akin  to  those  exercised  by  the  House  of  Lords  ami,  to  a 
smaller  extent,  by  the  U.  S.  Senate  ;  nor  has  it  anj'  execu- 
tive functions  like  those  exercised  by  the  U.  S.  Senate  in 
"'executive  session,"  in  relation  to  treaties  and  appointments 
to  office.     Its  functions  are  purely  legislative. 

In  the  light  of  subsequent  developments,  the  criticism  of 
Mr.  Dunkin,  upon  this  part  of  the  scheme  of  Confederation, 
reads  like  a  prophecy.  Wanting  in  the  characteristics 
which,  to  some  extent,  uphold  the  exercise  of  authority  liy 
the  House  of  Lords  as  a  "  dignified  "  part  of  the  constitu- 
tion {(]),  the  revising  and  suspending  functions  of  our  Senate 
are  a  myth  and,  in  practice,  are  limited  to  rejecting  bills 
which  the  government  desire  to  see  defeated  but  do  not  like 
to  oppose  in  the  popular  chamber;  and,  Avanting  as  its 
members  are  in  any  distinctly  different  character,  aims,  and 
interests  from  those  of  the  members  of  the  popular  chamber, 
and  appointed,  too,  as  they  are,  not  by  the  provincial  legis- 
latures, but  by  the  Dominion  government,  they  are  as 
strong!}'  and  ccmtinuously  party  men  as  are  the  nieml>ers 
of  the  House  of  Commons,  and  they  divide  on  part}',  not  on 
provincial  or  sectional,  lines.  Such  federal  element  as  ex- 
ists at  all  in  the  constitution  of  the  Dominion  government, 
is  in  the  distribution  of  portfolios  in  the  cabinet,  as  Mr. 
Dunkin  predicted  it  would  be.  With  the  entry  of  Mani- 
toba, British  Columbia  and  the  North  W^est  Territories  into 

(q)  See  Bagehat,  p.  89,  ct  seq. 


THE    H.  N.  A.  ACT — SEC.  21.  271 

the  Dominion,  all  attempt  to  continue  the  principle  otV^/nrr^ 
representation  wan  abandoned  in  favor,  practically,  of  re- 
presentation by  population,  so  far  at  all  events  as  the  new 
territories  were  concerned.  Upon  the  passage  of  an  Act 
forming  a  new  jirovince,  such  Act  at  once  passes  beyond  the 
competence  of  the  Dominion  parliament,  and  the  representa- 
tion allo\ve<l  such  new  province  in  the  Senate  is  thereafter 
incapable  of  increase  or  decrease  except  by  Imperial  legis- 
lation (/')•  The  representation  of  the  province  of  Manitoba 
in  the  Senate  is  now  three,  with  a  maximum  liniit  of  four. 
Upon  the  admission  of  Prince  Edward  Island,  the  ])ro- 
visions  of  section  147,  post,  took  effect;  and  that  province 
is  now  represented  l>y  four  Senators.  Upon  the  admission 
of  British  Columbia,  tlie  representation  of  that  province  in 
the  Senate  was  fixed  at  three.  By  the  B.  N.  A.  Act,  IHHd, 
the  Dominion  parliament  is  empowered  to  make  provision 
for  the  representation,  in  the  Senate,  of  any  territories  which 
for  the  time  lieing  form  part  of  the  Dominion  and  are  not 
include<l  in  any  province  thereof;  and,  pursuant  to  the 
power  granted  by  that  statute,  the  North  West  Teriitories 
liuve  been  given  two  Senators,  There  is  this  peculiarity 
about  the  position  of  the  North  West  Territories — that  the 
imndjer  of  Senatoi-s,  who  may  be  appointed  to  represent 
that  district,  is  a  matter  entirely  for  the  Dominion  parlia- 
ment, so  that  it  is  in  the  power  of  the  Dominion  govern- 
ment to  swamp  the  Senate,  so  long  as  the  additional 
inendiei's  are  appointed  to  represent  the  North  West  Terri- 
tories. The  original  design  has,  however,  left  this  mark 
upon  our  system,  namely,  that  Ontario,  Quebec,  and  the 
Maritime  Provinces  are  still  tied  down  to  equality  of  repre- 
sentation in  the  Senate,  irrespective  of  differences  in  popu- 
lation, and  any  alteration  of  our  constitution  in  tliis 
[•articular  nnist  l)e  l)y  Imperial  Act.  But  it  oidy  recjuires 
an  enumeration  of  the  number  of  Senators  to  which  each 
province  is  entitled,  to  show  that  the  position  of  the  Senate 
as  a  guardian  of  local  interests  has  entirely  vanished. 

{)•)  B.  N.  A.  Act,  1871,  sec.  6;  aeopost,  Part  IV. 


272  THE    H.  X.  A.  ACT — SEC.  21 

(ii)  "  Sahjcd  to  the  pt'ori^iuwH  i>/thifi  Act." — 8eo  HoctioiiH 
2()  and  27,  pont,  and  notes  thereto.  This  Act  must  now 
be  construed  as  one  with  the  B.  N.  A.  Acts,  1.S71  and  ISSO, 
See  section  3  of  the  latter  statute.  We  have  referred  in 
the  last  note  to  the  provisions  of  these  statutes,  both  of 
which  will  be  found  printed  in  full  and  further  discussed  in 
Part  IV.  of  this  work 

uou'ofTo'^"  22.  In  rehition  to  the  constitution  of 

KTe!"       the  Senate,  Canada  shall  be  deemed  to 
consist  of  three  divisions  (i) — 

1.  Ontario  ; 

2.  Quebec  ; 

8.  The  Maritime  Provinces,  Nova 
Scotia  and  New  Brunswick  ;  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 
Senators  ;  and  the  Maritime  Provinces  by 
twenty-four  Senators,  twelve  thereof  rep- 
resenting Nova  Scotia,  and  twelve  thereof 
representing  New  Brunswick. 

In  the  case  of  Quebec  (ii)  each  of  the 
twenty-four  Senators  representating  that 
Province  shall  be  appointed  for  one  of  the 
twenty-four  Electoral  Divisions  of  Lower 
Canada  specified  in  Schedule  A.  to  chap- 
ter one  of  the  Consolidated  Statutes  of 
Canada, 
(i)  "  lltree  (Jivif^ions" — See  note  (i)  t(>  section  21 
ante,  p.  2G9  et  -seq. 

(ii)   "  In  the  aine  of  Quebec." — This  sub-aection  reveals 
a  federal  scheme  within  a  federal  scheme.    See  also  section 


THE   B.  N.  A.  ACT — SEC.  28.  273 

.23  sub-section  6.  Tlie  reason  for  these  provisions  is  dis- 
closed in  the  Confederation  Debates  : 

"  It  has  been  so  arranged  to  suit  the  peculiar  position 
of  this  section  of  the  province  (.s).  Our  Lower  Canada 
friends  felt  that  they  had  Frencli  Canadian  interests  and 
British  interests  to  be  protected  and  they  conceived  that 
the  existing  system  of  electoral  divisions  would  give 
protection  to  these  separate  interests.  We  in  Upper 
Canada,  on  the  other  hand,  were  c|uite  content  that  they 
should  settle  that  among  themselves,  and  maintain  their 
existing  divisions  if  they  chose." — per  Hon.  George  Brown, 
Confed^  Deb.  90. 

"  Lower  Canada  is  in  a  different  position  from  Upper 

Canada  and there  are  two  nationalities 

in  it,  occupying  certain  portions  of  the  country.  Well, 
these  divisions  have  been  made  so  as  to  secure  to  both 
nationalities  their  respective  rights,  and  these,  in  our 
opinion,  are  good  reasons  for  tlie  provision  that  has  been 
made."— /x^/'  Sir  E.  P.  Tache,  ih.  210. 

23.  The  qualification  of  a  Senator  ^^seSoi!!"' 
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  Parliament  of  the 
United  Kingdom  of  Great  Britain 
and  Ireland,  or  of  the  Legislature 
of  one  of  the  Provinces  of  Upper 
Canada,  Lower  Canada,  Canada, 
Nova  Scotia,  or  New  Brunswick, 

\[s)  i.e.,  of  (old)  Canada.  .  =, 

Can.  Con.— 18 


2Y4  THE    B.  X.  A.  ACT — SEC.  24. 

before  the  Union,  or  of  the  ParHa- 
ment  of  Canada  after  the  Union. 

(3)  He  shall  be  lenjaily  or  equitably 
seised  as  of  freehold  for  his  own 
use  and  benefit  of  lands  or  tene- 
ments held  in  free  and  connnon 
socage,  or  seised  or  possessed  for 

■  his  own  use  and  benefit  of  lands  or 
tenements  held  in  franc-aleu  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  incumbrances  due 
or  payable  out  of  or  charged  on  or 
affecting  the  same : 

(4)  His  real  and  personal  property 
shall  be  together  worth  four  thou- 
sand dollars  over  and  above  his 
debts  and  liabilities : 

(5)  He  shall  be  resident  in  the  Pro- 
vince 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. 

senatT'°^  24-  The  GoveHior- General  (i)  shall 
from  time  to  time,  in  the  Queen's  name,  by 
instrument  under  the  Great  Seal  of  Can- 
ada, summon  qualified  persons  to  the 
Senate ;  and,  subject  to  the  provisions  of 


THE   B.  N.    A.    ACT— SECS.  25,  26.  275 

this  Act,  every  person  so  summoned  shall 
become  and  bo  a  member  of  the  Senate 
and  a  Senator. 

(i)  "  The  Govenior'Gener(iL"—The  (hities  of  tlie  Gover- 
nor-General under  tliis  section  liave  been  already  (liscussed. 
See  chapter  VIII.  ante,  p.  IGO,  where  will  also  be  found 
noted,  the  <lifterent  meaning  given  to  the  word  "  Hunnnon  " 
in  this  section,  and  in  section  88. 

25.  Such  persons  shall  be  lirst  sum-  fl?s["Ciy  o°/ 
iiioned  (i)  to  the  Senate  as  the  Queen  by  ^"""'"'■'• 
warrant  under  Her  Majesty's  Royal  Sign 
Manual  thinks  fit  to  approve,  and  their 
names  shall  be  inserted  in  the  Queen's 
Proclamation  of  Union. 

(i)  "  Suck  j)ermns  shall  be  Jirst  summoned"— See  the 
Queen's  Proclamation  of  Union  in  the  Canada  Gazette. 

26.  If  at  any  time  on  the  recommen-  seSrs^i 
dation  of  the  Governor-General  the  Queen  h'es'li) 
thinks  fit  to  direct  that  three  or  six  mem- 
bers be  added  to  the  Senate,  the  Gover- 
nor-General may  by  summons  to  three  or 

six  qualified  persons  (as  the  case  may  be), 
representing  equally  the  three  divisions 
of  Canada,  add  to  the  Senate  accordingly. 

(i)  "  Aildition  of  Semftors."— The  Quebec  Resolutions 
made  no  provisions  for  any  alteration  in  the  number  of 
Senators,  and  the  absence  of  such  provision  was  commented 
on  in  a  despatch  of  the  then  Secretary  of  State  for  the 
Colonies  in  these  terms : 

"  The  second  point  which  Her  Majesty's  government  desire 
should  be  reconsidered,  is  the  constitution  of  the  Legislative 
Council.  They  appreciate  the  considerations  which  have 
mfluenced  the  Conference  in  determining  the  mode  in  which 


276  THE   B.  N.  A.  ACT — SECS.  27,  28. 

this  body,  so  important  to  the  constitution  of  the  legislature, 
should  be  composed.  But  it  appears  to  them  to  require  further 
consideration,  whether,  if  the  members  be  appointed  for  life, 
(inil  their  mmher  Iw  fi.ml,  there  will  be  any  sufficent  means  of 
restoring  harmony  between  the  Legislative  Council  and  the 
popular  assembly,  if  it  shall  ever  unfortunately  happen  that  a 
decided  difference  of  opinion  shall  arise  between  them." 

The  a])<)ve  section  was  inserted  in  the  Act  to  meet  the 
views  of  the  Imperial  authorities  as  expressed  in  the  ahove 
despatch,  but  it  has  never  been  acted  upon.  In  the  only 
case  in  which  an  addition  to  the  niembei*ship  of  the 
Senate  was  sought  under  this  section,  it  was  refused  b^'the 
Imperial  authorities  (0-  In  view  of  the  position  to  which 
we  have  before  adverted,  namely,  the  power  of  tiie 
Dominion  parliament  to  regulate  the  nundjer  of  Senators 
from  those  parts  of  Canada  not  erected  into  provinces, 
this  and  the  next  section  niay  be  sai<l  to  be  practical!}' 
effete.  It  is  certainly  somewhat  anomalous  to  place  in  the 
hands  of  the  Imperial  Cabinet  the  power  to  grant  or  refuse 
the  re(|Uest  of  the  Dominion  government,  in  a  mattei-  .so 
entirely  one  for  local  consideration. 

se^uate'io""'         27-  Ih  ciise  of  siicli  additloii  being  at 

normal  uuui-  .•  jj         i.\  n  /-i  i 

i)er.  any   tnne    made    the    Governor-General 

shall  not  summon  any  person  to  the 
Senate,  except  on  a  further  lilie  direction 
by  the  Queen  on  the  like  recommendation, 
until  each  of  the  three  divisions  of  Canada 
.  is  represented  by  twenty-four  Senators 
and  no  more. 

.mmbirof  28.  Tho   nuuiber   of   Senators   shall 

Senators.       ^^^^  ^^  ^^^  ^.^^^^  cxcccd  sevcnty-cight  (i). 

(i)  "  Seventy -e iff ht." — This  is  the  legal  limit  at  present, 
so  far  as  regards  Ontario,Quebec  and  the  Maritime  Provinces ; 

(0  See  Todd,  "  Pari.  Govt,  in  Brit.  Col.,"  p.  1G4 


THE    H.  \.  A.  ACT — SECS.  29-81.  277 

iiainely,  Heventy-tvvo  under  section  21,  with  a  poHHi])le  addi- 
tion of  six  under  section  2(5.  In  note  (i)  to  section  21,  we 
have  referred  to  the  additions  which  have  heen  made  to  the 
nieinhei-ship  of  the  Senate  (jn  tlie  afhnission  of  the  different 
provinces  and  territories  which,  since  C»)n federation,  have 
become  part  of  the  Dominion.  See  also  Part  IV.  There  is 
now  no  "niaxiniuin  nuuil)er"  as  indicated  iii  the  side-note. 

29.  A  Senator  shall,  subject  to  the  ^CT' 
provisious  of  this  Act  (i),  hold  his  place  ^'"'*'® 
in  the  Senate  for  life  (ii). 

(i)  "  S(iJ>jecf  to  the  provifilonnof  this  Act," — See  tlie  two 
following  .sections,  30  and  81. 

(ii)  "  For  llfe:'—Hee  note  (i)  to  .section  21,  ante,  p.  268. 

30.  A  Senator  may  by  writing  under  of%'ffln" 
his  hand  addressed  to  the  Governor-Gene- 
ral resign  his  place   in  the  Senate,  and 
thereupon  the  same  shall  be  vacant. 

31.  The  place  of  a  Senator  shall  be-  t^W"""" 
come    vacant    m    any    oi    the   followmg 

cases : — 

(1)  If  for  two  consecutive  Sessions 
of  the  Parliament  he  fails  to  give 
his  attendance  in  the  Senate  : 

(2)  If  he  takes    an  oath  or  makes  a      

declaration  or  acknowledgment  of 
allegiance,  obedience  or  adherence 

to  a  foreign  power,  or  does  an  act 
whereby  he  becomes  a  subject  or 
citizen,  or  entitled  to  the  rights  or 
privileges  of  a  subject  or  citizen  of 
a  foreign  power : 


278  THE   B.  N.  A.  ACT— SECH.  82,  83. 

(3)  If  he  is  adjiid^^ecl  bankrupt  or  in- 
solvent, or  applies  for  the  benefit 
of  any  law  relating  to  insolvent 
debtors,  or  becomes  a  public  de- 
faulter : 

(4)  If  he  is  attainted  of  treason  or  con- 
victed of  felony  or  of  any  infamous 
crime : 

(5)  If  he  ceases  to  be  qualified  in  re- 
spect of  property  or  of  residence; 
provided,  that  a  Senatoi*  shall  not 
be  deemed  to  have  ceased  to  be 
qualified  in  respect  of  residence  by 
reason  only  of  his  residing  at  the 
seat  of  the  Government  of  Canada 
while  holding  an  office  under  that 
Government  requiring  his  presence 
there. 

32.  When  a  vacancy  happens  in  the 
Senate  by  resignation,  death,  or  other- 
wise, the  Governor-General  shall,  by 
summons  (i)  to  a  fit  and  qualified  person 
fill  the  vacancy. 

(i)    "By    summons." — See  note  (i)  to  section  24,   and 
also  chapter  VIII.  (njf^-,  p.  170. 

?o"quaiifloa-'         33-  If  ^uy  qucstlou  arises  respecting 
vac"a^ucie^8in    tlic  qualification  of  a  Senator  or  a  vacancy 

Senate 

in  the  Senate  the  same  shall  be  heard  and 
determined  by  the  Senate  (i). 

(i)  "  Determined  by  the  Senate" — Up  to  the  date  of  Con- 
federation, the  legislatures  of  the  various  provinces  had 


Summons  on 
vacancy  in 
Senate. 


TIfE    H.  N.  A.  ACT — SECS.   »4,  35.  279 

ittniiK'tl  in  their  own  Imuds  the  juriMdictioii  t<»  deteriniiie  all 
<|UeHtionH  relatin*^  to  the  nt(i.tan  of  their  ineinherH,  ami  for 
.smiie  3'eai'M  after  Confederation,  the  parliament  of  tlie  Do- 
minion exercised  like  jurisdiction.  Section  41,  however,  of 
the  B.N. A.  Act  (see  j)osf)  impliedly  emn(>wer.s  the  Dominion 
pjvrliament  to  provide  otherwise  as  to  the  House  of  Com- 
mons, and  as  the  notes  to  that  section  will  sliow,  this 
power  has  l»een  acted  upon.  No  similar  power  is  given  by 
the  B.  N.  A.  Act  to  alter  the  provisions  of  this  section  88,  as 
to  determining  the  nfntas  of  membei-s  of  the  Senate.  As 
they  are  not  elected  hy  popular  vote,  (juestion  win  hardly 
arise  as  to  the  mode  of  api>ointment,  unless  indeed  appoint- 
ments were  made  in  excess  (jf  those  allowed  by  the  Act.  As 
the  varifuis  niattei-s  which  work  disqualification,  are,  with 
the  exception  of  the  failure  to  give  attendance  in  the 
Senate  (see  secti<m  81,  sub-section  1),  mattei"s  as  to  which 
ijuestions  of  disputed  fact  might  arise,  it  may  be  worth 
consideration  whether  the  determination  of  these  matters 
.shouM  not  be  left  to  the  courts.  Up  to  the  present  time 
however,  none  of  the  sub-sections  of  section  31  have  been 
invoked,  with  the  exception  of  sub-section  1,  and  upon  tliat 
head,  the  proof  of  disijualitication  would  appear  in  the 
Senate's  journals. 

34.  The  Governor-General  may  from  oVff Sk"/"* 
time  to  time,  by  instrument  under  the  °  ^^"**®' 
Great  Seal  of  Canada,  appoint  a  Senator 

to  be  Speaker  of  the  Senate  (i),  and  may 
remove  him  and  appoint  another  in  his 
stead. 

(i)  See  R.  S.  C.  (1886),  chapter  11,  section  24  (a),  which 
provides  for  a  salary  of  |?4,000  per  annum  for  the  Speaker 
of  the  Senate.     See  note  to  section  44,  j^ost. 

35.  Until  the  Parliament  of  Canada  Kr°' 
otherwise   provides  (i),  the    presence   of 


280  THE   B.  N.  A.  ACT — SEC.  35. 

at  least  fifteen  Senators,  including  the- 
Speaker,  shall  be  necessary  to  constitute 
a  meeting  of  the  Senate  for  the  exercise 
of  its  powers. 

(i)  "  Until  the  2^iiflM'inent  of  Canada  otherwise  pro- 
vides"— See  Valin  v.  Langlois(5  App.  Cas.  115),  in  which  it 
was  held  that  under  these  same  words,  in  section  41,  tlie 
Dominion  parliament  has  full  power  to  pass  laws  in 
relation  to  the  various  mattei-s  enumerated  in  that  section. 
It  follows,  tlierefore,  that  (apart  altogether  from  the  pro- 
visions of  the  Colonial  Laws  Validity  Act,  1865,  about  to 
be  noted)  the  "  quorum  "  of  the  Senate  may  be  altered  by 
the  Dominion  parliament.  Compare  section  48,  post,  as  to- 
the  "  quorum "  of  the  House  of  Commons.  This  latter 
cannot — so  far  as  the  B.  N.  A.  Act  affects  the  question — 
be  altered  by  anything  short  of  Imperial  legislation.  But, 
in  reference  to  the  constitution  of  all  colonial  legislative 
bodies,  the  provisions  of  the  Colonial  Laws  Validity  Act, 
1865,  must  not  be  overlooked.  By  the  fifth  section  of  that- 
Imperial  Statute,  it  is  enacted : 

"  6. —  ....  Every  representative  legislature  shall,, 
in  respect  to  the  colony  under  its  jurisiiction,  have,  and  be 
deemed  at  all  times  to  have  had,  full  power  to  make  lawa 
respecting  the  constitution,  powers  and  procedure  of  such  h't/islatiire ; 
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  Couocil  or  colonial  law,  for 
the  time  being  in  force  in  the  colony." 

It  may  perhaps  be  contended  that  this  section  cannot 
apply  to  Canada,  as  the  B.  N.  A.  Act,  1867,  is  of  a  later 
date ;  and,  certainly,  so  far  as  the  latter  statute  contains* 
express  provision  in  reference  to  the  matters  referred  to  in 
the  section  quoted,  its  provisions  would  govern. 

No  colonial  legislature,  it  is  submitted,  can  under  thi» 
section  enlarge  the  sphere  of  its  legislative  jurisdiction,  and„ 
a  fortiori,  no  such  authority  is  conveyed  by  this  section  to- 


THE   B.  N.  A.  ACT — SEC.  36.  28T 

any  legislative  body  in  Canada,  where  the  field  for  the 
exercise  of  colonial  legislative  power  is  divided  in  such 
express  terms  by  the  B.  N.  A.  Act.  The  section  relates  ta 
the  organization  of  the  legislative  bodies  throughout  the 
colonies,  their  powers  other  than  legislative,  and  the  mode 
in  which  their  functions  are  to  be  performed,  an<l  has  no 
relation  to  their  sphere  of  authority.  It  is  submitted,, 
therefore,  that  the  Dominion  parliament  has  full  power  to 
alter  these  various  provisions  of  the  B.  N.  A.  Act,  relating 
to  powers  and  procedure,  except  where  express  or  implied 
limitation  upon  such  power  (as,  for  instance,  by  section  18, 
ante)  is  imposed  by  the  Act. 

So  far  as  the  provincial  legislatures  are  concerned, 
express  power  to  amend  the  provincial  "  constitutions " 
(except  as  regards  the  office  of  Lieutenant-Governor)  is 
conferred  by  section  92  (sub-section  1),  of  the  B.  N.  A.  Act, 
and  the  maxim  Expressio  uniiis  exclitsio  est  alter  ins  may 
perhaps  be  invoked  in  denial  of  the  power  of  the  Dominion 
parliament  along  this  line.  The  argument  cannot  apply  to 
the  question  of  parliamentary  "  procedure,"  but  it  does  very 
strongly  negative  any  power  in  the  Dominion  parliament  to 
alter  its  "  constitution,"  that  being  a  matter  fixed  by  the 
agreement  of  the  federating  provinces  and  exhaustively  dealt 
with  by  the  B.  N.  A.  Act.  The  difficulty  is,  perhaps,  to 
define  what  provisions  of  the  B.  N.  A.  Act  relate  to  the 
"  constitution "  and  what  to  the  "  procedure "  of  the 
Dominion  parliament.  See  further  upon  this  question, 
sections  69  and  92  (sub-section  1),  post,  and  notes  thereto. 

36-  Questions  arising  in  the  Senate  seuLll/u) 
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. 

(i)  "  Voting  in  the  Senate." — Compare  sections  49,  79,, 
and  87,  and  see  note  to  last  section. 


282  THE   B.  X.  A.  ACT — SEC.  37. 

The  House  of  Commons. 

oS\se"oT  37.  The  House,  of  Commons  shall, 
Canada"^ ^"  subject  to  tlic  provisioiis  of  this  Act  (i), 
consist  of  one  hundred  and  eighty-one  (ii) 
members,  of  whom  eighty-two  shall  be 
elected  for  Ontario,  sixty-five  foi  Quebec, 
nineteen  for  Nova  Scotia,  and  fifteen  for 
New  Brunswick. 

(i)  "  Subject  to  the  lyrovisiona  of  this  Act." — See  section 
51,  jt>o.s^  providing  for  a  re-distribution  f)f  the  representa- 
tion, as  between  the  various  provinces,  after  each  decennial 
census.  See  also  section  52,  which  provides  that  the 
number  of  members  of  the  Hduse  of  Commons  may  l)e, 
from  time  to  time,  increased,  provided  the  proportionate 
representation  is  not  therel^y  affected.  Upon  tlie  admission 
of  Prince  Edward  Island  and  Britisli  Columbia,  and  upon 
the  formation  of  the  Province  of  Manitoba,  tlie  representa- 
tion in  the  House  of  Commons  from  those  provinces  was 
<letermined,  but  subject  in  each  case  to  re-distribution 
under  section  51.  See  Part  IV.,^>(^sY.  The  North  West  Terri- 
tories would  seem  to  be  in  a  peculiar  position  with  regard 
to  tlieir  representation  in  the  House  of  Commons  as  well  as 
in  the  Senate.  As  to  the  formei",  see  note  (i)  to  section  21, 
(iiite  p.  271.  As  to  the  latter,  see  the  B.  N.  A.  Act,  188G, 
wliich  apparently  does  not  limit  tlie  power  of  the  Dominion 
parliament  V)y  any  reference  to  section  51  unless,  indeed, 
the  provision  (section  3)  that  the  B.  N.  A.  Acts  of  18G7. 
1871,  and  188G,  are  to  be  construed  together,  would  have 
the  effect  of  making  applicable  to  the  representation  of  the 
territories,  the  provisions  of  section  51.  This  can  hardly 
be,  however,  as  section  51  is  distinctly  limited  to  the  distri- 
bution of  representation  as  between  the  "  provinces." 

(ii)  "  ISl  inembers." — There  has  just  been  pasjsed  by  the 
Dominion  parliament  a  re-distribution  bill,  consequent  upon 


THE   B.  N.  A.  ACT — SECS.  38-10.  283 

the  census  of  LSOl,  which  apportions  the  nieuiljei-ship  as 

follows:     (55-50  Vic.  c.  11). 

Ontario 92 

Quebec Co 

New  Brunswick 14 

Nova  Scotia      .     .     . 20 

Prince  Edward  Island 5 

Manitolm 7 

British  Columhia        0 

Total—       209 
To  which  add  the  representation  to 
which  the  N.  W.  Territories  are 
entitled  under  R.  S.  C.  c.  7  .     .     .  4 

Grand  total—       218 

38.  The  Governor-General  shall  from  ff"Ee  oi'' 
time  to  time,  in  the  Queen's  name,  by  in-    '^'"'"°"^' 
strument  under  the  Great  Seal  of  Canada, 
summon  and  call  together  the  House  of 
Commons  (i). 

(i)  See  chapter' VIII.,  (intf,  p.  IdS,  as  to  the  exercise  by 
the  Governor-General  of  the  prerogatives  of  the  Crown,  in 
connection  with  the  summoning,  proroguing  and  dissolving 
of  parliament ,  where  will  also  be  found  noted  the  ditierence 
in  the  meaning  of  the  word  "sunnnon"  as  applied  to  the 
niembei-s  of  the  House  and  of  the  Senate  respectively. 

39.  A  Senator  shall  not  be  capable  uf's^SJ^L 
or  bemg  elected,  or  of  sittmg  or  votmg  as 

a  member  of  the  House  of  Commons. 

40.  Until  the  Parliament  of  Canada  K°o?the'" 
otherwise  provides,  Ontario,  Quebec,  Nova '""' 
Scotia,   and   New   Brunswick,    shall,  for 

the  purposes   of    the    election   of   mem- 


284  THE   B.  N.  A.  ACT — SEC.  41. 

bers  to  serve  in  the  House  of  Commons^ 
be  divided  into  Electoral  Districts  as  fol- 
lows : —  [Here  follows'  an  enumeration 
(ivith  reference  to  schedulen)  of  the  elect- 
oral districts  in  the  provinces  named.  In 
view  of  ivhat  appears  in  note  (i)  to  section 
41,  it  appears  needless  to  reprint  this 
enumeration.] 

«°exSr'  41.  Until  the  Parliament  of  CanadiV 
untiVparur  otlierwise  provides  (i),  all  laws  in  force  in 
da  otherwise  the  several  Provinces  at  the  Union  rela- 

providea. 

tive  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  members  of  the  House 
of  Assembly  or  Legislative  Assembly  in 
the  several  Provinces,  the  voters  at  elec- 
tions (ii)  of  such  members,  the  oaths  to  be 
taken  by  voters,  the  Returning  Officers, 
their  powers  and  duties,  the  proceedings 
at  elections,  the  periods  during  which 
elections  may  be  continued,  the  trial  of 
controverted  elections  (iii),  and  proceed- 
ings incident  thereto,  the  vacating  of 
seats  of  members,  and  the  execution  of 
new  writs  in  case  of  seats  vacated  other- 
wise than  by  dissolution, — shall  respec- 
tively 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  elec- 


THE    H.  N.  A.  ACT — SEC.  41.  285 

tion  for  a  Member  of  the  House  of  Com- 
mons 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. 

(i)  "  ihitil  the  pmiiainoit  of  (ki)uiAa  otherwm'  pro- 
viih'K." — The  parliament  of  Canada  has  long  since  otlienvise 
prtjvided,  and  these  four  sections  (40-43)  are  now  therefore 
practically  effete,  except  in  so  far  as  they  confer  power  to 
legislate  upon  the  various  matters  referred  to  in  them.  See 
note  (iii)  to  this  secti(^n.  The  electoral  districts  in  the 
various  provinces  and  territories  of  the  Dominion  will  be 
found  defined  in  the  Act  (55-50  Vic.  c.  11)  which  has  just 
passed  the  Dominican  parliament.  The  law  upon  the 
N'arious  matters  referred  to  in  section  41  will  be  found  in  : 
R.S.C.  (ISHG),  c.  5.— "The  Electoral  Franchise  Act." 
"  c.  !S. — "  The  Dominion  Elections  Act." 

"  C.J). — "The  Dominion    Controverted  Elec- 

tions Act." 
"  c.  10. — Providing  for  commissions  of  encjuiry 

in  certain  cases. 
"  c.  11. — See  secticms  9  to  \\),svh.  tit.  "inde- 

pendence of  parliament  '  ; 
and  the  various  amendments  to  these  Acts. 

In  Willett  V.  De  Grosbois  (u),  certain  pre-Confederation 
laws  of  the  old  province  of  Canada  in  respect  to  electii^n 
matters  were  held  to  be  still  in  force  in  Quebec.  The  Act, 
23  Vic.  c.  17  (LSGO),  made  void  any  contract  referring  to  or 
arising  out  of  a  parliamentary  election,  even  for  payment 
of  lawful  expenses.  The  Dominion  parliament,  after  Con- 
fetleration,  passed  an  Act  respecting  Dominion  elections, 
liut  not  containing  this  or  any  like  provision,  and  it  was 

(u)  2  Cart.  332  ;  17  L.  C.  Jur.  293. 


286  'JHE   H.  N.  A.  ACT — SEC.  41. 

held  that  this  provision,  never  havinj^  l»een  repealed,  was  m 
force  in  Quebec  as  respects  Dominion  elections,  under  this 
section  41,  an<l  section  120,  post,  and  that  therefore  a  pr«^- 
niissory  note  given  as  a  contribution  to  the  expenses  of  a 
subse(|uent  Dominion  election,  was  void.  In  1(S74,  however, 
this  old  statute  Avas  repealed  so  far  as  it  affected  Dominion 
elections  (87  Vic.  c.  9,  s.  133),  and  it  was  expressly  enacted 
that  thereafter  pre-Confederation  provincial  laws  touching^ 
elections  should  not  apply  to  elections  to  the  House  of 
Commons. 

(ii)  "  The  vofevK  <(t  elections." — The  law  upon  this  sub- 
ject, so  far  as  relates  to  elections  to  the  House  of  Connnont* 
of  the  Dominion  parliament,  will  be  found  in  "  The  Electoral 
Franchise  Act "  (R.  S.  C.  c.  5).  Compare  with  this  section 
41,  the  provisions  of  section  84,  poi^t,  relating  to  electicms  to 
the  legislative  assemblies  of  the  provinces.  In  reference  to 
provincial  "votei"s'  lists"  the  municipal  machinery  is  utilized, 
but  "  the  unity  in  federal  and  provincial  electoral  matters 
has  been  completely  dissevered  "  (f),  and  for  the  Dominion 
an  entirely  distinct  and  independent  system  has  been 
adopted.  The  work  of  preparing  the  lists  is  committed  to 
revising  officere,  sitting  in  "  federal  courts."  In  connection 
with  these  courts  arose  (w)  the  question  of  the  jurisdictiim 
of  provincial  "superior"  courts  to  supervise  the  exercise  of 
judicial  functions  by  federal  courts ;  this  (juestion  will  be 
found  discussed  in  chapter  yil.,<mie,  p.  240,  and  in  the  notes 
to  section  101,^)o.s/.  We  may  here  note,  however,  that  the  de- 
cision in  Re  Simmons  and  Dalton  was  put  upon  the  ground 
that  the  light  to  vote  at  an  election.  Dominion  or  Provincial, 
is  a  "  civil  right "  within  the  meaning  of  section  92,  sub-sec- 
tion  13,  and  that  therefore  a  provincial  superior  court  may, by 
prohibition,  restrain  a  revising  officer  from  improperly  inter- 
fering with  such  "  civil  right."  The  point  is  referred  to  in 
Th^berge  v.  Landry,  referred  to  in  the  next  note.  In 
Re  North  Perth  it  is  thus  dealt  with : 

(i)  Per  Meredith,  J.,  in  Re  North  Perth,  21  O.R.  at  p.  540. 

(w)  He  Simmons  and  Dalton,  12  O.R.  505;  Re  North  Perth,  21  O.B.  538. 


I'HE    15.  X.  A.  ACT — SEC.  41.  287 

"  Now,  the  gi'oup  of  statutes  i-elating  to  the  election  of 
members  to  the  House  of  Commons  ....  are  all  of  the 
proper  competence  of  the  Dominion.  In  particular,  Ontario  has 
no  legislative  power  over  the  electoral  franchise  of  the  Dominion. 
That  subject  has  been  regulated  by  the  Parliament  of  Canada^ 
and  a  new  jurisdiction  conferred  for  the  ascertainment  of  duly 
(qualified  voters  in  and  for  the  Dominion. 

"  This  legislation  does  not  trench  upon  '  property  and  civil 
rights  in  the  province,'  as  was  intimated  in  lie  Simmons  and 
Dalton,  12  0.  R.  505.  On  the  contrary,  this  class  of  legislation 
is  contemplated  and  sanctioned  by  the  -list  section  of  the  B.  N.  A. 
Act. 

"  Ontario  has  her  own  like  sphere  of  the  electoral  legislation 
provided  for  in  section  84  of  the  same  Act.  Neither  interferes 
with  the  other,  because  they  occupy  different  planes  of  political 
territory,  but  both  are  essential  for  the  efficient  working  of  the 
Canadian  system  of  dual  government. 

"  The  subjects  of  this  class  of  legislation  are  of  unpolitical 
character,  dealing  with  the  citizen  as  related  to  the  Common - 
weath  (whether  province  or  dominion),  and  they  are  kept  distinct 
in  the  Federal  Constitutional  Act  from  matters  of  civil  rights  in 
the  provinces,  which  regard  mainly  the  ineum  and  tuum  as 
between  citizens.  It  is,  in  my  view,  rather  confusing  to  speak 
of  the  right  of  voting  as  comprehended  under  the  •  civil  rights,' 
mentioned  in  section  92,  sub-section  13  of  the  B.  N.  A.  Act. 
This  franchise  is  not  an  ordinary  civil  right ;  it  is  historically 
and  truly  a  statutory  privilege  of  a  political  nature,  being  the 
chief  means-  whereby  the  people,  organized  for  political  purposes, 
have  their  share  in  the  functions  of  government.  The  question 
\r>  hand,  therefore,  falls  within  the  category  not  of  '  civil  rights 
in  the  province,'  but  of  electoral  rights  in  Canada." — l^cr 
Boyd,  C. 

We  may  also  refer  to  Valin  v.  Langlois  (5  App.  Cas. 
115),  in  which  it  was  intimated  that,  apart  even  from  this 
section  41,  "the  administration  of  justice  in  tlie  province  " 
could  not  properly  be  construed  as  covering  the  trial  of 
controverted  election  cases,  arising  out  of  elections  to  the 
House  of  Commons  of  Canada.     See  r.lso  the  next  note. 


'288  THE    H.  N.  A.  ACT— HEf.  41. 

It  is,  W(!  iiiiiy  Hiiy,  entii'dy  Iti^yojul  tin*  Hcopc  ol:'  this 
work  to  (li.scUHs  tin;  |L';l'HL'Iji1  liiw  hikI  jHuctic*'  in  ivtViciuM' 
to  elcetiouH  ami  clt'ctioii  ti'ial.s.  VW*  siiiiply  dcsii-o  to  uhhIhii 
tlics*;  Hulijt'cts  their  propci-  [)luce  in  our  constitutioiuil 
.sy.st»'ni. 

(iii )  "  The  t.i'lol  itfronfiutvcrfrtl  rlrrJionmnul pnn'cci/luffs 
inililriif  f/irrrfo." — Prior  to  conrcdeiation,  tliu  It'^iHlaturcs 
of  tli(!  varioUH  proviiiwH  followed  the;  exainj)le  of  the  iiritiHli 
]»arlianieiit,  and  )'etain(;d  in  their  own  hands  tin;  ri^ht  to 
decide  all  (|UeHtionH  as  to  the  nfo/ns  <»f  their  niendtei'M,  and 
for  some  years  after  Confed«;i"ati(»n,  iMtth  the  l)oniini(»n  an<l 
j>ro\incial  legislatures  retained  this  juris<lietion. 

"  As  the  House  of  Connnons  in  j'ingland  exorcised  sole 
jurisdiction  over  all  matters  connected  with  controverted  elections 
except  so  far  as  they  may  have  restrained  themselves  by  statutory 
restrictions,  the  several  Houses  of  Assendjly  always  claimed  and 
exercised  in  like  manner  the  exclusive  right  to  d<'al  with,  and  he 
the  sole  judges  of  el(!:;tion  matters,  unless  restrained  in  hke 
manner,  and  this  claim,  and  the  exercise  of  it,  I  have  never 
lieard  disputed  ;  on  the  contrary  it  is  expressly  recognized  ns 
existing  in  the  Legislative  Assend)ly  hy  the  Judicial  Connuittee 
of  the  Privy  Coma  il  in  Theberge  v.  liandry,"  /*/v  Jlitchie,  C.J., 
in  V'alin  v.  Langlois  (8  S.  C.  R.  at  p.  10). 

See  also  his  short  histoi-ical  sketch  of  Kn;^liHh  practiei; 
jind  lej^islation  on  this  siihject,  ([)[).  12  and  \'\).  In  the 
judninentof  the.lndieial  Connnitt(!e(d' tlu;  Pj-ivy  Council  (.»), 
to  which  the  leanuMl  Chief  .Justice  i-efei-s,  Lord  Cairns 
(p.  ]()()),  sfieaks  of  the  Quebec  Controveited  Elections  Acts 
of  1.S72  and  l(S75,  as  "  peculiar  in  theii'  chaiacter  "  : 

'*  They  are  not  Acts  constituting  or  providing  for  the  decision 
of  mere  ordinary  civil  rights ;  they  are  Acts  creating  an  entirely 
new,  and  up  to  that  time  unknown,  jurisdiction  in  the  particular 

.  court  of  the  colony  for  tlie  purpose  of  taking  out,  with  its  own 
consent,  of  the  legislative  Assembly,  and  vesting  in  that  Court, 

.that  very  peculiar  jurisdiction,  which,  up  to  that  time,  had  existed 
in  the  Legislative  Assembly,  of  deciding  election  petitions,  and 

(/)  Thoberge  V.  Laiulry,  2  App.  Cas  102.  . 


Tin:    M.  N.  A.  A<T— SKr.  41.  280 

(iLtt')ininin^' ll»;s'/»'».sof  thoHo  wlioclaiincil  to  W  numbers  of  th« 

Lci,'islativo  Assombly." 

mill   the  ( *(iiiiiiiittc('  held,  in  tlntt  chhv,  tlnit  tlioHt-  Acts  <li<l 

not  aniu'X  to  tin*  dt'ei.sionH  ol"  tin;  tiiltunjilH  eoiiHtitutcM   l»y 

llitni,  till-  or»liniiiy  incident  of  Itfiny'  iT\ic\vc(|  Ity  tli<'  (.rown 

ini<l»r  its  |)rt'r()Huti\('  i-iulit   to  licnr  MppcjilH  IVoni    colonial 

courts. 

VVm'Tc  tln'if  any  <|iit'stion  ol"  tlit-  li^lit  ol"  n  cojnniul 
It  .lislatupf  to  set  up  and  r.xcrcist'  sucli  a  claim  (sec  notes  to 
section  IS,  (Uiif,  p.  2(i2,  an<l  s«'Ction  (>!>,  y/o,s/),  the  al»ove  sec- 
tion 41,  ami  tlie  cories](on<lin^'  section  (section  <S4),  as  to  the 
lei;islatui('s  of  Ontario  and  <J|u«dtec,  woidd  seem  suHicient 
statutory  acknowhd^^nient  <»!'  it,  and,  as  notetl  hy  Iiit(;hie, 
(  .J.,  'rhel»ei";;(!  v.  Lan<liy  is  a  distinct  jij'cooiiition  <»!'  its  (!X- 
istence.  The  paiticulai*  point  involv*'*!  in  \'»Uin  v.  Lan;;l(»is 
was  as  to  the  povv(ir  (»t'  tht;  Dominion  pailiam«!nt  to  conl^M" 
upon  provincial  courts,  jurisdiction  to  tiy  petitions  under  the 
Dominion  Controverted  Klections  Act,  1875,  and  this  will  he 
i'ound  discussed  in  cha}>ter  XJ,  onfc,  p.  'I'M,  <■!  wvy.  and  in 
the  not«.'s  to  section  02,  suit-section  14,  juiHt.  It  was 
held  that  the  statute  was  intra  vi/rw  (.S  S,  (y.  U.  I,  and  5 
Ap)).  Cas.  1 15),  and  we  need  h(M'<;  only  note  that,  in  the  view 
ol"  the.liidicial  Committee  of  the  I'livy  Council,  the  openinji;- 
clause  of  section  41  :  "  Until  thr  jxi liianicnt  of  (%iii(uln 
nf/wrwi-st',  itfouiih'-s":  impliedly  conferred  ujxtn  the  Dominion 
[tarliament  full  power  to  make  laws  in  relation  to  the 
matters  enumerate<l  in  the  remain<ler  of  the  section,  al- 
thou<.;h  not  enumerated  in  any  of  the  various  suh-sections 
of  section  01 — and  this,  irrespective  of  the  construction  to 
h<'  put  upon  the  "general  words  of  the  openin;^-  clause  of 
section  01.  . 

"  That  other  clause,  the  41st,  expressly  says  that  the  old 
mode  of  determining  this  class  of  (jiiestions  was  to  continue 
until  the  parliament  of  Canada  should  otherwise  provide.  It 
ii'is,  tjierefnri',  the  ixtrlininent  itf  (.'iinmlii  iihltli  uas  othrnrisc  to 
I'lovitle.  It  did  otherwise  provide  by  the  Act  of  1879,  whicli 
Act  it  afterwards  altered  and  then  passed  the  Act  now  in  (question. 
Can.  Con.— 19 


290  THE   H.  N.  A.  ACT — HEC.  42. 

So  far,  it  would  appear  to  their  Lordships  very  difficult  to 
suggest  any  ground  upon  which  the  competency  of  tlie  parha- 
ment  of  Canada  so  to  legislate  could  be  called  in  ciuestion." — 
Iter  Lord  Selborne,  5  App.  Cas.  at  p.  119.  See  also  por  Ritchie, 
C.J.,  8S.  C.  R.  at  p.  11. 

The  k'j^islativt'  juriHiiiction  of  the  Dominion  juirliuniL'nt 
witli  respect  to  the  election  of  ineniher.s  of  that  IkmIv  Ims 
been  said  hy  the  Court  of  Appeal  for  Ontario  to  he 
"  heyond  dispute."  See  Doyle  v.  Bell.  1 1  O.  A.  R.  :i2()  (affirm- 
ing 82  V.  C.  C.  P.  <).S2),  in  which  the  provisions  of  tlu^ 
Dominion  Controverted  Elections  Act,  for  tiie  prevention  of 
corrupt  practices  at  elections,  and  for  their  punishment, 
(hither  ci'ininally  or  l>y  the  forfeiture  of  money  to  he  sued 
for  and  recovered  hy  an  informer,  were  uphelil  as  the 
exercist!  of  power  nt^cessarily  "incident  to  the  ])owi'i'  to 
re<;-ulate  the  mode  of  election  of  meniUers  of  [)arlianient." 
The  contention  of  the  defendant  was,  that  the  >^ivin_L;"  of  a 
riyht  of  action  to  an  informer  was  leiiislation  as  to  "  civil 
rij^hts  in  the  province,"  and  therefore  itlfru  rlrcs.  See 
notes  to  section  !)2,  suh-seetion  18,  /xisf. 

The  trial  of  contiovertcd  elections  Wiis  transferred  to  the 
ccauts,  in  Eiij^land  in  l.S(i<S:  in  Ontario  in  INTO,  (84  Vie.  c.  8): 
in  Quelec  in  1.S72  (8(j  \'ic.  c.  5) :  l»y  the  Dominion  parliament 
in  1.S78.  See  also  85  Vic.  c.  10  (Manitoha) ;  Con.  Stat.  c.  40 
(British  Columhia) :  R.  O.  I.S.SS,  c.  n  (N.  W.  Territoiies) : 
82  Vic.  c.  82  (New  Brunswick);  87  Vic.  c.  ''l  (T.  E.  Island); 
and  88  Vic.  c.  25  (Nova  Scotia). 

lleollT^""'  42.  For  the  hrst  election  of  luenibers 
to  serve  in  the  House  of  Commons  the 
Governor-General  shall  cause  writs  to  be 
issued  by  such  person,  in  such  form,  and 
addressed  to  such  Returning  Officers  as 
he  thinks  fit. 

The  person  issuing  writs  under  this 
section  shall  have  the  like  powers  as  are 


THE   H.  \.  A.  ACT — SEC.  43- 15.        »  291 

possessed  at  the  Union  by  the  otticers 
charged  with  the  issuing  of  writs  for  the 
election  of  members  to  serve  in  the  re- 
spective House  of  Assembly  or  Legislative 
Assembly  of  the  Province  of  Canada, 
Nova  Scotia,  or  New  Brunswick  ;  and  the 
lieturning  Officers  to  whom  writs  are 
directed  under  this  section  shall  have  the 
like  powers  as  are  possessed  at  the  Union 
l)y  the  othcers  charged  with  the  returning 
of  writs  for  the  election  of  mend)ers  to 
serve  in  the  same  respective  House  of 
Assembly  or  Legislative  Assembly. 

43-  In  case  a  vacancy  in  the  repre-  vac'lncuT' 
sentation  in  the  House  of  Commons  of 
any  Electoral  District  happens  before  the 
meeting  of  the  Parliament,  or  after  the 
meeting  of  the  Parliament  before  provision 
is  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  Connnons  on  its  oVg.e'^.ti'o" 
first  assembling  after  a  general  election  cmmnons. 
shall  proceed  with  all  practicable  speed  to 

elect  one  of  its  members  to  be  Speaker. 

45.  In  case  of  a  vacancy  happening  ;tp  l^aSi^'i.. 
in  the  office  of  Spepker  by  death,  resigna-  sreTker. 
tion  or  otherwise,  the  House  of  Commons 

shall  with  all  practicable  speed  proceed 


202  THE    H.  N.  A.  Arr—SKCS.   Id,  17. 

to  elect   HMotlier  of   its    ineinluTs   to   he 
Speaker. 

Sao""'"  46-  The  Speaker  (i)  shall  preside  at 

all  meetiiij,'s  of  the  House  of  (Jomiiioiis. 

(i)  "7'//^'  Sf,r„l,rrr—><vv  U.  S.  (.'.  (LSSU),  c.  II,  s.  24, 
uliicli  |)r()vi(l('H  that  the  sulurvor  the  Spcukcrof  tiic  I  louse 
«»F  (JoiiiiiionH  hIuiH  hi!  84,000  per  iiiiniiin.  'riic  duticH  (d"  tlm 
S|M'n,k('r  Hit'  not  tjctiiicd  in  tlu*  H.  N.  A.  Act,  otlH'rwisi' thnn 
l»y  .section  Mi,  hut  his  p(»sition  (the  same  is  true  of  the  posi- 
tion ol"  the  Speakers  oi*  the  vaiious  |je^islati\'e  A.sselnhli(^s) 
is  |>ractically  tin;  same  as  that  of  tin*  Speaker  of  the  House 
of  Connnons  in  Kn<^lait(l.  His  functions  art;  to  a  certain 
<'xtent  of  a  senii-jufjiciai  nature,  ami  1m'  is  supposed  to  have 
tiir(»\vn  aside  all  party  hias  Jipon  his  (dcivation  to  the  chair. 
So*!  hourinot  "  Pjirl.  Prt.c.  and  Trac."  (2nd  ed.)  p.  202,  rf  sctj., 
where  will  he  found  a  succinct  stat«'nient  of  his  position  and 
duties.  By  way  of  contrast,  S(!e  Prof.  Wilson's  "  Conirres- 
sional  (jiovennnent  "  for  a  clear  statement  as  to  the  position 
of  tiie  Speak(;r  of  tlm  Hou.se  of  Representatives  at  Washing- 
ton. There  he  is  suppo.stjd  to  ex(!rcise  the  powers  of  liis 
ofKce  in  furtherance  of  the  aims  of  his  political  party,  and 
is  })ractically  the  leader  of  that  party  in  the  House  ;  the 
chairmen  of  the  various  standinj^"  committees  of  Con- 
j^ress  are  appointe<l  hy  liim,  and  hy  exercising  judicious 
selection  in  this  respect  he  is  ahle  to  ensiu'e  that  his  views 
upon  puhlic  matters  will  find  practical  expression  in  the 
woi'k  of  Congress. 

iase^ofab-"'  47.  Uiitil  the  Parliaioeiit  of  Canada 
HpoakeJ  otherwise  provides  (i),  in  case  of  the  ab- 
sence 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 


I'MK    l».  N.  A.  \(T — SKi'H.  iH.r,{).  298 

HO  t'l(u;tf(l  shall  diiriii^^  t\ui  coiitimiaiice 
of  such  iil)S(Mi('(i  of  tlu!  Speaker  have  and 
execute  all  the  powers,  privilege's,  and 
duties  of  Speaker. 

(i)  "IJ^nli/  llif  Pii rl ill nfiif  of  Cdinh/ii  ol/irftrlsr  pru- 
ritics." Sec  iKttc  (ill)  to  section  41,  iiiih'.  P»y  4<S  <S:  41)  \'ic'. 
c.  I,  tlici'c  Nvus  cit'utt'd  tln' otHcf  (if  Deputy  Speiikei',  with 
jMiweis  us  l»y  that  s(iitiit<'  <letiiie<l. 

48.  'I'lie  pres(;n(;e  (rf  at  h-ast  twenty  li;;;;:,;;';.'/'' 
ineinh(;rs  or  the  House  ot  (Jonnnons  sliall 

l)e  necessary  to  constitutes  a  ine(itin^'  of 
the  House  for  the;  (exercise;  of  its  powcsrs, 
and  for  that  purpose  tin;  Speaker  shall  be 
rtsckoned  as  a  niend)er. 

49.  Questions  arising'  in  the  House  of  h?,','",^ ,!}' 
('onnnons  shall  he  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. 

(i)  "  Qiumtm" — "votiitff" — Compare  sections  8.5  and  lUi, 
and  see  notes  to  those  sections.  S(M!  also  section  >S7,  and 
n»»tes  thereto,  /tost. 

50.  Kvery  House  of  Connnons  shall  }{;j|;^^':;',"'' 
(tontinu(i  for  live  years  (i)  from  the  day  of  ^""""""'' 
the  return  of  the  writs  for  choosing  the 
House  (subject  to  be  sooner  dissolved  (ii) 

by  the  Governor-General),  and  no  lon^^er. 

(i)  "Shall  coiiflniu'  for  fivr  jjearH." — This  is  one  ol'  those 
iiiatteix  which,  it  is  sulmn'ttcd,  the.  Dominion  parliament 
lias  no  power  to  alter — see  note  (i)  to  section  .S.5,  (inic — 
wliije  provincial  legislatures  may  lengthenor  shorten  the 
period  of  their  own  duration.     See  section  92,  suh-seetion  1. 


294  THE   B.  N.  A.  ACT — SEC.  51. 

(ii)  ''Dissolved  by  the  Governor-General." — See  chapter 
VIII.,  ante,  p.  165,  for  a  full  discu.ssion  of  the  powers  of  the 
Governoi'-General  in  connection  with  the  summoning,  pro- 
roguing, and  dissolving  of  parliament. 

adTusunlLfof        51-  On  the  'completion  of  the  census 
Bepresenta-    .^_^  ^j^^  ^^^^^,  ^^^^  tliousaiid  eight  hiuidrcd 

and  seventy-one,  and  of  each  subsequent 
decennial  census,  the  representation  of 
the  four  Provinoes  shall  be  readjusted  by 
such  authority  (i),  in  such  manner  and 
from  such  time  as  the  Parliament  of  Can- 
ada from  time  to  time  provides,  subject 
and  according  to  the  following  rules  : — 

(1)  Quebec  shall  have  the  fixed  num- 
ber of  sixty-five  members. 

(2)  There  shall  be  assigned  to  each 
of  the  other  Provinces  such  a 
number  of  members  as  will  bear 
the  same  proportion  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  num- 
ber of  members  for  a  Province  a 
fractional  part  not  exceeding  one- 
half  of  the  w4iole  number  requisite 
for  entitling  the  Province  to  a 
member  shall  be  disregarded ;  but 
a  fractional  part  exceeding  one- 
half  of  that  number  shall  be  equiv- 
alent to  the  whole  number. 


THE   B.  N.  A.  ACT — SEC.  51.  2f)5 

(4)  On  any  such  re-adjustment  the 
number  of  members  for  a  Provmce 

•  shall  not  be  reduced  unless  the 
proportion  which  the  number  of 
the  population  of  the  Province  bore 
to  the  number  of  the  aggregate 
population  of  Canada  at  the  then 
last  preceding  re -adjustment  of 
the  number  of  members  for  the 
Province  is  ascertained  at  the  then 
latest  census  to  be  diminished  by 
one- twentieth  part  or  upwards. 

(5)  Such  re-adjustment  shall  not  take 
effect  until  the  termination  of  the 
then  existing  Parliament. 

(i)  "By  fiacli  (nithoritij." — From  the  debates  on  the 
Quel)ec  Resolutions  in  the  parHanient  of  (old)  Canada,  it 
would  appear  that  some  uncertainty  existed  as  to  the  terms 
of  tlie  24th  resolution.  As  printed  in  the  volume  of  Debates 
on  Confederation  (published  by  authority),  resolutions  Nos. 
28  and  24,  read  as  follows  : 

"23. — The  legislature  of  each  province  shall  divide  such  pro- 
vince into  the  proper  number  of  constituencies  and  define  the 
boundaries  of  each  of  them. 

"  24. — The  local  legislature  of  each  province  may,  from  time  to 
time,  alter  the  electoral  districts  for  the  purpose  of  representation 
in  melt  local  Icifislatun',  and  distribute  the  representation  to  which 
the  province  is  entitled  in  such  local  legislature,  in  any  manner 
such  legislature  may  see  fit." 

In  Gray's  "  Confederation  " — Mr.  Gray  was  a  delegate 
to  the  Conference,  from  New  Brunswick — the  24th  resolu- 
tion is  given  thus : 

"  The  local  legislature  of  each  province  may,  from  time  to 
time,  alter  the  electoral  districts  for  the  purposes  of  representation 
i)i  thi'  Home  of  <  'oiiiwous,  and  distribute  the  representation  to 


296  THE   B.  N.  A.  ACT — SEC.  51. 

which  the  province  is  entitled  in  any  manner  siuOi  legislature 
may  soe  fit." 

In  moviny  the  resolutions  in  the  House,  the  Attoi'nev- 
(Jeneral-West  (Sir  John  A.  Mac<lonjiM)  said  : 

"  A  good  deal  of  misrepresentation  lias  arisen  from  the  acci- 
dental omission  of  some  words  from  the  24th  resolution.  It  was 
thought  that  by  it  the  local  legislatures  were  to  have  the  power 
of  arranging  hereafter,  and.  from  time  to  time,  of  re-adju^ting 
the  different  constituencies,  and  settling  the  size  and  boundaries 
of  the  various  electoral  districts.  The  meaning  of  the  resolution 
is  simply  this  :  that  for  the  //rs<  General  Parliament,  the  arrange- 
ment of  constituencies  shall  be  made  by  the  existing  local  legis- 
latures ;  that  in  Canada,  for  instance,  the  present  Canadian 
parliament  shall  arrange  what  are  to  be  the  constituencies  of 
Upper  Canada,  and  to  make  such  changes  as  may  be  necessary 
in  arranging  for  the  17  additional  members  given  to  it  by  the 
constitution  ;  and  that  it  may  also,  if  it  sees  fit,  alter  the 
boundaries  of  the  existing  constituencies  in  Lower  Canada.  In 
short,  this  parliament  shall  settle  what  shall  be  the  different 
constituencies  electing  members  to  the  first  Federal  Parliament. 
And  so  the  other  provinces, — the  legislatures  of  each  will  fix  the 
limits  of  their  several  constituencies  in  the  session  in  which  they 
adopt  the  new  constitution.  Afterwards  the  local  legislatures 
may  alter  their  own  electoral  limits  as  they  please,  for  their  own 
local  elections.  But  it  would  evidently  be  improper  to  leave  to 
the  local  legislatures  the  power  to  alter  the  constituencies  seed- 
ing members  to  the  General  Legislature,  after  the  General 
Legislature  shall  have  been  called  into  existence.  .  .  .  No; 
after  the  General  Parliament  meets,  in  order  that  it  may  have 
full  control  of  its  own  legislation,  and  be  assured  of  its  position, 
it  must  have  the  full  power  of  arranging,  and  re-arranging  the 
electoral  limits  of  its  constituencies  as  it  pleases,  such  being  one 
of  the  powers  essentially  necessary  to  such  a  legislature." 
Confed.  Deb.  p.  89. 

Both  of  these  resolutionH  were  struck  out  at  the  con- 
ference, in  London,  of  the  delegates  from  tliose  provinces 
which  had  agreed  to  the  Quebec  Resolutions,  probably 
because  the  limits  of  the  various  constituencies  had  been 


THE   K.  X.  A.  ACT — SEC.  51.  2J)7 

Ht'ttle<l  by  the  local  legislatuivs  in  the  inaniiei"  pointed  out 
Ity  Sir  John  3Iac(lonaM,  and  such  anangenient  was  put 
into  statutory  fonn,  in  section  41 .  Nothing  appears  in  these 
ivsolutions,  or  in  the  debates  thereon,  in  reference  to  the 
(juestion  of  delegating  the  power  f>f  "distribution"  to  an 
authority  independent  of  parliament :  but,  as  we  write,  the 
(piestion  has  been  raise<l  in  the  Donnnion  })arlianient,  and 
two  of  the  Fathers  of  Confederation  are  reported  to  ha\»' 
stated  that  the  above  section  51,  wasileliberatelv  franie<las 
it  is,  in  order  to  take  from  parliament  this  dangerous  p()wer 
— dan<jerous  in  the  hands  of  anv  niaioritv-  and  to  s»'cure 
its  exercise  by  an  independent  authority.  If  such  was  the 
intenti(Hi,  it  has  been  persistently  ignored,  and  the  re-dis- 
ti'ibution  after  both  the  census  of  1.S71  and  of  lISSl,  was 
effected  by  an  Act  of  the  Dominion  parliament  in  the  exer- 
cise of  its  ordinary  legislative  functions  :  and  an  Act  (55-50 
Vic.  c.  11)  has  just  been  passed  by  the  Dominion  parliament 
providing  for  the  re-distribution  consecpient  upon  the  census 
of  1(S92.  As  a  legal  proposition,  the  power  of  the  Dominion 
parliament  to  constitute  itself  the  authority  by  which  the 
re-adjustment  is  to  be  effected,  cannf)t  be  doubted  what- 
ever may  be  said  of  the  impropriety  of  so  doing.  Under 
section  40,  natc,  p.  2<S3,  the  power  of  the  Dominion 
parliament  to  alter  electoral  districts  is  clearly  estal)- 
lished.  See  note  (i)  to  secticm  41.  This  section  51 
applies  only  to  the  re-adjustment  :)f  the  representation 
of  the  provinces  ^r*?  hefirpi'n  flifmi^flrr.^,  and  has  no  refer- 
ence to  the  boundaries  of  the  electoral  districts  in  each 
province,  and  it  would  appear  therefore  that  the  re- 
adjustment, under  this  section,  is  a  matter  merely  of 
mathematics.  The  wording  of  section  52  bears  out  this 
construction,  indicating  as  it  does  that  the  "fixed  (juantity" 
in  the  scheme  of  representation,  is  the  proportioiuiir  repre- 
sentation of  the  provinces.  The  electoral  districts  may  be 
altered  at  any  time  (section  40),  and  the  total  number  of 
members  increased  (section  52),  by  the  parliament  of  Cana«la, 


2!)<S  THE    B.  N.  A.  ACT — SECS.  52-54. 

'  provided  the  proportionate  representation  of  the  provinces 
prescrihe<l  l>y  this  Act  is  not  thereby  disturl>ed." 

ninXT^f'  52.  The  number  of  members  of  the 

cSo'iL.  House  of  Commons  may  be  from  time  to 
time  increased  by  the  Parliament  of  Can- 
ada, provided  the  proportionate  represen- 
tation (i)  of  the  Provinces  prescribed  by 
this  Act  is  not  thereby  disturbed. 

(i)  "  The  j)i'()portiov(ite  veprfiMentdtiov" — See  note  (i) 
to  section  87,  ((vte. 

Money  Votes  (i),  Royai.  Assent. 

dTaTimx  53.  Bills  for  appropriating  any  part 

of  the  public  revenue,  or  for  imposing  any 
tax  or  impost,  shall  originate  in  the 
House  of  Commons. 

(i)  "  Mod f' If  votpxy — The  suVjiject  of  money  votes  relates 
nicn'e  particularly  to  parliamentary  procedure  and  practice, 
and  the  subject  will  be  found  fully  discussed  in  Dr.  Bouri- 
not's  work  upon  that  subject  (2nd  ed.,  chapter  XVII).  Tlie 
restriction  provided  for  })y  section  54  was  first  introduced 
into  Canada  by  the  Union  Act,  3  &  4  Vic.  c.  35, 
s.  57.  See  Lord  Durham's  report,  p.  34.  The  restric- 
tion is  enf<)rced  by  the  Speaker  upon  a  point  ()f  order 
taken. 

"or/'of  mmfey        54,  It  shall   uot   be  lawful  for   the 
vote.  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  recom- 
mended to  that  House  by  message  of  the 
Governor-General  in  the  Session  in  which 


THE    B.  N.  A.  ACT — SECS.  55,  5«.  2f)}) 

such  vote,  resolution,  address,  or  biii  is 
proposed. 

55.  Where    a    bill    passed    by    the  MX'u). 
Houses  of  Parliament  is  presented  to  the 
Governor-General  for  the  Queen's  assent, 

he  shall  declare,  according  to  his  discre- 
tion, 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  withholds  the 
Queen's  assent,  or  that  he  reserves  the 
bill  for  the  signification  of  the  Queen's 
pleasure. 

(i)  "  Roj/dl  r<.sw')>^" — The  provisions  of  this  ami  the 
two  follo\vin<i,-  sections  luive  heen  ahvmly  fully  discnssed  ; 
st'o  oitte,  chapter  VII.,  p.  147,  H  x('<]. 

56.  Where  the  Governor-General  as-  Ki'S'" 
sents  to  a  bill  in  the  Queen's  name,  he  as° entecTto by 
shall  by  the  first  convenient  opportunity  General, 
send  an  authentic  copy  of  the  Act  to  one 

of  Her  Majesty's  Principal  Secretaries  of 
State;  and  if  the  Queen  in  Council  within 
two  years  after  the  receipt  thereof  by  the 
Secretary  of  State  thinks  fit  to  disallow 
the  Act,  such  disallowance  (with  a  certifi- 
cate of  the  Secretary  of  State  of  the  day 
on  which  the  Act  w^as  received  by  him) 
being  signified  by  the  Governor-General, 
by  speech  or  message  to  each  of  the 
Houses  of  the  Parliament,  or  by  proclama- 
tion, shall  annul  the  Act  from  and  after 
the  day  of  such  signification. 


800  THE    n.  X.  A.  ACT — ,SECS.  .57,  58. 

oigi.een"'"  57.  A  bill  veservecl  for  the  signilica- 
{!in"re='eVJ<i.  tloH  of  tlic  Quceii's  pleasure  shall  not 
have  any  force  unless  and  until  within  two 
years  from  the  day  on  which  it  was  pre- 
sented to  the  (nn'ernor-General  for  the 
Queen's  assent,  the  Governor-General  si<;- 
nifies,  by  speech  or  message,  to  each  of  the 
Houses  of  the  Parliament  or  by  proclama- 
tion, that  it  has  received  the  assent  of  the 
Queen  in  Council. 

An  entry  of  every  such  speech,  mes- 
sa<,'e,  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. 

V. — PROVINCIAL  Constitutions  (i). 
Executive  Poiver  (ii). 

o/KleT'        58-  For  each  Province  there  shall  be 
norsl.?*"*^'     an   officer   (iii),    styled   the    Lieutenant- 

rroviiices.  •  \  • 

Governor  (iv),  appointed  by  the  Governor- 
General  in  Council  by  instrument  under 
the  Great  Seal  of  Canada  (v). 

(i)  "  Provinciid  coitstitafitnis.'^ — In  chapter  HI.  will  be 
found  a  discussion  of  the  (juestitm  how  far  the  pre-Con- 
I'ederation  })rovnncial  constitutions  are  continued  by  the 
B.  N.  A.  Act.  That  chapter  was  written  in  order  to  show 
that  the  working  principle  of  those  earlier  constitutions 
was  evidently  intended  to  l»e  continued  in  the  constitutions 
of  the  provinces  as  defined  in  the  B.  N.  A.  Act.  Ever  since 
the  passage  of  that  Act,  there  has  been  in  progress  a  peace- 
ful  warfare  as  to  the  position  of  the  provinces  under  our 


THE    H.  N.  A.  ACT — SEC.  5S.  HOI 

constitutional  system, — a  conflict  not  y«'t  pci-liaps  imkKmI 
Imt  now  Ix'coniu  hopelcsH  to  tlioHc  wh<»  would  deny  tlu; 
full  autonomy  of  the  provinces  in  relation  to  all  those 
matters  which.  l>y  the  B.  N.  A.  Act,  art^  connnitte<l  to  the; 
le^islative  auth<»rity  of  the  provincial  asscmhlies.  In  tlu^ 
earlier  stages,  the  attack  was  directed  toward  narrowing 
the  range  of  the  legislative  powerof  the  pi'ovinces,  and  this 
phase  of  the  conflict  has  heen  already  dealt  with  in  chapter 
X.  At  the  present  time  the  flehateahle  jL^round  is  that 
relating  to  the  exercise  of  executive  power  in  connection 
with  the  government  of  the  provinces,  the  contention  of 
those  who  wcadd  helittle  the  executive  "sphere  of 
authority"  of  the  provinces  being-,  in  efl'ect,  that  under  the 
H.  \.  A.  Act,  there  has  l»een  a  severance  of  the  functions 
of  government  in  relation  to  some,  at  least,  of  those  suhject 
matters  which,  for  purposes  of  legislative  action,  have 
lieen  committed  to  the  provinces.  In  the  earlier  pages 
<tf  this  hook  we  have  not  hesitated  to  attack  this 
position,  and  further  reference  to  the  (juestion  will  he  found 
in  the  following  notes.  We  should  mention,  howevei,  that 
the  first  three  chapters  of  this  book  were  already  in  press 
before  the  report  of  the  judgment  of  the  Judicial  Committee, 
in  Litiuidatoi-s  of  Maritime  Bank  v.  Receiver  General  of 
New  Brunswick  (Times  L.  R.  Vol.  VIII.,  p.  (577)  reached  us, 
and  this  fact  will  account  for  the  lack  of  reference  to  this 
important  decision  as  supix)rting  the  views  expre.ssed  in 
those  chapters  upcm  this  (piestion  of  the  position  of  the 
provinces.  The  particular  point  for  decision  was  as  to  the 
right  of  the  provincial  executive  of  New  Brunswick  to 
claim  the  benefit  of  the  prerogative  right  of  the  Crown  to 
priority  over  other  cretlitors,  in  the  winding  up  of  the 
uffaii-s  of  the  Bank,  lait  tlie  judgment  of  the  Connnittee 
•  leals  with  the  general  question,  and,  as  we  have  already 
intimated,  affirms,  with  tinal  authority',  the  full  autonomy 
<  >f  the  provinces. 

"The  appellants  coiiceded  that,  until   the  passage   of  the 
B.  N.  A.  Act,  1807,  there  was  precisely  the  same  relation  between 


802  THE    H.  N.  A.  AC'I' — SEC.  58. 

the  Crown  and  the  province  which  now  subsists  between  the 
Crown  and  the  Dominion  ;  but  they  maintained  that  the  effect  of 
the  statute  liad  been  to  sever  all  connection  between  the  Crown 
and  tiie  provinces,  to  make  the  government  of  the  Dominion  the 
only  government  of  Her  Majesty  in  North  America,  and  to  reduce 
the  provinces  to  the  rank  of  independent  municipal  institutions. 
For  these  propositions  their  Lordships  have  been  unable  to  iind 
either  principle  or  authority.  Their  Lordships  do  not  think  it 
necessary  to  examine  in  minute  detail  the  provisions  of  the  Act 
of  1H67,  which  nowhere  professed  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.  The 
object  of  the  Act  was  neither  to  weld  the  provinces  into  one,  nor 
to  subordinate  provincial  governments  to  a  central  authority, 
but  to  create  a  federal  government  in  which  they  should  all  be 
represented,  intrusted  with  the  exclusive  administration  of  atfairs 
in  Avhich  they  had  a  common  interest,  each  province  retaining 
its  independence  and  autonomy.  That  object  was  accomplished 
by  distributing  between  the  Dominion  and  the  provinces  all 
powers,  exevntirc  loul  Iciiinliitirc,  and  all  public  property  and 
revenues  which  had  previously  belonged  to  the  provinces,  so  that 
the  Dominion  government  should  be  vested  with  such  of  tliose 
powers,  property,  and  revenue  as  were  necessary  for  the  due  per- 
formance of  its  constitutional  functions,  and  that  the  remainder 
should  be  retained  by  the  provinces  for  the  purposes  of  provincial 
government." 

(ii)  "  Kt'ccafirc  juncer." — In  urriving'  at  a  proper  nndei- 
Ktandin*;'  of  the  position  of  the  provincial  executive,  notliin*;' 
is  more  essential  than  to  liave  a  definite  idea  of  the  neces- 
sary connection  whicli,  in  iiny  country  wdiere  the  govern- 
ment is  a  g'overnment-according-to-law,  must  exist  between 
the  li'gislative  and  executive  powders  in  government :  and 
various  phases  of  this  (piestion  will  l)e  found  discussed  in 
chapter  I.  [ante,  p.  12,  et  w(/.),  chapter  III.  {ante,  p.  45, 
et  Heq.),  and  chapter  VI.  {ante,  142,  et  .s<?g.),  and  in  the  notes 
to  section  0,  (irde,  and  tlie  other  notes  to  this  section  5<S. 

(iii)  "  There  shdll  he  <rn  ojficer." — Compare  section   10, 


THE   JJ.  X.  A.  ACT — SEC.  58.  'MVA 

anil',  and  see  notes  thereto.     See  also  cluipter  III.,  ffnfc,  ]). 
48,  and  notes  to  section  59,  pout. 

(iv)  "  The     Lifudendvt-Gorr'rnor." — Tlie      Lieutenant- 
Governor  of  a  province  is  tlie  chief  executive  otficei*  "carry- 
inj;'  on  the  government  of  the  province  " — see  section  (52. 
2)()sf.     In    some    of  the  cases  will  he  found  discussed   the 
([uestion   whether  or  not  a  Lieutenant-Governor  is  to  he 
considered  a  representative  of  the  Queen.     In   Regina  v. 
Anjer  (//),  Harrison,  C.J.,  laid  it  down  that  the  Goveriior- 
(Jeneral  is  the  only  officer  named  in  the  B.  N.  A.  Act  who 
answers  that  description — see  notes  to  section  10,  ii.i>ff' ;  and 
in  Regina  v.  Bank  of  Nova  Scotia,  in  our  Supreme  Court, 
Mr.  Justice  Taschereau  says  (z)  :    "  The  Lieutenant-dlover- 
nnrs,  no  douht,  in  the  performance  of  certain  of  their  duties 
as  such,  under  the  B.  N.  A.  Act,  may  be  said  to  repn  sent  Her 
Majesty  in  the  same  scnise,  and  as  fully,  perhaps,  as  Her 
Majesty  is  represented,  foi-  instance,  hy  justices  of  the  peace, 
constaljles,  and  l>ailitf's,  in  the  execution  of  their  duties."  A 
reference  to  chapter  VIII.,  oiifc,   and  to  the  cases  which 
(leHne  the  position  of  the  (Jovernoi'  of  a  colony,  will  show 
that  this  description  of  a  Lieutenant-CJovernor  is  ecpially 
iip[)li('able  to  the  Governor-General.     Both  are   "  officei's," 
with  powei-s,  authorities,  an<l  functions  distinctly  limited, 
and  they  can  be  said  to  represent  Her  Majesty,  not  in  the 
sense  of  being  Viceroys,  but  onl}'  to  the  extent  to  which 
powers  are  delegated  to  them,  by  virtue  of  their  commis- 
sions, or  under  the  B.  N.  A.  Act.     In  the  veiy  case  to  which 
we  have  last  referred — The  Queen  v.  Bank  of  Xo\'a  Scotia — 
Mr.  Justice  Strong  points  out  that  the  Queen  is  at  the  ht?ad 
of   the  government  of  Canada — see   section   0   ajid   notes 
thereto.     This  section,  fis  was  pointed  out,  is  declaratory, 
and,  so  considered,  it  entirely  agrees    with   what   is  laid 
down  by  the  older   wiitei-s  as  to  the   necessary  unity  of 
executive  government  throughout  the  Empire.     "The  King 
of  England  is  thei'efore  not  only  the  chief,  but  properly 

(j/)  42  IT.  C.  Q.  B.  3!»1.  {:)  11  S.  C.  R.  at  p.  24. 


304  THE    I).  N.  A.  ACT — SEC.  58. 

the  sole  iuHj;iHtnite  ot"  the  uatiDii ;  all  otheivsactin^^'  ))y  com- 
iLiission  from,  an<l  in  due  suhonlination  to  liim "  {<i). 
Anythiuji;'  tlieivfore  which  may  l>e  said  in  the  way  of 
helittliiii;'  the  office  of  Lieiitenant-CJovenior,  is  e(iually 
a])|)hcal>le  to  the  position  of  the  Oovurnor-ln'iR'ral — with 
this  ditlerejce,  of  course,  that  the  tei'ritorial  sphere  of 
authority  of  the  hitter  is  lar<>ei-,  and  the  ranye  of  matters 
in  connection  with  which  his  powers  may  lie  exercised  (piite 
different  from  that  of  a  Lieutenant-Ciovernor.  But  each  of 
these  officei-s  is  characterized  by  the  B.  N.  A.  Act — see  sec- 
tions 10  and  ()2 — as  the  chief  executive  officer  "  carrvinyon 
the  government "  of  the  ]3ominion  and  the  provinces  re- 
spectively. Any  officer,  exercising  executive  functions 
anywhere  in  the  British  Empire,  nmst  act  under  connuis- 
sion  from  the  Queen,  and,  to  the  extent  indicated  hy  his 
connnission  and  any  Imperial  statute  in  that  behalf,  does 
represent,  a  ml  act  on  hehidf  of  and  in  thf  name  of,  the 
executive  head  of  the  Empire.  We  pointed  out  in  the 
notes  to  section  9,  ante,  that  the  Governor-General  of 
Canada  occupies  a  «lual  position,  and  the  same  may  be  said 
of  the  Lieutenant-Go verntn-  of  a  province.  In  a  sense,  he 
is  a  mend)er  of  the  executive  staii'of  the  Dominion  govern- 
ment, as  well  as  executive  head  of  the  province.  But  there 
is  this  difference  to  be  noted  between  his  position,  and  that 
of  the  Governor-General,  namely,  that  while,  on  the  one 
hand,  the  Imperial  parliament  has  legally  unlimited  power 
over  the  Dominion  in  respect  of  every  conceivable  subject 
matter,  and  may  therefore  increase  or  diminish  the  power 
of  a  Governor-General,  the  parliament  of  Canada,  on  the 
other  hand,  cannot  invade  the  legislative  sphere  of  a  pro- 
vincial assembly,  or  interfere  in  relation  to  its  executive 
head.  This  practical  result  therefore  ensues  that  a  Lieuten- 
ant-Governor, once  appointed,  is  subject  to  the  "instruc- 
tions "  of  the  Governor-General  only  upon,  at  most,  those 
matters  in  respect  to  which  the  executive  of  the  Dominion 

(ft)  Chitty,  p.  4.  ' 


THE   B.  N.  A.  ACr— SEC.  5H.  305 

is  entitled  to  exercise  supervision  over  provincial  legisla- 
tion. As  executive  head  of  a  province,  the  Lieutenant- 
(lovernor  is  connni.ssioned,  l>y  the  B.  N.  A.  Act,  to  "carry 
on  the  jifovennnent  of  the  province";  and  an}'  attempt  to 
instruct  him  as  to  how  he  should  exercise  the  powers, 
authorities,  and  functicjus  of  his  office  in  relation  to  matters 
within  the  sphere  of  provincial  authority,  wouM  l»e  in 
direct  suV)version  of  the  principle  of  provincial  autonomy 
as  now  authoritatively  declared. 

The  division  of  suhject  matters  afi'ected  by  that  Act 
lieing"  exhaustive  (/.  e.,  exhaustive  of  all  matters  over  which 
colonial  lej^islatures  have  power)  and  exclusive  as  well  (h), 
the  same  principle  must  be  acknowledged  in  reference  to 
the  division  of  those  matters  for  executive  action.  Mt)st  of 
the  cases  which  have  arisen  under  the  B.  N.  A.  Act  liave 
involved  enquiry  as  to  the  position  of  the  dividing  line, 
for  legislative  purposes,  between  Dominion  and  Provincial 
jurisdiction  ;  but,  as  we  have  always  insisted,  the  ascertain- 
ment of  such  line  is  at  the  same  time  the  ascertainment  of 
the  line  of  division  for  executive  action.  In  more  recent 
times  the  question  has  arisen  directly  in  reference  to  the 
exercise  of  executive  power,  and  the  courts  of  Ontario  have 
<listinctly  recognized  the  principle  for  which  we  have  been 
contending.  Reference  has  been  made  to  the  limitation  of 
sections  12  and  65  to  statutory  "powers,"  etc.:  and  as  to 
these,  the  provisions  of  the  B.  N.  A.  Act  seem  to  be  per- 
fectly clear.  See  chapter  III.,  ante,  p.  50.  The  dispute 
has  been  in  reference  to  what  may  be  called  prerogatives 
])roper,  viz.,  those  powei-s  connected  with  executive  govern- 
ment which  depend  for  their  efficacy  upon  the  common  law. 

In  1887,  the  Legislative  Assembly  of  Ontario  passed 
'an  Act  respecting  the  executive  administration  of  the  laws 
of  this  province,"  making  provision  as  to  the  exercise  of 
(  xecutive  authority  in  connection  with  these  common  law 
prerogatives.     The  (juestion  of  the  validity  of  this  Act  was 

(l>)  See  Chapter  X. 

Can.  Con.— 20  . 


3()()  THK    II.  N.  A.  .\<T— SKC  f)8. 

Huliinittt'd  to  tlu'  Divisional  ('oint  of  tlic  ('liunccrv  Divisioii, 
wliicli  <K't'i<l('<l  ill  favor  of  its  validity,  aii«l  an  Hj)|)('al  to  tlic 
C^tuit  oT  A|»|M'al  for  Ontario  was  tlisiiiisHtMl.  Tlu'  Act  was 
distinctly  limited  to  cxccntiv*'  action  in  connection  with 
those  sidtject  matters  onci-  which  the  |)roviiicial  leuislative 
assemhly  has  jurisdiction,  and  (constrninj^  the  Act  as  so 
liniite(l)'the  courts  tiecided  that,  although  possihly  the  Act 
was  unnecessary,  it  couhl  not  he  said  to  he  ultm  rii-rs. 
The  position  niay  he  sunniied  up  in  the  lannuaj^t'  of  Mr. 
.lustice  Burton  (c): 

"  1  liave  always  l)ecn  of  opinion  that  tin.'  legislative  and 
executive  powers  granted  to  the  province  were  intended  to  he 
co-extensive,  and  that  the  Lieutenant-Gcvernor  became  entitled, 
liitiitr  ti/licii,  and  without  express  statutory  enactment,  to  exer- 
cise all  prerogatives  incident  to  executive  authority  in  matters  in 
which  provincial  K'gislatures  liave  jurisdiction;  that  he  had  in 
fact  delegated  to  him  the  administration  of  the  royal  prerogatives 
as  far  as  they  are  capable  of  being  exercised  in  relation  to  the 
gf)vernment  of  the  provinces,  d:^  fully  as  the  Governor-General 
has  the  administration  of  tliem  in  rdation  to  the  government  of 

the  Dominion In  my  view,  no  legislation    wns 

necessary,  but,  to  remove  doubts,  such  an  Act  seems  de.sinil)le 
and  iree  from  objection. " 

Refei'ence  should  i:o\v  heailded  to  the  j)assa_i;'e  from  the 
judgment  (d'  the  Privy  Council  (|Uoted  in  note  (i),  (infc 
|).  802,  and  to  the  further  j)assaj;('  (|Uoted  in  the  next  note. 
See,  also,  notes  to  .section  (I!),  /losf,  as  to  tlie  })osition  of  the 
Lieutenant-CJovernor  in  relation  to  the  provincial  asseni- 
hlies,  where  we  have  endeavored  to  make  clear  that  the 
Queen  is  a  constituent  lnanch  of  sucli  a.sseml»lies,  heing 
repi-esented  therein  by  the  Lieutenant-Governor,  just  as  she 
is  ie})re.sented  in  the  Dominion  parliament  by  the  (Jovernor- 
(leneral. 

(v)  "Aj)/)oi nt('</  h>j   llic  (riir('riK>i'-(r('iii',i'((l,  etr" — Much 
Htress  has  been  laid  upon  thi.s  clause  in  support  of  the  con- 
ic) Atty.Genl.  for  Canada  v.  Atty.-Geiil.  of  Ont.,  lU  O.  A.  R.    at 
p.  38. 


TMK    n.  \.  A.  A<T — SEC.  58.  .S()7 

tciitiiui  tluit  u  Lit'iitoniint-Ciovcrnor  is  nut  n  rcprcHcntiitivc 
fit*  tli(!  (yi-own,  Itut  of  the  (»(»vt'iii()r-(it'in'i»il.  Tlic  l'<»II()wiiio' 
fxtnict  from  t]\v  jn<l^iiit'iit  of  tlicJinlieiul  ('oimnitti'c  of  the 
I'livy  Council  in  Li(|ui<lntorH,  ivc.  v.  ]{t'(H'i\('i--(i('ii('iiil  of 
N"\v  Hi'uiiswick,  will  .show  how  the  (jUi-Htion  Iihh  hueii 
tiiuilly  (lisjioHcd  of : 

"  The  appellants  ....  relied  upon  the  fact  that, 
whereas  the  (lOvernor-deneral  of  (Canada  indirectly  appointed  hy 
the  (^ueen,  the  Lientenant-dovernor  of  a  Province  is  appointed, 
not  hy  Her  Majesty,  hut  by  the  (iovernor-Cleneral,  who  has  also 
the  power  of  dismissal.  If  the  Act  had  not  committed  to  the 
(iovernor-Cienoral  the  power  of  appointing,'  and  I'enioving  Lieu- 
tenan^-Clovernors,  there  would  have  been  no  room  for  the  argu- 
ment, which,  if  pushed  to  its  logical  conclusion,  would  prove  that 
the  Governor-General,  and  not  the  Queen,  whose  viceroy  he  is, 
became  the  sovereign  authority  of  the  province  whenever  the 
Act  of  1H()7  came  into  operation.  ]>ut  the  argument  ignores  the 
fact  that  by  section  5H  the  jippointment  of  a  provincial  Governor 
is  made  by  the  '  Governor-General  in  Council,  by  instrument 
under  the  Great  Seal  of  (,'anada,'  or,  in  other  words,  by  the 
executive  government  of  tlie  Dominion  which  is  hy  section  W 
expressly  declared  'to  contiinic  and  be  vested  in  i\u;  (^ueen.' 
Tliere  is  no  constitutional  anomaly  in  an  executive  olHcjr  of  the 
Crown  receiving  his  appointment  at  the  hands  of  a  governing 
body  irhn  hurt'  no  ixnrcr  mid  lui  funrtions  twicfil  its  rt'jirr>{,iitntin's  aj 
ilif  Cntini.  The  Act  of  the  Governor-General  and  his  council 
in  making  the  appointment  was,  within  the  statute,  the  Act  of 
the  Crown  ;  and  a  Lieutenant-Governor,  when  appointed,  was 
as  nuich  the  representative  of  Her  IMajesty  for  all  purposes  of 
provincial  government,  as  the  Governor-General  himself  was  for 
all  purposes  of  Dominion  government  .  .  .  .  " 
and  the  dcci.sionH  in  Mercer  v.  Attoiney-Cleneral  »d'  Ontario 
(S  App.  Cas.  7()7),  St.  Cathexines  Milling  Co.  v.  Tin;  Queen 
(14  Ajtp.  Chh.  4(5),  and  Attorney-General  of  British  Colum- 
bia V.  Attorney-Oeneral  for  Canada  (14  App.  Cas.  295),  are 
referred  to  by  tlie  Conunittee  as  "  based  upon  the  general 
recogiiititm  of  Her  Majesty's  contintted  sovereignty  under 
the  Act  of  18G7." 


308  THE    B.  N.  A.  ACT — SEC.  59. 

The  view  expres.sed  in  the  italicized  portion  of  the  a  hove 
extract  affirniH  what  we  had  ventured  to  lay  down  {avfe, 
p.  304),  that  a  Lieutenant-Governoi",  once  appointed,  is  suh- 
ject  to  "  instructions  "  from  the  Governor-General  only  upon 
those  matters  connected  with  the  exercise,  hy  the  executive 
of  the  Dominion,  of  supervision  over  provincial  legislation. 
See  section  90,  po.sY. 

offlce'of"^  59-    A   Lieutenant  -  Governor    shall 

Gov'ovnm'.' "  liold  office  diu'ing  the  pleasure  of  the 
Governor-General ;  but  any  Lieutenant- 
Governor  appointed  after  the  connnence- 
nient  of  the  first  Session  of  the  Parlia- 
ment of  Canada  shall  not  be  removable  (i) 
within  five  year3  from  his  appointment, 
except  for  cause  assigned,  which  shall  be 
communicated  to  him  in  writing  ^yithin 
one  month  after  the  order  for  his  removal 
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  com- 
mencement of  the  next  Session  of  the 
Parliament. 

(i)  "  kShall  tiot  be  renwvdble  ....  except  for 
ca  use." — The  position  of  the  Governor-General  in  reference 
to  the  removal  of  a  Lieutenant-Governor  has  been  already 
referred  to — see  notes  to  section  9,  iivtc,  p.  251.  The  onlj' 
instance  of  such  removal  which  has  sti  far  occurred  under 
the  B,  N.  A.  Act,  is  that  of  Lieutenant-Governor  Letellier, 
and  it  was  in  connection  with  his  removal  that  the  Im- 
perial authorities  laid  down  the  "  conventional "  rule  that 
the  Governor-General  should  act,  under  this  section  59,  hij 
and  ivith  the  advice  of  the   Queen's  Privy   Council  for 


THE    K  N.  A.  ACT — SEC.  5{>.  809 

('<nia<l<(.  But,  tiH  has  been  already  pointed  out,  the  power 
of  removal  (subject  to  the  obsei'vanee  of  the  formalities 
prescribed  by  the  section)  is,  legally,  with  the  Governor- 
general  alone.  The  cause  assigned  in  the  Order  for  the 
removal  of  Lieutenant-Governor  Letellier  was  that,  after 
the  vote  of  the  two  Houses  of  the  Dominion  parliament 
censuring  him  for  the  dismissal  of  his  ministers,  his  useful- 
ness as  a  Lieutenant-(J(n'ernor  waso-one.  Had  Lieutenant- 
(fovernor  Letellier  declined  to  recounixe  the  validitv  of  the 
Order  in  Council,  a  veiy  nice  (piestion  woidd  have  lieen 
raised  as  to  the  meaning  of  the  phrase  "for  cause  assigned," 
for  it  is  very  doubtful  if  the  facts  alleged  constituted 
"  cause  "  within  the  meaning  of  this  section.  Is  the  Do- 
minion government — for,  under  the  terms  of  the  despatch 
to  the  Governor-General  in  this  case,  it  is  left  with  that 
government — the  sole  judge  of  what  constitutes  "  cause 'V 
If  so,  a  Lieutenant-Governor  holds  his  office  sul)ject  possibly 
to  partisan  caprice,  not  to  law.  Is  the  vote  of  the  Houses 
of  the  Dominion  parliament  an  element  of  "  cause  "?  If  so, 
a  Lieutenant-Governpr  is  subject  to  the  vote  of  a  parlia- 
ment which  cannot  enact  a  single  law  to  govern  his  conduct 
in  the  administraticm  of  the  affairs  of  the  province  over 
which  he  presides.  On  the  othe)*  hahd,  it  may  be  argued 
that  as  the  Lieutenant-Governor  is  a  link  in  the  chain  of 
federal  government  (now  practically  operative  throughout 
the  Empire),  appointed  by  the  executive  of  the  Dominion, 
who  are  responsible  to  the  electorate  of  Canada ///?v>Hr//i  the 
D(yniinion  j>(iHinineiif,  the  decision  of  that  parliament,  ex- 
pressive of  the  will  of  the  people  of  Canada  as  a  whole, 
should  govern  in  regard  to  all  matters  entrusted  to  the 
executive  of  the  Dominion.  The  difficulty  is  that  the  ex- 
ecutive power,  in  this  regard,  of  the  Dominion  government 
is  entirely  divorced  from  all  legislative  power.  That 
goverirme)it  "  has  no  powers  and  no  functions  except  as  i-e- 
presentatives  of  the  Crown  "  in  this  matter  of  the  removal 
of  a  Lieutenant-Governor  (see  ante,  p.  307.     It  strikes  one 


810  THE    B.  \.  A.  ACT — SECS.  60-G3. 

that  it  may  perhaps  be  advi.sahle  for  the  Imperial  authori- 
ties to  reconsider  the  "  instructions  "  al)ove  referred  to. 

Lieuteua^ut-  60-  The  salai'lesof  the  Lieuteuant- 

oovornors.     Q-Qve^i^iors  shall  be  fixed  and  provided  liy 
the  Parliament  of  Canada. 

ofilieutemuu        61-    Every     Lieutenant  -  Governor, 
Governor.      ^\^^^\\^  beforc  assumin*^-  the  duties  of  his 

office,  make  and  subscribe  before  the 
Governor-General  or  some  person  author- 
ized by  him,  oaths  of  allegiance  and  office 
similar  to  those  taken  by  the  Governor- 
General. 

oYSoSL  62.  The  provisions  of  this  Act  refer- 
ifi/utinfuu-  ring  to  the  Lieutenant-Governor  extend 
and  apply  to  the  Lieutenant-Governor  tor 
the  time  being  of  each  Province  or  other 
the  chief  executive  officer  or  administrator 
for  the  time  being  carrying  on  the  govern- 
ment (i)-of  the  Province,  by  whatever 
title  he  is  designated. 

(i)  "Ctii'injlnif  on  f/w  (/overmiKiif  of  the  prorincc." — 
8ee  notes  to  section  10, ante,  p.  254,  and  to  section  58,  ii nfe, 
p.  308.  The  word  "  government, '  in  its  widest  sense,  com- 
prises the  exercise  of  both  the  law-making  and  the  law- 
executin<4'  power,  Imt  here  it  has  more  particular  reference 
to  the  exercise  of  the  executive  powers  of  government,  the 
legislative  powers  of  a  Lieutenant-Governor  being  exercis- 
able only  in  connection  with  the  legislative  assembly.  See 
section  (39,  po^f. 

ofTecuuvf        63-  The  Executive  Council  (i)  of  On- 

ontarioaud   tarlo  aud  of  Qucbcc  shall  be  composed  of 

such  persons  as  the  Lieutenant-Governor 


THE    H.  N.  A.  ACT — SEC.  63.  -SU 

from  time  to  time  thinks  fit,  and  in  the 
first  instance  of  the  following  officers, 
namely: — the  Attorney-General  (ii),  the 
Secretary  and  Registrar  of  the  Province, 
the  Treasurer  of  the  Province,  the  Com- 
missioner of  Crown  Lands,  and  the  Com- 
missioner of  Agriculture  and  Public 
Works,  with,  in  Quebec,  the  Speaker  of 
the  Legislative  Council  and  the  Solicitor- 
General. 

(i)  "  E.cecufive  CoavcU." — Conipjire  section  11,  and  .see 
notes  thereto,  onte,  p  ^^5.  Since  1867,  the  Executive 
Council  of  Ontario  luis  been  increased  by  the  addition  of  a 
Minister  of  Education  and  a  Minister  of  Aoriculture.  See 
section  92,  sul (-section  1,  and  notes  tliereto. 

(ii)  "  The  Atforru'ii-Ganci'dl." — The  position  of  a  pro- 
vincial Attorney-General  will  he  found  discussed  in  Attor- 
ney-General V.  Niagara  Falls  International  Bridge  Co.,  20 
Grant,  34;  Attorney-General  v.  International  Bridge  Co., 
28  Grant,  05,  (>  O.  A.  R.  537:  and  in  Mousseau  v.  Bate,  27 
L.  C.  Jurist,  158.  In  the  first  case,  it  was  held  by  Mr. 
Justice  Strong,  that  the  Attorney-General  of  a  province  is 
the  <»fficer  of  the  Crown  who  is  considered  as  present  in 
the  courts  of  the  province  to  assert  the  rights  of  the 
Crown,  and  of  tho.se  who  are  under  its  protection,  and  that 
the  provincial  Attorney-General,  and  not  the  Attorney- 
General  for  the  Doniinicni,  is  the  proper  party  to  tile  an 
information  when  the  complaint  is,  not  of  an  injury  to 
property  vested  in  the  Crown  as  representing  the  govern- 
ment of  tlie  Dominion,  but  of  a  violation  of  the  rights  of 
the  public  of  a  pi'ovince.  The  information,  in  that  ca.se, 
was  in  respect  of  a  nui.sance  cau.sed  by  the  defendant 
company's  interference  with  a  railway  incorporated  prior  to 
1807.  In  the  second  case  it  was  held  by  the  Court  of 
Appeal,  revei-sing  the  judgment  of  Spragge,  C,  that  the 


312  THE   B.  N.  A.  ACT — SEC.  63. 

non-cfmipliaiice  by  a  company,  iiicorpoiatdl  by  an  Act  of 
the  Doniinioii  parliament,  witli  the  terniH  or  such  Act,  siicli 
iion-e()m[)liaiice  operatin;j;',  as  was.  alleged,  to  the  detri- 
ment of  the  locality  in  which  the  work  was  ))eing  can-ieil 
on,  could  not  be  the  subject  matter  of  an  infornifition  at 
the  instance  of  the  provincial  Attorney-Cjleneral.  In  Mous- 
seau  V.  Bate,  deci<led  in  Quebec  (bS,S8),  it  was  held  that 
proceedings  in  the  natun.'  of  a  xci.  f\i.  to  set  aside  letters 
patent  of  invention,  issue<l  under  the  Dominion  Patent  Act, 
cannot  be  instituted  in  the  name  of  the  Provincial  Attornev- 
General,  but  can  only  be  legally  taken  b}^  the  Attorney- 
(Jeneral  for  the  Dominion.  See  further,  upon  this  last 
subject,  the  notes  t<>  sub-section  22  of  section  91,  y)o.>/. 
It  has  been  practically  conceded  l)y  the  Dominion  govern- 
ment that  a  provincial  Attorney-General  properly  repie- 
sents  the  Crown  in  criminal  prosecutions  l)efore  provincial 
courts,  but  so  far  as  we  are  aware  there  has  been  no 
judicial  determination  of  the  point.  It  seems  difficult  to 
appreciate  the  «'istinction  between  proceedings  in  respect 
of  a  breach  of  criminal  law,  and  proceedings  founded 
upon  a  breach  of  "  patent "  law.  Dominion  statutes,  how- 
ever, expressly  recognize  the  intervention  of  a  provincial 
Attorney-General  in  the  former  class  of  cases.  See  Abraham 
V.  The  Queen,  6  S.  C.  R.  10. 

As  to  the  liability  of  mend)ers  of  the  Executive  Coun- 
cil for  acts  done  by  them  in  the  performance  of  their  duties 
as  such,  see  Molson  v.  Chapleau  (3  Cart.  360),  where  their 
non-liability  is  distinctly  affirmed.  This  latter  subject  is, 
h(^wever,  while  no  doubt  a  question  of  constitutional  law, 
so  fully  treated  of  by  other  writers,  that  it  is  not 
deemed  advisable  to  enter  upon  it  here.  See  Bromn's 
Constitutional  Law,  p.  521,  et  mq.;  Forsyth's  Opinions  on 
Constitutional  Law,  p.  85 ;  and  see  also  the  Muskoka  Mill 
Co.  V.  The  Queen,  28  Grant,  563 ;  O'Brien  v.  The  Queen, 
4  S.  C.  R.  529;  re  The  Massey  Manufactuiing  Co.,  13 
O.  A.  R.  446 ;  and  re  Bell  Telephone  Co.,  9  O.  R.  339. 


THE    li.  \.  A.  ACT — SECS.  (U-tJo.  818 

64.  The  Constitution  of  the  Execii-  riovc^ent 
tive  Authority  in  each  of  the  Provinces  of  ami  New '"^  '^ 
iSova  Scotia  and  Aew  Brunswick  shall, 
subject  to  the  provisions  of  this  Act  (ii), 
continue  as  it  exists  at  the  Union  until 
altered  under  the  authority  of  this  Act 
(iii). 

(i)  Tlie  early  constitutions  of  the  Alaritiino  Provinces 
will  be  found  treated  of  in  chapter  II.,  iititc.  In  chapter 
III.  we  have  pointed  out  the  importance  of  this  section, 
taken  in  connection  with  section  S8,  as  showing  that  in  the 
Maritime  Provinces  at  least,  the  old  provincial  constitutions 
are  continued:  the  sphere  of  tlieir  authority  heing,  of 
course,  under  the  B.  N.  A.  Act,  limited  to  a  smaller  range 
of  matters.     See  also  notes  to  section  oJS,  <iiit<'. 

(ii)  "  Subject  to  the  jirovwioiiH  of  tlils  Aet." — That  is  to 
say,  subject  to  the  change  in  the  mode  of  appointment  of 
the  executive  head  of  the  province,  and  subject  also  to 
those  provisions  of  the  B.  N.  A.  Act,  which  limit  the  pro- 
vincial sphere  of  autliority.  These  are  the  only  provisions 
of  the  Act  which  in  any  way  limit  the  full  operation  of 
this  section,  unless  perhaps  the  group  of  clauses  which  deal 
with  the  division  of  assets — see  section  102,  ct  .^eq,  post, — 
may  be  said  to  be  provision  relating  to  the  pro\incial 
constitutions.  See  particularly  the  notes  to  the  word 
"  royalties  "  in  section  109. 

(iii)  "  Until  altered,  iimler  the  inithor'ity  of  this  Act  J' — 
That  is  to  say,  until  altered  by  the  provincial  legislative 
assemblies,  under  section  92,  sub-section  1.  See  notes 
thereto. 

65-  All  powers,  autliru-ities,  and  tunc-  eSclLcfby 
tions  which  under  any  Act  of  the  Parlia-  Gmenim'of 

Ontario  or 

nient  of  Great  Britain,  or  of  the  Parlia-  ^^'.^cfor'*^ 
nient  of  the  United  Kingdom  of  Great"*'*'"'"*'" 


814  THE    H.  N.  A.  ACT — SEC.  05 

Britain  and  Ireland,  or  of  the  Legislature 
of  Upper  Canada,  Lower  Canada,  or  Can- 
ada, were  or  are  before  or  at  the  Union 
vested  in  or  exerciseable  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  con- 
junction with  those  Councils,  or  with  any 
number  of  members  thereof,  or  by  those 
Governors  or  Lieutenant-Governors  in- 
dividually, shall,  as  far  as  the  same  are 
capable  of  being  exercised  after  the  Union 
in  relation  to  the  Government  of  Ontario 
and  Quebec  respectively,  be  vested  in  and 
shall  or  may  be  exercised  by  the  Lieuten- 
ant-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  Lieu- 
tenant-Governor individually,  as  the  case 
requires,  subject  neverthless  (except  with 
respect  to  such  as  exist  under  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  (ii). 

(i)  8ee  notes  to  section  12.  (infe.  p.  256;  and  see  also  chap- 
ter III.,  p.  48,  rf  ^eq.  The  powers  here  referred  to  are 
statutory  powei^s.  No  such  provision  is  made  in  reference 
to  Nova  Scotia  and  New  Brunswick,  nor  in  the  Orders  in 


THE    H.  X.  A.  ACT — SEC.  (io.  .SI 5 

Cimncil  sulniittiny'  Prince  Edward  Island  and  British 
C*)lund)ia  to  tlie  Dominion.  Owing'  to  the  division  of  (Old) 
Canada  into  Ontario  and  Quel)ec,  it  was  necessary  to  pro- 
vide for  the  exercise  of  the  powers,  etc.,  which  had  thereto- 
fore l)een  exerciseil  l>v  the  Governor  or  Lieutenant- 
(Jovernor  of  the  old  provinces :  and  by  section  12,  nil 
such  powers  are  vested  in  the  (Jovernor-General,  so  far 
us  the  same  are  capable  of  l)ein«>'  exercised  in  relation  to 
the  •government  of  Canada,  while,  by  this  section,  the 
veiy  same  powers,  in  their  entirety,  are  vested  in  the 
Lieutenant-Governors  of  Ontario  and  Quebec  respectively. 
The  two  sections,  taken  touethei*,  effect  no  division  of  power 
but  provide  simply  for  the  exercise  of  the  same  powers  in 
the  <litt'erent  spheres  of  authority  createtl  l)y  the  B.  N.  A. 
Act.  In  Gibson  v.  ^IcDoiiald  (</),  Mr.  Justice  O'Connoi-, 
referred  to  a  slight  ditt'ei'ence  in  the  wordinu'  of  this  section, 
as  compared  with  section  12, — the  words  "as  far  as  the 
same  continue  in  existence,"  which  appear  in  the  12th 
section,  beinu-  omitteil  from  this  (Joth  section — indicating, 
in  his  opinion,  that  some  powers  contiimed  to  exist  in 
relation  to  the  Dt)minion,  and  were  vested  therein,  which 
did  not  continue  to  exist  in  relation  to  tlie  provinces.  It 
is  dirticult  to  imagine  what  idea  in  the  mind  of  the  drafts- 
man led  to  this  ditierence  in  phraseology.  The  governments 
of  the  Dojuinion  and  of  the  provinces  of  Ontario  and  Quebec 
were  all,  in  a  sense,  new  creations.  The  exercise  of  the.se 
powers,  etc.,  in  relation  to  the  government  of  the  Dominion 
cannot  be  said  to  be  a  coiiti n  (Kifiori  of  them,  while,  in  a  sense 
it  may  be  so  spoken  of  in  relation  to  the  governments  set 
up  by  the  B.  N.  A.  Act,  in  Ontario  and  Quebec.  It  is 
impossible  to  assign  any  ditt'erence  in  meaning  to  the  two 
sections,  owing  to  this  ditterence  in  plu'aseology  Theii' 
effect  is  suificiently  clear,  that  all  these  powers,  etc.,  are  to 
be  ve.sted  in  the  executive  liead  of  the  Dominion  and  of 
each  provincial  government,  so  far  as  they  are  capal)le  of 

id)  7  0.  R.  401. 


:il()  THE    n.  N.  A.  ACT — SEC.  (15. 

l)t'ino-  fxereist'd  in  relation  to  those  ocjvcrnnients  res^x  c- 
tively. 

Tlie  fact  that  the  B.  N.  A.  Act  (joesetiect  a  clear  division 
of  the  "sphere  of  authority,"  si'enisnot  to  havelieena})pre- 
ciated  in  Retina  v.  Anier  ('/'/),  whm'e  i\Ir.  Justice  Wilson 
treats  these  two  sections  as  ve.stini^'  the  same  )>o\ver  in  the 
(Tovernor-Cieneral  an<l  a  Lit'Utennnt-Ciovernor  in  irfciritcc 
ft)  f/i('  KHiiie  xuhjcff  nicff',:  In  \  iew  of  the  su1»se(|Uent 
discussions  which  have  taken  place  in  reference  to  the 
sclienie  of  the  B.  N.  'A.  Act,  the  words  which  we  have 
italicized,  would  seem  to  lie  an  incorrect  construction  of 
these  two  sections. 

In  Attorney-General  for  Queh^'C  v.  Reed  («  S.  C^  R.  40S, 
atfirmeil  on  appeal,  10  App.  Cas.  141',  it  was  contended  that 
the  Quei)ec  Act,  43  <S:  44  Vic.  c.  f),  which  imposed  a  duty, 
to  he  paid  in  stam]is,  upon  every  "  exhihit  "  tiled  in  court  in 
any  action  dependinj;'  therein,  might  he  supported  under 
C.  S.  L.  C,  c.  109,  section  82,  which  gave  to  the  government 
of  (Old)  Canada,  power  to  inipose  Ijy  Order  in  Council  such 
a  duty  on  exhibits.  This  contention  is  thus  disposed  of  in 
the  judgment  of  the  Judicial  Connnittee  of  the  Privy 
Council  : 

"  With  regard  to  the  third  argument,  which  was  fomided 
upon  the  OStli  section  of  the  /ict,  it  was  one  not  easy  to  follow, 
hut  their  Lordshios  are  clearly  of  oj^inion  that  it  cannot  prevail. 
The  6oth  section  preserves  the  pre-existing  powers  of  the  Gover- 
nor-; or  Lieutenant-Governors  in  Council  to  do  certain  things 
not  there  specified.  That  however  was  subject  to  a  power  of 
abohtion  or  alteration  by  the  respective  legislatures  of  Ontario 
and  ^^^uebec,  with  the  exception  of  course  of  what  depended  on 
Imperial  legislation.  Whatever  powers  of  that  kind  existed,  the 
Act  with  which  their  Lordships  have  to  deal  neither  abolishes 
nor  alters  them.  It  does  not  refer  to  them  in  any  inanner  whi't- 
ever.  It  is  said  that  among  those  powers,  there  was  a  power, 
not  taken  away,  to  lay  taxes  of  this  Vi;ry  kind  upon  legal  pro- 
ceedings in  the  courts,  not  foi*  the  gener.il  revenue  purpose  of  the 

(ild)  42  U.  C.  Q.  B.  391. 


THE    B.  N.  A.  ACl— SE<'.  05.  HI7 

province,  but  for  the  purpose  of  forming  a  spociiil  fund  called 
♦The  Buil'ling  an  I  Jury  Fund,"  which  was  appropriated  for 
p'.irposes  connected  with  the  administration  of  justice.  \\'hat 
h;is  been  done  here  is  (juite  a  different  thini^.  It  is  not  in  aid  of 
','iie  iJuilding  and  Jury  Fund.  It  is  a  legislitive  Act,  without 
:tny  reference  whatever  to  those  powers  ;  if  they  still  exist, 
•juiti  coHateral  to  them  ;  and,  if  they  still  exist,  it  is  capable 
of  being  exercised  concurrently  with  them." 

See  further  us  to  tliis  case,  section  f)2,  suh-sectinn  2. 
The  power  of  the  Lieiitenjint-Governor  t()inn),).se,  by  Order 
in  Council,  such  tax  as  was  inijUestion  in  Attorney-General 
V.  Reed,  has  been  entirely  aliroiiated  by  the  limitation  of 
provincial  powers  of"  taxation  to  direct  taxation:  a  limita- 
tion which,  it  is  submitted,  applies  to  all  the  revenue  pro- 
ducing' powers  of  provincial  governments.  This  point  is 
referred  to,  l)ut  not  decided  in  Attorne^'-General  v.  Reed  ; 
see  10  App.  Cas.  at  p.  145.  A  reference  to  the  judgment  of 
(J Wynne,  J.,  in  the  Supreme  Court — see  S  S.  C.  R.,  at  p. 
4S2 — will  show  that,  in  his  view,  this  limitation  does  so 
apply.  See,  also,  the  decisions  of  the  Manitoba  Courts 
r'ferred  to  in  the  notes  to  sul (-section  2  of  section  9'2,])i>st. 

In  Lenoir  v.  Ritchie  (3  S.  C.  R.  575)  the  (juestion  of  tlie 
jiower  of  the  Nova  Scotia  Provincial  Assembly  to  author- 
i;^e  the  Lieutenant-Governor  to  appoint  Queen's  Counsel, 
and  to  assign  precedence,  as  between  those  Queen's  Coun- 
sel and  those  appointed  by  the  Dominion  Government,  was 
under  consideration.  Before  Confederation,  the  (|uestion 
was  not  regulated  by  any  statutory  enactment,  but  the 
Governors  and  Lieutenant-Governors  of  the  various  ])rov- 
inces  had  been  in  the  habit  of  exercising  the  prerogative  of 
the  Crown  in  this  regard.  After  Confe<leration,  the  goN- 
trnment  of  the  Dominion  claimed  that  the  Governor- 
<  ieneral,  as  representative  of  Her  Majesty  in  Canada,  was 
alone  entitled  to  exercise  this  prerogative.  It  was  treated 
as  falling  within  the  class  of  prerogatives  vested  in  the 
Crown  as  the  fouiitain  of  honour — treated  so  to  speak  as  a 
[)rerogative-at-large,   not   connected    with    any    particular 


lilH  THE    It.  N.  A.  ACT — SEl'.  05. 

(k'|)!irtiiit'iit  oF  t'Xi'C'uti\i'  ;;()Vt'nmit'nt.  IF  this  he  its  |)r()])('r 
position,  it  is  hnnl  to  set'  how  uny  colonial  otticer  can  t-xt'i'- 
oisc  such  ])i't'ro!nativt'.  AH  the  otln-r  pi-cro^atives  which  fall 
within  this  catc<ioiy  arc  tivatcd  as  prerogatives  pcitainin^ 
to  iiitiffcrs  of  fui/x'rltil  coil <■<'!•  II,  siicli  as,  t'oi-  instance,  the 
appointment  ot"  kniyhts,  haroncts,  etc.,  etc.  IF,  on  the 
other  hand,  the  prerogative  is  one  connected  with  the  ad- 
ministration <tF  justice,  it  Would  appear  that  it  is  one 
])roper  to  he  exercised  hoth  hy  the  C}overnor-(Jeneral  and 
the  Lieuteiiant-CJovernors  oF  the  varicais  pr(>vinces — hy  the 
FoiMucr  in  relation  to  courts  oF  Dominion  creation,  hy  the 
latter  in  connection  with  provincial  courts.  It  is  laid  down 
in  all  the  hooks  that  mendtei's  oF  the  Bar  are  "  officers  "  oF 
the  courts,  anti  the  assi<>nment  oF  precedence  to  certain  oF 
tliose  memhers,  w<Mild  seem  to  he  a  matter  relating  eithei' 
t(t  the  organization  oF  the  courts  or  to  procedure  therein. 
In  Lenoii'  \'.  Ritchie,  it  was  not  necessary  to  the  determina- 
tion of  that  case  to  decide  whether  or  not  a  Lieutenant- 
(lovernor  is  entitled  to  exerci.se  this  prerogative — the 
(piestion  there  invohed  l)einy  as  to  the  precedence  ^^iven  to 
provincial  over  Dominion  Queen's  ('lanisel.  At  the  same 
time,  some  oF  tlie  jud*;'es,  hoth  in  the  Nova  Scotia  ccairts  antl 
in  the  Supreme  Court  oF  Canada,  expressed  very  decidi'd 
views  against  tlu' i-i<>ht  oF  the  Lieutenant-Oovernor  toexe?*- 
cise  the  prerojji'ative  in  any  case.  The  ([uestion  is  now 
stan<lin^-  For  argument  heFore  the  Court  oF  Appeal  For 
Ontaiio.  Subject  to  the  assignment  oF  this  prerogative  to 
its  proper  place  in  connection  with  executive  government— 
to  di'Hning  the  suhject  mattei-  within  which  it  properly 
Falls — the  general  principle  which  must  govern  in  regard  to 
all  these  (piestions  oF  "prerogative"  would  now  seem  to  he 
authoritatively  stated  in  the  judgment  of  the  Privy  Coun- 
cil in  Li(iuidat()i"H  oF  Maritime  Bank  v.  Receiver-General  oF 
New  Brunswick.     See  notes  to  section  5cS,  (ivfc. 

(ii)  "Suhject  to  he  nh()li>^he<l  or  altered  hy  the  resjiectiix' 

'legiddtiireti  of  (h}t(trio  av<l  Qaehec." — See  notes  to  section 

12,  ((vte,  p.  257  ;  also  to  section  129,  poxt.      The  decision 


THK    H.  \.  A.  ACT— SEC.   m.  81  f) 

ill  J)()l»i('  V.  'IV'iii|)i»nilitit'H  B(»ii«l,  7  Apj).  Can.  \'Mk  is 
(liiH'Ctly  fij^plicnltk'  to  the  ijiU'i-pivtution  of  tla-so  two  sro- 
tioiiH,  12  find  (15.  All  the  vurious  Hul»j«'Ct  matters  in  respect 
to  which,  IteFore  Coiit'edi'intion,  these  "powers,  luithdities, 
and  functions"  couhl  l)e  exeivised,  are,  hy  the  ettect  of 
these  sections,  divided,  and,  in  rehition  to  each  di\ision,  "// 
these  powers,  etc.,  are  vested  in  the  executive  liead  of  the 
Dominion  and  of  each  province  respectively.  Ihit  in 
ri'spect  to  each  division,  the  Dominion  parliament  or  the 
provincial  le<'islativt'  assendtly  may  aholish  or  alte»'  these 
powers  in  such  fashion,  and  to  such  extent,  as  may  he 
thouf^'ht  necessary  to  the  j)roper  government  of  the  Domin- 
ion or  the  j)i-ovince,  as  the  case  may  he.  The  holding  in 
Dohie  V.  Temi)oralities  Boai'd  is  thus  expres.sed  in  the 
head-note  : 

"  Tiie  powers  conferred  hy  the  li.  N.  A.  Act,  lH('i7,  .section 
12{),  upon  the  provincial  le^'islalures  of  Ontario  and  Quehec  to 
repeal  and  alter  the  statutes  of  the  old  parliament  of  Canada,  are 
precisely  co-extensive  with  the  powers  of  direct  legislation,  with 
which  tho.se  bodies  are  invested  by  the  other  clauses  of  the  Act 
of  1H(',7." 

See  further  as  to  this  s"ction,  Attornev-deneial 
(Canada)  v.  Attorney-Cieneral  (Ontario),  20  O.  K. '222 : 
atiirmed  in  appeal,  li)  ().  A.  R.  .'VI. 

66-  The  provisions  of  this  Act  refer-  ;tf'Sni!.ions 
ring  to  the  Lieutenant-Governor  in  Conn-  Limltelmnt'- 

•11111  -1  e  •  Governor  111 

cil  shall  be  construed  as  referrnig  to  the  t'"">cii 
Lieutenant-Governor  of  the  Province  act- 
ing by  and  with  the  advice  of  the  Execu- 
tive Council  thereof  (i). 

(i)  Compare  section  18,  (iiifc,  p.  25.S.  A  reference  to 
section  (Jo.  suggests  that  there  may  possibly  be  powers 
vested  in  the  Lieutenant-Governor  oi  a  province  which  he 
may  exercise  individually ;  that  is  to  say,  that  his  exercise 
of  such  powers,  even  contrary  to  the  advice  oi*  the  Execu- 


320  THE    U.  N.  A.  ACr — SEC.  60. 

tive  Ct)uncil,  would  In*  legally  valid.  80  far  as  the  H.  N.  A. 
Act  itsclF  is  conct'incd,  the  only  powers  which  a  Lieiitenant- 
Governor  may  exorcise  otherwise  than  hy  Older  in  Council, 
are: — tho.se  conferred  l»y  section  (J.S,  in  reference  to  the  jvp- 
|)ointnient  of  inendu-rsof  the  Executive  Ctanicils  of  Ontario 
antl  (^uelit'c:  l»y  section  72,  in  reference  to  theapjtointnient 
of  Le:;'islative  Councillors  in  (^iieh^'c  ;  l>y  sections  <S2  and  H'), 
in  reference  to  the  sunnnoniny  and  dissolving'  of  the  pro- 
vincial Legislative  As.st'nd»ly;  and  hy  section  90,  the  giving 
or  withholding  of  the  assent  of  the  Crown  to  bills  passed 
by  the  Legislative  Assembly.  But,  with  reganl  to  all  of 
tliese,  with  the  exception  of  the  last  named,  the  "  conven- 
tions of  the  constitution  "  which,  as  we  hnvo  sliown,  are  as 
fully  operative  within  Canada,  in  relation  to  the  various 
governnients  here  existing,  as  in  relation  to  the  parliament 
of  the  Uniteil  Kingdom,  require  that  all  such  acts  must  be 
done  upon  the  advice  of  ministers  ha\'1ng  the  confidence  of 
the  legislature  of  the  province.  As  to  the  appointment 
of  mend)ers  of  the  Executive  Council,  the  Lieutenant- 
Governor  must  e.v  vecef^nltdte,  so  far  as  the  legal  position  is 
concerned,  appoint,  witliout  advice,  the  new  members  upon 
the  defeat  and  resignation  of  an  entire  administration,  but 
even  in  such  ca-ses,  tlie  in-coming  ministry  or  Executive 
Council  must  accept  entire  responsibility  for  the  acts  of  the 
Lieutenant-Governor  in  connection  with  the  formation  of 
the  new  Executive  Council.  With  regard  to  the  giving  or 
withholding  of  tlie  assent  of  the  Crown  to  bills  passed  by  the 
Legislati\e  Assembly  of  a  province,  a  Lieutenant-Governor 
acts  as  a  mendjer  of  the  Dominion  executive  staff,  or,  at  all 
events,  is  supposed  to  be  subject  to  "  instructions  "  from  the 
Ginerncjr-General,  although,  in  practice,  tlie  supervision  of 
provincial  legislation  entrusted  to  the  Dominion  executive 
is  exercised  after  the  event,  by  "  disallowance,"  rather  than 
before  the  event,  by  "  instructions "  to  withhold  the 
Crown's  assent.  See  notes  to  section  58,  ante,  for  some 
further  observations  as  to  the  position  of  a  Lieutenant- 
Governor  in  relation  to  the  federal  executive. 


•  THE   H.  N.  A.  ACT — HE(\  67.  821 

67.  The  Governor-Geneml  in  Conn- ^llU'lJ,""*'''- 
cil  may  from  time  to  time  appoint  an  ofLtouTennm- 
administrator  to  execute  the  otHce  and 
functions  of  Lieutenant-Governor  during 
his  absence,  ilhiess,  or  other  inability  (i). 

(i)  With  this  suction  compare  Huctiou  14,  (mta,  wliich 
(coiiplt'd  with  the  Letters  Patent)  empowers  the  Governoi- 
(Jeneral  to  appoint  a  Deputy  Governor-General.  This 
section,  it  will  1)e  noticed,  conveys  no  such  power  to  u 
Lieutenant-Governor,  and  as  to  him,  therefore,  the  maxim 
(Idcfpitas  non  pote^tt  (lelcfjdrl  applies.  We  do  not  over- 
look the  rule  of  law  that  a  colimial  legislature  has  as  full 
power  to  alter  and  mould  the  lex pi'croijdthva  in  the  colony 
as  has  the  Imperial  parliament  in  Great  Britain ;  l)ut,  on 
the  other  hand,  the  provisions  of  section  92,  sub-section  1 , 
must  not  l)e  overlooked.  See  notes  to  that  sub-section,  which 
expressly  prohibits  a  provincial  legislature  from  amend- 
ing the  provincial  constitution  "  as  regards  the  office  of 
Lieutenant-Governor." 

Reference  has  already  been  made  to  Attorney-General 
(Can.)  V.  Attorney-General  (Ont.)  {e),  in  which  there  aros ! 
for  discussion  the  (question  of  the  power  of  a  provincial 
assembly  to  vest  in  the  Lieutenant-Governor  powei-s  in  con- 
nection wdth  the  Executive  government  of  the  provinc  • 
other  than  those  expressly  vested  in  him  by  section  65  of  the 
B.  N.  A.  Act.  See  ante,  p.  305.  The  language  of  the  various 
judges  who  delivered  opinions  in  that  case  supports  the 
view  that  there  is  the  power  in  a  provincial  assembly — to 
use  the  phrase  of  Boyd,  C. — to  impose  upon  a  Lieutenant- 
Governor  any  executive  functions  "germane  to  the  office." 
In  view  of  the  recent  decision  of  the  Privy  Council  already 
noted,  the  legislation  impugned  in  this  case  w^ould  appear 
to  have  been,  as  Mr.  Justice  Burton  considered  it,  unneces- 
sary.    A  somewhat  different  question  is  suggested  by  this 

(<;)  20  O.  R.  322  ;  19  O.  A.  R.  31.  /  ;        ^^  ' 

Can.  Con.— 21 


822  THE   li.  N.  A.  ACT — SEC.  <j7. 

.section  (57,  taken  in  connection  witli  sub-section  1  of  section 
92,  cont'erring-  upon  provincial  legislatures  power  to  anientl 
the  provincial  constitution  "except  as  rej^ards  the  office  of 
Lieutenant-Governor." 

During  the  last  illness  of  the  late  Lieutenant-Cirovern(}r 
C'aniphell,  an  Order  in  Council  was  passed  appointing  a 
Deputy  Lieutenant-Governor,  and  this  action  on  the  part  of 
the  provincial  government  gave  rise  to  considerable  discus- 
sion. It  is  understood  that  the  Attorney-Genei'al  of 
Ontario  prepared  a  "  state  pa])er"  in  support  of  this  action 
of  his  government,  hut  this  we  have  not  seen.  A  Lieuten- 
ant-Governor— standiiiii'  as  he  does  in  the  same  relation  to 
tlie  government  of  a  province  as  the  Governor-General  does 
in  relation  to  the  government  of  the  Dominion — lias  \ested 
in  him  the  appointment  of  all  subordinate  executive  officers 
throughout  the  province,  but  Ave  do  \u)t  see  how  this  could 
extend  to  authorize  the  appointment  of  a  deputy.  Uiider  the 
B.  N.  A.  Act  this  would  seem  to  be  clear,  that  the  executive 
head — the  person  carrying  on  the  government — of  a  prov- 
ince is  to  be  (me  link  in  the  chain  of  federal  connection 
between  the  provinces  an<l  the  Imperial  government,  an<l  his 
tenure  of  office  is  (section  oO)  during  the  pleasure  of  the 
(irovernor-General,  suliject  to  certain  restrictions  upon  the 
exercise  of  the  power  of  removal,  already  adverted  to- 
This  would  seem  to  l)e  one  of  those  essentials  in  connection 
with  the  office  of  a  Lieutenant-Governor  which  a  provincial 
legislature  cannot  alter,  under  section  92,  ^?uV>-section  \. 
By  section  02  {a nfc,  p.  .SIO)  the  provisions  of  the  B.  N.  A. 
Act  relating  to  a  Lieutenant-Governor  apply  also  to  "otlu"]' 
the  chief  executive  officer  or  administrator  for  the  time 
being  carrying  on  the  government  of  the  province, />^  wlnd- 
cvcr  title  he  is  desif/iuited,"  and  the  express  provision  of 
tlnis  sectitm  07  was  hardly  needed  to  negative  the  power  of 
a  Lieutenant-Governor  to  appoint  a  deputy  to  "carry  on 
the  government"  of  the  province  during  the  al)sence,  etc.,  of 
tlie  Lieutenant-Governor. 


THE   B.  N.  A.  ACT — SEC.  68.  82:i 

We  liave  not  seen  the  connniwsion  to  the  Deputy  Lieu- 
tennnt-Governo)-,  and  it  may  possiltly  Ik  that  it  is  nothinjj; 
more  tlian  the  appointment  of  a  subor(liiK*,te  officer  to  jK'r- 
t'orm  certain  of  the  executive  functions  of  the  Lieutenant- 
(lovernor  (such,  for  instance,  as  to  perform  the  ceremony  of 
opening'  the  session,  and  others  which  might  be  named),  and 
is  not  in  trutli  the  appointment  of  a  deput}'  in  the  proper 
sense  of  tliat  term.  Tliere  are,  however,  some  of  the  (hities 
cf  a  Lieutenant-Governor  which  tlie  B.  N.  A.  Act  expressly 
provides  are  to  l)e  performed  by  him, and  any  general  deU- 
gation  of  the  (hities  of  liis  office  to  a  deput}'-,  would  seem 
contrary  to  l)otli  the  spirit  and  the  terms  of  the  B.  N.  A. 
Act. 

68-  Unless  and  until  the  Executive  SVi'oov-' 
Government  (i)  of  any  Province  otherwise  ^"""^"'''• 
directs  with  respect  to  that  Province,  the 
seats  of  Government  (ii)  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,  the  City 
of  Fredericton. 

(i)  "The  executive  (jovermiieut.' — This  is  a  somewhat 
])eculiar  provision.  The  idea  probably  was  to  pro\'ide  for 
n  change  of  tlie  seat  of  government  upon  a  sudden  emer- 
gency whicli  might  not  allow  of  the  calling  together  of  the 
legislature.  There  is  no  doubt,  however,  that  this  is  one 
of  those  clauses  relating  to  the  provincial  constitution 
which  may  be  altered  by  the  legislature  of  a  province, 
under  section  92,  sub-section  1.  A  provincial  assend)ly, 
therefore,  may,  if  so  minded,  take  from  the  executive  this 
power. 

The  seats  of  government  of  the  provinces  and  territories 
acijuired  since  Confederation  are  as  follows  : 


324  THE    B.  N.  A.  ACT — SEC.  ()9. 

Of  Manitoba,  Winnipeg:  of  the  North  West  TerritorieH, 
Regina;  of  Prince  Edward  Ishmd,  Charlottetown :  and  of 
British  Columbia,  Victoria. 

(ii)  '*  The  seats  of  (joreruiiienf." — See  notes  to  section 
1().  <iute,  p.  200. 

Legislatire  Power  (i). 

1.— OXTAEIO. 

^o!'outrio.  69-  There  shall  be  a  Legislature  for 

Ontario  consisting  of  the  Lieutenant- 
Governor  (i)  and  of  one  House  (ii),  styled 
the  Legislative  Assembly  of  Ontario. 

(i)  "  Letjisldfive  power." — The  nature  of  the  legislative 
power  which  resides  in  provincial  legislative  assend)lies 
has  been  fully  discussed  in  previous  pages,  and  we  need 
here  only  sunnnarise  the  position  shortly.  The  limitations 
upon  that  power  are  :  First,  in  respect  of  the  subject  mat- 
ters :  Second,  the  territorial  limitation  ;  Third,  those  general 
and  implied  limitations  (such  as  the  necessary  saving  of 
Imperial  sovereignty)  before  referred  to.  But,  as  expressed 
by  Lord  Selborne  in  Hodge  v.  Queen  (/),  "within  these 
limits  of  subjects  and  area  the  local  legislature  is  supreme, 
and  has  the  same  autJiority  as  the  Imperial  parliament  or 
the  parliament  of  the  Dominion."  See  chapter  IX.,  ante, 
p.  182.  To  the  cases  tliere  collected  there  should  now  be 
added  a  reference  to  Li(}uidators  of  Maritime  Bank  v.  Re- 
ceiver-General of  New  Brunswick  ((f),  in  which  the  above 
passage  is  (quoted  with  approval,  and  the  Committee  lay  it 
down  that  "  in  so  far  as  regards  those  matters  which  hy 
section  92  were  specially  7V'.s'f/'iV(?  for  provincial  legislation, 
the  legislature  of  each  province  continued  to  be  free  from 
the  control  of  the  Dominion,  and  as  supreme  as  it  was 
before  the  passing  of  the  Act."  See  alstj  notes  to  section 
58,  ante. 

if)  9  App.  Cas.  116.  {rj)  Timea  L.  R.  Vol.  VIII.,  p.  ()77. 


THE    B.  X.  A.  ACT — SEC.  O'J.  325 

(ii)  "  TJw Lieatemt nt-Governor." —Qom\)'AVQ  the  lang'uage 
of  Ht'ctioii  17.  Owing-  to  the  dirterence  in  the  phraseology 
employed,  it  has  been  conten<le(l  tliat  the  Queen  does  not 
form  a  constituent  part  of  the  provincial  legislatures,  but 
in  the  present  state  of  the  authorities,  this  view  can  hardly 
be  said  to  be  tenable.  It  is  laid  down  by  Chitty,  that  the 
Crown  has  a  part  in  legislation  throughout  the  Empire,  and 
we  have  already  {It)  (pioted  the  passage  from  that  w /iter  in 
wiiich  it  is  laid  down,  that  all  executive  officers  act  imder 
con)mission  from,  and  in  due  subordination  to,  the  executive 
head  of  the  Empire.  The  Lieutenant-Governor  acts  under 
Her  Majesty's  connnission  in  carrying  on  the  government 
of  the  province  over  which  he  presides,  and  is  as  fully  Her 
Majesty's  representative  as  is  the  Governor-General  in  re- 
ference to  the  Dominion  at  large.  The  assent,  therefore, 
given  by  the  Lieutenant-Governor  to  Acts  of  the  legislati  ve 
assembly,  is  the  assent  of  the  Crown.  This  is  distinctly 
recognized  in  Theberge  v.  Landry,  where  an  Act  of  the 
Quebec  legislature  is  described  by  Lor<l  Chancellor  Cairns 
as — "  an  Act  which  is  assented  toon  the  part  of  the  Crown, 
and  to  which  the  Crown  therefore  is  a  party."  For  a 
further  reference  to  this  case  see  notes  to  section  41,  unte, 
p.  288.  Whether,  therefoi'e,  Acts  of  a  legislative  assembly 
are  pronnilgated  as  the  Acts  of  the  Lieutenant-Governor, 
by  and  with  the  advice  and  consent,  etc.,  or  as  the  A-c^JS  of 
the  Queen,  by  and  with  such  consent,  would  seem  matter  of 
indifference.  Again  we  are  able  to  (juote,  from  the  latest 
deliverance  of  the  Judicial  Connnittee  of  the  Privy  Council, 
language  authoritatively  enunciating  the  views  above  ex- 
pressed : 

"It  would  require  very  express  language,  such  as  is  not  to 
he  found  in  the  Act  of  1867,  to  warrant  the  inference  that  the 
Imperial  legislature  meant  to  vest  in  the  provinces  of  Canada, 
the  right  of  exercising  supreme  legislative  powers  in  which  tlie 
Ihitish  Sovereign  was  to  have  no  share  "  (/). 

{h)  Ante  p.  252. 

(/')  Liquidators,  etc.  v.  Rec.-Gen.  of  New  Brunswick,  Timee  L.  R  .Vol. 
VIII..  p.  ()77.  This  passage  immediately  precedes  that  quoted  ante,  p.  307. 


82H  THE    H.  N.  A.  ACT — SEC.  69. 

(iii)  "  One  house."--T\nH  form  of  a  legislature  was  the 
deliberate  choice  of  the  Upper  Canada  representatives  in 
the  old  parliament  of  Canada.  Lower  Canada  (n<jw  Quebec) 
eliose  the  In-cameral  form:  see  section  71,  />unt.  Nova 
Scotia  and  New  Brunswick  prior  to  Confederation  had  that 
form,  and  the  constitution  of  the  legislatures  in  those  pro- 
\inces  was  continued  l>y  the  B.  N.  A.  Act — see  notes  to 
section  (SiS,  ^>t>.sY.  Prince  Edward  Islan<l  was  in  like  position 
upon  its  adnnssion  in  1(S73  !  Upon  the  formation  of  the 
|)i-ovince  of  Manitoba,  a  second  chamber  was  established, 
but  was  afterwards  abolished  by  an  Act  of  the  IManitoba 
legislature,  89  Vic.  c.  29,  under  the  powers  conferred  by 
section  92,  sul  t-.section  1.  At  the  time  of  its  admission  to 
the  Union,  British  Columbia  had  a  legislature  somewhat 
similar  to  that  of  Ontario,  consisting  of  one  house  <mly. 

It  may  here  be  noticed  that  no  section  of  the  B.  N.  A- 
Act  makes  any  express  provision  (such  as  is  made  in  refer- 
ence to  the  Dominion  parliament, — see  notes  to  section  IS, 
riite,  p.  2()1)  as  to  the  "  privileges,  immunities,  and  powers  " 
of  the  provincial  legislative  assendjlies  and  the  members 
thereof,  respective!}'.  In  common  with  all  legislative  l)odies 
they  have  certain  incidental  and  inherent  powers, — "  such 
as  are  necessary  to  the  existence'  of  such  a  body,  and  the 
proper  exercise  of  the  functions  which  it  is  intended  to 
execute  "  (_/').  "Whatever  in  a  reasonal)le  sense  is  nece.ssary 
for  those  purpo.ses,  is  impliedly  granted  whenever  any  suei; 
legislative  Ixuly  is  estaldished  by  competent  authority  ; 
for  tiiese  purposes,  protective  and  self-defensive  powers 
only  and  not  punitive  are  necessary  "  {k).  This  (piestion 
lunvever  arises, — can  they,  as  law-making  liodies,  give 
themselves,  and  their  members,  other  and  greater  powers, 
etc.,  than  these  ?  It  is  submitted  that  according  to  the 
weight  of  authority'  they  can  do  so.  Indeed,  some  sanction 
is  given  by  Kielley  v.  Carson  (a  case  from  Newfoundland), 

(./■)  Kielley  v.  Carson,  4  Moo.,  P.  C.  88. 

(/(•)  Barton  v.  Taylor,  11  App.  Cas.  at  p.  203. 


THE    H.  X.  A.  ACT — SEC.  69.  327 

to  tlie  c«jntonti()n  tluit  usage  in  a  col(»ny,  judicially  sanctioned 
there,  might  raise  a  presumption  that  the  power  {e.fi.,  of 
committal  for  contempt  of  the  colonial  as.sembly)  had  been, 
as  For.sytli  puts  it,  duly  connnunicated  by  law,  or,  as  wt; 
would  prefer  to  put  it,  had  been  recognized  as  part  of  tlu; 
law  introduced  into  the  colony  upon  its  settlement.  But 
however  that  may  l)e  (l),  the  authorities  do  lay  it  down — 
,-dtlu)Ugh  no  doubt  obiter  dicta — that  the  power  to  mak(! 
laws  for  a  coh^ny  cari'ies  with  it  the  power  to  make  laws  as  to 
the  privileges  and  innnunities  of  the  law-making-  body  and 
its  memViers  {m).  We  have  already  ([uoted  the  fifth  section 
of  the  Colonial  Laws  Validity  Act,  LS(35, — see  notes  to 
section  85,  ovte,  p.  2<S(),  and  have  discussed  its  bearing 
upon  Dominion  legislation.  It  is  not,  however,  necesary 
to  rely  upon  this  Act,  so  far  as  concerns  the  position  of  the 
provincial  legislative  assemblies  ;  in  fact,  this  section  of  the 
C/olonial  Laws  Validity  Act,  was  passed  "to  remove  douljt,"  and 
as  we  have  said, the  weight  of  judicial  authority  was  in  favour 
of  the  view,  that  colonial  legislatures  have  power  tcj  define 
their  own  privileges  and  immunities.  The  same  rule  would 
apply  to  a  provincial  legislature.  It  cannot,  it  is  true, 
enlarge  its  sphere  of  legislative  activity,  but  it  can  make 
laws  as  to  how  and  under  \\  aat  safe-guards  it  shall  do  its 
work  within  the  sphere  assigned.  Such  a  law  would  be 
"  in  relation  to  the  classes  of  matters  "  coming  within  section 
92  of  the  B.  N.  A.  Act, — treating  those  classes  as  a  whole. 
Moreover,  sub-section  1  of  section  92,  giving  provincial 
ussend)lies  power  to  amend  the  provincial  constitutions, 
would  seem  to  be  sufficiently  wi<le  to  emln-ace  legislation 

(I)  Only  on  such  ground  is  Reg.  v.  Gamble, '.»  U.  C.  Q.  B.  540,  support- 
able. This  view  is  very  strongly  combatted  by  Mr.  Justice  Ramsay,  in 
A.r  parte  Dansereau,  2  Cart.  165,  19  L.  C.  Jur.  210.  His  judgment  was 
overruled  by  the  majority  of  the  Court,  but  upon  the  ground  that  an 
Act  of  the  Quebec  Legislative  Assembly  which  purported  to  confer  powers, 
etc.,  other  than  those  annexed  by  the  common  law^  to  a  legislature, 
such  as  that  of  Quebec,  was  (contrary  to  his  view)  intra  vires,  sup- 
porting the  view  expressed  in  the  text. 

(m)  See  Barton  v.  Taylor,  uhi  nupra,  and  cases  there  noted. 


32S  THE    15.  N.  A.  ACT — SEC.  70. 

as  to  the  privileoes.  etc.,  of  the  provincial  assemhlies  and 
tlie  members  tliereof.  Sucli  legishition  could  in  no  sense 
lit"  said  to  effect  an  enlargement  of  their  sphere  i)f  legisla- 
tive activitv.  We  do  not  overlook  what  was'laid  down  in 
Bank  of  Toronto  v.  Lauibe  {n),  that  provincial  legislatures 
have  no  inherent  or  reserved  riiihts  of  lej^islation  datinij: 
from  a  time  anterior  to  the  B.  N.  A.  Act, — that  liy  that 
Act  the  whole  range  of  colonial  legislative  power  is 
e'xhausted  ;  our  argument  is  based  on  the  language  of  the 
Fj.  N.  A.  Act  itself,  and  on  what,  we  submit,  is  a  reasonable 
construction  of  that  lanyuage. 

The  following  provincial  acts,  defining  the  privileges, 
etc.,  of  the  legislative  assemblies  in  the  respective  provinces, 
and  of  their  members,  are  therefore,  it  is  submitted,  i  ufra 

Ontario.     R.  S.  O.  (1887),  c.  11,  s.  37,  et  seq. 

Quebec.     R.  S.  Q,  (1888),  Art.  124,  ei  seq. 

Nova  Scotia.     R.  S.  N.  S.  (1884),  c.  3,  s.  20,  et  seq. 

New  Brunswick.     33  Vic.  c.  33. 

P.  E.  Island.     26  Vic.  c.  15  (1863). 

Manitoba.     R.  S.  M.  (1880),  c.  5,  s.  36,  et  seq. 

British  Columbia.     R.  S.  B.  C.  (1888),  c.  22,  s.  76,  et  srq. 

Tlie  position  of  the  N.  W.  Territories  will  be  found 
treated  in  Part  IV.,  post. 

SSi).  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. 

(i)  The  representation  in  the  different  provincial  legisla- 
tures has  from  time  to  time  since  1867  been  altered,  under 
the  power  granted  to  the  provincial  legislatures  by  section 
92,  sub-section  1.  Owing  to  the  frequent  revision  of  the 
statutes  in  the  various  provinces,  it  is  not  thought  desirable 

(«)  12  App.  Cas.  575. 


THE   H.  X.  A.  ACT — SECS.  71,  72.  821) 

to  encumber  this  work  with  u  list  of  the  various  electoral 
(listrictH  for  provincial  purposes.  So  far  as]^()ntario  is  con- 
cerned, they  will  he  found  set  out  in  R.  S.  ().  c.  7,  and  suh- 
seciuent  amendments.     The  nundter  of  niend)ers  is  now  91. 


2.— QUEBEC. 

Quebec 


71.  There  shall  be  a  Legislature  for  J;^r|||,'J.\;y;f 
Quebec    consisting   of    the    Lieutenant- 
Governor  and  of  two  Houses  (i),  styled 

the  Legislative  Council  of  Quebec  and  tlip 
Legislative  Assembly  of  Quebec. 

(i)  "  Two  hoastcs." — See  notes  to  section  09,  where  will 
be  found  a  statement  of  the  position  of  the  various  pro- 
vinces, in  regard  to  this  matter.  See  also  the  notes  to  sec- 
tion 21,  (inte,  p.  268. 

72.  The  Legislative  Council  of  Que-  ^rSSio 
bee   shall   be   composed   of   twenty-four  ^°"'^*'"' 
members,  to  be  appointed  by  the  Lieu- 
tenant-Governor in  the  Queen's  name  (i), 

by  instrument  under  the  Great  Seal  of 
Quebec,  one  being  appointed  to  represent 
each  of  the  twenty-four  Electoral  Divi- 
sions (ii)  of  Lower  Canada  in  this  Act 
referred  to,  and  each  holding  office  for 
the  term  of  his  life,  unless  the  Legisla- 
ture of  Quebec  otherwise  provides  under 
the  provisions  of  this  Act  (iii). 

(i)  "  In  the  Queen's  ndine" — See  note  (ii)  to  section  (iJ), 
aiite,  p.  325. 

(ii)  "Each  of  the  twenty -f o wr  €lect<yt'(d dlvif^iov^." — See 
notes  to  section  22,  sub-section  3,  ante,  p.  272. 

(iii)  "  Unless  the  legislature  of  Quebec  otherwise  pro- 
vides."— Up  to  the  present  time  no  change  has  been  made 


:i80  THE    H.  N.  A.  ACT — SECS.  73-77. 

in  the  constitution  ot"  the  legisUitive  council  of  that  pro- 
vince. 

^fTeSauvo  73.  The  qualifications  of  the  Legisla- 
tive Councillors  of  Quebec  shall  be  the 
same  as  those  of  the  Senators  for  Quebec 

(i). 

(i)  See  section  2'^,iivh',  \\  278. 

DiSmS  74.  The  place  of  a  Legislative  Coun- 

t.on.  &(         ciWoY  of  Quebec  shall  become  vacant  in 
the  cases  inutatis  inutandis,  in  which  the 
place  of  Senator  becomes  vacant  (i). 
(i)  See  sections  30  and  31,  (intc,  p.  277. 
vaca.H;ies(i)         tj Q    Wheu  a  vacauc}'  happens  in  the 
Legislative  Council  of  Quebec,  by  resig- 
nation, death,  or  otherwise,  the  Lieuten- 
ant-Governor,  in  the  Queen's    name  (ii) 
by  instrument  under  the  Great  Seal  of 
Quebec,  shall  appoint  a  fit  and  qualified 
person  to  fill  the  vacancy, 
(i)  See  notes  to  section  82,  (ivfc,  p.  27(S. 

(ii)  "  It)  the  Qaeev's  naiiic." — See  .section  72,  above,  and 
see  al.so  notes  to  section  09,  (ivte,  p.  325. 

ti'vacaneioB,  76-  If  '^^^^Y  questiou  arises  respecting 
the  qualification  of  a  Legislative  Council- 
lor of  Quebec,  or  a  vacancy  in  the  Legis- 
lati^^e  Council  of  Quebec,  the  same  shall 
be  heard  and  determined  hv  the  Legisla- 
tive Council  (i). 
(i)  See  notes  to  section  33,  ante,  p.  278. 

LeSative  77-    The   Lieutenaut-Govemor  may 

from  time  to  time,  by  instrument  under 


THE   B.  N.  A.  ACT — SECS.  78-80.  331 

the  Great  Seal  of  Quebec,  appoint  a 
lueiiiber  of  the  Legislative  Council  of 
Quebec  lo  be  Speaker  thereof,  and  may 
remove  him  and  appoint  another  in  his 
stead  (i). 

(i)  See  section  84,  untc,  p.  271). 

78.  Until  the  Legislature  of  Quebec  Siiuve 
otherwise  provides,  the  presence  of  at 
least  ten  members  of  the  Legislative 
Council,  including  the  Speaker,  shall  be 
necessary  to  constitute  a  meeting  fov  the 
exercise  of  its  powers  (i). 

(i)  See  notes  to  section  85,  oniv,  p.  280. 


79-  Questions  arising  in  the  Legisla- 


Voting  in 
Legislative 


tive  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  (i). 

(i)  See  notes  to  section  80, 'O/^r',  p.  2iSl.  It  will  be  noted 
that  in  the  Senate  of  Canada,  and  the  Legislative  Council 
of  Quebec,  the  Speaker  is  entitled  to  vote  as  an  ordinary 
nieniVter,  and  has  no  tasting  vote:  while  in  the  House  of 
Conunons,  and  the  Leyislative  Assenil)lies  of  the  various 
provinces  tlie  Speaker  has  only  a  casting  vote  in  case  of  a 
tie.     See  sections  49  and  1)0. 

80.    The    Legislative    Assembly   oi"^^^^^ 
Quebec  shall  be  composed  of   sixty-five  qSc.'^  ° 
members,  to  be  elected  to  represent  the 
sixty-five  electoral  divisions  or  districts 
of  Lower  Canada  in  this  Act  referred  to, 
subject  to  alteration  (i)  thereof   by  the 


332  THK    15.  \.  A.  .'XT— SEC.  81. 

Legishiture  of  Qiu  bee  :  Provided  thiit  it 
shall  not  be  lawful  (ii)  to  present  to  the 
Lientenant-CTOvornorbf  Quebec  for  assent 
any  bill  for  altering  the  limits  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  Divisions  or  Districts, 
and  the  assent  shall  not  be  given  to  such 
bill  unless  an  address  has  been  presented 
by  the  Legislative  Assembly  to  the  Lieu- 
tenant-Governor stating  that  it  has  been 
so  passed. 

(i)  "Subject  toiilter<diov."—^e&h^  Vic,  c.  3  (Quebec), 
by  which  the  ineiiibei'Hhip  of  the  legislative  asseinbh'  of 
that  province  is  fixed  at  72. 

(ii)  "  It  shtill  not  he  lnwfal,  etc" — See  notes  to  section 
22,  ante,  where  the  considerations  which  led  to  this  par- 
ticular arrangement  in  the  case  of  Quebec  are  adverted  to. 
The  electoral  districts  set  out  in  the  second  scliedule,  are, 
or  were  at  the  date  of  Confederation,  .inhahited  largely  b}' 
protiistant  English,  and  are  familiarly  known  as  the  "east- 
ern townships." 

3._0NTARI0  AND  QUEBEC. 

of  rlS-°"  81.  The  Legislatures  of  Ontario  and 
Quebec  respectively  shall  be  called  to- 
gether not  later  than  six  months  after  the 
Union  (i).  >   :     -       . 

(i)  This  section  is  now  effete.  The  first  sessions  of  the 
legislatures  of  Ontario  and  Quebec  respectively  were  held 


THE   B.  N.  A.  ACT — SECs.  82,  83.  M.S3 

on  the  27tli  of  I)ect'inl>er,  1(S()7,  Just  in  time  to  CJniply  wit!i 
the  provisiouH  of  thi^  .section. 

82.  The  Lieuteiifiiit-Clovernor  of  On-  o"~atfvo 
tiirio  and  of  Quebec  shall  from  time  to  •^'""""'''"^^' 
time,  in  the  Queen's  name  (i),  by  instru- 
ment under  the  Great  Seal  of  the  Prov- 

iiice,  summon  and  call  together  (ii)  the 
Legislative  Assembly  of  the  Province. 

(i)  " />*  titc  Quccu'k  ixnnc." — See  note  (ii)  to  section  (J!), 
^iiifc.  A  clearer  indication  than  this  section  (S2  aftbnls 
could  hardly  have  lieen  given,  that  the  Lieutenant-Gov- 
ernor of  a  province,  in  his  relations  to  tlie  legislative 
assend)ly  of  such  province,  represents  the  Queen.  And  see 
also  notes  to  section  90,  post. 

(ii)  "  Sammone^l  (md  called  torjcthcr." — See  notes  to 
section  38,  ante,  p.  2(S3.  Wliat  is  laid  down  in  chapter 
V'lII.,  as  to  the  exencise,  by  the  Governor-General,  of  tlie 
prerogatives  of  the  Crown  in  connection  with  the  sum- 
moning, proroguing,  and  dissolving  of  parliament,  is  eijually 
applicable  to  the  case  of  the  Lieutenant-Governor  of  a 
province.     See  notes  to  section  58,  ante,  p.  303. 

83.  Until  the  Legislature  of  Ontario  ^Slonor" 

p  r\        I  11  ■  •!         /•\  holders  of 

or  01  Quebec  otherwise  provides  (i),  a  per-  omcea. 
son  accepting  or  holding  in  Ontario  or  in 
Quebec  any  office,  commission,  or  em- 
ployment permanent  or  temporary,  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  Prov- 
ince is  attached,  shall  not  be  eligible  as 
a  member  of  the  Legislative  Assembly  of 
the  respective  Province,  nor  shall  he  sit 


',V,H  THE    n.  N.  A.  .\< T — SKC.  8». 

or  vote  us  such;  but  nothiufj  iu  this  sec- 
tion shall  luiike  incli^nble  (ii)  any  person 
bein^^  a  nienil)er  of  the  Executive  Council 
of  the  respective  Province,  or  holding 
any  of  the  followin«^'  otHces,  that  is  to  say, 
the  offices  of  Attorney-CTcneral,  Secretary 
and  Registrar  of  the  Province,  Treasurer 
of  the  Province,  Commissioner  of  Crown 
Lands,  and  Conunissioner  of  A^n-iculture 
and  Public  Works,  and  in  Quebec  Solici- 
tor-General, or  shall  dis(|ualify  him  to  sit 
or  vote  in  the  House  for  which  he  is 
elected,  provided  he  is  elected  while  hold- 
ing- such  office  (iii). 

(i)  "  Until  f/tr  IcifisUil (I ri'  i>f  Oiitu rli>  or  of  (^nrhcr  of/icr- 
toisr  /trai'idcs." — St'i'  notes  ti)  section  41,  irnfc,  p.  '2So.  It 
is  to  !)(.'  notici'tl  tluit  theiv  is  no  coi'respon<lin<;'  provision 
with  ivpml  to  tlio  Dominion  government,  except  so  tar  as 
it  may  lie  embodied  in  section  41.  It  is  ditticult,  in  viewol' 
section  (S4,  to  see  the  necessity  for  this  section  NH  in  the  ease 
of  these  provinces,  except,  perhaps,  in  connection  with  the 
tirst  elections  after  Confe<leration.  The  mattei's  referred  to 
in  the  section  have  heen  tiie  subject  of  legislation  in  all  the 
provinces.  Th«^  law,  as  to  Ontario,  will  he  found  in  K.  S.  ( )., 
c.  11,  and,  as  to  Queliec.  in  R.  S.  Q.,  articles  18(5  to  144. 

(ii)  "  NothiiKj  i I)  f/tis  scctiov  s/kM  vuikr  iiu'li(/ihl<u 
etc.'' — Prior  to  Confederation,  this  was  the  law  in  the  vari- 
ous provinces,  and  upon  its  existence  hinges  the  difference 
hetween  tlie  British  constitutional  system,  and  that  of  the 
United  States:  see  chapter  I.,  avfc,  p.  14,  et  xeq.  As  to  the 
Dominion,  the  law  in  this  respect  was  continucvl  hy  section 
41,  avtc,  p.  284,  and  as  to  Nova  Scotia  and  New^  Brunswick 
by  sections  64  and  8(S.  See  also  section  129.  Upon  the 
admission  of  the  other  portions  of  British  North  America., 


THE    H.  :>.  A.  .\(  I  -  SKC  84.  'Mi') 

vnrv  wjis  takon  to  t'stultlish  th<.'»viii  the  huimc  systnn  of  re- 
jn't'Ht'Htiitivo  jMirliiUiK'ntiiry  ^ovonniu'iit  as  exists  in  tlic 
Unitt'd  Kin<;<l()iii,  and  as  L'\istr«l  in  tlic  vai'ioiis  pr<'-( 'onfcil- 
cration  ja-ovinci's.     Sec  Part  TV.,  i>tisl. 

(iii)  "  Pi't>r'i(h'(l  he  Is  cb'ch'd  trhih'  lioldi  inj  .siir/t  nffin-.'' — 
This  provision  is  a  rt'inin<U'r  oF  tlu'  days  when  "  tin-  Kind's 
party  "  was  accustoniud  to  ivcruit  its  ranks  l»y  a  lavish  dis- 
trihution  oF  ofHcf.  It  appHcs  even  to  the  acceptance  of 
office  hy  nienihers  of  a  new  achiiinistration  after  a  general 
election.  See  Mc])<»nell  v.  Smith,  f  7  U.  C.  Q.  H.  MO,  and 
Macdonell  v.  Macdonald,  -S  U.  C.  C.  P.  47f),  whidi  upheld 
as  k'^al  what  is  popularly  known  in  Canadian  histoi'y  !>^* 
tlie  "double  sluitffe  "  of  iSoS. 

84.  IHitil  the  Le^nslatiires  of  Onturjo  .V,":,','!^"' 
Quebec  respectively  otherwise  pro- 
vide (i)  all  laws  which  at  the  Union  are 
ill  force  in  those  Provinces  respectively, 
relative  to  the  following  inatters,  or  any 
of  theni,  namely, — the  (jualilication  and 
disqualifications  of  persons  to  be  elected 
or  to  sit  or  vote  as  niembers  of  the 
Assembly  of  Canada,  tlie  (]ualilications  or 
disqualifications  of  voters  (ii),  the  oaths 
to  be  taken  by  voters,  the  lieturning 
Othcers,  their  powers  and  duties,  the  pro- 
ceedings at  elections,  the  periods  during 
which  such  elections  may  be  continued, 
and  the '  trial  of  controverted  elections 
(iii)  and  the  proceedings  incident  thereto, 
the  vacating  of  the  seats  of  members  and 
the  issuing  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 


836  THE   B.  N.  A.  ACT— SEC.  85. 

respective  Legislative  Assemblies  of  On- 
tario and  Quebec. 

Provided  that  until  the  Legislature  of 
Ontario  otherwise  provides,  at  any  elec- 
tion for  a  member  of  the  Legislative 
Assembly  of  Ontario  for  the  District  of 
Algoma,  in  addition  to  persons  oualiiied 
bv  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. 

(ii  "  Until,  etc." — See  notes  to  section  41,  (mte,  p.  2iS4. 
Were  it  not  tliat  the  power  of  the  provincial  legislatures  to 
deal  with  the  various  matters  referred  to  in  this  section 
may  perhaps  depend  thereon,  it  might  be  said  to  be  effete, 
as  the  legislatures  of  all  the  provinces  have  long  since 
otherwise  provided. 

(ii)  "  Voters" — See  note  (ii)  to  section  41,  avte,  p.  280. 

(iii)  "  The  trial  of  controverted  elections." — SeeTheberge 
V,  Landry,  referred  to  in  tlie  notes  to  section  41,  ante,  p.  2<S8. 
All  that  is  laid  down  in  the  notes  to  that  section,  applies, 
nmtatis  niatavdis,  to  the  case  of  the  provincial  election 
laws. 

EeSative^  85-  Every   Legislative'Assembiy   of 

ssemwies.    q^^|^^j,|q  ^y^^  cvcry  Legislative  Assembly 

of  Quebec  shall  continue  for  four  years  (i) 
from  the  day  of  the  return  of.  the  writs 
for  choosing  the  same  (subject  neverthe- 
less to  either  the  Legislative  Assembly  of 
Ontario  or  the  Legislative  Assembly  of 
Quebec  being  sooner  dissolved  (ii)  by  the 
Lieutenant  Groveinor  of  the  Province), 
and  no  longer.  . 


THE   B.  N.    A.    ACT — SECS.  80,  87.  337 

(i)  "  Four  years." — See  notes  to  section  50,  (infc,  p.  293, 
Avliere  tliis  ditterence  is  noted  in  the  position  of  the  Do- 
minion parliament  and  the  legiskture-i  of  the  different  pro- 
vinces, namely,  that  the  former  cannot  alter  the  provisions 
of  the  B.  N.  A.  Act  in  regard  to  this  matter,  while  the  latter 
(under  section  92,  sub-secticm  1),  can  do  kSO. 

(ii)  "Sooner  diisoloed." — See  notes  to  section  50,  (rufc, 
p.  293,  and  note  (ii)  to  section  82,  ante,  p.  333. 

86-  There  shall  be  a  Session  of  the  s^>'ovKu- 
Legislatiire  of  Ontario  and  of  that  of  Que-  ^'^^"'•'^'*'^ 
bee  once  at  least  in  every  year,  so  that 
twelve  months  shall  not  intervene  between 

the  last  sitting  of  the  Legislature  in  each 
Province  in  one  Session  and  its  first  sit- 
ting in  the  next  Session. 

(i)  "  Yearly  Session." — See  notes  to  section  20,  <n)fe, 
p.  267,  and  see  also  chapter  VIII.,  at}  te,  p.  1 6(S.  Wh  t  is  there 
laid  down  as  to  the  duty  of  the  Governor-General  to  insist 
upon  the  observance  of  the  provisions  of  section  20,  is 
e([ually  applicable  to  the  case  of  a  Lieutenant-Governor 
under  this  section.  There  is  no  similar  provision  in  the 
B.  N.  A.  Act  as  to  Nova  Scotia  and  New  Brunswick,  and, 
so  far  as  we  have  been  able  to  fintl,  no  such  provision  exists 
by  law  in  those  provinces. 

As  to  Manitoba,  British  Columbia,  Prince  Edward  Island, 
and  the  North  West  Territories,  see  post. 

87-  The   following   provisions   (i)  of  QViwum,  &c. 
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  re- 
lating to  the  election  of  a  Speaker  (ii) 
originally  and  on  vacancies,  the  duties  of 

Can.  Con.— 22        -,■■■.  ■  ;•      r 


838  THK    i'..  X.  A.  ACT — SEC  88. 

the  Speaker  (iii),  the  absence  of  the 
Speaker  (iv),  the  quoniin  and  the  mode  of 
voting  (v),  as  if  those  provisions  were 
here  re-enacted  and  made  appHcable  in 
terms  to  each  such  Ijcgishitive  Assembly. 

(i)  "  Tim  Jolloiri iKj  /rrorisions." — Tlio  provisions  m- 
feired  to  are  contained  in  sections  44 to  49  (both  inclusive). 
Upon  nearly,  if  not  (piite.all  of  these  matters,  tiie  assemhlies 
of  tlie  various  provinces  have  exercisjMl  the  legislative 
p(  wer  given  by  section  02,  sub-section  1.  See  notes  to 
section  85,  unte,  p.  2(S0,  for  some  observations  as  to  the 
powers,  in  this  regard,  of  the  Dominion  parliament. 

(ii)  "  Tha  elecfioii  of  <i  S/x'okfir." — See  sections  44  and 
45. 

(iii)  "  The  duties  of  o  Speoker." — See  section  4(5,  and 
the  notes  thereto,  where  we  have  pointed  out  that  the 
B.  N.  A.  Act  contains  no  further  definition  of  the  <luties  of 
a  Speaker,  and  where  a  contrast  is  drawn  l)etween  the 
position  (jf  a  Speaker  in  a  Cinadian  legislature,  and  that 
of  a  Speaker  undei-  the  American  system. 

(iv)  "  l^ie  (il)s(iue  of  ihe  ^lynkcr." — S(H'  section  47,  and 
notes. 

(v)  "  Tk''  Qitofiiiii  o.iiil  the  iiitx/e  of  Kotiiif/." — See 
sections  4<S  and  4!):  v;ith  which  compare  sections  85 
and  8(),  relating  to  the  Senate,  and  sections  78  and  7 J),  as 
to  the  Legislative  Council  of  Quebec. 

4.— NOVA  SCOTIA  AND  NEW  BKUNSWICK. 
ofTS'."""        88.  The  constitution  of  the  LegisUi- 

tures  of  Nova    ■  <•  ^  l'     i.^  •  £    x^ 

scotiflaiui     ture   01  each  or    the  provnices  or  IS  ova 

wick.  Scotia  and  New  Brunswick  shall,  subject 

to  the  provisions  of  this  Act  (i),  continue 

(ii)  as  it  exists  at  the  Union  until  altered 

under  the  authority  of  this  Act ;  and  the 


rilE   H.  N.  A.  AC'I" — SEC.  89.  MM) 

House  of  Assembly  of  New  Brunswick  (iii) 
existin^^  at  the  passing  of  this  Act  shall, 
unless  sooner  dissolved,  continue  for  the 
period  for  which  it  was  elected. 

(i)  "  Siihjccf  fi>  titc  prorisioiis  of  this  Act." — That  i.s  to 
say,  suUject  to  the  liiiiitation  of  the  "sphere  of  autliority  '* 
of  the  lej^ishitures  in  th(;se  provinces  under  the  B.  N.  A. 
Act,  and  suhject  also  to  tlie  difference  in  the  mode  of 
appointHHint  of  the  Lieutenant-Governor.  In  all  (^ther 
respects,  the  C(Hi.stitutions  of  these  provinces  may  l»e,  from 
time  to  time,  altered  hy  the  provincial  legislatures,  under 
the  terms  of  section  i)2,  sub-section  1. 

(ii)  "Shall  confinuc." — See  chapter  III.,  (iiifr,  p.  52,  cf 
scf/.;  also  section  ()4  and  notes  thereto. 

(iii)  The  Hoitse  of  Asscnihlij  of  Nr/w  Bran-wuck" — See 
a/iifr,  p.  .52,  where  the  difference  in  the  provisions  made  for 
New  Brunswick,  and  for  Nova  Scotia — see  section  SJ) — is 
referred  to. 

5.— ONTAKIO,  QUEBEC,  AND  NOVA 

SCOTIA. 

89-  Each  of  the  Lieutenant-Govern- ^'iljp^^'^lr" 
ors  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 
time  and  addressed  to  such  lleturning  Offi- 
cer 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 


lUO  IHK    n.  N.  A.  A<  T — SKC.  '.»(), 

House  of  CoiMinons  of  CfUiHcl;!  for  that 
J^jlectonil  District. 

(i)  "  Fii'sl  rlf'cl ions." — This  section  is  now  crt'ctv'.  Scm^ 
notoH  to  last  suction. 

C).— THE  FOUK  PUOVlxNCKS. 

t^'tSir  90-   Tlic  follo\vill,^•  provisions  of  tliis 

tnoTisioMH      Act  respecting'  tlio  Parliament  of  Canada, 
inonoy  vot.js,  nanielv, — the   ])rovisions  relatm<^  to  ai)- 

iVu.  (11.  •'   '  L  n  I 

propriation  and  tax  hills,  tlie  recommen- 
dation of  money  votes,  the  assent  to  hills, 
the  disallowance  of  Acts,  and  the  sif>nifi- 
cation  of  pleasure  on  hills  reserved, — shall 
extend  and  apply  to  the  Le«.(islatures  of 
the  several  Provinces  as  if  those  provi- 
sions were  here  re-enacted  and  nnide  ap- 
plicahle  in  terms  to  the  respective  Pro- 
vinces and  the  Legislatures  thereof,  with 
the  sul)stitution  of  the  Lieutenant-Gov- 
ernor of  the  Province  for  the  Governor- 
General,  of  the  Governor-General  for  the 
Queen  and  for  a  Secretary  of  State,  of 
one  year  (ii)  for  two  years,  and  of  the 
Province  for  Canada. 

(i)  "  The  folloivliH/  jirorisiniis.'' — Li  reference  to  some 
of  the  sections  of  the  B,  N.  A.  Act — thost;  niakino- provision 
for  the  constitution,  ])()th  leyisiutive  and  executive,  of 
Ontario  and  Quebec — we  have  spoken  of  tlie  "  necessities  of 
thi'  draftsman,"  as  the  reason  for  their  introduction.  See 
(tnfc,  p.  4().  The  insertion  of  this  clause  in  the  Act  in  its 
present  shape  miolit  more  properly  be  said  to  have  been 
caused  by  the  laziness  of  the  draftsman.  Applying  its  pro- 
visions, literally,  certainly  makes  some  of  the  provisions  to 


TflK    l(.  \.  A.  A<T — SKC  !»0.  .'HI 

wliicli  it  rcfciH  it'jid  very  peculiarly,  jiikI  aftords  an  ar<^u- 
iiR'iit  ill  support  of  the  view  which  would  Ix-littlo  the  posi- 
tion of  proviucifil  Icn'islatui'cs,  aiul  o(*  the  Lifiutcufint- 
(Jovci-uors  of  the  provinces.  L<'t  us  take  thnii  in  their 
(trdei- : 

(1)  "  T/ir  iH'ortsnnis  I'ddfiiHf  lo  <i  i>i)i'<ti>riafKm  (iiidfa.r 
lulls." — See  section  5!^  1'his  section  can  only  Ije  made  to 
art'ect  those  provinces  in  which  a  l.'i-caineral  le;;islature  ex- 
ists. ShouM  any  of  tin-  pi'ovinces  which  now  ha\t'  one 
house  decider  to  alter  their  constitution  in  this  respect,  it 
Hiii;ht  perhajjs  he  difficult  to  say  which  one  of  the  two 
houses  would  ansvv(!r  to  the  House  of  (,'onnnons,  foi-  hoth 
houses  nji;4ht  j)ossiI»Iy  Ixi  elective. 

(2)  "  Tlw  rccoiiniK'iiildt KHI  i>f  iiHUK'ii  rotrs.'' — -HcM  section 
54,  mile.  What  has  been  said  as  to  sectif)n  o.'i  applies  with 
e(pial  force  to  any  attempt  to  paiviphrase  section  54. 

(3)  ''  As-sriil  lo  hills." — See  section  55.  To  para[)hrase 
this  section  in  accoivlance  with  the  literal  provisions  of 
section  !)(),  would  indicate  that,  in  the  view  of  the  framers 
of  the  B.  N.  A.  Act,  th(;  Li(!utenant-( Governor's  assent  to 
Acts  of  a  provincial  l(!;.;islature  is  not  the  assent  of  the 
(^)ueen  hut  of  the  (iov(U'nor-(  Jenei'al.  TIk;  case  of  Thehei'^t? 
V.  Landry  (o),  hefoi-e  the  Judicial  Connnittec;  of  the  Privy 
Council,  in  which  it  was  held  that  the  Lieutenant-(iover- 
nor's  assent  Wfis  thi;  assent  of  the  Crown,  has  been  already 
I'eferred  to:  see  also  the  pi-ovisions  as  to  tlu^  sununoning  of 
the  j)rovinci}d  legislature  of  Ontai'io  and  (Quebec  (section  S2, 
(I  life,  [).  -VAH),  and  the  provisions  in  reference  to  tln^  appoint- 
ment of  members  of  the  Legislative  Council  of  (^)uebec, 
(section  72,  (infr,  p.  li'2i)).  As  has  been  fre(|uently  pointed 
out,  all  executivi^  officers  th)'ou«.^hout  the  Empire  act  under 
connnission  direct  from  the  executive  head  of  the  Empire, 
although  their  appointnu'ut  may  Ik;  through  the  medium 
of  certain  other  executive  officers.  The  dis[)ute  has  now 
h(!en   given   its  <]iil('fii.s  by   the    recent  judgment    c»i    the 

((»)  2  App.  Cas.  10 J. 


842  THE    li.  X.  A.  ACT — SEC.  DO. 

Judicial  Coiuiiiittee  of  the  Privy  Council  in  Liijuidutors, 
etc.  V.  Receiver  (leneriil  of  New  Brunswick,  Times  L.  K., 
Vol.  V^III.,  p.  077.  See  the  passages  (juoted  in  note  (v)  to 
section  58,  and  note  (ii)  to  section  ()f). 

(4)  "  The  (Hsiilhnni  iH-c  of  Arfs" — Tliis  matter  haslieen 
already  fully  dealt  with.  In  chapter  VIII,  dufc,  p.  172, 
will  l)e  found  a  criticism  of  Professor  Dicey's  statement 
that  the  >'d(.>  ])ower  was  ]odi;e<l  with  the  Dominion  CJovern- 
ment  in  order  to  obviate  tiie  necessity  for  resoi-t  to  the 
courts  for  the  determination  of  these  constitutional  (jues- 
tions  :  and  by  reference  to  the  debates  upon  tlie  Quebec 
Resolutions,  we  endeavoured  to  point  out  that  the  fi'amers 
of  tliose  resolutions  knew  perfectly  well  what  the  position 
of  atl'airs  would  be,  upon  the  carrying  out  of  the  scheme 
therein  contained.  The  views  of  judges  since  Confedei'ation, 
cannot  of  course  l)e  cited  against  Professo)'  Dicey's  state- 
ment. We  may  I'efer  however  to  Leprohon  v.  Ottawa  ( />), 
in  which  the  Judges  of  the  Court  of  Appeal  for  Ontario, 
laid  down  without  hesitation,  that  thu  fact  that  a  pro- 
vincial law  had  not  been  disallowed  l)y  the  Dominion 
authorities,  could  in  no  way  afi'ect  the  (juestion  as  to  its 
legal  validit}'.  Hagarty,  C.J.,  sa^'s  :  '  I  do  not  soe  how  the 
existence  of  such  power  can  afi'ect  the  constitutionality  of 
the  enactment  "  ■  and  iMr.  Justice  Burtoi>  uses  this  language : 
"  Whether  allowed  or  not,  to  the  extent  that  provincial 
Acts  transcend  the  competence  of  the  provincial  legislature, 
they  are  void."  To  refer  again  to  the  language  of  tlu- 
Cliancellor  of  Ontario,  in  Attorney-General  (Canada)  w 
Attorney-General  (Ontario)  (.q),  the  power  of  disallowance 
is  one  which  may  operate  both  in  the  plane  of  political 
expediency,  and  in  that  of  jural  capacity.  Its  exercise  in 
these  days  is  largely  cojitined  to  the  former.  The  result  is 
very  fairly  sunnned  up  l)y  Lord  Hobhouse,  in  delivering  the 

(p)  2  O.  A.  R.  5'i2.     See  also  Reg.  v.  Chandler,  referred  to  in  the 
notes  to  S9C.  91,  p-3.  2],  post. 

(q)  20  O.  R.  at  p.  245. 


THE    U.  N.  A.  ACT — SEC.  91.  843 

judgiiiont  of  the  Judicial  Coiniuitteo  of  tlie  Privy  Council, 
in  Bank  of  Toronto  v.  Lanihe  (/•)  : 

"  Their  Lordships  have  to  construe  the  express  words  of  an 
Act  of  parHament  which  makes  an  elaborate  distribution  of  the 
whole  field  of  legislative  authority  between  two  legislative  bodies, 
and  at  the  same  time  provides  for  the  confederated  provinces  a 
carefully  balanced  constitution  under  which  no  one  of  the  parts 
can  puss  laws  for  itself,  except  under  the  control  of  the  whole 
acting  through  the  Governor-General." 

(5)  "  The  hI<)  11  if}  cat  Ion  of  ■plensarc  on  hills  rrserre'l." — 
See  section  57  :  also  chapter  VII,  ovtc,  p.  14f). 

(ii)  "Ouc  yrc r." — In  chapter  VII.  {(inte,  p.  149),  we 
have  pointed  out  that  upon  the  expiration  of  the  two  3'ear.s 
allowe«l  l>y  section  5()  for  the  (lissallowance  by  the  Queen  in 
Council  of  Dominion  legislation,  no  act  of  Imperial  execu- 
tive authority  can  thereaft(U"  weaken  its  effect;  that 
nothing  short  of  "  repugnant "  Imperial  legislation  can 
override;  it.  The  first  proposition  is  e(iuall3' applicable  to  the 
position  of  the  Dominion  executive  in  reference  to  provin- 
cial legislation  after  the  expiration  of  the  one  year  allowed 
by  this  section  90  for  its  disallowance.  The  second  propo- 
sition has  no  application,  except  in  the  case  of  section  95. 
Upon  the  expiration  of  the  year,  no  }X)wer  short  of  Imperial 
legislation  can  interfere  \\'ith  the  operation  of  a  provincial 
Act,  passed  in  relation  to  a  matter  within  its  legislative 
competence.  Tlie  Dominion  legislature  cannot  interfere 
because  the  legislative  powers  of  the  Dominion  and  of  the 
provinces  are  exclusive,  each  of  the  other.  See  chapter  X., 
ovtc.  p.  200. 

VI. — Distribution  of  Legislative  Powers  (i). 

Potvers  of  the  ParUament  (ii). 
91.  It  shall  be  lawful  for  the  Queen  ^.X^ty of 

/•'•\     -i  -\        •  l^      i.1  T     •  T  J.  Parliameut  of 

(ill),  by  and  with  the  advice  and  consent  caim-ia. 
of  the  Senate  (iv)  and  House  of  Commons 

(;)  12  App.  Cas.  at  p.  587. 


.'{44  rm;  it.  \.  a.  a^  r— skc  !)1. 

(v)  to  iiiiiko  laws  for  the  p(?}ic(',  ordci-,  jiud 
^(H)<\  ^^ovcnimeut  (vi)  of  Ciiiiadji,  in  rela- 
tion to  (vii)  all  inatteis  not  coniin^^  (viii) 
within  tlu!  classes  of  sul)j('ets  hy  this  Act 
assi^n(;(l  exclusivtdy  to  tin;  Le^Mshitni'es 
of  the  Provinces;  and  for  greater  cer- 
tainty (ixj  hut  not  so  as  to  restrict  the 
•Generality  of  the  fore^'oin<^-  terms  of  this 
sectio}!,  it  is  herehy  de(-lared  that  (not- 
withstanding' anything  in  this  Act)  tlu' 
exchisivt!  (x)  Jje^nslativc-  Authority  of  the 
Parliament  of  (Canada  extends  to  all  mat- 
ters coming'  within  the  classes  of  sul)jects 
next  hereinafter  enumeratcid  (xi) ;  that  is 
to  say  : — 

(i)  "  iJisfrihitfMii)  of  In/lsljifirc  poire fs." — Ah  a  prcliiii- 
iiijiry  to  tilt!  study  of  this  uud  tli»'  folIowiii<^'  s('('ti<»ii,  clui])- 
te)'H  X.  and  X  J.  (particulHi'Iy  Dm  forniei')  shoidd  ha  car<;fully 
r«;ad.  In  chapto'  X.  wi;  liav<;  (!nd(!avor(;d  to  collect  from 
tlui  cases — paiticulai'iy  tliost;  wliicli  lia\'(!  bocn  dccidcfl  hy 
tlu;  .Judicial  Connuittee  of  tin;  Pi'ivy  (Jouncil — what  lias 
hcen  authoritativ(;Iy  laid  down  as  to  the  natuic  of  the 
division  efHicted  hy  tlu;  H.  N.  A.  Act,  and  have;  noted  also 
certain  ^(^nei-al  rules  of  construction  a{)|)lica,lile  to  the  in- 
terpretation of  tlies<;  tw()  veiy  ditlicult  sections  of  the  Act, 

(ii)  '  Poii'crs  of  llic  i>ti rtiii hii'iif." — These  powers  are-  not 
exhausted  hy  the;  various  sul>-sections.  See  notes  to  section 
41,  (iiilr,  p.  2S(),  and  s(!ction  l.'32,  jxtsf.  Other  sections,  too, 
have  Ijeen  noted  in  which  power  has  heen  expressly  j^i'^en 
to  the  jjai'lianient  of  (Canada  ^tlu;  same  is  true  of  the  [>ro- 
vincial  leniHlatures  as  well)  to  alter  certain  pi'ovisions 
of  the  B.  N.  A.  Act  in  reference  to  the  conduct  of 
its  husiness.  But,  apjirt  altogether  fi'om  these  \ariouH 
sections  dealing  with  special  matters,  the  opening  woitls  of 


'I'Hi:  i;.  N,  A.  .\<  r  -,six'.  <.n.  ;{45 

Hcctioii  1)1  clcuily  assign  tin-  uii('imiiifrut»'<l  "  rcsiiliimii  "  of 
siil)j»'ct  iiifittci's,  ])r<)jM  !•  to  lit-  I(';;i.slntiv('ly  trcutol  l»y  u 
Cfdoniul  Ic^isliiturc,  to  tlic  ])urliiiiii('iit  of  ( 'uiiudu,  uiid  vui'iou.s 
Acts  of  the  Doiiiiiiioii  }tfirli)iiii('iit  liJiAf  Itccii  iiplicM  Hltlioii;^!! 
it  wjis  not  jiossiMf  to  clussify  tlirii-  proNisionH  m^  fnlliii;;' 
within  Miiy  of  tin-  varioiiH  siili-Hcctions  of  st'<-tioii  !>!. 

l*'oi-  itiHtuiicc,  ill  Kwsst'll  V.  Tin-  Qiircii  (.s),  the  .lii<li('iul 
( "oiiiiiiittcf  of  tilt'  Privy  (.'oiiiici!  iijilicM  tlx'  |)i-<)visioiiH  (»f 
tlif  ( "aiiuda  'rcmpciuiicc  Act  U|)oii  this  nrouinl  : 

"  If  the  Act  <1()(!S  not  full  within  any  of  the  claHses  of  siihjectH 
in  section  'J2,  no  further  qiuistion  will  rcnniiin,  for  it  cannot  be 
conti.'nd('(l  .  .  that,  if  iIk;  Act  dooH  not  conio  within  one  of 
tilt.'  classtis  t)f  subjects  asrii^ned  to  the  provincial  Ic^'isluturoH, 
the  parliament  of  t'anaila  hatl  not  hy  its  i^cuaval  power  '  to  make 
laws  for  tlu;  pt'ace,  onler,  and  j^'ood  f,'ovfriim(;nt  of  Canatla,'  full 
Icf^'isliitive  authority  to  pass  it." 

Ill  (/iti/itniH  V.  Parsons  (/),  tin-  j)t>\vi'r  of  tin;  Doiniiiioii 
|jar!iaiiieiit  t(»  ineoi'iiDratt!  ct>in|)aiiit'S  with  jjovvcrscxtiMitlino' 
<>vc\'  tlu;  wliolt!  Doniinion,  or  over  inort;  than  orn;  ])i'ovinci', 
was  clearly  rcco^ni/eil  as  ('xistin;^'  uiitlcr  tin;  ;^('n('ral  woi'iis 
of  this  section,  'i'he  ftilhiwin^'  ])assa;4t'  is  taken  from  the 
juilj^inent  <»f  Sii-  Moiita^ui!  Smith,  in  ticliverin;;'  tht;  Judg- 
ment of  the  l^rivy  Council : 

'*  TaKclureau,  J.,  in  the  course  of  his  vigorous  judgment,  seeks 
to  plaet!  the  plaintilf  in  tin;  action  against  the  (.'iti/eiis  Company 
in  a  dilemma.  He  thinks  that  tlu;  assertion  of  the  right  of  the 
province  to  legislate  with  regard  to  the  contracts  of  insurance 
etjmpiUiics  amouiits  to  a  denial  of  the  right  of  the  Dominion 
parliiuneiit  to  do  so,  and  that  this  is,  in  etfect,  to  deny  the  right 
of  that  parliament  to  incorporate  the  Citizens  Company,  so  that 
the  plaintiff  was  suing  a  non-existent  defendant.  Their  Lord- 
ships cannot  think  that  this  dilemma  is  estal)lishe<l.  The 
learned  judge  assumes  that  the  power  of  the  Dominion  govern- 
ment to  incorporate  Companies  to  carry  on  business  in  the 
Dominion  is  derived  from  one  of  the  <-;numerated  clasces  of  subjects, 
viz.,  '  the  regulation  of  trade  and  commerce,'  und  then  argues 

(x)  7  App.  Cap.  H'2f>.  it)  7  App.  Can.  '..'(5. 


:U()  THi:    15.  N.  A.  ACT— .SEC.  l»l. 

that  if  the  authority  to  incorporate  companies  is  given  by  tliis 
clause,  tlie  exclusive  power  of  regrlatinj?  them  mu.st  also  be 
,!,'iven  by  it,  so  that  the  denial  of  one  power  involves  the  denial 
of  the  other.  lUit,  in  the  first  place,  it  is  not  necessary  to  rest 
the  authority  of  the  Dominion  parliament  to  incorporate  com- 
panies on  this  specific  and  enumerated  power.  The  authority 
would  belong  to  it  by  its  general  power  over  all  matters  not 
coming  within  the  classes  of  subjects  assigned  exclusively  to  the 
lo.,'isl.itures  of  the  provinces ;  and  the  only  subject  on  this  head 
assigni'd  to  the  provincial  legislature  being  '  the  incorporation 
of  companies  with  p)'ovincial  objects,'  it  follows  that  the  incor- 
poration of  companies  with  objects  other  than  provincial  falls 
within  the  general  powers  of  the  parliament  of  Clanada." 

Tn  Ho  Bi-it'tii  ^rcilical  and  (U'licvjil  Life  Association  ("), 
it  was  held  tiiat  the  Dominion  Acts  which  re(|Uii'e  a  deposit 
with  the  Minister  of  Finance  \\y  foreign  corporations  se(d<- 
ing"  to  <]()  liusini'ss  within  Canada,  wei'e  iiifiui  rlrrs. 

In  Rr  Wetlurelland  Jones  (r\  the  power  of  the  Dominion 
parliament  to  pass  an  Act  in  reference  to  tlie  taking  of 
evidence  in  ilu;  various  provinces  for  use  Ijefore  foi'eign 
ti'ihunals,  was  upheld,  as  coming  within  the  general  words 
of  this  .secti(m  91.  The  pi'ovincial  legislatures,  it  was  held, 
have  no  power  to  pass  sucli  Acts,  as  in  tlieir  operation, 
tlie}'  are  of  extra-})rovincial  pertinence,  and  do  not  '•  vlate  to 
the  administration  of  justice,  (>r  to  pj-operty  and  ci\il  rights 
in  the  province.  It  may  he  note(l,  too,  tliat  such  laws  in 
no  way  offend  against  the  rules  which  have  been  laid  down 
as  to  the  territorial  limitation  upon  the  legislative  power 
of  a  colony.  The  extra-territorial  effect  to  be  given  to 
proceedings  taken  under  sucli  Acts  depends  upon  the  law 
of  the  countiy  in  wliich  the  evidence  is  to  he  u.sed.  Mi'. 
Justice  Torrance,  of  the  Quebec  Superior  Court,  had  arrived 
at  the  same  conclusion  in  K>-  parte  Smith  (w),  which  came 

(ii)  12  O.  R.  441.     Ses  further,  on  this  subject  of  the  incorporation, 
etc.,  of  companies,  the  notes  to  s.  92,  s-s.  10  and  11. 

(i)  4  O.  R.  713. 

(w)  10  L   C.  Jur.  140;  2  Cart.  330. 


THK    H.  N.  A.  ACT — SEC.  (U.  847 

bet'ore  liim  in  1.S72.  Hv  Hjx'uks  of  the  Dominion  Act  in 
<|uostion,  us  jin  Act  in  relation  to  'ii  matter  of  intiTnationnl 
c'omitv." 

(iii)  "  T/ir  IJiicrn." — See  n(»tes  to  sections  f),  58  and  (>!). 
<i  iiff . 

(iv)  "  The  Srinifcr—Hee  section  21,  rf  sfq. 

(y )  "  H(nis(  (}/  ('(mniioiis." — See  section  1^7,  ff  sctj. 

(vi)  "  Tlic  jx'iirc,  order,  (ind  (food  <j(>rf'rni)ifitf." — This  is 
an  expression  \ery  freijuently  used  in  Imperial  Acts oeative 
of  colonial  constitutions  (,/•),  and  it  also  occurs  in  many  of 
the  commissions  to  the  early  oovernors.  Tlie  same  words 
.ire  used  in  84  ^  85  \'ic.,  c.  2S,  yivinj;'  the  Dominion  parlia- 
ment legislative  power  over  the  territories.  Their  very  wide 
scope  is  thus  referred  to  in  Riel  v.  Regina  (//)  by  Lord 
Chancellor  Halshur}',  in  delivering  the  judgment  of  the 
Judicial  Connnittee  of  the  Privy  Council : 

"  It  is  not  denied  that  the  place  in  question  was  one  in  les- 
pect  of  which  the  parliament  of  Canada  was  authorized  to  make 
such  provision,  but  it  appears  to  be  suggested  tliat  any  provision 
ditt'ering  from  the  provisions  which  in  this  country  have  been 
nuxde  for  administration,  peace,  order  and  good  government,  can- 
not, as  matters  of  law,  be  provisions  for  peace,  order  and  good 
government  in  the  territories  to  which  the  statute  relates,  and 
further  that,  if  a  court  of  law  should  come  to  the  conchision  that 
a  particular  enactment  was  not  calculated  as  matter  of  fact  and 
policy  to  secui'e  peace,  order  and  good  goveriiUient,  they 
would  be  entitled  to  regard  any  statute  directed  to  those  objects, 
but  which  the  court  should  think  likely  to  fail  of  that  effect,  us 
ultra  rire's,  and  beyond  the  competency  of  the  Dominion  parlia- 
ment to  enact.  Their  Lordships  are  of  opinion  that  there  is  not 
the  least  colour  for  such  a  contention.  The  words  of  the  statute 
are  apt  to  authorize  the  utmost  discretion  of  enactment  for  the 
attainment  of  the  objects  pointed  to.  They  are  words  under 
which  the  widest  departure  from  criminal  procedure  as  it  is 
known  and  practised  in  this  country,  have  been  authorized  in  Her 
Majesty's  Indian  Empire.     Forms  of  procedure  unknown  to  the 

:.r)  See  note  (t)  p.  54,  ante.  (//)  10  App.  Cas.  C75. 


84S  THE    H.  X.  A.  AC'l'— SEC.  ill. 

English  common  law  have  there  been  established  and  acted  upon, 
and  to  throw  the  least  doubt  upon  the  validity  of  powers  con- 
veyed by  these  words  would  be  of  widely  mischievous  conse- 
<iuence." 

(vii)  "  L(urs  in  *v/.  Hon  fo." — See  chapter  IX.,  )iii(c, 
p.  194,  note  (r),  wliere  reference  is  made  to  the  wordinu'  of 
the  C\)iistit\itioii  of  the  United  States  in  tliose  sections  of 
it  which  confer  legislative  power  upon  Congress.  As  is 
there  pointed  out,  the  words  of  oiii-  statute  are,  if  compari- 
son be  in  ordei',  wider  tlian  the  woi'ds  of  the  American 
"Constitution,"  and  tlie  various  American  authorities  sup- 
porting the  doctrine  of  "  implied  powers  "  may,  therefore, 
appear  applica1)le,  <(  fortiori,  to  the  powers  of  Canadian 
legislatures. 

In  Bennett  v.  Pharmaceutical  Association  of  Queliec(:), 
])orion,  C.J.,  lays  it  down  : 

"  We  consider,  as  a  proper  rule  of  interpretation  in  all  these 
cases,  that  when  a  power  is  given,  either  to  the  Dominion  or  to 
the  provincial  legislatures,  to  legislate  on  certain  subjects  coming 
clearly  within  the  class  of  subjects  which  either  legislature  has 
a  right  to  deal  with,. such  power  includes  all  the  incidental  sub- 
jects of  legislation  which  are  necessary  to  carry  on  the  object 
which  the  B.  N.  A.  Act  declared  should  be  earned  on  by  that 
legislature." 

The  a])])lication,  however,  of  this  doctrine  brings  us  face 
to  face  with  the  ([uestion  as  to  the  existence  of  "concuri'ent 
})owers"  and,  in  every  case,  calls  for  a  careful  consideration  of 
those  rules  of  interpretation  (laid  down  by  the  Judicial  Com- 
mittee of  the  Privy  Council  in  Russell  v.  Reg.  ((')and  Bank 
of  Toronto  v.  Land)e  (/>)),  which  we  have  already  discussed 
in  chapter  X. — see  (intc,  pp.  212,  218,  rf  seq.  In  truth,  as 
a  distinct,  independent  rule  of  i utrrpretdfion,  this  doctrine 
of  "implied  powers"  is  scarcely  appli«..able  to  a  federal 
system  such   as  ours.     It  is   really  nothing   more  than   a 

{z)  1  Dor.  83G;  2  Cart.  250.     Sej  also  notes  to  section  01.  sub-section 
2,  and  section  92,  sub-s'.ctioii  IG. 

i<i)  7  .\pi\  Cas  82;).  {b)  12  App.  Cas.  575. 


THE    1$.  \.  A.  ACT— SEC.  1)1.  849 

short  t'orin  of  expression  enilxxlying  the  <l(jctriiie  of  the 
supremacy  of  tlie  leyishiture  (r)  in  relation  to  tliose  matters 
which,  upon  a  reasonal»le  and  proper  interpretation,  can 
fairlv  be  said  to  fall  within  one  of  the  chisses  of  subjects 
committed  to  such  legislature :  but,  as  will  Vm  at  once  per- 
ceived, this  still  leaves  the  (piestion  open  for  the  application 
of  those  other  rules — rules  of  interpretation  proper — appli- 
cal)le  for  the  reconciliation  of  a})parentiy  conflictinj;  sub- 
.sectiims  of  sections  01  and  92.  Legislative  ji' risdSction 
must  first  be  conceded  before  the  doctrine  of  "implied 
p(3wers  "  can  apply.  A  reference  to  the  various  cases,  in 
which  this  doctrine  lias  been  applied  in  terms  will,  we  think, 
disclose  that  as  a  preliminary  to  its  application,  jurisdiction 
over  the  subject  matter  in  dispute  was  determined.  It  is 
noteworthy  that  the  Judicial  Connnittee  of  the  Privy 
Council  have  never  used  the  phrase  "  implieiJ  powers,"  pve- 
f erring  the  other  form — "  j>l('V((ry  powers."  Gushing  v. 
Dupuy  (//)  in  reference  to  the  scope  of  "  l)ankruptcy  and 
insolvency  "  legislation,  is  frequentl}'  referred  to  as  illustra- 
tive of  the  application  of  this  doctrine  of  "  implied  powers," 
but  a  perusal  of  the  judgment  of  the  Connnittee  in  that 
case  discloses  tiiat  no  such  doctrine  is  referred  to,  the  point 
decided  being  that  procedure  is  an  essential  part  of  insol- 
vency legislation — a  decision  as  to  the  scope  of  certain 
words  in  the  B.  N.  A.  Act,  not  as  to  the  nature  of  the  legis- 
lative power  of  the  Dominion  parliament. 

(viii)  "  N<if  coinmij  within." — See  note  (ii)  to  this 
section. 

(ix)  "For  nreater  cei't(iint>/." — See  the  passage,  frv)m 
the  judgment  in  Citizens  v.  Parsons,  (pioted  (infr,  ]>.  207, 
rt  Ke(].,  with  which  may  he  compared  the  language  of  the 
judges  of  the  Supreme  Court  of  Canada  in  the  same  case  (c) 
and  in  City  of  Fredericton  v.  Keg.  (/'). 

(c)  See  ante,  p.  177,  vt  scq.,  194,  ct  si'q  (e)   1  8.  C.  R.  v!!-). 

(d)  5  App.  Cas.  40'.).  (J)  3  S.  C.  11.  ."05. 


850  THE    15.  N.  A.  ACT. — SEC.  <>l. 

(x)  "  Exclasi re." — It  is  now  settled  beyond  controversy 
tluit  this  word  refers  to  tlie  extent  to  wliich  the  legislative 
power  of  the  Dominion  parliament  .may  be  exercised  to  the 
exclusi(m  of  legislation  by  the  provincial  assemVtlies,  and 
was  in  no  way  intended  as  a  limitation  upon  the  supreme 
legislative  authority  of  the  Impeiial  parliament.  We  have 
already  referred  to  this  (juestion  in  chapter  IV. — see  trnfc, 
p.  67 — and  need  here  merely  add  a  reference  to  some  other 
Canadian  cases  in  which  the  legislative  supremacy'  of  the 
Imperial  parliament  has — in  view  of  this  phrase  in  the 
B.  N.  A.  Act — been  (questioned. 

In  the  case  of  "  The  Farewell "  (see  notes  to  sub-section 
10  of  section  91,  post),  Mr.  Justice  Stuart,  of  the  Quebec 
Vice- Admiralty  Court,  distinctly  recognizes  the  continued 
supremacy  of  the  Imperial  parliament.  He  held  that  upon 
the  proper  construction  of  the  Colonial  Laws  V^alidity  Act, 
1865,  effect  should  be  given  to  an  Act  of  the  parliament  of 
of  Canada,  even  though  in  part  repugnant  to  an  Imperial 
statute,  so  far  as  its  provisions  do  not  conflict  with  those  of 
such  Imperial  enactment  (ry). 

See  also  the  case  of  Holmes  v.  Temple  (k),  referred  to 
more  fully  in  the  notes  to  section  91,  sub-section  7,  po.sf, 
an<l  we  may  also  note  upon  this  ({uestion  as  to  the  continued 
supremacy  of  the  Imperial  parliament,  since  the  B.  N.  A. 
Act,  the  language  of  Ritchie,  C.J.,  in  delivering  the  judg- 
ment of  the  majority  of  the  New  Brunswick  Supreme 
(>()urt,  in  ex  pdrfc  Renaud  (i),  a  case  which  will  be  found 
more  fully  discussed  in  the  notes  to  section  98,  post. 

(xi)  "  The  cliisses  of  sahjects  next  /terelnnffer  enutKer- 
oted." — In  chapter  X. — see  ante,  p.  211 — will  be  foun<l 
([uoted  the  language  of  the  Judicial  Connnittee  of  the  Privy 
Council  in  L'Union  St.  Jaccjues  v.  Belisle  (ii),  in  which  that 
tribunal  lays  down  that,  in  this  section  91,  "there  is  no  in- 

(g)  2  Cart.  378 ;  7  Q.  L.  R,  380.  (t)  2  Cart,  445  ;  1  Pug.  273. 

(//)  2  Cart,  3% ;  8  Q.  L.  R.  351.  (n)  L.  R.  6  P.  C.  31. 


THE    M.  \.  A.  ACT — SEC.  91.  851 

(lication  in  <i at)  Ivstavce  of  anytliiny  heing'  contemplfited 
except  what  may  be  properly  descriljetl  as  general  legisla- 
tion." We  there  ventured  to  say  that  just  hov  far  this  rule 
can  be  or  should  be  applied  in  determining  the  scope  of  eaeli 
and  every  one  of  the  various  sub-sections  of  this  section  91, 
is  matter  of  doubt.  Before  venturing  anything  further 
upon  this  (piestion,  we  shall  refer  to  certain  other  cases  in 
whicli  tlie  general  scope  of  the  various  sub-sections  of  sec- 
ti(m  91  has  been  discussed. 

In  Regina  v.  Mohr(j),  the  late  Chief  Ju.stice  Dorion  in- 
timate<l  that,  in  his  opinion,  section  91  deals  with  subjects 
which  from  their  nature  affect  the  interests  of  the  whole 
Dominion,  and  that  all  matters  of  a  local  nature,  affecting 
but  one  of  the  provinces,  or  a  portion  of  a  province,  are 
within  the  control  of  the  legislature  of  the  province  affected 
thereby,  unless  exce])ted  from  this  general  rule  l)y  a  special 
enactment,  such  for  instance  as  sul)-section  29  of  section  91, 
and  the  exceptions  particularly  mentioned  in  section  92, 
sub-section  10. 

In  Angers  v.  City  of  M<mtreal  (k),  Mv.  Justice  Johnson 
refers  to  tlie  words  "  of  Canada  "  as  indicatino'  the  intention 
of  the  Imperial  parliament,  that  legislation  by  the  Dominion 
parliament  should  be  legislation  for  the  (jcnenil  y>ar/>r>.s'es  of 
tint  Dotiii nion.  Reference  may  also  be  had  to  the  ea.ses 
collected  in  the  notes  to  section  91,  sub-sections  10  and  12. 
See  particularly  Central  Vermont  Railway  Co.  v.  St. 
John's,  and  The  Queen  v.  Robertson.  In  the  notes  to  sec- 
tion 91,  sub-section  2,  will  be  found  (|Uotati(jns  from 
Citizens  v.  Par.sons,  and  Bank  of  Tor<mto  v.  Landje,  in 
which  the  Judicial  Committee  of  the  Privy  Council  have 
intimated  their  view,  that  "the  i-egulation  of  trade  and 
conunerce,"  has  reference  only  to  general  legislation — 
'  political  arrangements  in  regard  to  trade,  recjuiring  the 
sanction  of  parliament ;  regulations  of  trade  in  matters  of 

( j)  '2  Cart.  '257  ;  7  Q.  L.  R.  188. 
(k)  2  Cart.  335 ;  24  L.  C.  .Jur.  25'J. 


852  THE    H.  X.  A.  ACT— SEC.  91. 

intei'pi'ovincal  concern,  and  it  may  be  that  they  would  in- 
clude ^eiieml  regulations  of  trade,  (iff'f'cfii);/  (',c  ivliolc  Do- 
minion. In  Citizens  v.  Parsons,  the  Committee  referred  to 
the  collocation  of  sub-section  2  with  "subjects  of  national  and 
general  concern,"  but  there  is  nothing  to  indicate  whether 
this  was  intended  as  a  reference  to  all  the  sub-.sections  of 
section  01  or  merely  to  those  innnediately  preceding  and 
following  sub-section  2.  In  a  recent  case  l)efore  the 
Supreme  Court  of  Canada,  involving  the  consideration  of 
sul)-section  10,  of  section  01,  "  intcresf,"  Mr.  Justice  Patter- 
son refers  to  its  collocation  with  sub-sections  nundtered 
from  14  to  21,  Ixtth  inclusive,  "all  of  which  relate  to  the 
reu'ulation  of  the  yeneral  commercial  an<l  financial  system 
of  the  country." 

Taking  the  language  of  the  Judicial  Connnittee  of  the 
Privy  Council  in  L'Union  St.  Jacques  v.  Belisle  (l)  literally 
it  would  entirely  preclude  the  Dominion  parliament  from 
what  is  known  as  "  private  bills  "  legislation  ;  but  against 
such  a  construction,  the  later  case  of  Colonial  Building 
Association  v.  Attorney-General  of  Quebec  (rn),  in  wliich 
an  Act  of  t\w  Dominion  parliament  incorporating  the  ap- 
pellant company  was  upheld,  must  not  l)e  over-looked.  The 
power  of  the  Dominion  parliament  to  pass  Acts  for  the  in- 
cf)rporation  of  companies  with  objects  other  tlian  provincial 
was  in  Citizens  v.  Parsons  put  expressly  upon  the  general 
words  of  the  opening  clause  of  this  section  01,  and  it  may 
be  contended,  therefore,  that  the  private  bills  legislation  of 
the  Dominion  parliament  must  be  limited  to  this  residuary 
clause,  as  it  has  l)een  termed,  of  sectiim  01.  In  this  connec- 
tion, however,  we  must  not  overlook  tlie  concluding  clause 
of  .'■ection  01,  which  expressly  provides  that  any  matter 
coming  within  any  of  the  sub-sections  of  section  01,  is  not 
to  be  deemed  to  come  within  section  02,  sul)-section  IG, 
"  matters  of  a  merely  local  or  private  nature  in  the  pi-o- 
vince  " :  a  provision  which  would  seem  to  indicate  that  in 

(/)  L.  R.  G  P.  C.  31.  (m)  U  App.  Cas.  157. 


THE    B.  X.  A.  ACT — SEC.  91.  353 

the  opinion  of  the  Imperial  parliament,  matters  ft)r  legisla- 
tive action  would  come  before  the  Dominion  parliament, 
whicli  u|i.<n  their  face,  so  to  speak,  might  appear  to  be  of  a 
mei'ely  local  or  private  nature  in  one  province.  Again,  to(\ 
we  nuist  notice  the  exceptions  to  section  02,  sub-section  10. 
The  works  and  undertakings  there  referred  to,  which,  by 
force  of  the  exce})tion  read  in  connection  with  section  01, 
sub-section  20,  are  without  doubt  within  the  legislative 
competence  of  the  Dominion  parliament,  are  mattei-s  in 
respect  of  which  it  is  difficult  to  imagine  any  general  legis- 
lation capable  of  application  to  all  alike.  They  are  subjects 
which  naturally  call  for  what  is  known  as  private  bills 
legislation. 

With  reference  to  the  incorporation  of  companies,  and 
Acts  respecting  works  and  undertakings  within  the 
legislative  ken  of  the  Dominion  parliament,  the  question 
has  arisen  how  far  the  Dominion  parliament  can  confer  upon 
such  corporations  immunity  from  provincial  law.  See  par- 
ticularly the  cases  collected  in  tlu'  notes  to  sub-section  13 
of  section  02,  ponf.  In  Citizens  v.  Parsons  ( /* ),  the  Counnittee 
distinctly  held  that  an  insurance  compan3%  incorporated 
under  Dominion  legislation,  is  subject,  as  to  the  contracts 
of  insurance  entered  into  by  it,  to  the  laws  of  the  province 
in  relation  to  such  contracts  generally,  as  being  a  matter  of 
property  and  civil  rights  in  the  province.  By  way  of  illus- 
tration obiter,  the  question  of  the  applicability  of  the 
statutes  of  Mortmain  to  such  a  company  was  touched  upon, 
and  the  view  expressed  that  a  company  incorporated  under 
Dominion  legislation  would  be  subject  to  the  law  of  the 
})rovince  in  this  regard.  In  Colonial  Building  Association 
V.  Attorney-General  of  Quebec  {<)),  this  view  was  again  dis- 
tinctly einmciated.  Carrying  these  decisions  to  their  logical 
conelusi(m,  it  would  appear  that  the  Dominion  parliament 
caimot  confer,  upon  any  body  incorporated  by  it,  any  power 
in  relation  to  mattei'S  falling  within  the  legislative  com- 

(n)  7  App.  Cas.  96.  (o)  9  A.pp.  Cas.  157. 

Can.  Con.— 23 


354  THE   B.  N.  A.  ACT — SEC.  91. 

petence  of  a  provincitil  legislature — eaimot  eoiifer,  in  otiier 
words,  any  power  which  it  could  not  itself  directly  exercise. 
There  is  nothing  in  any  of  the  other  judgments  of  that 
tribunal  to  throw  doubt  upon  this  as  being  a  correct  enunci- 
ation of  the  law  in  regard  to  this  very  perplexing  matter. 
A  i)recisely  sinnlar  (juestion  arises  in  connection  with  the 
subject  of  "  municipal  institutions"  and  will  be  found  <lis- 
cussed  in  the  notes  to  sulj-section  H  of  section  1)2. 

The  subject  of  f^pecidl  legislation  has  been  lately 
brtmght  again  to  the  front  by  the  judgment  of  the 
Supreme  Court  of  Canada  in  a  case(j>)  which  arose  out  of 
the  winding  up  of  tlie  defunct  Bank  of  Upper  Canada. 
Prior  to  Confederation  the  bank  had  l)ecome  insolvent 
and  had  assigned  all  its  property  and  assets  to  trustees. 
By  31  Vic.  c.  17,  the  Dominion  parliament  incorporated 
the  trustees  and  gave  them  authority  to  carry  on  the 
business  of  the  bank  so  far  as  was  necessary  for  winding 
up  the  same.  By  33  Vic.  c.  40,  all  the  property  of 
the  bank  vested  in  the  ti'ustees  was  transferred  to  the 
Dominion  government,  who  became  thereby  seised  of  all 
the  powers  of  the  trustees.  In  the  Court  of  Appeal  for 
Ontario,  the  court  was  e(|ually  divided  as  to  the  validity 
of  this  Dominion  legislation.  Hagarty-,  C.J.O.,  and  Osier, 
J.A.,  upheld  the  Acts  as  being  within  the  legislative  pcnver 
of  the  Dominion  parliament  over  "banking,  the  incorpora- 
tion of  banks,"  and  also  over  "bankruptcy  and  insolvency"; 
while  Burton  and  Maclennan,  JJ.A.,  held  that  the  Acts 
were  in  relation  to  "  property  and  civil  rights  in  the  pro- 
vince," and  could  only  have  been  validly  passed  by  a 
provincial  legislature.  In  the  Supreme  Court  the  judgment 
was  unanimous,  upholding  the  validity  of  the  impugned 
Acts.  Ritchie,  C.J.,  held  that  the  legislative  authority  of 
parliament  over  banking  and  the  incorporation  of  banks, 
and  over  bankruptcy  and  insolvency,  empowered  it  to  jjas.s 

(/))  Quirt  V.  Reg.,  19  S.  C.  R.  510,  affirming  17  O.  A.  R.  421  (Reg.  v. 
Wellington). 


THE   B.  N.  A.  ACT — SEC.  91,  S.-S.  1.  855 

Mich  Acts,  while  of  tlie  other  ineiiibera  of  tlie  court,  Stron<,r 
iinl  Patternoii,  JJ.,  founded  their  jud<,mient  upon  the  latter 
power  only,  the  three  other  judges  not  intimating  the 
ground  of  their  concurrence. 

This  legiHlation  was  undoubtedly  private  bills  legislation^ 
and  the  judgment  of  the  Supreme  Court  nmst  l)e  taken  as 
conclusive  upon  all  Canadian  courts,  that  the  power  of  the 
Dominion  parliament  under  the  various  sul>-sections  of  sec- 
tion 91  does  extend  to  private  bills  legislation  so  long  as 
the  subject  matter  legislated  upon  can  l»e  fairly  said  to  fall 
within  any  of  those  sub-sections.  There  is  one  of  the  sub- 
sections of  this  section  01  which  upon  its  face  would  seem 
to  indicate  that  it  was  intended  to  confer  power  to  ]>ass 
private  and  special  Acts,  namely,  sub-section  7,  reb'rring 
to  "Sable  Island."  No  argument,  howevei',  can  be  founded 
upon  this  sub-section,  as  it  nnist  evidently  be  read  in  con- 
nection with  sub-section  10,  and,  in  fact,  the  only  legislation 
in  reference  to  it  is  in  connection  with  light-houses  and 
other  safeguards  to  navigation.     See  R.  S.  C.  (1<S(S()),  c.  70. 

It  is  hardly  necessary  to  say  that  in  considering  this 
([uestion  those  other  rules  of  interpretation  which  have 
l)een  laid  down  as  applicable  for  the  reconciliation  of  appar- 
ently conflicting  powers,  must  not  be  lost  sight  of  ;  but  the 
([Uestion  now  being  discussed  has  reference,  rather,  to  the 
possibility  of  laying  down  a  general  rule  of  construction 
applicable  to  section  91  and  its  various  sub-sections,  irre- 
spective, in  a  sense,  of  section  92  and  its  sub-sections.  We 
shall  have  occasion  to  again  touch  upon  certain  aspects  of 
this  (piestion,  but  we  may  say  that  we  make  no  pretence 
to  an  exhaustive  treatment  of  it,  and  any  views  ^ve  may 
venture  upon  moot  points  are  advanced  with  much  mistrust. 

1.  The  Public  Debt  and  Property.  * 

This  has  reference,  of  course,  to  the  public  debt  of  the 
Dominion,  as  a  unit,  assumed  upon  Confederation  or  since 
incurred,  and  to  tlie  public  property  held  by  the  Dominion 
Government  in  trust  for  Canada  as  a  whole. 


350  THE    n.  N.  A.  ACT — SEC.  91.  S.-S.  2. 

In  section  102,  /)o.s/,  nnd  the  Followin*^'  sections,  will  he 
f()un<l  the  pi'ovisions  of  this  Act  as  to  the  division  of  assets, 
and  the  distribution  of  revenue  producin*;-  powers  )>etvveen 
tlie  Dominion  and  the  provinces,  and  an  •  extended  reference 
to  this  (piestion  will  he  more  in  ordei  »vhen  we  come  to  con- 
sider those  provisions  of  tlie  Act.  \V«>  niaj''  say,  liowever, 
in  reference  to  tlie  le<;islative  power  of  the  ])ominion  and 
the  provinces  over  tiieir  respective  })ro[)erty,and  in  connec- 
tion with  their  revenue  pro<lucin^'  powers,  tliat  tiie  absence 
(f  any  provision  in  the  variiais  suit-sections  of  section  92, 
similar  to  the  provision  made  hy  this  sul»-section  1  of  sec- 
tion 91,  does  not  in  any  way  attbrd  an  argument  against 
tlie  full  legislative  authority  of  a  provincial  legislature  in 
reference  to  provincial  assets.  The  B.  N.  A.  Act  simply 
atiects  a  division  of  the  beneficial  interest  in  the  various 
provincial  assets  as  they  existed  at  the  time  of  Confedera- 
tion, but,  in  reference  to  the  revenue  therefrom,  cannot  be 
deemed  to  weaken  in  any  way  the  effect  of  the  Imperial 
Act,  17  &  18  Vic.  c.  118,  and  the  other  Imperial  Acts, 
giving  Canadian  legislatures  full  power  of  app'  >priation 
over  all  revenues  from  whatever  source  within  ilie  colony 
arising.     See  notes  to  section  126. 

2.  The  regulation  of  Trade  and  Com- 
merce. 

In  the  leading  case  of  Citizens  v.  Paraons,  the  meaning 
proper  to  be  atti'ibuted  to  the  language  of  this  sub-section 
w^as  discussed.  In  that  case,  the  Act  impugned  was  the 
Ontario  Act  providing  for  uniform  conditions  in  fire  insur- 
ance contracts.  Without  deciding  whether  or  not  fire 
insurarice  is  a  trade,  the  Judicial  Committee  of  the  Privy 
Council  decided  that  this  sub-section  does  not  extend  to 
the  regulation  of  the  contracts  of  a  particular  business  or 
trade  in  a  single  province.  What,  in  the  view  of  their 
Lordships,  may  properly  be  held  to  come  within  this  sub- 
section will  be  best  shown  by  the  following  extract  from 
the  judgment  in  that  case  (q) : 

(q)  7  App.  Cas.  96. 


THE    11.  N.  A.  ACT— SEC.  91,  S.-.S.  2.  357 

"  The  words  '  regulation  of  trade  and  commerce  '  in  their 
unlimited  sense  are  sufliciently  wide,  if  uncontrolled  by  the 
context  and  other  parts  of  the  Act,  to  include  every  regulation 
of  trade,  ranging  from  political  arrangements  in  regard  to 
trade  with  foreign  govornnients.  requiring  the  sanction  of 
parliament,  down  to  minute  rules  for  regulating  particular 
trades.  But  a  consideration  of  the  Act  shows  that  the  words 
are  not  used  in  this  unlimited  sense.  In  the  first  place  the 
collocation  of  No.  2  witii  classes  of  subjects  of  national  and 
general  concern,  affords  an  indication  that  regulations  relating 
to  general  trade  and  connnerce  were  in  ti:e  mind  of  the  legis- 
lature, when  conferring  this  power  on  the  Dominion  parlia- 
ment. If  the  words  had  been  intended  to  have  the  full  scope 
of  which,  in  their  literal  meaning,  they  are  susceptible,  the 
specific  mention  of  several  of  the  other  classes  of  subjects 
enumerated  in  section  91,  would  have  been  unnecessary  ;  as,  15, 
banking ;  17,  weights  and  measures  ;  18,  bills  of  exchange  and 
promissory  notes;  19,  interest,  and  even  21,  bankruptcy  and 
insolvency. 

"  '  Regulation  of  trade  and  commerce  '  may  have  been  used 
in  some  such  sense  as  the  words  *  regulations  of  trade,'  in  the 
Act  of  Union  between  England  and  Scotland  (6  Ann.,  c.  11), 
and  as  these  words  have  been  used  in  Acts  of  State  relating  to 
trade  and  commerce.  Article  V.  of  the  Act  of  Union  enacted, 
that  all  the  subjects  of  the  United  Kingdom  should  have  '  lull 
freedom  and  intercourse  of  trade  and  navigation  '  to  and  from 
all  places  in  the  United  Kingdom  and  the  colonies ;  and  Article 
VI.  enacted,  that  all  parts  of  the  United  Kingdom,  from  and  after, 
the  Union,  should  be  under  the  xaiin'  '  prohibitions,  restrictions, 
•tnd  rcfiulations  of  trade.'  Parliament  has  at  various  times  since 
tne  Union  passed  laws  affecting  and  regulating  specific  trades  in 
one  pai't  of  the  United  Kingdom  only,  without  it  being  supposed 
that  it  thereby  infringed  the  Articles  of  Union.  Thus,  the  Acts 
for  regulating  the  sale  of  intoxicating  liquors  notoriously  vary  in 
the  two  kingdoms.  So  with  regard  to  Acts  relating  to  bank- 
ruptcy, and  various  other  matters. 

"Construing,  therefore,  the  words  'regulation  of  trade  and 
commerce '  by  the  various  aids  to  their  interpretation  above 
suggested,  they  would  include  political  arrangements  in  regard 


358  THE    H.  N.  A.  ACT — SEC.  91,  H.-S.  2. 

to  trade  requiring  the  sanction  of  parliament,  regulations  of 
trade  in  matters  of  inter-provincial  concern,  and  it  may  be  that 
they  would  include  general  regulations  of  trade  alf'ectmj  the  irlinic 
Ihminion.  Their  Lordships  abstain  on  the  present  occasion  from 
any  attempt  to  define  the  limits  of  the  authority  of  the  Dominion 
parliament  in  this  direction.  It  is  enough  for  the  decision  of 
the  present  case  to  say  that,  in  their  view,  its  authority  to  legis- 
late for  the  regulation  of  trade  and  commerce  does  not  compre- 
hend the  power  to  regulate  by  legislation  the  contract  of  a 
particular  business  or  trade,  such  as  the  business  of  fire  insur- 
ance, in  a  single  province,  and,  therefore,  that  its  legislative 
authority  dots  not  in  the  present  case  conflict  or  compete  with 
the  power  over  property  and  civil  rights  assigned  to  the  legisla- 
ture of  Ontario  by  No.  18  of  section  92." 

In  Russell  v.  The  Queen,  in  the  same  volume  (/•),  involv- 
inj^'  the  validity  of  the  Canada  Tenipei'ance  Act,  1H78,  Sir 
Montague  E.  Smith,  in  delivering  the  Judgment  of  the 
Judicial  Connnittee  of  the  Privy  Coiuicil,  intimated  tliat 
their  Lordships — 

"  Must  not  be  understood  as  intimating  any  dissent  from  the 
opinion  of  the  Chief  Justice  of  the  Supreme  Court  of  Canada  and 
the  other  judges  who  held  that  the  Act  as  a  general  regulation  of 
the  traffic  in  intoxicating  liquors  throughout  the  Dominion,  fell 
within  the  class  of  subjects,  '  the  regulation  of  trade  and  com- 
merce '  enumerated  in  that  section,  and  was  on  that  ground  a 
valid  exercise  of  the  legislative  power  of  the  parliament  of 
Canada." 

As  has  l)een  already  noted  (.s),  tlie  judgment  of  the 
Privy  Council  proceeds  upon  the  ground  that  the  subject 
was  one  not  falling  within  any  of  thu  sub-sections  of  sec- 
tion 92,  and  was  therefore  witliin  the  power  oi  the 
Dominion  parliament  as  a  matter  pertaining  to  "  the  peace, 
order,  and  good  government  of  Canada,"  but  in  Hodge  \. 
The  Queen,  involving  the  question  of  the  validity  of  the 
Ontario  Liquor  License  Act,  1877,  the  earlier  decision  is 
discut^ised  and  again  put  clearly  upon  the  (opening  language 

(r)  7  App.  Cas.  829.  j      ..       (»)  Ante,  ^.  U^. 


THE   B.  N.  A.  ACT— SEC.  91,  S.-S.  2.  35!) 

of  .section  f)L  The  Li<iuoi'  LiceiiHe  Act  was  held  not  to  l)e 
an  interference  with  the  general  rejjfulation  of  trade  and 
connnerce,  which  belongs  to  the  Dominion  parliament,  and 
it  was  also  held  not  to  conflict  with  the  Canada  Temper- 
ance Act,  which  had  not  been  locally  adopted. 

This  is  perhaps  the  proper  place  to  notice  the  various 
cases  which  have  arisen  in  reference  to  the  li(juor  traffic, 
for  the  attacks  which  have  from  time  to  time  been  made 
upon  provincial  legislation  in  connection  with  this  subject 
have  practically  range<l  themselves  under  this  sub-section. 
At  this  date,  however,  there  is  only  one  matter  which  is 
open  to  argument,  the  power,  namely,  of  a  provincial  legis- 
lature to  pass  a  prohibitory  law  for  the  province. 

Owing  to  the  emphatic  pronouncement  of  the  Privy 
Council  in  Hodge  v.  The  Queen  (t),  in  support  of  the 
])ower  of  provincial  legislatures  to  vctju.lote  the  sale  of 
intoxicating  liquor,  and  to  their  equally  emphatic  affirm- 
ance of  the  invalidity  of  the  Dominion  Licpior  License  Act, 
i;s.S3  (<'),  it  will  not  be  necessary  to  discuss  at  any  length 
the  earlier  decisions  in  the  various  provinces. 

In  Ontario,  the  power  of  a  provincial  legislature  to 
empower  a  municipality  to  limit  the  number  of  tavern 
licenses,  and  t(  >  entirely  prohibit  the  sale  of  liquor  in  places 
other  than  houses  of  public  entertainment,  was  affirmed 
(1875)  by  the  Court  of  Queen's  Bench  in  Slavin  v.  Orillia 
(v),  and  the  decision  in  this  case  may  be  said  to  eudjody 
the  law  upon  this  point  as  judicially  recognized  in  the 
courts  of  that  province  until  Hodge  v.  1'he  Queen  Ijecame 
the  leatling  case.  Such  power  was  held  not  to  infringe 
upon  the  field  allotted  to  the  Dominion  parliament  by  the 
term  "  the  regulation  of  trade  and  commerce,"  but  to  fall 
prf)perly  within  the  field  covered  by  "  municipal  institu- 
tions "  and  "  property  and  civil  rights  in  the  province."     As 

it)  {>  App.  Cas.  117.  (u)  Cassela,  Sup.  Ct.  Dig.  543. 

(i;)  1  Cart.  688 ;  36  U.  C.  Q.  B.  159. 


:^00  THE    Fi.  N.  A.  ACT — SEC.  91,  S.-S.  2. 

to  tliia  last  point — wliich  sub-section  of  section  92  supports 
such  legislation  ( — we  shall  have  to  speak  later. 

The  (question  came  before  the  Supreme  Court  of  the 
province  of  New  Brunswick,  in  1875,  in  Reg.  v.  The 
Justices  of  King's  {w),  and  although  the  decision  of  the 
court  was  against  the  validity  of  the  statute  thei'e  impugned 
(3()  Vic.  c.  10),  it  was  upon  the  ground  that  the  Act  was 
prohil)itoiy  in  its  character,  allowing,  as  it  did,  a  majority  of 
the  ratepayers  in  a  municipality  to  entirely  prevent  the 
issue  of  any  licenses  for  the  sale  of  intoxicating  liquor 
within  such  municipality.  Power  to  make  regulations  for 
the  good  government  of  saloons,  taverns,  etc.,  such  as 
W'Ould  tend  to  the  preservation  of  good  order  in  the 
locality — "matters  of  municipal  police,  and  not  (»f  com- 
merce " — was  conceded  by  Chief  Justice  Ritchie  to  pro- 
vincial legislatures,  but  "  if,  outside  of  this,  and  beyond 
the  granting  of  the  licenses  referred  to  in  order  to  i-aise 
a  revenue  for  the  purposes  mentioned,  the  legislature 
undertakes  directly  or  indirectly  to  prohibit  the  manu- 
facture or  sale,  or  limit  the  use  of  anij  artirle  of  iivde 
or  roniinerce,  whether  it  be  spirituous  liipioi-s,  flour,  or 
other  articles  of  merchandize,  so  as  actually  and  absolutelv 
to  interfere  with  the  traffic  in  such  articles,  and  therebv 
prevent  trade  and  connnerce  being  carried  on  with  respect 
to  them  .  .  they  assume  to  exercise  a  legislative  power 
which  pertains  exclusi\ely  to  the  parliament  of  Canada." 
This  represented  the  law  of  that  province,  as  recognized 
at  least  until  Hodge  v.  Reg.  In  fact,  it  is  still  a  (juestion 
about  which  opinions  conflict,  whether  a  local  legislature 
can  empower  a  majority  of  the  ratepayers  of  a  municipality 
to  absolutely  prevent  the  issue  of  any  licenses  to  sell 
intoxicating  liquor  therein.  As  we  shall  see,  the  judgment 
of  the  Supreme  Court  in  Danaher  v.  Peters  (x),  does  not  go 
the  full  length  of  upholding  such  a  provincial  enactment. 

In  Nova  Scotia,  the  question  was  pronounced  upon  by 
the  Supreme  Court  of  that  "province,  in  1877,  in  Keefe  v. 

(w)  2  Cart  499 ;  2  Pug.  535.  {x)  17  S.  C.  R.  44. 


THE   B.  N.  A.  ACT — SEC.  91,  S.-S.  2.  8()1 

McLennan  (//),  and  it  was  Itroadly  hold  that  a  provincial 
lt'<dslature  "is  entitled  to  le;4islate  with  a  view  to  reu'uhite 
within  the  province  the  sale  of  whatever  may  injuriously 
affect  the  lives,  health,  morals,  or  well-heinii;'  of  the  com- 
munity, whether  it  he  intoxicating  liipiors,  poisons,  or  un- 
wholesome provisions,  if  such  legislation  is  made  bona  fide 
with  that  object  alone,  even  though  to  a  certain  limited 
extent  it  should  affect  trade  and  connnerce." 

In  Quebec,  the  (|uestion  did  not  come  s(|uarely  V>efore 
any  a})pellate  court  until  very  shortly  before  the  decision 
in  Hodge  v.  The  Queen  {z)  was  pronounced  by  the  Judicial 
Connnittee  of  the  Privy  Council.  The  Canada  Temperance 
Act  of  1(S{)4  was  in  force  in  many  of  tlie  counties  of  that 
province,  and  the  earlier  decisions  in  connection  with  this 
subject  dealt,  rather,  with  tlie  (piestion  as  to  the  position 
of  that  Act  after  Confederation. 

In  Hart  v.  Mississ(|Uf)i  {a),  however,  Mr.  Justice  Caron 
held  that  a  provincial  legislature  caimot  repeal  or  modify 
those  sections  of  the  Canada  Temperance  Act,  18(54  (the 
Dunkin  Act),  which  conferred  (m  nuniicipal  councils  the 
power  to  pass  by-laws  for  pro/riltifivi/  the  sale  of  intoxica- 
ting licjuors.  The  ground  upon  which  this  decision  is  put, 
namely,  that  such  legislation  would  conflict  with  th«^  powei's 
of  the  Dominion  govennnent  under  this  sub-section  2,  is  the 
debatalile  ground  to-day.  See  this  (piestion  also  discussed 
in  Be  Local  Option  Act  (J>),  in  the  Court  of  Appeal  ft!r 
Ontario.  To  the  same  effect  is  the  decision  of  Mr.  Justice 
Dunkin,  in  Cooey  v.  Brome  (c),  in  which,  after  reviewing 
niunicipal  legislation  prior  to  18(57,  he  refei"s  to  section  125) 
of  the  B.  X.  A.  x\ct  as  leaving  the  law  as  it  then  existed, 
subject  to  repeal  or  amendment  by  that  legislature,  which 
if  the  law  were  non-existent,  would  now  have  authoritv 
to  enact  it.     He  considered  that  the  Dunkin  Act  in  its 

(i/)  2  Cart.  400 ;  2  lluss.  &  Ches.  5.     (h)  18  O.  A.  K.  572  ;  gee  pott, 
(z)  9  App.  Cas.  117.  (c)  2  Cart.  385  ;  21  L.  C.  Jur.  182. 

(a)  2  Cart.  382  ;  3  Q.  L.  R.  170. 


8()2  THE   H.  N.  A.  ACT — SEC.  91,  S.-S.  2. 

general  scope  and  effect  was  an  Act  respecting  trade  and 
connnerce  and  that,  therefore,  none  of  its  provisions  could 
be  altered  by  provincial  legislation.  Noel  v.  Richmond, 
(1  Dor.  333;  2  Cart.  246)  deals  only  with  the  question 
arising'  under  section  129. 

In  Blouin  v.  Quebec  (d),  it  was  held  by  Chief  Justice 
Meredith  that  the  provision  of  the  Quebec  statute  (3iS  Vic- 
c.  74),  fixing-  the  hours  during  which  taverns,  etc.,  should  be 
kept  open,  was  within  the  competence  of  the  provincial 
legislature :  that  the  provincial  legislatures  may  make 
reasonable  regulations  for  the  preservation  of  good  order  in 
the  municipalities  under  their  control,  and  may  for  this 
pur})()se  restrict  the  sale  of  spirituous  li<[Uors.  The  Chief 
Justice  lujlds  tliat  provincial  legislation,  such  as  above  in- 
dicated, falls  within  the  provisions  of  section  92,  sub-.section 
•8,  "  municipal  institutions,"  such  laws  being  in  the  nature 
of  police  regulations. 

It  was  held  by  Mr.  Justice  Alleyn,  in  De  8fc.  Aulnni  v. 
Laf ranee  (f),  that  while  provincial  legislatures  nmy  make 
laws  regulating  the  sale  of  liijuors  in  taverns  and  pul)lic 
places,  in  order  the  better  to  maintain  peace  and  good  order, 
they  cannot  directly  or  indirectly  pro/iihif  the  manufacture 
or  sale  of  spirituous  litiuors,  or  other  articles  of  connnerce 
or  confer  authority  for  that  purpose  upon  municipal 
councils.  Such  leuislation  it  was  held  would  be  in  direct 
conflict  with  the  powers  of  the  Dominion  parliament  under 
this  sub-section. 

Finally,  just  piior  to  the  decision  in  Hodge  v.  Reg.,  the 
general  ipiestion  of  the  power  of  a  provincial  legislature  in 
connection  with  the  liijuor  traffic  came  before  the  Queliec 
Court  of  Queen's  Bench  (appeal  side),  in  Three  Rivers  v. 
Suite  ( /')•     It  was  held  broadly  that  a  provincial  legisla- 

((/)  2  Cart.  3G8  ;  7  Q.  L.  E.  18  (1880). 

(e)  2  Cart,  392  ;  8  Q.  L.  R.  IKO  (1892). 

(f)  5  Legal  News,  330;  2  Cart.  280.     Affirmed  11  S.  C.  R.  25.     See 
alFO  Poulin  v.  Quebec,  9  S.  C.  R.  185. 


THE   B.  N.  A.  ACT — HEC.  91,  S.-S.  2.  8(53 

tuie  liaH  the  power  under  "  municipal  institutions  "  to  pass 
a  prohibitory  lifjuor  hiw,  or  a  licjuor  law  which  is  proliihi- 
tory  except  under  certain  conditions.  Reference  was  made 
to  the  conditi(m  of  affairs  in  the  provinces  prior  to  Confed- 
eration, and  it  was  held  that  the  powei-s  then  possessed  hy 
nnuiicipal  bodies  in,  at  any  rate,  "  'wo  ^reat  provinces  of 
Confederation  and  one  of  the  smaller  ones  "  (Nova  Scotia), 
are  the  powers  which  a  provincial  le^^islature  can  now 
bestow  upon  such  l)()dies.  The  affirmance  of  the  decision 
in  this  case  in  the  Supreme  Court  cannot  be  taken  as  an 
affirmance  of  the  ground  upon  which  the  decision  was 
base<l.  The  judgment  of  the  Supreme  Court  is  avowe<lly 
put  as  following;"  Hodge  v.  Reg. 

We  have  already  (quoted,  see  <inte,  p.  35iS,  the  passage 
from  the  judgment  of  the  Judicial  Connnittee  of  the  Privy 
Council  in  Russell  v.  The  Queen  (</),  in  which  that  tribunal' 
intimated  that  although  its  judgment  uphoMing  the 
validity  of  the  Canada  Temperance  Act,  bSTH,  was  based 
upon  the  residuary  clause,  as  it  has  been  termed,  of  section 
01  thev  nevertheless  did  not  desire  to  be  understood  as  dis- 
senting  fiom  the  position  taken  by  the  Supreme  Court  of 
Canada  in  Fredricton  v.  The  Queen  (/i),  in  which  the  Act 
was  i)}>he1d  as  a  matter  relating  to  the  regulation  of  trade 
and  conunerce.  In  many  (|uarters  this  was  taken  to  mean 
that  the  Dominion  parliament  alone  has  power  to  legislate 
in  connection  with  the  liipior  traffic.  This  view  however 
was  very  decisively  negatived  in  the  judgment  of  the  Privy 
Council  in  Hodge  v.  The  Queen  (/),  U[)holding  the  vali<lity 
of  the  Ontario  Li(iuoi-  License  Act.  While,  as  we  shall  have 
to  point  out,  a  good  deal  of  uncertainty  exists  upon  the  ques- 
tion upon  which  one  of  the  vari(»us  sub-sections  of  section, 
})2,  the  legislative  power  of  a  j)rovincial  legislature  ovi^r 
certain  phases  of  the  li([Uor  traffic  is  to  l)e  rested,  it  is  now 
clearly  settled  that,  so  long  as  provincial  legislation  stops 

(</)  7  App.  Cas.  829.  (/*)  3  S.  C.  R.  o05. 

(0  9  App.  Cas.  117. 


8(i4  THE    li.  X.  A.  ACT — SEC.  (»1,  S-.S.  2. 

slinrfc  of  absolute  proliiltition,  it  cannot  l>i'  takrn  to  infj-ini;f 
upon  the  ivnulation  of  tra<le  and  eoninu'i'cc 

Kollowinij;"  Hod^c  v.  The  (»)ueen,  the  Supreme  (^>urt  of 
Canada  lias  since  aHirnied  the  validity  of  the  Liijuor  License 
Acts  of  (^)uel»ec  an<l  New  Brunswick  i'es})vctively.  Sec 
Suite  V.  Three  Rivers  {J),  and   Danaher  v.  Peters  {!,-\ 

We  shouM,  perhaps,  mention  here  that  in  Sevei'u  v.  Tin- 
Queen  (/),  the  Supreme  Court  of  Canada  held  that  a  pro- 
vincial legislature  has  no  power  to  pass  an  Act  re(piirinin'  <i. 
brewer  to  take  out  a  license  to  sell  licpior  manufactured  by 
him.  The  judj^ment  of  the  c<nirt  was  founded  on  the  view 
(1)  that  such  legislation  was  an  interference  witli  trade  and 
commerce:  and  (2)  that  a  brewer's  license  is  not  cJHxdciii 
(/cncris  with  the  licenses  particularly  mentiotied  in  section 
02,  sub-section  f).  So  far  a«  the  tiret  ground  is  concerned, 
Hodi^e  V.  The  Queen  (ht),  must  be  considered  to  deprive 
Severn  v.  The  Queen  of  its  support:  and  Jis  to  the  second, 
the  jud<,niient  of  the  Privy  Council  in  Bank  of  Toronto  v. 
Land)e  (/<)  must  be  taken  as  an  atfii'mance  of  the  power  of 
a  local  leifislatui'e  to  levy  such  a  license  fee  as  beinii'  '^ 
"direct  "  tax  within  the  j)rovince  under  .sub-section  2  of 
section  92. 

'^rhe  ivnioval  of  the  tii'st  «;'i"ound  of  support  is  ivcoyinzed 
by  the  judgment  of  the  Svipreme  Court  in  Abtison  v.  Lamlie 
(o),  although  that  case  is  complicated  somewhat  by  reason 
of  the  (piestion  as  to  the  propriety  of  the  issue  of  a  writ  of 
prohibition  under  the  peculiar  circumstances  of  the  case. 
The  majority  of  the  court,  however,  were  of  opinion  that 
the  ([uestion  of  the  validity  of  the  Quebec  License  Act  had 
been  settled  by  the  judgments  of  the  Judicial  Connnittee 
of  the  Privy  Council.    Ritchie,  C.J.,  expresses  himself  thus  : 

"  In  view  of  tlie  cases  determined  by  the  Privy  Council  since 
the  case  of  Severn  v.  The  Queen  was  decided  iu  this  court,  which 

ij)  11  S.  C.  R.  25.  (7n)  9  App.  Cas  117. 

{k)  17  S.  C.  R.  44.  (n)  12  App.  Cas.  575. 

(I)  2  S.  C.  R.  70.  ({))  16  S.  C.  R.  253. 


THE   H.  X.  A.  ACT — SEC  !>1,  S.-S.  •_».  'Muy 

appear  to  me  to  luive  establislied  conclusively  that  the  riu;ht  and 
power  to  legislate  in  relation  to  the  issue  of  licenses  for  the  sale 
of  intoxicating  liquors  /'//  irhnlrsnlr  ami  ntail  belong  to  tli!>  local 
legislature,  we  are  bound  to  hold  that  the  Quebec  License  Act, 
1S7H,  and  its  amendments  are  valid  and  constitutional." 

Mr.  Justice  tJwynne  exi)ieHS('s  the  view  that  Scveir,  w 
The  (^)ue('n  is  still  an  authority  hindiny  upon  Canadian 
coiu'ts,  Imt  rests  his  dissent  from  tin.'  view  ()f  the  majority 
upon  the  ground  that  u})ou  a  propei"  c-onstruction  of  the 
Quel »ec  License  Act,  it  imp(»se<l  no  ohlii^ation  upon  aluvMer, 
manufacturing'  under  Dominion  license,  to  take  out  a  ju-o- 
vincial  license. 

A  furtiiei'  distinction  will  be  found  noted  in  the  cases 
l>etween  the  issue  of  a  license  to  sell  by  retail  and  to  sell  by 
wholesale.  The  point  is  practically  covered  by  Molson  v. 
Land)e,  l»ut,  as  indicative  of  the  difi'erence  of  opinion  wliich 
may  still  honestly  exist  as  to  certain  mattei-s  in  connection 
with  the  liquor  traffic,  we  may  refer  to  the  case  of  Queen  \\ 
McDou*^all  ij>),  in  wliich  the  Supreme  Court  of  Nova 
Scotia  had  to  c<msidei*,  the  (juestion  of  the  validity  of  the 
Nova  Scotia  Litjuor  License  Act.  The  defendant  was  con- 
victed of  five  separate  offences,  each  dealing  with  a  distinct 
phase  of  the  question.  Tlu-ee  out  of  five  judges  intinuited 
their  opinion  that  Severn  v.  Tlie  Queen  (7),  nnist  be  taken  to 
be  overruled,  and  that  a  provincial  legislature  may  not 
merely  regulate  the  retail  traffic  in  intoxicating  li(|U()r,  but 
may  alsij  pass  laws  in  relation  t<t  wholesale  licenses,  and 
licen.ses  for  brewing  and  distilling,  Mr.  Justice  Weatherbe, 
however,  expressed  the  view  that  the  restriction,  re(juiringa 
petition  from  a  certain  nundier  or  proportion  of  the  rate- 
payei-s  in  order  to  obtain  a  license,  M'as  iiltr<i  rirefi;  but,  as  we 
shall  see,  this  view  cannot  m)W  be  considered  law.  The  Chief 
Justice  and  Mr.  Justice  Ritchie  considered  Severn  v.  The 
Queen  to  be  still  an  authority  binding  upon  them,  and  that 
therefore  the  conviction  of  the  defendant  as  a  brewer  and 

(p)  20N.  S.  R.  462.  (</)  2  S.  C.  R    70.  . 


800  THE  B.  N.  A.  ACT — SEC.  91,  S.-S.  2. 

distiller  inuHt,  upon  the  authority  of  that  case,  he  (juashed  : 
ami  the  other  convictions  on  the  ground  that  the  regulation 
of  the  wholesale  trade  is  nlfnt  nlrcs  of  a  provincial  leyisla- 
ture.  Mr.  Justice  Ritchie  intimated  that  althouuh  there  is 
a  ditHculty  in  drawing-  the  line  between  wholesale  and 
retail,  yet  as  the  Act  itself  defined  "  wholesale,"  all  restric- 
tions as  to  the  sales  of  the  (piantities  so  defined,  are  I'lfru 
vires.  The  discussion  of  the  authorities  in  that  case  is  very 
voluminous,  hut  in  view  of  the  sul>se(|uent  decision  of  the 
Supreme  Court  of  Canada  in  Danaher  v.  Peters  [r),  uphold- 
iny'  the  Li(pior  License  Act  of  New  Brunswick,  it  is 
unnecessary  to  discuss  this  cas(;  further,  beyond  notini^'  that 
Mr.  Justice  \Veath(!rl»e  refers  to  the  J)ominion  License  Act 
of  bS(S8,  as  being'  substantially  itlentical  as  respects  its 
wholesale  and  retail  clauses,  with  the  Nova  Scotia  Act. 
Referring  to  the  judgment  of  theJudicial  (committee  of  the 
Privy  Council,  <leclaring  the  Dominion  Act  ultra  rhrx,  he 
treats  that  decision  as  conclusive  in  favor  of  the  vali<litv  of 
a  provincial  Act. 

Li  the  two  cases  about  to  be  noted,  involving  the  (|Ues- 
tion  of  the  vali<lity  of  the  New  Brunswick  Li<|Uor  License 
Act,  1(S(S7,  appeals  were  lodged  by  appellants  who  had  l>een 
applicants  for  each  of  these  classes  of  licenses  respectively. 
Both  appeals,  however,  were  dismissed,  thus  upholding  the 
validity  of  provincial  legislation  upon  both  branches  of  the 
traffic. 

The  ((uestion  still  remains,  however,  as  we  have  said, 
as  to  the  power  of  a  local  legislature  to  prohibit  absolutely 
the  sale  of  intoxicating  licpiors  in  the  province.  In  the 
cases  to  which  we  hav'e  just  referred — Danaher  v.  Peters, 
and  O'Regan  v.  Petei-s  (.s) — it  was  contended  that  the  New 
Brunswick  Li(juor  License  Act  of  1(S(S7,  could  be  utilized  as 
a  means  for  effecting  prohibition.  The  Act  provides  that 
applications  for  licenses  under  the  Act  nuist  be  endorsed  by 
the  certificate  of  one-tliird  of  the  rate-payei*s  of  the  district 

(r)  \7  S.  C.  R.  44.  (»)  17  S.  C.  R.  41. 


THE   B.  N.  A.  ACT — SEC.  91,  S.-S.  2.  367 

in  which  the  license  is  asked  ;  and  it  was  urj^ed,  therefore, 
that  a  majority  of  more  than  two-thirds  could  in  any 
k»cality  witliin  tlie  province,  effect  complete  prohibition. 
As  bein«(  the  last  <leliverance  of  the  Supreme  Court  upon 
this  (juestion,  we  venture  to  (piote  somewhat  fully  from  the 
judi^nnents.     Mr.  Justice  Taschereau  says  : 

"  As  to  the  constitutionality  of  the  Act  there  can  be  no  doubt. 
This  ifi  not  a  statute  to  proliibit,  it  is  a  statute  to  regulate  ;  to 
permit  under  certain  conditions.  If  these  conditions  are  not  ful- 
filled, it  may  be  that  the  consequences  are  that  the  sale  of  liquor 
is  ^irtually  prohibited;  but  that  consequence  cannot  render  the 
Act  unconstitutional." 

Mr.  Justice  Gwynne  says  :    . 

"  It  was  contended  that,  in  effect,  the  Act  operates  as  a  total 
prohibition  of  the  sale  of  liquor  in  the  City  of  St.  John,  and  that 

it  was  therefore  itltru  rires  and  void The  argument 

based  upon  this  section" — that  is,  the  section  requiring  the  cer- 
tificate of  one-thu'd  of  the  rate-payers — "  was,  that  it  shewed 
clearly  the  intention  of  the  legislature  to  be,  that  any  number  of 
rate  payers  in  a  polling  sub-division,  exceeding  two-thirds,  should 
have  the  power  of  totally  prohibiting  the  sale  of  liquor,  by  refus- 
ing to  sign  the  certificates  for  applicants  for  licenses.  Then  it 
was  contended  that  section  81  authorizes  the  majority  of  the  rate- 
payers in  a  city  or  incorporated  town,  to  prohibit  the  sale  of 
liquor  by  petitioning  against  the  granting  of  licenses;  and  for 
those  reasons  it  was  contended  that  the  Act  was,  in  effect,  an  Act 
for  the  total  prohibition  of  the  sale  of  liquor  in  the  City  of  St. 
John,  and  therefore  ultni  rircs,  and  void  ;  but  there  is  nothing  in 
the  language  of  the  Act  which  would  justify  us  in  pronouncing 
the  intention  of  the  legislature  to  iiave  been  to  enact  a  prohibi- 
tion of  the  sale  of  liquors  in  a  municipality,  or  in  any  part  there- 
of, under  color  of  passing  an  Act  on  the  subject  of  municipal 
regulations  relating  to  the  sale  of  liquors,  which  is  a  subject 
clearly  within  the  jurisdiction  of  a  local  legislature.  The  objec- 
tions which  alone  the  Act  authorizes  to  be  urged  by  petition 
against  the  granting  of  a  license  to  a  particular  person,  or  for  a 
particular  house,  enumerated  in  section  15,  seem  to  be  very 
reasonable  grounds  of  objection  as  affecting  the  person  and  place 


808  THE    n.  \.  A.  ACT — SEC.  91,  S.-S.  2. 

soufj;lit  to  1)0  licensed,  as  rt'^nrds  the  rotjiil  tnido  in  li<iuors  ;  and 
although  tliesi!  objections  may  sei-ni  to  be  unreasonable  if  applied 
to  a  person  or  shop  for  which  a  license  to  sell  liquors  by  whole- 
sale is  sought  to  Ije  obtained,  we  cannot  for  that  reason  hold  the 
object  of  the  legislature  to  have  been  to  effect  prohibition  of  the 
trade  of  dealing  in  the  sale  of  liquors,  under  color  of  an  Act 
estal)lishing  municipal  regulations  atlecting  that  trade.  .  .  . 
Defects  or  imperfections  in  the  Act,  or  provisions  therein  which 
may  be,  or  may  appear  to  some  to  bo,  unreal jiiable,  will  not 
justify  us  in  iirunouucin;/  the  trur  (ihji'ct  mf  the  Art  to  hare  heen  i>ni- 
liihition,  total  or  partial,  of  the  trade  of  dealing  in  the  sale  of 
liquors,  under  pretence  of  establishing  mr.nicipal  regulations 
upon  that  subject." 

IVIr.  Justice  Patterson  says  : 

"  The  power  of  the  local  legislatures  to  provide  for  the 
issuing  of  licenses  for  the  sale  of  spirituous  liquors,  either  in 
large  or  small  quantities,  to  limit  the  number  of  licenses,  and 
to  prohibit,  under  penalties,  the  sale  of  such  liquors  without 
license,  cannot  now  be  treated  as  an  open  question.  The  con- 
tention for  the  present  appellants  is,  that  the  New  Brunswick 
Liquor  License  Act,  1887,  while  professing  merely  to  deal  with 
the  subject  of  licenses,  contains  provisions  which,  from  their 
inherent  tendency  or  from  the  way  in  which  they  may  be  acted 
on,  give  the  measure  the  effect  of  a  prohibitory  law,  either  as  to 
the  whole  province  and  for  all  time,  or  as  to  particular  localities 
and  particular  calendar  years.  The  larger  question  of  the 
power  of  the  province  to  prohibit  the  sale  of  intoxicating  liquors 
within  its  own  borders,  is  not  presented  for  discussion,  and  we 
have  to  deal  only  with  questions  which  concede  that  total 
prohibition  can  be  decreed  only  by  the  Dominion  parliament. 

The  objections  are  too  fanciful  and  far-fetched 

to  be  seriously  discussed  without  denying  to  the  local  legislature 
the  right  to  prescribe  the  conditions  on  which  licenses  can  be 
obtained.  They  assume  a  right  in  every  man  to  demand  a 
license,  ignoring  the  right  of  the  legislature  to  limit  the 
number."  -  _. 

A  perusal  of  these  passages  discloses  that,  in  the  opinion 
of  the  membei'S  of  the  Supreme  Court,  the  question  of  the 
power  of  a  provincial  legislature  to  enact  a  prohibitory  law 


THE    n.  \.  A.  ACT — SEf".  91,  S.-S.  2.  300 

i'(»r  tlic  [)r<>\  iiicc  is  .still  an  open  one.  In  the  pi-ovincc  of 
Ontario,  the  iiiiitter  has  been  under  the  consideration  ol'  the 
Court  of  Ai»pi'al  for  that  province — in  Jic  Local  Option  Act 
(/I.  The  case  is  complicated  .somewhat  hy  the  fact  that  in 
that  ju'ovince  at  the  time  of  Confederati(»n  there  was  in 
existene*'  a  law  which  distinctly  empowered  munici[>al 
liodies  to  })ass  hy-laws  for  the  total  pi'ohihition  of  the  retail 
li(|Uor  traftic  within  the  municipality.  The.se  provisions  had 
ne\er  been  repealed  by  provincial  legislation,  but,  in  suit- 
sec  juent  consolidations  of  provincial  statutes,  had  been 
oniitted  owing  to  the  existence  of  .somewhat  similar  clauses 
as  to  local  option  in  the  Canada  Temperance  Acts  of  1804  and 
l(S7iS.  Tlie  particular  Act  which  came  under  the  considera- 
tion oi  the  court  was  58  Vic.  c.  50.  As  explained  l)y  54  Vic. 
c.  4(5,  s.  1,  that  enactment  purported  to  be  simply  a  revival 
of  tlie  provisions  which  had  existed  in  the  laws  in  force  in 
tl\e  pnjvince  prior  to  Confederation.  It  appears,  however, 
that  these  pre-Confederation  provisions  had  been  repealed 
by  Dominion  legislation  {u),  so  that  it  became  necessary  for 
the  court  to  determine  which  legislature,  Dominion  or  })ro- 
vincial,  had  power  to  pass  such  an  enactment.  The  case  waa 
submitted  for  the  consideration  of  the  court  under  the  pro- 
visions of  53  Vic.  c.  13  (Ont.) — "An  Act  for  expediting  the 
<lecision  of  constitutional  and  other  provincial  (jucstions," 
— and  Mr.  Justice  Osier  declined  to  give  any  opinion  upon 
the  (|uestions  sultmitted.  The  other  members  of  the  court 
— Hagarty,  C.J.O.,  Burton  and  Maclennan,  JJ.A. — upheld 
the  power  of  the  provincial  legislature  to  pass  such  "  local 
option"  laws:  basing  their  judgment  upon  the  view  that 
such  legislation  falls  within  sub-section  8  of  section  92, 
"  nnmicipal  institutions  in  the  ))rovince."  So  far  as  Ontario 
is  concerned,  therefore,  it  must  be  taken  as  settled  that  a 
local  legislature  can  empower  a  municipality  to  pass  a  pro- 
hibitory by-law,  so  far,  at  all  events,  as  relates  to  the  retail 
trade  in  intoxicating  liquors,  it  being  held  that,  upon  a 

(t)  18  6.  A.  R.  572.  (m)  See  R.  S.  C.  (1886),  p.  2255. 

Can.  Con.— 24 


370  THE    H.  N.  A.  ACT — SEC.  »1,  S.-S.  2. 

proper  coiiHtrnctioii  of  the  stututos  in  (nu'stion,  they  «lo  not 
cover  the  wholesale  tnule.  With  I'c^^anl  to  the  eonstrnetii)n 
placed  upon  Huh-section  <S  ol'  section  02,  we  shall  have  to 
ret'er  to  this  suhject  apiin  in  the  notes  to  that  suh-sfction. 
It  is  material,  however,  to  note  here  that  the  decision  of 
the  Court  of  Appeal  in  n(»  way  affirms  the  ri<^ht  of  a  local 
legislature  to  pass  a  prohihitory  law  of  ^enural  application 
throughout  the  province.  In  fact,  Mr.  Justice!  Hui'ton, 
while  intimating  his  own  view  that  such  power  does  exist, 
expresses  the  opinion  that  the  matter  is  concluded  against 
the  provinces  hy  the  judgment  of  the  Pi-ivy  Council  in 
Russell  V.  The  Queen  (r),  affirming  the  judgment  of  the 
Supreme  Court  of  Canada  in  Fredericton  v.  The  Queen  (ic), 
(in  which  the  power  Ut  prohibit  was  distinctly  classified  as 
coming  under  sub-section  2  of  section  91),  without  intimat- 
ing any  dissent  from  the  view  upon  which  that  decision 
was  based.  To  the  like  effect,  in  Griffith  v.  Rioux  (.*•),  it 
was  held  by  Brooks,  J.,  sitting  in  the  Quebec  8ui>eri(»r 
Court,  that  a  provincial  legislature  cannot  repeal  those 
sections  of  the  Dunkin  Act  which  relate  to  the  prohibition 
of  the  sale  of  intoxicating  lieiuoi-s  :  the  matter  of  })rohibition 
being,  in  his  opinion,  covered  by  the  decision  of  the  Supi'eme 
Court  in  Fredericton  v.  The  Queen,  as  affirmed  in  Russell 
v.  The  Queen. 

The  decision  of  the  Court  of  Appeal  for  Ontario,  in  He 
Local  Option  Act  (y),  leaves  the  matter  in  this  peculiar 
position  ;  that,  by  united  action  on  the  part  of  the  various 
municipalities  throughout  the  province,  the  total  prohil)i- 
tion  of  the  retail  li(|Uor  traffic  may  possibly  V)e  effected 
but  that  a  provincial  legislature  has  no  power  to  do  directly 
what  it  may  empower  a  municipality  to  do.  In  Hodge  v. 
The  Queen  (z),  the  Judicial  Committee  of  the  Privy  Council 
expressed  the  view  that  the  power  of  a  provincial  legislature 

(v)  7  App.  CaB.  829;  see  ante,  p.  358 

(w))  3  S.  C.  R.  505.  \y)  18  O.  A.  R.  572. 

{x)  3  Cart.  348.  (^)  9  App.  Cas.  117. 


THE   K  \.  A.  ACT — SEC.  91.  S.-.S.  2.  8Tl 

ti)  |»HSH  Acts  ill  ivoiihition  ol'  tlic  traffic  in  particular  coin- 
iiioditicH,  cxiHtH  uiuh'r  Hcctloii  })2,  H\i1»-H('cti(»n  H — "  municipal 
institutiouH  "  :  15 — "  tlu'  inipo-sitiou  ol"  puiiishnicnt  l»y  tint', 
etc' ';  and  Ki — "  matte  r.s  of  a  mcivly  local  or  private  nature 
in  the  province."  Further  than  this  oeiR-ral  statement,  tlu^ 
jud^^ment  of  that  trihunal  throws  very  little  Ii<;ht  upon  the 
suhji'ct  we  are  now  discussing-.  It  does  not  indicate  clearly 
whether  any  one  of  the.se  sul (-sections  alone  supports  the 
power,  or  whether  the  combined  force  (»f  all  is  reipiired 
to  uphold  such  lej^islation.  They  speak  of  lice!i.se  rej^ula- 
tions  as  seeming-  to  he  mattei's  of  a  merely  local  nature 
in  the  province,  and  to  be  similar  to,  thouj^h  not  identical 
in  all  respects  with,  the  power  that  belon<;s  to  nnniicipal 
institutions  under  previously  existing'  laws  paH.sed  by  the 
local  parliaments. 

"  Their  Lordships  consider  that  the  powers  intended  to  be 
conferred  by  the  Act  in  question,  when  properly  understood, 
are  to  make  regulations  in  the  nature  of  police  or  municipal 
regulations,  of  a  merely  local  character  for  the  good  government 
of  taverns,  etc.,  licensed  for  the  sale  of  liquors  by  retail,  and 
such  as  are  calculated  to  preserve,  in  the  municipality,  peace 
and  public  decency,  and  repress  drunkenness  and  disorderly  and 
riotous  conduct.  As  such  they  cannot  be  said  to  interfere  with 
the  general  regulation  of  trade  and  commerce  wiiich  belongs  to 
the  Dominion  parliament." 

No  attempt,  it  will  l>e  seen,  is  made  to  distinguish 
between  suV)-sections  8  and  10,  of  section  92.  There  is 
however  the  distinct  expression  of  opinion  that  such 
matters  do  not  fall  within  this  sub-section  of  section  91. 

The  conclusion  appears  to  us  unavoidable  tluit  if  a  local 
legislature  has  power,  under  "  municipal  institutions,"  to 
autliorize  a  municipal  body  of  its  own  creation  to  pro/iibit 
the  traffic  in  any  conmiodity,  the  use  or  abuse  of  which  may 
tend  to  the  disturbance  of  tlie  peace  of  the  community,  or 
to  prejudicially  afTect  its  health  or  morals,  the  legislature 
itself  must  necessarily  have  the  'power  to  pass  a  general 
law  prohibiting  the  traffic  in  such  commodity  throughout 


M72  THK    U.  \.  A.  ACT— SKC.  (11.  S.-S.  2. 

all  tli«'  niunici|»Hliti«'M  of  tlic  piovinof.  If  tlu'  couclusinn 
Itc  nusnuml  tin'  juviniscs  imiHt  yn,  jukI  then  \v«'  must  fall 
Idiok  upiiu  Home  class  cmniicratfd  in  section  !»2,  other  than 
"  iimiiici|)al  institutions,"  as  supportiiii;'  the  ])o\vei-  to  regu- 
late, to  the  ext«'nt  of  |)i'ohiliiti(»n,  the  traHic  in  jtarticular 
connnodities  within  a  province.  If  re;;u!ation,  conditionally 
pi'ohihitive,  he  not  an  infrin^ienient  of  the  })ower  of  the 
Dominion  parliament  to  re;;ulato  trade  and  conunerce, 
as  those  words  have  heen  construed  Ity  the  various  judg- 
ments, ahove  cited,  of  the  Judirial  Counnittee  of  the  Privy 
Council,  it  seems  difficult  to  appreciate  how  the  ah.solute 
piohil)iti<»n  of  traffic  in  such  connnodities  as  above  indicated 
can  he  sucii  infringement.  It  cannot  l)e  hy  reason  of  the 
ej'friit  of  liitcr/rrrnrr  with  "  tra<ie  and  conunerce"  for  a 
"  i-eyuhition "  of  the  traffic  in  one  commodity  may  cause 
•Greater  interference  than  a  total  prohibition  of  the  traffic 
in  several  others. 

Turning  now  to  the  traffic  in  connnodities  other  than 
int<ixicating  litpior,  no  <listinction  in  principle  can  be  sug- 
gested. The  fact  that  the  Dominion  Inland  Revenue  and 
Excise  Acts  utilize  this  latter  traffic  for  purposes  of  taxation 
cannot  make  any  difference,  as  is  now  settled  by  the 
principle  of  the  decision  of  the  Privy  Council  in  Bank  of 
Toronto  v.  Lambe,  applied  e  conver,<o.  This  case  will  be 
referred  to  more  at  length  hereafter.  We  proceed  now  to 
a  short  review  of  the  cases  dealing  with  the  power  of  a 
provincial  legislature  to  legislate  in  relation  to  the  traffic 
in  other  connnodities. 

In  a  numb(n-  of  cases,  regulati<.>ns  as  to  the  carrying  on 
of  certain  clas.ses  of  lousiness  in  markets,  have  been  held  to 
be  no  infringement  of  the  power  of  the  Dominion  parliament 
under  this  sub-section. 

In  Re  Harris  and  Hamilton  {a),  the  provision  in  the 
Municipal  Act  of  Ontario  empowei'ing  Municipal  Councils 
to  pass  by-laws  "  for  preventing  criers  and  vendors  of  small 

(a)  44  U.  C.  Q.  B.  641. 


Tin:    M.  \.  A.  Ar'l' — si;(  .  !(1,  S.-s,  2.  87.'{ 

wiirc  IVoiii  pruc'tiHiiiy  their  ciilliiiy'  in  the  Jiuirkct,  public 
strt'cts  and  viiciuit  l<»tH  udjacrut  tlicivto"  was  uphfld  as 
liitiui  rlrt's  l»y  Mr.  .lustice  Aniioiir — n<»w  (Miief  Ju.stio*'  of 
the  (^.  H.  J). ;  and  this  decision  reprcsentH  the  hiw  as  it  lias 
ever  since  heen  reco^in/ed  in  that  province. 

In  An<(ers  v.  Montreal  (h)  and  Mallette  v.  Montreal  in, 
an  Act  of  the  Qiushec  le^dsIatnre.authoiizinL;'  the  imposition 
of  a  license  fee  on  butchers  exercisinj^'  their  c^dlinjj^  in  places 
other  than  the  puhlic  markets  of  a  iinnncij)ality,  was  held 
valid  ;  and  in  I'J.i'  parfc  Pillow  (</)  it  was  held  that  a  pro- 
vincial lti<^islatnre  may  authorize  nnuiicipal  hodies  to  pass 
hy-laws  in  restraint  of  nuisances  hurtful  to  puhlic  health. 
The  attack  in  this  last  case  it  should  perhaps  he  remarked 
was  upon  the  gi'ound  that  such  legislation  conflicts  with 
the  power  of  the  Dominion  parliament ovei-  "criminal  law" 
rather  than  with  the  power  to  regulat(!  trade  and  connnerce, 
hut  the  general  principle  of  the  case  is  the  same  as  that  in- 
volved in  the  others. 

The  (juestion  has  lately  come  before  the  Supreme  Court 
of  Canada  in  Pigeon  v.  Recorder's  Court  {('),  and  the  opinion 
of  the  court  is  contained  in  a  sentence  taken  from  the  jndg- ' 
ment  of  Mr.  Justice  Tasciiereau:  "As  to  the  constitutionality 
of  the  sections     .     .     there  is  no  room  for  controver.sy." 

In  Beimett  v.  Pharmaceutical  Association  (/),  it  was  held 
by  the  Court  of  QueeiiK  Bench  of  Quebec,  that  the  Quebec 
Pharmacy  Act  of  1<S75,  recpiiring  certain  (pialitications  on 
the  })art  of  persons  eiigage<l  in  the  lousiness  of  selling  drugs 
and  medicines,  was  valid.  Treating  of  this  (juestion,  Chief 
Justice  Dorion  says : 

"  In  the  present  case  there  is  no  prohibition  to  sell  drugs  or 
madicnns  in  any  part  of  the  province  of  Qaeu-c  ;  the  provision 
is  merely  that  drugs  and  medicines  shall  only  be  sold  by  persons 
having  the  qualifications  provided  for  by  the  Act. 

(b)  24  L.  C.  Jur.  259 ;  2  Cart.  33,5. 

(c)  24  L.  C.  Jur.  2G3 ;  2  Cart  340. 

(d)  27  L.  C.  Jur.  210  ;  3  Cart.  357.        . 

(t;)  17  S.  C.  R.  495.         (/)  1  Dor.  336;  2  Cart.  250. 


374  THE    B.  N.  A.  ACT — SEC.  91,  S.-S.  2. 

'♦  It  is  true  that  incidentally  this  may  be  considered  as  interfer- 
ing in  some  degree  with  the  sale  of  drugs  and  medicines  in  the 
province  of  Quebec,  since  it  limits  the  -number  of  persons  who 
can  do  that  business." 

In  Beard  v.  Steele  {<j),  the  prcniHions  of  the  Mercantile 
Amendment  Act,  as  to  the  rights  and  liabilities  of  con- 
signees and  indorsees  of  bills-of-lading,  were  held  to  be 
provisions  as  to  property  and  civil  rights  in  the  province, 
and  therefore  within  the  power  of  a  provincial  legislature. 
They  were  held  not  to  l)e  regulations  of  connnerce  within 
the  meaning  of  this  sub-section  2.  In  Regina  v.  'J'aylor  (h), 
Mr.  Justice  Wilson — afterwards  Chief  Justice  Sir  Adam 
Wilson — gives  more  at  length  the  considerations  which  had 
induced  the  court  to  uphold  these  provisions  on  the  ground 
mentioned  : 

"It  did  not  seem  to  me,  at  the  time,  to  be  a  regulation  of 
trade,  and  it  does  not  seem  to  me  to  be  so  now.  It  does  however 
({[feet  trade  and  commerce.  But  what  enactment  will  not,  in 
some  way  or  other,  affect  it?  If  an  Act  were  passed  requiring 
-every  person  who  instituted  a  suit  to  give  security  for  costs,  or 
still  further  limiting  the  time  within  which  to  bring  an  action, 
or  enacting  that  no  execution  should  be  issued  on  a  judgment 
until  a  demand  was  first  made  of  the  sum  recovered  on  the 
person  liable  to  pay  it,  or  giving  to  the  holder  of  a  bill  of  ex- 
change, or  promissory  note,  a  lien  for  the  amount  due  upon  it 
on  the  goods  of  the  acceptor  or  maker,  all  these  provisions,  and 
many  other  cases  which  might  be  put,  would  very  much  affect 
trade  and  commerce,  but  could  they  b^  said  to  be  a  rei/uhttioit  of 
it?  I  certainly  think  they  could  not.  They  would  do  so  only 
incidentally ;  but  not  more  so  in  principle  than  by  shutting  up  a 
trader  in  gaol  for  debt  or  for  contempt  of  court,  or  by  closing  all 
shops  at  eight  o'clock  at  night,  or  by  the  exercise  of  mere  police 
powers,  or  by  giving  a  public  holiday.  All  these  are  lawful 
objects,  and  if  they  can  be  properly  adopted  they  do  not  become 
unlawful,  because  they  cannot  be  wholly  separated  from  every 
other  matter,  and  because  they  are  attended  with  inevitable 
consequences.     I  think  the  provincial  legislature  have  the  power 

(H)  34  U.  C.  Q.  B.  43.  (//)  30  U.  C.  Q.  B.  212. 


THE   B.  N.  A.  ACT — SEC.  91,  S.-S.  2.  375 

to  annex  the  right  of  contract  to  the  right  of  property  in  the 
goods  mentioned  in  a  bill  of  lading  although  it  does  affect 
trade  and  commerce." 

It  sliould  be  noted,  perhaps,  that  in  the  same  judgment 
the  view  is  expressed  that  the  Dominion  parliament  would 
have  power  to  pass  a  similar  law,  if  it  did  ho  "as  a  neces- 
sary and  convenient  matter  to  be  dealt  with  in  the  reoula- 
tion  of  trade  and  connnerce."  This  cjuestion  of  concurrent 
power,  however,  has  been  already  touched  upon  (i)  and  we 
need  not  discuss  this  point  of  the  case  further  here. 

The  principles  enunciated  in  the  above  cases — e.g.,  Ex 
ixirfc  Pillow,  Bennett  v.  Pharmaceutical  Assf)ciation,  and 
Beard  v.  Steele — support  the  validity  of  provincial  Acts 
such  as  the  Employers  Liability  Acts  and  Factory  Acts, 
which,  no  doubt,  in  a  sense  aft'ect  trade  and  connnerce,  but 
which  in  their  intended  scope  relate  to  the  civil  rights,  of 
employers  and  einploj^ees  {;}) — to  matters  of  a  merely  local 
or  private  nature  in  the  province — and  cannot  Ije  deeme<l 
reiiulations  of  oeneral  trade  and  comiii-rce  within  the  mean- 
ino-  of  this  sub-section  as  defined  in  the  deliverances  of  the 
Privv  Council. 

Tlie  latest  authoritative  <leliverance  as  to  the  meaning 
to  be  attached  to  this  sub-section,  is  to  be  found  in  Bank  of 
Tor'.'iito  V.  Lambe  {k),  in  which  it  was  urged  that  the  power 
of  the  Dominion  parliament  to  regulate  trade  and  C(  nnmerce 
operates  to  pi-event  a  provincial  legislature  from  levying 
taxes  upon  a  bank.  The  Judicial  Connnittee  of  the  Privy 
Council  negatived  this  contention  in  the  following  language: 

"  The  words  regulation  of  trade  and  commerce  are  indeed  very 
wide,  and  in  Sn-er)i\s  Cose  (/),  it  was  the  view  of  the  Supreme 
Court  that  they  operated  to  invalidate  the  license  duty  which 
was  there  in  (question.     But,  since  that  case  was  decided,  the 

(/)  Chapter  X.  ante,  p.  214,  et  seq. 

0)  See  Monkhouse  v.  G.  T.  R.,  8  O.  A.  R.  637,  and  Can.  Southern  Ry. 
V.  Jackson,  17  S.  C.  R.  31G,  both  noted  undtf  sub-section  10  of  section  92, 

pout. 

(A)  12  App.  Cas.  576.  (/)  Severn  v.  Reg.,  2  S.  C.  R.  70. 


876  THE   «.  N.  A.  ACT — SEC.  91,  H.-S.  H.  1. 

question  has  been  more  completely  sifted  before  tlie  Committee, 
in  I'tirsdH's  Cksc  {in)  and  it  was  found  absolutely  necessary  that 
the  literal  rneanmg  of  the  words  should,  be  restricted  in  order  to 
afford  scope  for  powers  which  are  given  exclusively  to  the  pro- 
vincial legislatures.  It  was  there  thrown  out  that  the  power  of 
regulation  given  to  the  parliament  meant  some  general  or  inter- 
provinciai  regulations.  No  further  attempt  to  deline  the  sul)ject 
need  now  be  made,  because  their  Lordships  are  clear  chat  if  they 
were  to  hold  that  this  power  of  regulation  prohibited  any  pro- 
vincial taxation  on  the  persons  or  things  regulated,  so  far  from 
restricting  the  expressions,  as  was  found  necessary  in  I'tirsmi's 
Case,  they  would  be  strainmg  them  to  their  widest  conceival)le 
extent." 

3.  The  raising  of  money  by  any  UKxle 
or  system  of  taxation. 

4.  The   borrowing  of   money  on   the 
public  credit. 

Compare  with  thi.s  sub-section  8,  sub-section  2  of  section 
92  which  assigns  to  provincial  legislatures  tlie  exclusive 
power  to  make  laws  relating  to  "  direct  taxation  within  the 
province."  In  Bank  of  Toronto  v.  Lanjbe  (/*)>  it  is  said  by 
the  Judicial  Connnittee  of  the  Privy  Council,  conmienting 
upon  this  provincial  power,  that  the  above  sub-section  8 

"  •  •  •  certainly  is  in  literal  conflict  with  it.  It  is 
impossible  to  give  exclusively  to  the  Dominion  the  whole  subject 
of  raising  money  by  any  mode  of  taxation,  and  at  the  same  time 
to  give  to  the  provincial  legislature  exclusively  or  at  all,  the 
power  of  direct  taxation  for  provincial  or  any  other  purpose. 
This  very  conflict  between  the  two  sections  was  noticed  by  way  of 
illustration  in  the  case  of  Parsons.  Their  Lordships  there  said, 
'  So,  the  raising  of  money  by  any  mode  or  system  of  taxation  is 
enumerated  among  the  classes  of  subjects  in  section  91  ;  but 
though  the  description  is  sufficiently  large  and  general  to  include 
direct  taxation  within  the  province  in  order  to  the  raising  of  a 

{m)  Citizens  v.  Parsons,  7  App.  Cas.  96. 
(h)  12  App.  Cas.  675. 


FHE    B.  X.  A.  ACT — SEC.  1»1,  S.-S.  5.  877 

revenue  for  provincial  purposes,  assigned  to  the  provincial  legis- 
latures by  section  92,  it  obviously  could  not  have  been  intended 
that,  in  this  instance  also,  the  general  power  should  override  the 
particular  power.'  Their  Lordships  adhere  to  that  view,  and 
hold  that  as  regards  direct  taxation  within  the  province  to  raise 
revenue  for  provincial  purposes,  that  subject  falls  wholly  within 
the  jurisdiction  of  the  pi'ovincial  legislatures." 

Mafotis  niuhuidis,  the  views  expressed  in  the  above 
extract  apply  to  a  comparison  of  tlie  above  suit-section  4 
with  sub-section  3  of  section  92  "the  borrowing-  of  money 
on  the  sole  credit  of  the  province." 

Concedin<^  the  entire  correctness  of  the  view  of  the 
Judicial  Committee,  this  further  view  deserves  considera- 
tion, namely,  tliat  these  apparently  over-]appini>'  powers  do 
not  in  fact  conflict  at  all — that  the  power  of  either  govern- 
ment in  tiiis  connection  is  limited  to  raisiny;  numev  for 
purposes  connected  with  its  sphere  of  authority  ;  the  choice 
of  metliod  allowed  to  tlie  Dominion  government  being  of 
the  widest  possible  character :  tluit  of  the  provincial  gov- 
ernments being  limited  to  direct  taxation  within  the 
province,  because,  as  it  is  put  in  this  very  case,  the  power 
of  indirect  taxation  would  be  felt  all  over  tlie  Dominion. 
Perhaps  this  should  not  be  advanced  as  a  further  view  ;  it 
probably  represents  what  was  in  the  mind  of  the  Connnit- 
tee  in  using  the  expression  "  ol»viously." 

Under  these  sub-secti(jns  have  been  passed  our  \arious 
Acts  relating  to  Customs  and  Excise  duties — see  R.  S.  C. 
c.  32,  33  and  34; — and  Acts  in  relation  to  Finance — see 
R.  S.  C.  c.  2<S  and  29.  Note  also  chapter  II.,  ante,  p.  3.5, 
ei  seq.,  for  an  account  of  the  practical  surrender  to  colonial 
legislatures  of  full  control  over  their  own  revenues  and 
tariff's. 

See  also  the  cases  collected  under  section  92,  sub-section 
2,  post. 

5.  Postal  service. 


878  THE   H.  N.  A.  AC'J' — SEC.  91.  S.-8.  6,  7. 

6.  The  Census  and  Statistics. 

We  have  not  found  any  expression  of  judicial  opinion 
as  to  the  scope  of  this  su])-section  0,  although  a  number  of 
(questions  suggest  themselves.  It  must  be  construed  so  as 
to  exclu<le  provincial  legislation  upon  whatever  mattei-s  are 
properly  included  in  it ;  and  it  seenis  to  us  that  any  con- 
struction other  than  "the  Census,  and  Statistics  in  relation 
thereto"  wouM  land  us  in  difficulties.  So  construed,  it  has 
reference  to  the  census  required  to  l»e  taken  every  ten  yeai's 
V»y  section  tS  of  the  B.  N.  A.  Act,  and  to  the  compilation  of 
statistics  in  reference  to  nationality  and  creed,  the  increase 
or  decrease  of  population,  and  kindred  matters.  In  the 
Quebec  Resolutions  the  words  "and  statistics"  do  not 
appear.  No  wider  interpretation  is  needed  to  enalile  the 
Dominiim  parliament  to  institute  encpiiries  and  compile 
statistics  as  to  any  n>atters  upon  which  information  is 
desired  in  order  to  intelligent  legislation  upon  the  various 
sul>jects  connnitted  U)  its  legislative  care.  Acts  authorizing 
such  proceedings  would  l)e  laws  "  relating  to  "  such  subjects. 
Any  wider  interpretation  would  have  the  absurd  effect  of 
condeuniing  provincial  legislatures  to  legislate  in  the  dark 
upon  many  very  important  matters. 

7.  Militia,  IMilitar^/  and  Naval  Service, 
and  Defence. 

See  notes  to  section  15,  onfr,  p.  251).  This  is  perhaps 
the  matter  in  which,  al)ove  all  others,  the  Imperial  authori- 
ties continue  to  exercise  supervision  over  colonial  legisla- 
tion, and  in  respect  to  which,  also,  the  British  parliament 
pa.sses  Acts  of  express  colonial  application.  The  Com- 
mander-in-Chief of  the  Canadian  forces  is  appointed  by  the 
Imperial  authorities.  At  the  same  time,  the  laws  relating 
to  the  volunteer  forces  of  Canada  are  largel}''  of  Canadian 
enactment,  but,  as  we  have  said,  they  are  very  carefully 
scriitinize<l  by    the    Imperial  authorities ;   the   idea  being 


THE    H.  X.  A.  ACT — SEC,  91,  S.-S.  7.  879 

to   luive   a   uniform    sy.stem    of    defence   throughout    tlie 
Empire. 

In  Hohnes  v.  Temple  (o),  ijt  was  held  (in  Quebec)  that 
the  provisions  of  the  Imperial  "Army  Act,  IScSl,"  <l()  not 
apply  to  Canada,  so  as  to  make  persons  not  connected  with 
the  active  Militia  of  the  Dominion  liable  in  respect  of  acts 
which  are  offences  under  the  Imperial  Act  Imt  not  under 
the  Militia  Act  of  Canada.  The  whole  subject  of  Imperial 
defence  is  of  such  a  complicated  nature,  and  so  many  of  the 
provisions  of  Imperial  Acts  are  in  force  in  all  portions  of 
the  Empire,  that  it  is  not  thought  desiralile  to  discuss  the 
matter  at  any  length  here  (j)}.  We  simply  note  the  onl}' 
case  which  has  been  decided  in  Canada  since  Confederation 
(q)  in  reference  to  the  subject,  anil  in  reference  to  this  casi^ 
it  should  l)e  remarked  that,  apparently,  Mr.  Justice  Cluun- 
eau  held  the  view  that  the  legislative  authority  of  the 
Dominion  parliament  under  this  sub-section  is  "exclusive" 
as  between  that  parliament  and  the  pai-liament  of  the 
United  Kingdom — a  view^  which  cannot  of  course  l)e  main- 
tained. He  treats  the  English  Army  Act  of  1881  as  appli- 
cable iu  Canada  only  to  the  extent  to  which  it  is  expressly 
made  so  by  the  Canadian  Militia  Act  (81  Vic.  c.  40).  The 
proper  position  is  clearly  this  :  so  far  as  Imperial  legislation 
upon  this  subject  is,  within  the  meaning  of  the  Colonial 
Laws  Validity  Act,  1805,  made  applicable  to  tlie  colonies 
generally,  or  to  Canada  in  particular,  any  C^anadian  legis- 
lation repugnant  thereto,  in  whole  or  in  part,  must  be  held 
to  lie  void  and  inoperative  to  the  extent  of  such  repug- 
nancy, but  not  otherwise — that  is  to  say,  in  so  far  as 
Canadian  legislation  is  supplementary  to  and  not  inconsis- 
tent with  Imperial  legislation  upon  the  subject,  this  sub- 
section 7  distinctly  affirms  the  authority  of  the  Dominion 
parliament,  as  distinguished  from  provincial  assend)lies,  to 
pass  such  legislation. 

(<>)  8  Q.  L.  11.  351  ;  2  Cart.  3J)0. 

(/))  See  Todd  "  Pari.  Govt.  Brit.  Col."  274,  et  neq. 

Ui)  See  Re^'.  v.  Schram,  14  U.  C.  C.  P.  ;U8  (1864),  noted  ante,  p.  0'». 


:}.S()  THE    If.  N.  A.  ACT — SEC,  lii,  S.-S.  H. 

H.  The  tixin<^'  of  and  providing'  for  the 
sahirics  and  allowjinces  of  civil  and  otlicr 
otiiccrs  of  the  CioverniVient  of  Canada. 

Coiiipfiiv  section  !I2.  sul)-st'cti<ni  4. 

In  Ev.-ins  V.  HikIou  (/■),  in  the  Superior  Court  of  QuoIh.'c, 
it  wus  lu'ld  that  a  ])r()\ineial  lejjcislaturt.'  has  no  power  tt> 
declare  huMe  to  seizure  the  .salai'ies  of  employees  of  the 
Federal  goverinnent,  tlie  exemption  of  such  salaries  l)ein<( 
"a  matter  of  public  order," 

Much  the  same  ([Uestion  came  liefoiv  the  courts  in 
Ontario  in  the  case  of  Leprohon  v.  Ottawa  (s),  in  which  it 
was  held  by  the  Ccau't  of  Appeal,  reversing  the  decision  of 
the  Court  of  Queen's  Bench,  tliat  provincial  powers  of  tax- 
ation do  n<)t  extend  over  the  salaries  of  the  executive  staff' 
of  the  Dominion.  The  decisicai  is  based,  not  so  much  on 
the  limited  efiect  of  sub-secti<ai  2  of  section  S)2,  as  upcai  the 
broader  ynauid  that  the  ])rovincial  Iet;islature  has  no  power 
to  imj)ose  a  bunlen  upon  any  of  the  instruments  ])y  which 
the  Dominion  government  is  carried  on,  and  cannot  invest 
a  nuuiioipal  corporaticai  of  its  own  creation  with  a  power 
which  it  cannot  itself  directly  exercise.  The  arguments  in 
.support  of  the  contrary  view  will  be  found  in  the  opinions 
delivered  in  support  of  the  judgment  of  the  Court  of 
Queen's  Bench.  The  (juestion  has  never  been  further 
litigated.  This  case  is  noteworthy  for  the  free  use,  made 
by  the  judges,  of  the  decisions  cf  the  Supreme  Court  of  the 
United  States  upon  similar  ^juestions  which  have  arisen 
there.  The  wliole  matter  is  one  of  much  interest  as  indi- 
cative of  tlie  distinct  separation  of  the  governmental  organ- 
ization of  the  D(aiiinicai  and  of  the  provinces  respectively, 
and  of  tlieir  nuitual  independence. 

So  far  as  the  Dominion  government  is  concerned,  the 
severance  of  the  tie  of  territorial  connection  with  one  pro- 
vince and  tlie  creation  of  a  distinct,  exclusively  federal, 
territory  aa  the  seat  of  the  Dominion  government,  would, 

(/•)  22  L  C.  Jur.  268 ;  2  Cart.  346.  («)  2  O.  A.  R.  522. 


THE    H.  X.  A.  ACT — SKC,  !»1,  S.-S.  <)-ll.  -SS  1 

t<t  soiiic  extent,  do  away  with  this  difficulty.  As  tlie  hiw 
now  stands,  in,  at  least,  Ontario  and  Quebec,  federal  officials 
are  exempt  from  provincial  burdens,  while  for  pi-ovincial 
officers  theiv  is  no  escape  from  the  burden  of  federal  tariffs. 

As  dealini;'  witli  a  somewhat  kindred  t<»pic,  see  the 
notes  to  section  125.  jtosl. 

S).  Beacons,  Buoys,  Lighthouses,  and 
Sable  Island. 

10.  Xavigafcion  and  Shipping  (i). 

11.  Quarantine  and  the  establishment 
and  maintenance  of  Marine  Hospitals. 

(i)  "  X(iri(jafiov  and  Shijiping." — This  is  one  of  those 
subjects  in  respect  of  which  colonial  lej^islative  power  is 
limited  by  reason  of  the  existence  of  Imperial  legislation 
upon  the  subject  applicable  to,  and  in  force  in,  the  different 
colonies  of  the  Empire.  It  is  beyond  the  scope  of  this 
work  to  attempt  any  treatment  of  this  large  branch  of 
English  jurisprudence ;  we  must  simply  note  the  line  of 
<livision  between  the  Dominion  parliament  and  the  provin- 
cial legislature  in  respect  of  the  vari(jus  matters  which 
may  appear  in  some  aspects  to  fall  within  this  sub-section, 
and,  in  other  aspects,  within  some  one  or  more  of  the 
various  sub-sections  of  section  92. 

The  line  of  aro-ument  which  led  the  Judicial  Committee 
of  the  Privy  Council  in  Citizens  v.  Parsons  {t),  to  limit  sub- 
section 2,  "  the  regulation  of  trade  and  conunerce,"  t(j  regu- 
lations   relatino-    to    yeneral    trade    and    connnerce,   would 

or?  ' 

appear  to  be  equally  applicable  to  limit  this  sub-section  10. 
See  sub-sections  9,  11,  and  13,  all  of  which  would  be  un- 
necessary if  the  wider  meaning  were  intended  to  be  given 
to  this  sub- section  10.  See  also  section  92,  sub-section  10, 
and  section  108,  and  the  various  cases  there  noted. 

(t)  7  App.  Cas.  96. 


382  THE    H.  N.  A.  ACT — SEC.  91,  S.-S.  91 1. 

Tn  MacMillun  v.  The  South- West  Boom  Conipnny  (''),  it 
was  lit'Id  l)y  the  Suprciiit!  Court  of  New  Brunswick  tluit  a 
provincial  ciuictnicnt  (37  Vic.  c.  107)  auth(jri>ciui,^  the  erec- 
tion of  hoonis  in  a  navigable  river,  does*  not  C(»nHict  with 
the  power  of  the  parliament  of  Canada  with  respect  to 
"  navi<^ation  and  shippin*;' "  :  tho.se  words  l»ein<;'  used  in  the 
sense  in  which  they  are  used  in  the  .several  Acts  of  the 
Imperial  parliament,  relating'  to  navigation  and  shippinjj;', 
in  the  Act  of  the  Dominion  parliament,  31  Vic.  c.  5(S, 
namely,  as  {giving  the  right  to  prescril>e  rules  and  regula- 
tions for  ves.sels  navigating  the  waters  of  the  Dominion, 
and  not  excluding,  for  all  purposes,  provincial  jurisdiction 
over  navigahle  waters.     Allan,  C.J.,  says: 

"  A  local  legislature,  therefore,  clearly,  has  a  right  to  incor- 
porate a  Boom  Company,  where  its  objects,  as  in  this  case,  are 
entirely  provincial,  and  the  erection  of  the  booms,  piers,  etc., 
necessary  for  giving  effect  to  such  Act  of  incorporation,  are 
undoubtedly  local  works,  necessary  and  useful  only  for  this 
lumbering  business  in  one  section  of  the  province — the  river 
Miramichi.  The  Acts  then  are  entirely  within  the  powers  given 
to  the  provincial  legislature  unless  the  construction  of  the  word, 
"  navigation,"  is  as  has  been  contended  for  the  plaintiff's 
counsel ;  for,  in  that  case,  the  general  power  over  local  works 
and  undertakings  must  yield  to  the  particular  power  given  to 
the  Dominion  parliament  over  the  subject  matter  of  navigation. 
But  I  think  that  it  is  not  the  proper  construction  of  the  term, 
and  therefore  the  Acts  in  question  are  not  iiltni  r/rc.s." 

It  was  held  in  McDougall  v.  Union  Navigation  Co.  (v), 
that  the  power  to  incorporate  navigation  companies,  the 
operations  of  which  are  limited  to  a  particular  province, 
belongs  exclusively  to  the  legislature  of  such  province. 

In  Normand  v.  St.  Lawrence  Navigation  Co.  (^v),  the 
grant,  by  the  province  of  Quebec,  of  a  water  lot  extending 

(it)  1  Pug.  &  Burb.  715 ;   2  Cart.  542.     Such  an  enactment  however 
cannot  authorize  any  obtruction  to  navigation.     See  pout. 

(v)  21  L.  C.  Jur.  G3  ;  2  Cart.  223. 

(r)  5  Q.  L.  R.  215 ;  2  Cart.  231. 


THE   H.  \.  A.  ACT— SEC.  «»1,  S.-S.  'J-11.  S.S8 

into  clet'p  watei'  at  tho  mouth  of  the  Hiver  St.  IMuurice  wii.s 
held  to  be  valid,  subjoct  to  ho  iniijlicd  ivstriction  that  the 
<;nintee  should  not  use  Ills  poweis  in  such  a  way  as  to 
interfei-e  with  the  re(juireiiientH  oF  navi^oition. 

In  Queddy  River  Diivinn-  Boom  Co.  v.  Davidson  (,/),  . 
it  was  held  by  the  Supreme  Court  of  Canada  atKrminn'  the 
judoinent  of  the  Supreme  Court  of  New  Hi-unswick,  that  a 
provincial  legislature  cannot  authorize  such  an  obstruction 
of  a  navigable  stream  as  wcaild  create  a  pul)lic  nuisance. 
In  that  case  there  was  no  Dominion  legislation  upon  the 
subject  to  alter  the  law  as  it  existed  in  New  Bnniswick  at 
the  <late  of  the  Union,  and  the  true  effect  of  the  decision 
would  seem  to  be  contained  in  an  observation  of  ]Mr. 
Justice  Strong: 

"The  Queddy  river  is  shown  to  be  a  navigable  tidal  river, 
and  the  appellants  have  obstructed  the  navigation  and  thus 
committed  an  act  which  is  jiriimi  Jade  a  public  nuisance,  and 
which  the  respondent  shows  to  be  especially  injurious  to  him 
as  a  riparian  proprietor.  The  respondent  was  therefore  entitled 
to  an  injunction  to  restrain  the  continuance  of  the  obstruction, 
unless  the  appellants  were  able  to  show  some  legal  justification 
for  the  interference  with  the  navigation  of  the  river  caused  by 
the  construction  and  maintenance  of  these  booms ;  they,  how 
ever,  show  nothing  but  an  Act  of  the  provincial  legislature 
of  New  Brunswick." 

Fijllowdng  Bank  of  Torcmto  v.  Lambe  {y),  the  Supreme 
Court  of  Canada  has  held  in  Longueuil  Navigation  Co.  v. 
]\Iontreal  {z),  that  a  provincial  legislature  can  impose  direct 
taxation — e.<j.,  a  fixed  annual  tax  of  i?200.00 — upon  ferry 
men  and  ferry  companies.  Ferries  plying  entirely  within  one 
province  would,  in  any  case,  fall;|  within  sub-sectio)\  10  of 
section  92,  although  no  doubt  they  would  have  to  conform 
to  the  provisions  of  any  Act  respecting  "  navigation  and 
shipping  "  passed  by  the  Dominion  parliament  within  the 
proper  scope  of  this  sub-section. 

(.r)  10  S.  C.  K.  222  ;  see  notes  to  section  129,  post,  and  also  ante, 
p.  200. 

((/)  12  App.  Cas.  575.  {z)  15  S.  C.  E.  5GG. 


884  THE    M.  N.  A.  ACT — SEC  ftl,  S.-S.   12. 

In  ('t'litral  Vmiiout  Railway  Co.  v.  St.  .)»»!in  (f/).  tlie 
Supmnc  Court  oi'  (niiiuhi  ti'catc'i  as  nliiKist  iK'Hcath  notice 
till'  ('(intention  tliat  the  Ixunitlarii's  of  a  iiiuniciitality  can 
not  lif  «'\tt'niK'(l  hy  provincial  legislation  so  as  to  incluflc 
tlierfin  jtart  oi"  a  navii^ahlc  rixcr. 

"If  it  i.s  beyond  controver.xy  that  naviujable  rivers  are  ./'«w 
imri'osis  iif  Hdviiidtioii  under  the  control  of  the  parliament  of 
Canada,  it  is  not  less  clearly  estahlislud  that  the  provinces  have, 
upon  these  same  rivers,  the  ri^dit  to  exercise  all  municipal  and 
police  powers,  so  lon^'  as  their  legislation  creates  no  hindrance  to 
uavi^'ation." — Per  Fournier,  J.,  at  p.  21)7. 

In  "The  Picton  "  (/>),  it  wa.s  held  l>y  tlie  Supreme 
Court  of  Canada  that,  under  section  lOl  (see  /^(W)  and  this 
sub-section  10,  the  Dominion  government  was  within  its 
powers  in  creating-  tlie  ^laritime  Court  of  Ontario,  having 
jurisdiction  over  certain  matters  relating  to  naviwition  and 
shipping'. 

In  tlie  case  of  "  The  Farewell "  (c),  before  tlie  Vice- 
A<biiiralty  Court  of  Que1»ec,  it  was  held  by  Stuart,  J.,  that 
the  Dominion  parliament  can  confer  upon  Vice- Admiralty 
Courts  existing  in  Canada  under  Imperial  legislation,  juris- 
diction in  any  matter  relating  to  navigation  and  shipping 
within  the  territorial  limits  of  the  Domiiiion,  aii<l  that  any 
such  Act  is  to  Vie  given  full  effect  so  far  as  its  provisions 
are  not  repugnant  to  Imperial  legislation  {<J). 

Compare  the  cases  which  have  arisen  under  this  sub- 
section with  tho.se  under  sub-section  12 ;  and  see  also  note 
(xi)  to  the  opening  clause  of  section  91,  o/iite,  p.  850. 

12.  Sen  coast  and  inland  Fisheries. 
Note  the  curious  error  into  which  Lord  Chancellor  Sel- 
borne  fell,  in  L'Union  St.  Jac<|ues  v.  Belisle  (f),  in  notapply- 

(</)  14  S.  C.  R.  288.  ^ 

(b)  4  S.  C.  R.  618. 

(c)  7  Q.  L.  R.  380  ;  2  Cart.  378. 

(«/)  See  Chapter  XI.  ante,  p.  230 ;  also  Todd,  "  Pari.  Govt.  Brit,  Col.,'' 
p.  149,  et  seq. 

(e)  L.  R.  6  P.  C.  31. 


TffE    H.  N.  A.  ACT — HEC.  91,  H.-H.  12.  385 

in<;  the  word  "  tisIu'rieH  "  to  ".sea  coast."  He  speaks  of  the 
wliole  of  tlie  sea  coast  V)eing  put  within  tlie  exchisive  cog- 
nizance of  the  Dominion  legishiture. 

See  notes  to  section  lOiS,  and  cases  there  cited. 

The  diti^rent  views  that  may  he  taken  of  the  scope  of 
tlie  various  sub-sections  of  sections  01  and  !)2  are  nowhere 
I  tetter  illustrated  than  in  the  liti<.;ation  (/)  whieh  arose  out 
of  the  fj^rant  of  a  lea.se  of  a  .salmon  fishery  l)y  the  Minister 
of  Marine  and  Fisheries  under  authority  of  a  Dominion  Act. 
The  locus  In  quo  included  part  of  the  Mirannchi  river,  in 
New  Brunswick,  above  the  ebb  and  flow  of  the  tide,  and 
the  lease  in  (juestion  purported  to  give  an  exclusive  right 
to  fish  in  that  part  of  the  river,  regardless  of  the  rights  of 
the  riparian  proprietor.  After  much  litigation,  the  inva- 
lidity of  the  lea.se,  and  of  the  clause  of  the  Dominion  Act 
under  which  it  was  made,  was  finally  declared  by  the  Su- 
preme Court  of  Canada.  On  the  subject  of  the  rights  of 
riparian  proprietors  generally,  the  opinions  expressed  by 
the  different  judges  are  interesting  and  instructive ;  but, 
confining  our  attention  to  the  constitutional  point  involved, 
the  Supreme  Court  held  that  the  scope  of  this  sub-section 
1 2  is  properly  limited  to — 

"subjects  aflfecting  the  fisheries  generally,  tending  to  their  regu- 
lation, protectiun,  and  preservation,  matters  of  a  national  and 
general  concern  and  important  to  the  public,  such  as  the  forbid- 
ding fish  to  be  taken  at  improper  seasons  in  an  improper  manner, 
or  with  destructive  instruments,  laws  with  reference  to  the  im- 
provement and  the  increase  of  the  fisheries  ;  in  other  words,  all 
such  general  laws  as  enure  as  well  to  the  benefit  of  the  owners 
of  the  fisheries  as  to  the  public  at  large,  who  are  interested  in 
the  fisheries  as  a  source  of  national  or  provincial  wealth  ;  " 
— that  the  Dominion  parliament  could  not  interfere  with 
the  rights  of  propei'ty  (with  all  its  incidents)  vested  in  the 
riparian  proprietors — whether  the  province,  or  individual 
owners — further  than  laws  within  the  above  limits  might 

(/)  Terminating  in  The  Queen  v.  Robertson,  6  S.  C.  R.  52. 
Can.  Con.— 25 


.S<S()  TIIK    II.  N.  A.  ACT — HKC  1)1,  S.-S.  18.15. 

curtail  their  exorcise;  hikI  tlmt,  hiiviii^-  no  power  to  inter- 
feru  directly,  the  Dominioii  pinliiuiieiit  could  not  authorize 
others  to  interfere  with  those  i-i^hts.  Such  h'^islation 
wouM  he  conti.scation,  not  rennlation. 

18.  Ft;rrieH  between  a  Province  and 
any  J]ritish  or  Foreij^n  country  or  between 
two  provinces. 

Such  undertakiuL^s,  ms  heiui;'  ol'  extra-provincial  o]>era- 
tion,  tall  naturally  into  the  classes  ot"  matters  confideil  to 
the  ]>arlianient  of  Canada.  We  nee(l  not,  howevei-,  discuss 
the  suh-section  at  lenn'th  lu-i-e,  as  tlie  whole  suhject  will 
come  up  For  considerati<»n  mider  suh-section  10  of 
secti(»n  !)2. 

14.  Currency  and  Coinaf.-e. 

Se(!  R.  S.  C.  (I>SS())  c.  'M),  which  contains  our  legislation 
upon  this  subject.  In  Lynch  v.  Canada  X.  W.  Land 
Co.  {()),  Patter.son,  J.  refei's  to  this  find  the  six  followin;^' 
classes  as  relating' "  to  tlv  regulation  of  the  j^eneral  com- 
mercial and  financial  system  of  the  country  at  hii-i^e." 

15.  13  inking,  incorporation  of  banks, 
and  the  issue  of  paper  money. 

The  scope  of  this  suh-section  has  been  under  considera- 
tion by  the  Judicial  Connnittee  of  the  Privy  C<aincil  in  Bank 
of  Toronto  v.  Landte  lA).  It  was  there  "earnestly  contended" 
that  this  sub-section  operates  to  prevent  a  province;  from 
levying  direct  tax.*ition  (under  section  92,  sul)-section  2) 
upon  a  bank;  but  this  view  was  negatived: 

"  Their  Lordships  think  that  this  contention  gives  far  too 
wide  an  extent  to  the  classes  in  question  ;  they  cannot  see  how 
the  power  of  making  banks  contribute  to  the  public  objects  of  the 
province  where  they  carry  on  business  can  interfere  at  all  with 

(tj)  19  S.  C.  R.  204;  see  notes  to  s-s.  19,  post. 

(li)  12  App.  Cas.  575  ;  see  Cliaptar  X.,  ai\(c,  p.  21;!. 


Tin:    U.  \.  A.  ACT— SEC.  ill,  S.-S.  16.  MS7 

the  power  of  niiikinf?  laws  on  tlio  subject  of  banking,  or  with  tbe 

power  of  incorporating  banks Then  it  ia  suggested 

that  the  legislature  may  hiy  on  taxes  so  heavy  as  to  crush  a  bank 
out  of  existence,  and  so  to  nuUify  the  power  of  parhament  to 
erect  banks.  ]]ut  their  Lordsliips  cannot  conceive  that  when 
the  Imperial  parliament  conferred  wide  powers  of  local  self- 
government  on  great  countries  sucii  as  (Quebec,  it  intended  to 
limit  them  on  the  speculation  that  they  would  be  used  in  an  in- 
jurious manner.  People  who  are  trusted  with  the  great  power 
of  nuvking  laws  for  property  and  civil  rights  may  well  be  trusted 
to  levy  taxes.  There  are  obvious  reasons  for  confining  their 
powers  to  direct  taxes  an<I  licenses,  because  the  power  of  indirect 
taxation  would  be  felt  all  over  tbe  Dominion  ;  but  whatever 
power  falls  within  the  meaning  of  class  2  is,  in  their  Lordships' 
judgment,  what  the  Imperial  parliament  intended  to  give  ;  and 
to  place  a  limit  on  it,  because  the  power  may  be  used  unwisely, 
as  all  powers  may,  would  be  an  error  and  would  load  t )  insuper- 
able difficulties  in  the  construction  ot  the  Federation  Act." 

The  provisions  of  the  Dominion  Bankinj^'  Act  (.S4  Vic. 
c.  5;  R.  S.  C.  c.  120),  oinpo\venn<>'  banks  to  hold  warelumse 
receipts  as  collateral  security  for  the  re-payniont  of  monies 
advanced  t(t  the  holders  of  such  receipts,  was  held  to  l>e 
liifni  rircs,  and  no  interference  witli  "  property  and  civil 
rights"  fui'tlier  than  the  fair  re(|nirements  of  a  bankint;" 
Act  would  warrant — Merchants  Bank  v.  Smith  (/) :  with 
which  compare  Beard  v.  Steele  ij),  cited  in  the  notes  to  sub- 
section 2,  <(iitt',  p.  ;i74. 

In  Windsor  v.  Connnercial  Bank  (/.),  it  was  held  in  Now 
Brunswick  that  a  pi'ovincial  legislature  has  authority  to 
enact  a  law  to  impose  a  tax  on  the  Don\inion  notes  held  by 
a  l)ank,  as  portiim  of  its  cash  reserve,  under  the  Dominion 
Act  relating  to  banks  and  banking.  The  correctness  of  this 
<lecision  wouhl  seem  to  be  settled  by  the  judguK'nt  of  the 
Jtidicial  Connnittee  of  the  Privy  Cimncil  in  Bank  of 
Torimto  v.  Lambe. 

(ij  8  S   C.  R.  512.  ■  (/)  34  U.  C.  Q.  B.  43. 

(A)  3  Cart.  377;  3  IIusb.  ife  Geld.  420. 


388  THE   B.  N.  A.  ACT — SEC.  91,  S.-S.  16-20. 

Regina  v.  County  of  Wellington  (0,  exhibits  the  difter- 
ence  in  view  which  is  still  possible  as  to  the  scope  of  this 
sub-section,  the  Court  of  Appeal  for  Ontario  being  e([ually 
divided  in  opinion  on  the  constitutional  point  in\'olved — 
the  validity  of  a  Dominion  Act  providing  for  certain 
matters  in  connection  with  the  winding  up  of  the  defunct 
Bank  of  Upper  Canada.  The  facts  are  sufficiently  set  forth 
in  note  (xi),  (inte,  p.  354,  and  see  also  notes  to  section  92, 
sub-section  13.  In  the  Supreme  Court,  Chief  Justice 
Ritchie  was  alone  in  upholding  the  legislation  under  this 
sub-section. 

16.  Savings'  Banks. 

17.  Weights  and  Measures. 

18.  Bills  of  Exchange  and  Promissory 

Notes  (i). 

19.  Interest  (ii). 

20.  Legal  tender. 

(i)  "  Bills  of  exchange  and  'prom  issory  notes." — This 
sub-section  is  very  frequently  noted  as  limiting  the  other- 
wise wide  scope  of  sub-section  13  of  section  92  "  property 
and  civil  rights  in  the  province."  The  law  upon  this  sub- 
ject has  recently  been  codified.     See  53  Vic.  c.  33. 

(ii)  "  Interest." — In  Ross  v.  Torrance  (m),  it  was  held 
that  a  provincial  legislature  has  no  power  to  authorize  a 
municipal  corporation  to  charge  a  percentage  increase  on 
over-due  taxes,  the  so-called  increase  being  but  another 
name  for  interest.  The  same  question  came  before  the 
courts  of  Manitoba  in  the  case  of  Schultz  v.  Winnipeg  {n), 
where  a  similar  provincial  Act  was  also  held  invalid.  It  is 
difficult,  however,  to  agree  with  these  decisions,  as  there  is 

(I)  17  O.  A.  R.  421;  and  in  Sup.JCt.  (sub  nom.  Quirt  v.  Reg.)   19 
S.C.  R.  510. 

(m)  2  Cart.  352 ;  2  Legal  Newa,  18G.       '  (n)  6  Man.  L.  R.  35 


THE    B.  \.  A.  ACT — SEC.  91,  S.-S.  19.  389 

no  necessaiy  connection  between  interest  and  i)ercentage, 
and  the  power  to  impose  a  penalty  (by  whatever  name  it 
may  be  called)  to  enforce  prompt  payment  «>f  nninicipal 
taxes  would  seem  t<>  V)e  clearly  within  the  power  of  the 
provincial  legislature  umler  section  92,  sub-section  15. 

See  Royal  Canadian  Insurance  Co.  v.  Montreal  Ware- 
housing  Co.  i')),  ill  wliieh  it  was  lieM  that  m  ])ro\incial 
legislature  may  give  a  l(»cal  corporation  authority  to  lioriow 
money  at  any  rate  of  interest  already  legalize<l  as  tit  other 
persons  who  have  the  right  to  l»orrow.  Having  reference 
to  the  views  of  the  Privy  Council  as  .'xpressed  in  Citizens 
V.  Parsons  ( [>),  it  is  submitted  that  this  snl)-section  is  lim- 
itetl  tt)  the  re<>ulation  of  the  leual  rate  of  interest  through- 
<»ut  the  Dominion  in  the  absence  of  spcciol  contract,  or  to  the 
passing  of  what  are  known  as  usury  laws,  in  case,  in  the 
general  interests  of  the  Dominion,  it  is  deemed  advisable 
to  put  such  laws  upon  tlu'  statute  book.  The  (piestion, 
however,  is  one  of  some  difficulty.  Dominion  legislation 
upon  the  (piestioii  is  contained  in  R.  8.  C.  c.  127. 

Since  tlie  above  was  wi'itten,  the  report  of  the  judgment 
of  the  Supreme  Court  of  Canada  in  Lynch  v.  The  Canada 
North-West  Land  Co.  (q)  has  appeare<l.  The  cjfses  above 
noted  are  distinctly  overruled  and  local  legislatiftn  in 
reference  to  the  imposition  of  an  additional  percentage  on 
over-due  taxes  held  not  to  fall  within  the  scoj^e  of  this  sub- 
section. 

In  reference  to  the  general  scope  of  the  section  Chief 
Justice  Ritchie  says : 

"  It  is  obvious  that  the  matter  of  interest  which  was  intended 
to  be  dealt  with  by  the  Dominion  parliainent  was  in  connection 
with  tlebts  originating  in  contract,  and  tliat  it  was  never  intended 
in  any  way  to  conflict  with  the  right  of  the  local  legislature  to 
deal  with  niuniciijal  institutions  in  the  matter  of  assessments  or 
taxation,  either  in  the  manner  or  extent  to  which  the locallegis- 

(o)  2  Cart.  361 ;  3  Legal  News,  1.55.  (p)  7  App.Cas.  9G. 

(q)  19  S.  C.  R.  204. 


390  THE    H.  X.  A.  ACT — SEC.  91,  S.-S.  1<). 

lature  should  authorize  such  assessments  to  be  made  ;  but  the 
intention  was  to  prevent  individuals  under  certain  circumstances 
from  contracting  for  more  than  a  certain  rate  of  interest  and  fix- 
ing a  certain  rate  when  interest  was  payable  by  law  without  a  rate 
having  been  named." 

Follovving  a  number  of  American  authorities,  (juoted  in 
the  judgment,  the  Chief  Justice  points  out  that  municipal 
taxes  are  not,  i)cr  se,  dehts  or  contractual  obligations,  and 
then  proceeds  : 

"  Does  not  the  collocation  of  No.  19  with  the  classes  of  sub- 
jects as  numbered  18  and  20  afford  a  strong  indication  that  the 
interest  referred  to  was  connected  in  the  mind  of  the  legislature 
with  regulations  as  to  the  rate  of  interest  in  mercantile  transac- 
tions and  other  dealings  and  contracts  between  individuals,  and 
not  with  taxation  under  municipal  institutions  and  matters 
incident  thereto  ?  The  present  case  does  not  deal  directly  or 
indirectly  with  matters  of  contract.  The  Dominion  Act  expressly 
deals  with  interest  on  contracts  and  agreements  as  the  first  sec- 
tion conclusively  shews." 

Referring  to  the  rule  that  the  true  nature  and  character 
of  the  legislaticm  in  the  particular  instance  under  discussion 
must  be  consi<lered  (/■),  he  points  out  that  the  Act  there  in 
controverey  had  for  its  "  primary  matter  "  municipal  taxa- 
tion and  not  "  interest."  It  will  be  seen  that  the  Chief 
Justice  founds  the  jurisdiction  of  a  provincial  legislature  to 
pass  the  Act  in  (juestion  upon  section  92,  sub-section  8.  He 
jpeaks  of  numicipal  matters  as  "  necessarily"  embracing  the 
levying  of  taxes  for  municipal  purposes.  We  shall  have  ^o 
refer  to  this  aoain  when  dealing'  with  that  sul)-section. 
Here  we  have  to  note  that  the  Chief  Justice  clearly  points 
out  that  the  percentage  increase  is  in  reality  an  extra  tax 
and  not  "  interest."  Mr.  Justice  Taschereau  characterizes 
the  addition  as  a  "  penalt}', '  and  Mr.  Justice  Patterson 
says : 

"  We  find  that  article  associated  with  others  numbered  from 
14  to  21,  all  of  which  relate  to  the  regulation  of  the  general  com- 

{>)  See  ante,  p.  '21'i. 


THE   B.  N.  A.  ACT — SEC.  91,  S.-H.  21.  391 

mercial  and  financial  system  of  the  country  at  large 

We  must  see  what  the  thing  really  is.  It  is  clearly  something 
which  the  Manitoba  tax-payer  who  does  not  pay  his  taxes  when 
due  is  made  liable  to  pay  as  an  addition  to  the  amount  originally 
assessed  against  him  or  his  property.  It  is  a  direct  tax  within 
the  province  in  order  to  raise  a  revenue  for  provincial  purposes, 
and  as  such  is  indisputably  within  the  legislative  authority  of 

the  province 

•  The  imposition  may,  not  improperly,  be  regarded  as  a 
pena^v.y  for  enforcing  the  law  relative  to  municipal  taxation,  and 
in  that  character  it  comes  tlirectly  under  article  15  of  section  92." 

The  question  whether  Huch  an  imposition  can  in  any 
sense  be  properly  called  interest  is  referred  to  and  it  is 
pointed  out  that  under  the  impugned  Act  the  addition  is  of 
an  arbitrary  percentage  not  accruing  de  die  In  dievi ;  but, 
without  expressing  a  decisive  opinion  upon  this  point,  the 
opini(m  of  the  court,  Mr.  Justice  Gvvynne  dissenting,  was, 
that  such  an  imposition  does  not,  at  all  events,  fall  within 
the  scope  of  this  sub-section  19. 

21.  Bankruptcy  and  Insolvency. 

The  extent  to  which  the  Dominion  parliament,  by  legis- 
lation under  this  sub-section,  is  empowered  to  interfere  witii 
"  property  and  civil  rights  in  the  province,"  or  with  "  pro- 
cedure "  in  the  courts  of  a  province,  came  up  for  considera- 
tion before  the  Judicial  Connnittee  of  the  Privy  Council, 
in  the  case  of  Gushing  v.  Dupuy  (s),  and  was  disposed  of  in 
the  judgment  of  that  tribunal  in  these  words  : 

"  It  was  contended  for  the  appellant  that  the  provisions  of 
the  Insolvency  Act  interfered  with  property  and  civil  rights,  and 
was  therefore  ultra  vires.  This  objection  was  very  faintly  urged, 
but  it  was  strongly  contended  that  the  parliament  of  Canada 
could  not  take  away  the  right  of  appeal  to  the  Queen  from  final 
judgments  of  the  Court  of  Queen's  Bench,  which,  it  was  said, 
was  part  of  the  procedure  in  civil  matters  exclusively  assigned  to 
the  legislature  of  the  province.     The  answer  to  these  objections 

(»}  5  Api).  Cas.  40J). 


392  THE   B.  N.  A.  ACT — SEC.  91,  S.-S.  21. 

is  obvious.  It  would  be  impossible  to  advance  a  step  in  the 
construction  of  a  scheme  for  he  administration  of  insolvent 
estates  without  interfering  with  and  modifying  some  of  the 
ordinary  rights  of  property,  and  other  civil  rights,  nor  without, 
providing  some  special  mode  of  procedure  for  the  vesting,  realiza- 
tion, and  distribution  of  the  estate,  and  the  settlement  of  the 
liabilities  of  the  insolvent.  Procedure  must  necessarily  form  an 
essential  part  of  any  law  dealing  with  insolvency.  It  is  there- 
fore to  be  presumed,  indeed  it  is  a  necessary  implication,  tha'  the 
Imperial  statute,  in  assigning  to  the  Dominion  parliament  the 
subjects  of  bankruptcy  and  insolvency,  intended  to  confer  on  it 
legislative  power  to  interfere  with  property,  civil  rights,  and  pro- 
cedure within  the  provinces,  so  j'nr  ks  a  iimcral  Imr  nhitlii'i  tn 
those  sitlijpcts  niiijltt  affect  them." 

The  words  italicised  are  important  as  in<licatin^■  tlie  y'ww 
of  the  Committee  as  to  the  scope  of  the  siil  (-section,  as 
aiithoi'izino-,  namely,  a  j^eneral  insolvency  or  bankruptcy  law. 
There  is  now  no  such  law  in  existence  in  Canada,  and  the 
power  of  a  provincial  le<;islature,  in  the  absence  of  Dominion 
legislation,  to  pass  laws  for  the  e(iuital>le  disti'ilmtion  (»f  the 
estate  of  a  man  whose  assets  are  insufRcient  to  meet  his 
liabilities,  has  necessarily  arisen,  and  with  this  question  has 
also  arisen  the  larger  one  as  tt)  the  existence  of  "  concur- 
rent "  powei"s  of  legislation  in  the  Dominion  parliament 
and  provincial  legislatures;  as  to  which  see  chapter  X.,i'iiff, 
p.  21(),  and  note  (xi)  to  section  91,  (ivfc,  p.  350.  Quirt  v. 
Reg.  (f),  in  which  a  spccifil  Act  in  reference  to  the  winding 
up  of  the  affairs  of  a  particular  bank  was  upheld  by  the 
Supreme  Court  of  Canada  as  within  the  scope  of  this  sub- 
section, is  sufficiently  referred  to  in  the  note  last  mentioned. 

The  Privy  Council  had  had  occasion  to  consider  this 
sub-section   in   an    earlier  case — L' Union    St.  Jac<iues   \- 
Belisle  (a) — which  came  before  them  in  1<S74.     The  scope  of 
tlie  sub-section  is  clearly  indicated  in  the  judgment,  where, 
speaking  of  the  various  sul:)-sections  of  section  91,  and  of 

(/)  19  S.  C.  R.  .510.  (»)  L.  R.  6  P.  C.  31. 


THE   B.  N.  A.  ACT — SEC.  01,  S.-H.  21.  393 

this   Hub-8ecti<>n    in    particular,    tlie    following    language 
occurs : 

"There  is  no  indication  in  any  instance  of  anything  being 
contemplated,  except  what  may  be  properly  described  as  general 
legislation  ;  such  legislation  as  is  well  expressed  by  Mr.  Justice 
Caron  when  he  speaks  of  the  geiiei-al  laws  governing  Faillite, 
bankruptcy  and  insolvency,  all  which  are  well  known  legal  terms 
expressing  systems  of  legislation  with  which  the  subjects  of  this 
country,  and  probably  of  most  other  civilized  countries,  are  per- 
fectly familiar.  The  words  describe  in  their  known  legal  sense 
provisions  made  by  law  for  the  ailministration  of  the  estates  of 
persons  who  may  become  bankrupt  or  insolvent,  ncconliiiii  tn  nihs 
(iwl  (h'finitioHs  iirr.srribt'd  hij  Imr,  including  of  course  the  conditions 
on  which  that  law  is  to  be  brought  into  operation,  the  manner 
in  which  it  is  to  be  brought  into  operation,  and  tiie  elfect  of  its 
operation." 

The  latter  part  of  this  extract  supports  what  has  1»ecu 
said  in  an  earlier  chapter  (>•)  in  reference  to  l)ankru])tcy 
and  insolvency  being  legal  relations,  the  creation  of  which 
out  of  any  given  c<iinl>ination  of  circumstances,  is  alone  in 
the  power  of  the  Dominion  parliament.  In  the  absence  of 
any  such  legislation,  it  is  difficult — in  view  of  the  scope  at- 
triltuted  to  sub-section  13  of  section  92  [rv),  "  property  and 
civil  rights  in  the  province  " — to  see  on  what  ground  pro- 
vincial legislation,  making  provision  for  the  distribution  of 
a  man's  estate  among  his  credit<n's,  and  for  his  discharge 
from  liability  upon  his  contractual  obligations,  can  be  im- 
pugned. In  view,  however,  of  the  dirt'erence  of  opinion 
among  the  judges  who  have  had  to  consider  this  (juestion. 
this  view,  we  need  hardly  say,  is  put  forw»ir<l  with  nmch 
diffidence. 

In  Crombie  v.  Jackson  (r),  that  was  lield  to  be  a  valid 
provision,  in  the  Instil  vent  Act  in  force  at  that  date  (1874), 
which  obliged  a  person,  making  claim  to  any  part  of  tlie 
property  of  an  insolvent  transferred  to  the  possession  of  his 

(r)  See  aiitf,  p.  215.  (w)  See  the  notefl  to  tliat  sub-sectioii. 

(.r)  M  u.  c.Q.  n.oir-. 


894  THE   H.  N.  A.  ACT — SEC.  91,  S.-S.  21. 

H.sHijj;neo  under  tlie  Act,  to  procee<l,  under  the  Act,  by  suni- 
inary  procee(Hn<^'s  before  a  county  ju(lt»e.  In  our  view, 
these  eases  involvin*;'  en(|uiry  as  to  the  validity  of  indi- 
vi(hial  sections  of  former  Insovent  Acts  are  not  of  nnich 
practical  iinportance  :  they  would  assist  of  course  in  the 
frainino-  of  a  new  Act :  but  the  important  cases  are  those  in 
which  provincial  Acts  or  clauses  of  provincial  Acts  have 
been  impugned  on  the  ground  that  their  provisions  are  in 
the  nature  of  insolvency  legislation.  At  the  same  time,  in 
the  face  of  the  divergence  of  view  which  exists  ujion  the 
subject,  we  should  hardly  be  justified  in  overlooking  the 
former  class  of  cases. 

In  Peak  v.  Shields  (//),  was  involved  the  (piestion  of  the 
validity  of  the  18Gth  .section  of  the  Insolvent  Act  of  LSTo, 
which  provided  that  a  debtor,  afterwai'ds  becoming  an  in- 
solvent un<ler  the  Act,  who  had  fraudulently  obtained  goods 
«)n  credit  knowing  him.self  unable  to  meet  his  engagements, 
might  be  subjected  to  imprisonment  for  two  yeai-s  unless 
the  debt  and  costs  were  .sooner  paid.  The  opinitms  delivered 
were  very  conflicting,  some  of  the  judges  expressing  the 
view  that  the  clause  was  legislation  regarding  procedure  in 
civil  matters,  othei-s  that  it  was  properly  described  as  ni- 
solvency  legi-..ition,  and  others  again  that  it  might  be  up- 
held as  criminal  legislation.  The  broader  <|uestion  involved 
in  the  ca.se,  namely,  the  power  of  a  colonial  legislature  to 
legislate  respecting  wrongs  conimitted  abroad,  was  treated 
of  in  chapter  IX.,  dute,  p.  189. 

In  Re  EMorado  Union  Store  Company  {z),  it  was  held 
in  Nova  Scotia,  and  again  in  Shoolbred  v.  Clark  {<(),  it  was 
unanimously  held  by  the  Supreme  Court  of  Canada,  that 
th(j  Dominion  Winding-up  Acts  are  insolvency  legislation, 
and  are  properly  made  applicable  to  companies  incorporated 
under  provincial  Acts.     In  Allen  v.  Hanson  (/>),  it  was  held 

(y)  8  S.  C.  1{.  579;  «  0.  A.  R.  039;  31  U.  C.  C.  P.  1J2. 
(z)  6  lius-s.  ctGeld.,  514. 
(./)  17  S.  C.  R.  'JOo. 
(h)  IS  S.  C.  li.  ()(;7. 


THE    15.  X.  A.  ACT — SEt'.   'Jl,  S.-S.  21.  lV.)r> 

that  tliL'se  Winding-up  Acts  nUo  npply  to  companies  incor- 
porated under  Imperial  Acts,  the  power  in  .such  case  heing 
limited,  of  course,  to  dealing  with  the  re}dizati(»n  and  dis- 
trihution  <d'  the  assets  in  Canarla.  See  the  earlier  case  (»f 
Merchants  Bank  v.  (Jillespie  {r),  in  which  it  was  held  that 
the  Winding-up  Act  then  in  force,  did  not,  upon  the  proper 
interpretation  of  it,  a])ply  to  .such  an  Imperial  Company. 

In  Clark.son  v.  Ontario  Bank  {(/)  and  other  cases  re- 
ported with  it,  the  validity  of  certain  legislation  hy  the 
Ontario  legislature  (R  S.  O.  c.  124 — '•  an  Act  respecting  as- 
.signments  and  preferences  hy  insolvent  pei>;ons  ") — was  in 
(piestion.  The  court  was  eipially  divided.  The  opinions  of 
Hagarty,  C.J.O.,  and  Osier,  J.A.,  who  held  the  Act  nUvd 
r//r.s,  proceed  up(m  the  Itroad  ground  thus  exjjressed  by  the 
Chief  Justice  : 

"  It  is  to  all  intents  a  law  for  the  Judicial  administration  of 
an  insolvent's  estate  by  means  unknown  to  the  common  law, 
and  conferring  rights  on  an  assignee  in  addition  to,  and  beyond 
all  rights  assigned  to  him  by  the  debtor." 

On  the  other  hand,  Burton  and  Pattei-son,  JJ.A.,  who 
upheld  its  validity,  support  their  opinions  by  pcanting 
out  that  the  various  clauses,  examined  in  detail,  deal  with 
matters  within  the  legislative  ccnnpetence  of  a  provincial 
legislature  under  sub-section  18  of  section  1)2.  property  and 
civil  rights.  In  view  of  this  difference  of  opinion  it  can  be 
easily  understood,  therefore,  that  the  view  we  have 
attempted  to  e.\pre.ss  in  an  earlier  chapter  is  advanced 
with  nmch  mistrust.  In  all  these  cases  there  will 
have  to  be  a  pronouncement  l>y  the  Jmlicial  Connnittee 
of  the  Privy  Council  or  an  amendment  to  the  B.  N.  A.  Act, 
before  the  pt>sition  of  impecunious  debtors  is  satisfactorily 
settled. 

In  Clarkson  v.  Ontario  Bank,  Burton  and  Patterson, 
JJ.A.,  both  expressed  some  doubt  as  to  section  0  of  the  Act 
then   in  (juestion,  which  section  did  not   itself  come   im- 

(oj  10  S.  C.  li.  H12.  (-/)  15  O.  A.  R.  KKJ. 


390  THE    H.  X.  A.  ACT — SEC.  1(1.  S.-S.  21. 

iiit'fliiiti'Iy  in  ((iiostion  in  the  cn.se.  It  provide*!  that  an 
assiu'innent,  un<ler  the  Act,  t'«»r  the  general  h«'netit  of 
cri'<Ht(>rH,  ,sh<»uM  take  prece<lence  of  all  jmlniiients  and 
executions  not  coni[)U'tely  executed  hy  )>aynient  :  and 
at'terwaj'ds,  in  Union  Dank  \-.  Neville  (f),  it  was  held  hy 
Chief  .Justice  Sir  Thomas  (Jalt,  to  he  ii/lra  rlrt-s,  as  Itrinin' 
insolvency  leyishition. 

•'  Tlie  question  now  is  wliotlior  or  not  the  assi<,'nee  is  entitled 
to  take  these  goods  out  of  the  possession  of  the  slierit}".  It  is 
manifest  lliat  the  assi'jfnor  himself  has  no  such  authority,  and 
it  appears  to  me  that,  that  bein;,'  the  case,  lie  coidd  confer  no 
sucdi  right  on  his  assignee.  By  the  words  of  the  statute  itself, 
it  is  plain  that  the  provisions  are  to  have  effect  only  in  eases  of 
insolvent  debtors  or  persons  on  the  verge  of  insolvency  ;  con- 
se<[uently,  to  attribute  to  an  assignmunt  under  the  statute  a 
power  to  remove  goods  in  the  hands  of  the  sheriff  under  execu- 
tion against  an  insolvent,  must,  in  my  opinion,  he  considered  as 
an  Act  relating  to  "bankruptcy  and  insolvency." 

To  the  .same  eflect — from  the  other  standpoint — we 
may  nttte  tlie  case  of  Kinney  v.  Dndman  (/),  decided  l»y 
the  Nova  Scotia  Snpi'enie  Ciairt,  npholding"  the  validity  <tf 
section  of)  of  the  In.solvent  Act  of  I<S()f),  which  provided 
that  a  judgment  not  completely  executed,  sliould  as  against 
an  assiyinnent  undei'  that  Act,  create  no  lien  or  privilege 
u})on  the  pi'operty  of  the  insolvent. 

In  Th(^  Queen  v.  Chandler  (//),  it  was  held  by  the 
Supreme  Court  of  New  Brunswick,  that  tho.se  provisions, 
in  what  are  conunonly  known  as  Indigent  Debtors  Acts, 
providing  for  the  examination  of  a  confined  debtor  and  for 
his  discharge  from  imprisonment  upon  proof  of  indigence, 
and  of  the  absence  of  fraudulent  dealings  witli  his  property, 
cannot  be  pa,ssed  by  provincial  legislatures.  This  case 
ai'ose  in  IStJS,  and  the  Judgment  of  the  court  was  f<ainded 
upon  views,  as  to  the  wi<le  .scope  of  this  sub-secti(m,  which 
cannot  in  view  of  the  later  authorities  be  now  considered 

(*-)  21  O.  n.  152.  (/)  2  Rnss.  &  dies.  ]•• ;  2  Cart.  412. 

(/;)  2  Cart.  421  ;  1  Haniiay  .'ioO. 


THE    H.  X.  A.  ACT — SEP.  ()1,  S.-S.  21.  :v.)7 

a  coiToct  expoHition  of  the  law.  Tlie  vv(»r(ls  "  Itaiikruptey 
and  insolvency  "  were  interpreted  as  coveriny-  all  le<;isla- 
tion  as  to  impecunious  <lel)tors  even  entirely  apart  from 
any  system  of  l>ankru{)tcy  and  insolvency  lej^islation, 
and,  in  this  view,  the  Act  in  <|Uestion  was  held  t«»  he 
an  insolvent  i\.ct  (A).  In  another  aspect,  however,  the 
case  mav  well  he  referred  to,  as  Iteinn'  one  of  the  earliest 
decisions  emphatically  enunciating'  the  doctrine  that, 
under  the  B.  N.  A.  Act,  it  necessai-ily  devolves  np<tii 
courts  of  Justice  to  iiKpiire  into  the  validity  of  post-C'on- 
federation  Canadian  legislation.  The  fact  that  the 
Governor-General  had  not  disallowed  the  provincial  Act  in 
(juestion,  was  decisively  held  l»y  the  court  to  he  immaterial, 
upon  an  iiKpiiry  as  to  its  legal  validity. 

Upon  the  (juestion  as  to  the  scope  of  this  sul)-Hection 
21,^The  Queen  v.  Chandler  has  never  heen  overruled,  but,  in 
subsequent  cases  in  New  Brunswick,  the  wide  view  upon 
which  the  decision  in  the  early  case  proceeded  has  evidently 
and  necessarily  been  modified.  Prior  to  the  Union,  the 
New  Brunswick  legislature  had  passe*!  an  Act  extending 
the  oaol  limits — an  Act  afi'ectinjj  contined  del)tors.  This 
Act  was  not  to  come  into  operation  until  April  1st,  1868, 
but  before  that  date,  and  after  Confederation,  it  was 
repealed  by  a  subsequent  enactment.  The  New  Brunswick 
Supreme  Court  intimated  that  there  was  nothing  in  the 
point  that  the  Act  was  one  relating  to  insolvency,  and  that 
therefore  the  provincial  legislature  was  within  its  powers 
in  repealing  it  (i).  And,  again,  in  Armstrong  v.  McCutchin 
(J),  the  Supreme  Court  of  New  Brunswick  held  that  an 
Act  of  the  legislature  of  that  province  abolishing  imprison- 
ment for  debt  was  not  ultra  vires,  as  respects  a  party  not 
shown  to  be  a  trader,  subject  to  the  Dominion  Insolvent 
Act.     Ritchie  C.J.,  says  : 

{h)  See  the  remarks  of  Mr.  Justice  Burton  in  Clarkson  v.  Ontario 
J3ank,  tibi  supra  ;  and  see  also  notes  to  sec.  92,  s.-s.  14,  post. 

(i)  McAlmon  v.  Pine.  2  Cart.  487  ;  2  Pug  44. 

(j)  2  Cart.  494  ;  2  Pug.  381. 


.SOH  THE    n.  N.  A.  ACT.— SKC.  !H,  S.-S.  21. 

"  Hut  while  le^'islation  on  *,ho  subject  of  iinprisonment  for 
debt  may  be,  under  some  circunistancos,  involved  in  lep;islati'in 
on  bankruptcy  and  insolvency,  and  therefore  lit  matter  to  be 
dealt  with  l)y  the  Dominion  parliament,  it  by  no  means  follows 
that  in  no  circumstnnces  can  a  local  legislature  legislate  with 
reference  thereto.  On  the  contrary,  there  may  bo  many  cases 
where  the  abolition  or  regulation  of  imprisonment  for  debt  is  in 
no  way  mixed  up  with  or  depending  on  insolvency.  In  this  case, 
in  which  application  has  been  made  for  discharge  under  a  local 
Act,  the  party  does  not  appear  by  the  affidavits  to  be  in  anywise 
amenable  to  the  Insolvent  Act  of  IHO!),  nor  a  party  who  could 
be  brought  within  the  operation  of  that  Act ;  nor,  so  for  as  he  is 
concerned,  or  as  applicable  to  his  case,  are  the  clauses  of  the 
local  Act  under  which  he  seeks  the  discharge,  in  any  way  in  conflict 
with  that  Act.  The  defendant  simply  appears  in  the  position  of 
a  person  not  subject  to  the  Insolvent  Act  of  1H(;{),  and  whom 
the  legislature  has  declared  shall  not  hv.  proceeded  against  for 
recovery  of  a  debt  by  imprisonment,  without  reference  to  any 
fjuestion  of  solvency  or  insolvency  ;  therefore  there  is  no  reason 
why  he  should  not  receive  the  benefit  of  an  Act  passed  by  the 
local  legislature  for  regulating  the  procedure  in  civil  suits  in 
relation  to  the  civil  rights  of  parties  in  the  recovery  of  debts. 
So  far  therefore  as  the  defendant  is  concerned — and  we  limit 
our  decision  to  tlie  particular  circumstances  of  this  individual 
case — there  is  no  reason  why  the  Act  should  not  have  full  force 
and  effect.  Regina  v.  Chandler,  which  was  so  much  pressed  on 
us,  is,  wo  think,  entirely  distinguishable  from  the  present  case." 

See  also,  Re  I)e  Vel)er  (/.'),  in  which  un  Act  of  the  New 
Brunswick  lei^islatuiv,  providing-  that  as  against  an  assignee 
of  the  grantor  under  any  law  relating  to  insolvency,  a  bill 
of  sale  slumld  only  take  ctt'oct  from  the  date  of  its  tiling, 
was  held  to  be  intra  rires.  The  provinces  down  by  the 
sea  are  not  at  one  upon  this  (juestion.  In  Johnson  v. 
Poyntz  (1),  it  was  lield  by  the  Nova  Scotia  Courts  that  a 
provincial  legislature  could  confer  upon  a  newly  created 
provincial  court,  jurisdiction  to  entertain  an  application  for 

(Jt)  21  N.  B.  R.  401 ;  2  Cart.  552. 
(/)  2  Cart.  41(j;  2  Ru^s.  &  Geld.  1!»B. 


THE    H.  N.  A.  ACT — SKC.  <H,  S.-S.  21.  890 

tilt.'  <Hseluii'nt!  oF  an  insolvent  (Iclitoi"  nndci'  a  provincial  Act 
pasHt'tl  prior  to  Oonl'dh-ration,  sncli  Icj^islation,  it  was  licM, 
not  coniin;;"  within  tins  .sult-scction  :  whilf,  on  the  (»tlit'r 
lian<l,  in  tlic  case  of  Mnini  v.  Mc(-anncll  (iii),  tlic  Suprrnif 
Coiu't  of  Prince  K<l\var(l  Island  held  to  he  nlfni  r/'/vx,  a 
provision  in  the  [ndi^'ent  Dehtors  Act  of  that  j)rovince, 
[)ro\idinjj;'  for  the  tlischarn'c  of  an  insolvent  dehtor. 

'I'he  lant^naj;'!'  ahove  (piotrMl  of  Sir  Monta^nie  Smith  in 
deliverini;'  the  Judminent  of  the  I'livy  Cianicil  inCJushiny'  v. 
Dnpny  {•>)  would  seem  to  cover  the  varicais  matters  dis- 
cussed in  the  ahovo  cases.  As  relatini;'  to  "civil  rights  in 
the  province"  a  pi'ovincial  legislature  has  full  powe)-  to 
legislate  thereon,  subject  to  the  operation  of  any  general 
insolvency  legislation  passed  l»y  the  Dominion  parliament. 

In  Murdoch  v.  Windsoi-  iV  Annapolis  Railway  ('o.  (o), 
Mr.  Justice  Ritchie,  sitting  as  Kcpiity  Judge,  held  invali<l, 
as  an  infringement  upon  the  powers  of  the  Dominion  par- 
liament under  this  suli-section,  an  Act  of  the  Nova  Scotia 
legislature,  entitled  "An  Act  to  facilitate  arrangements 
hetween  Railway  C<)m[)ani(.'s  and  their  creditors."  The  Act 
provided  that  the  company  might  propose  a  scheme  of 
arrangement  hetween  the  company  and  its  creditors,  and 
tile  the  same  in  ciairt,  and  that  thereupon  the  court  might, 
on  application  hy  the  company,  resti'ain  any  action  against 
the  company,  upon  such  tei-ms  as  such  court  might  see  tit. 
The  Act  also  provided  that  notice  of  tiling  the  scheme 
sluaild  h(^  published,  and  that  thereupon  no  process  should 
he  enforced  against  the  company  without  leave  of  the  court. 
Mr.  Justice  Ritchie  considered  the  Act  as  one  which  ctaild 
have  reference  oul\^  to  a  company  which  was  insolvent. 
That  a  company,  having  hecona;  insolvent,  should  have  the 
power,  in  order  to  settle  with  all  its  creditors  alike,  of  de- 
claring itself  such,  and  that  on  such  declaration  the  remedies 
of  creditors  sliould  he  suspended,  would  not  be  unreason- 


{m)  2  P.  E.  K.  (h)  5  App.  Cas.  iO!>. 

\0)  3  Cirt.  3(58;  Russ.  Eq.  Rep.  1.S7. 


M)0  THK    H.  N.  A.  ACT— SEC.  !»1,  S.-S.  21. 

ul)lc:  lnit  tliJit  the  k'^nslatun."  sliouM  yive  to  »i  company, 
Molvoiit  iiml  aide  to  iiK'ot  all  its  lialtiliti»'H,  tlu'  power  of 
stjiyiii;;'  all  proceetlinoH  on  the  part  of  their  ci'iMlitoix,  l)y 
merely  pivseiitiuj;'  an<l  tilin;;'  a  scheme  of  arran<j;('ment  with 
them,  would  he  iiicomprehensihlc.  The  legislation,  in  his 
view,  must  have  heen  passed  on  tin-  assumption  of  the  in- 
solvency of  the  company.  And.  ui»on  this  view  of  the  Act, 
he  held  it  iilfrn  rircs.  The  sam»'  Ju<lge  held  in  Hr  The 
Wallace- Heustis  (Irey  Stone  Company  (/>),  that  the  Nova 
Scotia  Windinm-up  Act,  was  hifni  rirc.'i.  It  made  provision 
for  the  winding-up  of  any  comjiany  where  a  I'esolution  to 
that  effect  was  passed  l)y  the  company,  or  where  the  ccmrt 
so  ordered  at  the  instance  of  a  contrihutor,  on  it  being  made 
to  appear  that  such  order  was  just  and  ecpiitahle.  Tlie  Act 
could  he  enforced,  although  no  dehts  were  due  ))y  the  com- 
pany, but  could  not  be  called  into  operation  by  a  creditor. 
Such  an  Act,  it  was  held,  had  no  necessary  relation  to 
l»ankruptcy  and  inHolvency,  but  was  an  Act  respecting  pro- 
perty and  civil  rights  in  the  province. 

The  decision  in  Murdoch  v.  Windsor  &  Annapolis  Rail- 
way Co.  must  be  considered  overruled  by  the  judgment  in  Re 
Windsor  &  Annapolis  Railway  {j)j>),  in  the  Nova  Scotia 
Supreme  Court,  in  which  the  same  Act  was  upheld  so  far 
as  it  provided  for  the  confirmation  of  a  scheme,  propounded 
by  the  company  under  the  Act,  for  cancelling  certain 
debentures,  and  for  the  allotment  of  new  stock  in  lieu 
thereof  bearing  a  low  rate  of  interest.  The  decision,  how- 
ever, it  should  be  noted,  is  placed  upon  the  ground  that  the 
Windsor  &  Annapolis  Railway  Company  was  a  local  w^ork 
or  undertaking  within  the  meaning  of  section  92,  sub-sec- 
tion 10,  and  that  so  far  as  any  such  local  unc'ertaking  is 
concerned,  the  impugned  Act  was  within  the  legislative 
competence  of  the  provincial  legislature,  that  the  scheme 
propounded  by  the  company  had  no  relation  whatever  to 

(p)  3  Cart.  374  ;  Russ.  Eq.  Rep.  461. 
(pp)  3  Cart.  387  ;  4  Russ.  &  Geld.  312. 


THE    n.  N.  A.  ACT— SEf".  ftl,  S.-S.  22.  401 

the  insolvency  of  the  compiiny,  and  was  sini[)ly  h  Hohenie 
For  cluiiii'inu'  tlu^  t'oi'ni  oF  the  .stock,  hi  this  view  of  the 
case,  reliance  was  phiced  up(»n  L'Fnion  St.  Jactjues  v.  Bt^- 
lisle  (7),  and  the  Act  in  its  rehition  to  local  undertakings 
ii|>held  u]ion  the  authority  of  that  case. 

We  may  also  refer  to  li<'  Hriton  Medical  and  General 
r^ife  Association  (/'),  cited  in  notes  to  section  f)l,  milr.  p. 
'U(i  as  the  Act  there  I'efei'red  to  might,  perhaps,  l)e  said  to 
fall  within  this  sub-section  21.  The  deposit  i-equired  liy 
that  Act  to  l)e  made  hy  all  corjxtrations  desiring  to  do 
husintss  in  Canada,  was  held  to  he,  upon  the  true  construc- 
tion of  the  Act,  a  special  fund  a])i)licable  in  case  of  insol- 
vency for  the  benefit  of  Canadian  policy  holders  only. 

In  McClanaohan  v.  St.  Ann's  Mutual  Buildino-  So- 
ciety  (.s),  it  was  held  that  tlic  ])ominion  parliament  has  no 
power  to  pass  an  Act  providing  for  the  iitjuidation  oi  all 
building  societies,  whetlwi'  solvent  or  iiof,\n  the  province  of 
Quebec. 

In  Cote  V.  Watson  (0,  it  was  held  by  the  Superior  Court 
of  Quebec  tliat  a  provincial  legislatui-e  has  no  power  to 
impose  a  tax  on  the  sum  realized  from  the  sale  of  an  insol- 
vent's etl'ects,'  or  to  impose  upon  an  assignee  under  that 
Act,  or  his  agent,  any  penalty  for  not  taking  out  a  license 
to  sell  by  auction  the  goods  of  the  bankrupt.  In  view  of 
Hank  of  Toronto  v.  Lambe,  this  easy  cannot  be  considered 
law. 

22.    Patents   of    invention    and    dis- 
covery. 

We  have  already  had  occasion  to  point  out  that  this 
sub-section  embraces  what  may  now  be  considered  almost 

(7)  L.  R.  G  P.  C.  31.     See  notes  to  s.  92,  s-s.  1(3. 

(r)  12  O.  R.  in. 

(»)  2  Cart.  237;  21  L.  C.  Jur.  162.  .      ■    • 

(t)  2  Cart.  343  ;  3  Q.  L.  R.  157. 

Can.  Con.— 26 


402  THE   H.N.  A.  ACT — HEC.  91,  H.-S.  22. 

a  (listinot  hranch  of  Jmisprudenco — patent  law  (v).  The 
lan^iiaj4(M)f  the»iu(licial  (joniiiiittee  ii;  (yUHliiiijjc  v.  I)upn3'  (v), 
iiH  to  the  ixicessity  for  i-e<;uhitinL(  "proccchire  "  in  connec- 
tion with  the  handlinj^  of  estab^H  under  bankruptcy  an<l 
in,solv(!ncy  ht^inlation,  applies  witli  ahnost  «M|uaI  force  to 
h^uishition  uruhu-  this  Huh-H(!cti(»n  22.  At  theHanie  time  we 
hav(!  to  note  that  coinpai'atively  few  caHCH  have  arisen 
callinj^'  for  a  decision  as  to  th(!  \'\\\v  of  (Mvi.sion  which 
projH'rly  marks  out  the  sphere  of  pi'ovincial  leoishitive' 
authority  in  connection  with  ]»at(!nt  litigation,  hut  so  far  as 
the  (h'cisions  o()  thi  y  •.i[)hohl  the;  authority  of  the  Dominion 
parliament  to  iH'iridate  pi-ocedure  in  such  casiis. 

In  AitcluHon  v.  Maim  (vc).  the  Qu<M'n's  Bench  Divisional 
( '(»ui-t  held,  atlii'ii.in^' the  decision  of  Boyd,  (  \,  that  section  24 
of  the  Patent  Act  of  l<S7l^  which  i'e(|uir('s  that  the  trial  of  an 
action  for  th«^  iid'rin^^ement  of  a  patent  nnist  Ixi  tried  in  Ihi' 
court  nearest  the  defendant's  residence  ()!•  place  of  business, 
was  infra  aires. 

In  Mousseau  v.  Hat«^  (,/),  it  was  held  that  ])roce»!dinfj;s  in 
the  natuic^  of  a  >SV'/.  Fii.  to  s(!t  asid<^  lettei-s  pat«Mit  of  inven- 
tion issued  iuid(!r  a  Dominion  statute,  cannot  be  instituted 
in  the  name  of  a  [)i<)vincial  Attortiey-Gern^ral,  but  can 
only  h^fifally  be  brought  by  the  Attorney-Cieiunal  for  Canada. 
In  connection  with  this  case,  rcd'erence  should  also  lie  Iind  to 
Regina  v.  I'attee  (vy),  in  which  the;  late  Master  in  (Jluunbei's 
(Mr.  Dalton,  Q.C.),  held  that  the  Attoi'ney-(Jenera!  of 
Ontario  was  the  j)i"oper  officer  to  H;rant  a  tiat  for  tlu^  issue 
of  a  wi'it  of  Scl.  Fa.  In  anothc;)"  vitnv,  the  case  is  note*- 
vvoi'thy  as  containinj^-  one  of  the  earliest  ex[)r«NSsions  of 
o))inion  in  reference;  to  the  necessary  co-e!xt«!nsion  of  thi; 
executivt;  and  legislative;  functions  of  a  pi'ovincial  o()vei'n- 
ment.  So  far  as  ccaicems  this  sub-section,  however,  th«' 
judgment  is  expressly  limite<l  to  the  case  of  a  suVtjectdomi- 

(u)  Ante,  p.  28(5.  (a)  27  L.  C.  Jiir.  15H ;  3  Cart.  Ml. 

(v)  6  App.  CaB.  40!).  (ij)  T)  P.  R.  (Ont.)  2<>2. 

(w)  y  P.  R.  (Out.)  47.4.  •      . 


TIIK    U.  \.  A.  A(T — SKC  !»1,  S,-S.  2H,  408 

c\\va\  ii)  tlu!  proviiic*',  HiM'kin^  to  uvnil  hiiii.solt'  ol"  the  poculiar 
privilt'j^t^H  of  tlui  Ci'ovvit,  in  order  to  the  nssortioii  of  his  own 
privat*!  iiitcrtJHts,  and  the  MaHtt'i*  in  Chanihei'H  (hisircd  that 
]u'.  should  not  he  undci'stood  as  H|K'akin<^  ol'  a  case  whert 
the  ('I'ovvn  itscir  HtMiks  to  avoid  a  [latent. 

In  lie  The  Hell  Telei.hone  Co.  (:),  it  was  held  to  he  a 
pi-opei*  exercisi!  ol"  the  ])o\vers  ol'  the  Dominion  pailianient 
inidei'  this  Act,  to  ])rovide  that  in  casi;  ol'  dispute  arisini« 
as  to  the  vali<lityor  a  [witent,  such  dispute  should  he  settled 
hy  th(!  Ministei-  of  Aj^ricultiwe,  or  his  Deputy,  whose 
decision  should  he  final.  it  was  held  that  hy  the  Act  a 
couj't  Ol' Judicial  ti'ihunal  was  constitut«Ml,  and  that  the  Do- 
minion parliament  had  j)ower  to  constitute  such  a  court, 
ini<ler  section  101  (see  imsf).  This  (piestion  has  heen  aheatly 
discusseil  t(t  some  extent  in  chapter  XI.,  (iiilr,  p.  'I'M),  and 
i'urtluir  reference  to  it  will  lie  found  in  the  not<!s  to  section 
101. 

23.  ('()pyri;.(lits. 

Tliis  is  hai"<lly  the  [)lace  to  discuss  the  .somewhat  peculiai* 
position  in  which,  undei*  the  cond)ine(l  o[)ei-ation  of  Im[)erial 
and  Canadian  le^^islation,  (Canada  is  [>laced  in  relation  t<^ 
this  (|U(!stion  A'  c  )i)y!i^ht.  Our  [)ower  alon|<'  this  line; 
is  suhject  to  liijiitations  owin;;'  to  the  existenc*!  of  Imi)orial 
legislation  in  force  in  ('anada.  Smiles  v.  Helford  [n),  in 
which  the  situation  is  ^•ra})hically  d«'scrihed  hy  Moss,  J. A. 
(aftei-wai"ds  C..I.(). i,  is  of  im|)ortan(;<!  to  our  suhject  in 
another  aspect,  Jiamely,  as  atHrmin^  the  Itioal  supremacy  of 
the  Imperial  parliament, eAcn  over  colonies  posses.sed  of  le;>is- 
Ijitures  of  their  own,  and  as  limiting;'  the  ti^-m  "exclusive  ' 
in  this  section  01  of  the  H.  X.  A.  Act,  as  leferahle  merely 
to  the  power  of  the  Dominion  i)arliament  as  distinji;uishe(l 
from  that  of  the  provincial   legislatures  (/>}.     It  is  hardly 

(z)  7  O.  R.  (i()5. 

{(i)  1  O.  A.  H.    4i\(\ ;  800   uIho   Aiif<lo  Canadian   Miiwic  Publishors   v. 
Suckliii},',  17  O.  U.  23«). 

{h)  See  ante,  p.  67,  and  note  (x)  to  boc.  'Jl,  ante,  p.  350. 


404  THE    15.  N.  A.  ACT — SEC.  91,  S.-S.  24. 

coiiceivaltle  that  any  (juefstion  can  arise  as  botweon  tlu^ 
Dominion  and  the  provinces  upon  this  subject,  except, 
pei-haps,  in  vehition  to  "  pi-oce(hire  "  in  copyi'ight  litigation, 
should  the  Dominion  parliament  legislate  along  this  line. 
See  note  to  the  last  sub-section  (22). 

'24.  Indians  and  lands  reserved  for  the 
Indians. 

The  proclamation  {<i)  which  followed  u}!on  the  Treaty 
of  Paris  contained  provisions  designed  to  protect  the  abo- 
rigines "  in  the  possession  of  such  ])arts  of  our  dominions 
and  territories  as,  not  having  been  ceded  to  us,  are  reserved 
to  them,  or  any  of  them,  as  their  hunting  grounds."  In  the 
celebrated  case  of  the  8t.  Catharines  Milling  Co.  v.  The 
Queen  (h),  it  was  held  by  the  Judicial  Conniiittee  of  the 
Privv  Council,  that  the  inteiest  of  the  Indians  liiider  this 
proclamation    Avas    " a    personal    and    usufructuary    light, 

dependent  upon  the  good  will  of  the  sovereign 

There  has  been  all  along  vested  in  the  Crown  a  substantial 
and  paramount  estate  underlying  the  Indian  title,  which 
became  a  plcinnu  (lomlnuun  whenever  that  title  was  sur- 
rendered or  otherwise  extinguished."  From  time  to  time 
Indian  tribes  had  surrendered  their  title  to  portions  of  this 
reserved  territory,  usually  upon  tenns  wdnch  secured  to 
them  a  more  definite  right  of  occupation  of  some  small  sub- 
division of  it.  These  smaller  tracts  were  known  as  "Indian 
reserves."  In  Church  v.  Fenton  (c),  it  was  held  by  all  our 
courts  that  the  above  sub-secti(m  24  applied  only  to  these^ 
and  not  to  the  larger  indefinite  areas  covere<l  by  the 
proclamation  of  1708 ;  but  this  view  is  distinctly  nega- 
tived by  the  Committee  in  the  case  above  referred  to. 
Under  the  holding  of  that  tribunal,  the  power  of  the 
Dominion  government  is  ^  power  of  legislation  and  admin- 

(fl)  See  Houston,  "  Const.  Doc.  of  Canada,"  p.  67. 

(6)  14  App.  Cas.  46. 

(c)  5  S.  C.  R.  239  ;  4  O.  A.  R.  159  ;  28  U.  C.  C.  P.  384. 


THE    B.  \.  A.  ACT — SEC.  01,  S.-S.  21.  405 

istmtioii  ill  respect  of  Indians,  and  the  lands  reserved  for 
them  over  both  these  hir^er  areas  and  tlie  more  resti'icted 
areas  of  the  "  Indian  reserves"  (so  called)  until  the  surren- 
der and  extinuuishment  of  the  Indian  title.  The  chief 
matter  in  dispute  in  th(;  case  was  as  to  the  beneficial  interest 
in  these  lands  after  such  surrender  and  extinmiishment. 
The  Committee  gave  effect  to  the  contention  put  forward 
on  behalf  of  the  province  of  Ontario,  that  to  the  pi'ovinces 
accrued  the  right  U)  "  a  beneficial  interest  in  these  lands, 
available  to  them  as  a  source  of  reveinie  whenever  the 
estate  of  the  Ci'own  is  disencuud)ered  of  the  Indian  title." 
Upon  such  surrender  they  fall  into  the  category  of  "  public 
lands  belonging  to  the  province,"  mentioned  in  sub-secti(m 
5  of  section  92.  It  would  appear,  however,  that  where, 
upon  a  surrender,  certain  rights  of  Hunting  and  fishing 
throughout  the  surrendered  teriitory  weie  still  reserved  to 
the  Indians,  "with  the  excepti<m  of  those  portions  of  it  which 
may,  from  time  to  time,  l)e  re(|uired  oi"  taken  up  for  pur- 
poses of  settlement,  mining,  lund)ering,  (»•  other  jnirposes," 
.  the  ([uestion  of  "the  right  to  determine  to  what  extent, and 
at  what  periods,  the  disputed  territory,  over  which  tht^ 
Indians  still  exei'cise  their  avocations  of  huntin<''  and  tishinu'. 
is  to  l)e  taken  up  for  settlement  or  othei-  })urposes/'  is  still 
an  open  one.  In  that  case,  there  was  no  pretence  of  a 
reservation  to  the  Indians  of  anv  riji'ht  to  tind)er  in  the 
territory  surrendered,  and  a  permit  to  cut  timber  issued; 
by  the  Dominion  government  was  held  insalid.  It 
occui's  to  one,  however,  that  it  would  be  an  easy 
matter  to  arrange  such  terms  of  conditional  surrender, 
with  such  ]'eservati(ms  of  beneticial  interest  to  the  Indians, 
as  vrouhl  practically  prevent  the  provinces  from  dealing 
with  the  land  :  but  whatever  is  sin-rendered  accrues  to  the 
benefit  of  the  province  in  which  the  territory  is  situated. 
Subject  to  the  burden  of  the  Indian  title  (with  whatever 
legislative  and  administrative  powers  exist  in  the  Dominion 
government  by  reason  of  the  existence  of  that  Indian  title) 
the  beneficial  interest  in  these  lands  ])assed  on  Confedera- 


400  THE   B.  X.  A.  ACT — SEC.  91,  S.-S.  25. 

tion  to  the  provinces,  the  fee,  of  course,  remaining  in  the 
Crown.     See  furtlier  notes  to  section  102.  ct  xcq. 

'25.  Natiiralizatioii  and  aliens. 

By  the  Iniperifil  Xnturalizntion  Act,  1S70,  it  is  enacted 

that  "  all  laws,  statutes,  and  ordinances  which  may  be  <luly 

made  by  the  IcLdslatui'e  of  any  Biitish  jiosscssion  foi'  im- 

])arting  to  any  person  the  privik'gL's  or  any  of  the  privileges 

of  natui-alization  to  be  enjoved  bv  such  i)er.son  within  the 

limits  of  such  possession.,  shall  within  such  limits  have  tlu' 

authoritv  of  law.     .     . 

«  « 

While,  therefore,  as  betweeii  the  Dominion-  and  the 
provinces,  this  subject  is,  by  this  sul)-section,  exclusively 
with  the  former,  no  legislation  by  the  parliament  of  Canada 
can  make  an  alien  a  British  subject  qtK/dd  the  Em})ire  :  it 
can  do  no  more  than  give  him,  within  the  confines  of  the 
Dominion,  the  privileges  or  some  of  the  privileges  of  natu- 
ralization. Where  any  (juestion  arises  as  to  the  national 
sfdfiis  of  a  pei'.son  domiciled  in  a  colony,  such  (question 
nuist  be  determined  b}^  the  law  of  England,  whilst  the 
rights  and  liabilities  incident  to  tliat  sfiifa><  must,  in 
Canada,  be  determined  l)y  laws  passed  by  the  parliament 
of  Canada  {(J).  The  power  of  a  provincial  legislature  to 
make  laws  i  elative  to  "  property  and  civil  rights  in  the 
province "  nuist  obviously  be  lead  subject  to  Dominion 
legislation  under  this  sub-section.  It  is  for  the  Dominion 
government  to  say  wliether  or  not,  within  Canada,  an  alien 
is  to  lie  under  any  <lisability  and  that  government  can 
insist  that  throughout  the  Dominion  an  alien  may,  upon 
conforming  to  the  provisions  of  any  Act  in  that  behalf 
passed  by  the  parliament  of  Canada,  become,  qaoad 
Canada,  a  naturalize<l  British  subject  and  enjoy  all  the 
privileges  accorded  by  the  laws  of  the  provinces  to  British 
subjects. 

(rf)  Donegani  v.  Donegaui,  3  Knapp,  P.  C.  C.  03 ;   re  Adam,  1   Moo. 
P.  C.  C.  460. 


THE   B.  N.  A.  ACT — SEC.  91,  S.-K.  26,  27.  407 

Connected  with  tlii.s  subject  is  the  (luestion  of  the  terri- 
torial  operation  of  Canadian  legislation  dincussed  in 
chapter  IX.,  antp,  p.  IcSo,  et  xcq.  Just  as  Canadian  legisla- 
tion cannot  invest  an  alien  with  the  character  of  a  British 
subject  outside  Canada,  so  it  cannot  visit  upon  natural  born 
British  subjects  resident  in  Canada  any  penalty  for  acts 
conniiitted  without  the  Dominion :  for,  without  the 
Dominion,  they  are — qiuxul  Canada — British  subjects  only 
and  their  Ntatas  as  citizens  of  Canada  is  nought.  A  tor- 
Hon,  legislation  in  reference  to  the  acts  of  aliens  al)r<)ad 
would  be  invalid. 

•20.  Marria<^e  and  Divorce. 

Compare  section  92,  sub-section  12.  No  case  has  arisen 
in  our  courts  in  reference  to  the  line  of  division  between 
the  Dominion  parliament  and  the  local  legislatures  on  this 
subject  of  marriaye  :  but  this  sub-section  and  sub-section 
12  of  section  92.  will  be  found  frecpiently  compared  and 
C(mtrasted,  and  inferences  drawn  therefrom  as  to  the  pro- 
sper pi'inciples  of  interpretation  to  be  applied  to  the  various 
,  other  sub-sections  of  sections  91  and  92  {i>).  Judging  from 
provincial  legislation  since  Confedei"ation,  it  would  appear 
to  be  conceded  that  the  scope  of  the  first  branch  of  this  sub- 
section is  limited  to  legislation  as  to  the  .status  merely  of 
luisband,  wife,  and  issue.  So  far,  the  scope  of  the  second 
branch  has  been  limited  in  pi*actice  to  private  bills  legisla- 
tion. No  court  for  the  trial  of  matrimonial  causes  has  yet 
been  established. 

27.  The   Cr.uniiial   Law,    except    the. 
Constitution  of  Courts  of  Criminal  Juris- 
diction,   but  including  the  Procedure  in 
Criminal  Matters. 

It  will  be  advisable  to  defer  considemtion  of  the  excep- 
tion— the  constitution  of  courts  of  criminal  jurisdiction — 

(e)  See  Citizens  v.  Parsons,  7  App.  Cas.  96 ;  City  of  Fredericton  v. 
The  Queen,  3  S.  C.  R.  505. 


m 

40<S  THE    H.  \.  A.  ACT — SEC.  !)1,  S.-S.  27. 

until  we  reach  sub-.sectioii  14  of  section  02,  and  to  confine 
our  remarks  upon  this  sub-section  to  "criminal  law"  and 
"procedure  in  criminal  matters."  The  subject  has  been 
already  adverted  to  in  chapter  XL,  dutc,  p.  235,  rf  wy/.,  to 
which  reference  shouM  Ir'  had. 

In  its  widest  and  strictly  le^al  sense  (/)  the  term 
"criminal  law"  would  include  all  that  class  of  niatters — 
offences  against  the  provisions  of  provincial  law — covered 
l»y  suV)-section  15  of  section  f)2,  and,  the  jurisdiction  being' 
in  each  case  exclusive,  the  meaning  of  the  term  must  be 
here  limited. 

It  will  facilitate  our  eiKjuiry  if  we  refer  shortly  to  the 
sources  of  our  criminal  law — using  that  term  in  its  widest 
sense — and  to  the  position  at  the  time  the  Union  took  effect. 
As  the  basis  we  take  the  connnon  law  of  England.  In 
cl\apter  V.  we  have  endeavored  to  point  out  to  what  extent 
English  connnon  and  statutory  law  was  deemecl  to  be  in- 
troduced into  the  various  pi-ovinces  of  British  North 
America.  As  to  the  connnon  law  of  England  relatinu'  to 
ci'imes,  their  trial  and  punishment,  no  discussion  was  neces- 
sary. That  law  was  undoubtedlv  in  force  in  the  maritime 
provinces  and  in  Queljec  as  then  constituted.  By  the 
Quebec  Act,  1774  {</),  the  criminal  law  of  England  was  to 
continue  to  be  administered  in  the  province,  and  be  "oli- 
served  as  law  as  well  in  the  description  and  (juality  of  the 
offence  as  in  the  method  of  prosecution  and  trial,  and  the 
punishments  and  forfeitures  tiierelty  inflicted."  As  was 
pointed  out,  in  Upper  Canada  the  (piestion  of  applicability 
seams  not  to  have  been  considered  open  in  determining 
the  operation  within  that  province  of  English  criminal  law 
(/ti,  but  in  the  maritime  provinces  this  question  had  to  be 
considered  in  all  cases,  criminal  as  well  as  civil. 

But,  the  "criminal  law  of  England  "  had  become  in  those 
days  largely  statutory,  and  no  disti  nction  in  principle  can 

(j)  Sea  Reg.  v.  Boardmia  and  Rag.  v.  Roddy,  post, 
(g)  14  Geo.  III.  c.  83. 
(h)  See  ante,  p.  123. 


THE    H.  \.  A.  ACT — SEP.  <)1.  S.-S.  27.  409 

be  pointed  out  as  sepaintiiiy  .statutory  criminal  law  from 
the  old  connnon  law  upon  the  subject  of  ci'imes,  their  trial 
and  punishment.  All  .sorts  of  re«fulations  were  laid  down 
to  guide  the  daily  conduct  of  men,  and  their  observance 
was  enforced  by  penalties,  inflicted  in  persunnni  (n'  in  reia^ 
until  the  severity  of  English  law  l)ecame  notorious.  As  Sir 
Thomas  May  points  out  (/),  the  criminal  code  down  to  the 
reform  era  of  the  thirties  was  larj^ely  protective  of  the 
rij^hts  of  property,  rei^ardless,  in  such  case,  of  any  (jnestion 
of  moral  turpitude.  Such  was  the  law  introduced  into  the 
colonies  of  British  North  America,  and  down  to  Confedera- 
tion there  existed  no  necessity  for  distinguishing  the  various 
parts  of  the  criminal  code,  whether  as  passed  for  the  put- 
ting dt)wn  of  pul)lic  wrongs  or  as  directed  toward  the 
upholding  of  private  rights.  "Crimes"  was  a  most  com- 
prehensive term,  and  its  definition  by  Richards,  C.J.,  in 
1<SG8  {j)  may  be  taken  as  a  correct  exposition  of  the  law 
as  it  stood  at  the  date  of  Confederation : 

"  When  a  party  may  be  punished  for  an  offence  against  a 
public  Act  of  a  public  nature,  for  which  he  may  be  tried  sum- 
marily aud  a  penalty  impo.sed,  the  proceeding  to  recover  such  a 
penalty  is  a  criminal  proceeding,  .  .  .  then  the  offence  for 
which  the  penalty  was  imposed  must  be  a  crime.'" 

This,  as  we  have  said,  covers  enactments  such  as  those 
which,  by  the  express  provision  of  suV)-section  15  of  section 
92,  a  provincial  legislature  may  pass  "  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."  So  far  as  concerns  legislation  since  Confedera- 
tion,  it  may  l)e  now  taken  as  clearly  established  that  pro- 
vincial penal  laws  within  the  limits  defined  are  not 
"criminal  law,"  nor  is  the  })i-ocedure  for  their  enforcement 
"procedure  in  criminal  matters"  within  the  meaning  of 
this  sub-section  27.     As  to  the  "connnon  law"  upon  the 

(/)  May's  "  Const.  Hist,  of  Enf{."  Vol.  III.  p.  mii,  vt  seq. 
U)  In  lie  Lucas  &  M'Glashan,  27  U.  C.  Q.  B.  81  ;  see  also  Reg.  v. 
Roddy,  41  U.  C.  Q.  B.  291. 


410  THE   K.  N.  A.  ACT — SEC.  91,  S.-S.  27. 

Hubjt'ct  of  criiiioH,  tlu'ir  trial  and  puniHhinent,  tliere  HeeiiiH 
to  1)0  a  conseiiHUH  of  judicial  opinion  that,  under  this  sult- 
srotion  this  hecanie — so  far  j's  still  extant  in  the  ditt'erent 
provinces — a  l)ody  of  Dominion  law.  But  how  about  the 
j^reat  hody  of  pi'ovincial  statutory  "criminal"  law — as  it 
would  then  he  properly  terme<l — in  force  in  the  ditt'erent 
provinces  at  Confedeivition  ?  Upon  tliis  question  there  is 
no  ex})ressi()n  of  judiciul  opinion,  so  far  as  we  have  Ikh-u 
ul»le  to  find,  and  yet  it  seems  to  us  clear  that  section  1  2!)  of 
the  Yi.  X  A.  Act  (see  poi^f),  makes  a  definite  division  of 
that  whole  hody  of  existing'  "ci'iminal"  law,  and  that, 
without  <loul)t,  whatever  t'uactments  prior  to  Confederation 
could  now,  were  they  non-existent,  he  passed  hy  a  pro- 
vincial le^islatui'e  nnist,  since  the  Union,  hi'  deemed  to  he 
a  body  of  "  pi-()\incial  '  law,  and  the  ])roci'dure  for  their 
enfoi'cement  must  he  reuulattMl  hv  i)rovincial  statutes 
a]);)licahle,  generally,  to  prosecutions  under  ])ost-('i>n- 
federation  provincial  Acts.  We  may  say,  also,  that  much 
nuiy  he  advanced  in  favor  of  the  view  that  even  the  com- 
mon law  of  England  upon  this  subject — so  far  as  still 
extant  in  Cana(hi — is  capable  of  division  alont^;'  a  similai' 
line  (/•),  but  judicial  opinion  is,  as  we  have  said,  in  favor  of 
the  view  that  this  is  by  the  B.  N.  A.  Act  assigned  in  its 
entirety  to  the  parliament  '/f  Canada.  We  now  proceed  to 
examine  the  cases  which  have  involve<l  consideration  of 
this  sub-section,  first,  however,  remarkinti;'  that  the  notes 
to  sub-section  15  of  section  92  should  be  read  in  connection 
with  what  is  here  laid  down,  for  nearly  every  case  has 
involved  a  comparison  between  that  sub-section  and  this. 

In  Reg.  V.  Boardman  (1),  Chief  Justice  Richards, 
delivering  the  judgment  of  tlie  court,  refers  to  a  passage 
from  the  judgment  of  Martin,  B.,  in  Attorney-Genei'al  \-. 
Radlofi' (/>«),  in  which  that  judge,  speaking  of  "  the  intrin- 

(k)  See  per  Osier,  J.  A.,  in  l\et>.  v.  Wason,  17  O.  A.  R.  221.  at  p.  241. 
(I)  30  U.  C.  Q.  B.  o53. 
{Ill)  10  Exch.  ilfi. 


THE   B.  N.  A.  ACT — SEC.  1>1.  S.-S.  27.  411 

sic  und  oHsential  nntiire  of  the  act  itself" — smui-ulinu' — 
HjiyH  "  tluit  it  cannot  be  deiKtminated  a  '  crinic  '  according 
to  the  ordinaiy  and  common  usaj>e  of  lan^'ua^.je,  and  the 
understanding  of  mankind."     Chief  Justice  Richards  says: 

"  I  refer  to  tliis  hinguage  .  .  .as  indicating  the  popular 
idea  of  criminal  law,  in  which  view  it  may  have  been  used  in  the 
statute." 

hut,  without  eidar,i;'ing  further  U|)on  this  snu'oestion,  lie 
held  that,  at  all  events,  whatever  comes  [)ro|)erly  within 
suh-section  1.5  of  section  i)'2  nnist  he  excludi'(l  fi-om  the 
"  ci'iininal  law"  contidetl  to  the  ))arliament  of  C'anada  hy 
this  suh-section  27.  A  clause  in  the  Li(|Uor  License  Act  of 
Ontario  directed  against  any  })erson  who,  havini;'  violated 
the  Act,  should  com})romise  the  offence,  and  ayainst  any  ])er- 
son  who  should  he  a  l>arty  to  such  compromise,  was  u})helil. 
But  in  Reyina  V.  Lawrence  {u)  it  was  held  that  a  provision 
of  the  same  Act,  that  any  jjcrson  who,  in  a  prosecution 
umler  the  Act,  tampers  with  a  witness,  should  lie  guilty  of 
an  offence  under  the  Act,  and  liahle  to  a  penalty,  and  regu- 
lating the  mode  of  enforcing  such  penalty,  was  (Ufr<i  r//y'.s 
of  a  provincial  legislature,  because  the  ofiences  dealt  with 
are  offences  af  comriKHt  Itiw.     Harrison,  C.J.,  says: 

"  There  are  many  acts,  not  being  crimes,  which  are  triable 
before,  and  punishable  by,  magistrates,  which,  although  called 
oftences,  are  not  crimes,  and  which  by  the  proper  legislative 
authority  may  be  made  the  subject  of  summary  magisterial 
jurisdiction,  either  with  or  without  appeal,  but  these  are  not  to 
be  mistaken  for  asts  in  themselves  crimes,  and  the  subject  of 
indictment,  and  of  conviction  under  indictment,  either  at  the 
common  law  or  by  statute.  Such  acts  as  these  may  by  the  pro- 
vincial legislature  be  madfe  the  subject  of  punishment  by  fine, 
penalty  or  imprisonment,  when  this  is  done  for  the  purpose  of 
enforcing  any  law  of  the  province  made  in  relation  to  any  matter 
coming  within  any  of  the  classes  of  subjects  exclusively  assigned 
to  the  provincial  legislatures.  .  .  .  The  constitutionality 
of  this  clause  is  called  in  question  because  it  is  affirmed  that  the 

(«)  43  U.  C.  Q.  B.  164,  affirminr;  judgment  of  Gwynne,  J. 


412  I'HK    1».  X.  A.  A(T — SKC.  !)1.  S.-S.  27. 

iK'ts  with  which  it  <loals  are,  and  each  of  them  is,  the  siihject  of 
an  indictment  l)y  the  criminal  (nic i  hiw,  and  so  not  the  Huhjcct 
of  tlie  exerflise  of  power  hy  the  provincial  le<,'islatnre.  If  this 
contention  he  well  founde  I  i)i  fact  wo  are  of  opinion  that  it  ia 
a  j,'Ood  contention  in  law." 

rpoii  a  review  of  the  authorities  it  was  lield  that  the 
oti'enei'  le^'islatiMl  a^^'ainst  hy  the  Act  in  (luestion,  was  an 
offence  which  mi<;ht  Ic'  thi^  suhji'ct  of  an  indictment  at 
eonunon  law,  and  was  tiierefore  beyond  the  powei'  of  a 
pr()vincial  le;>islatnre.  Retina  v.  Boardman,  and  He^ina 
\'.  Lawrence  are  hard  to  reconcile.  The  former  can  he 
upheld  only  on  the  view  that  the  compounding  of  a  misde- 
meanor is  not  an  offence  Ity  tlie  connnon  law,  and  can, 
tiierefore,  for  the  pu)'pose  of  securing-  proper  enforcement 
of  a  provincial  law,  be  made  punishable  by  provincial 
leufislation. 

To  the  like  effect,  in  Retina  v.  Shaw  (o)  it  was  held  by 
the  Court  of  Queen's  Bench  in  Manitoba,  that  keepini;'  a 
<4aniblin<j;-house  is  an  offence  against  the  connnon  law,  and 
that  conse(|uently  it  can  only  be  dealt  with  by  the  pailia- 
nu'ut  of  Canada,  jvnd  cannot  l)e  madi;  an  offence  l»y  a 
provincial  Municipal  Act  or  l)y  a  by-law  passed  undei'  the 
Muthority  of  such  Act.     Mr.  Justice  Kilhim  says: 

"  It  was  an  olfenoe  at  common  law  to  keep  a  gambling 
house.  This  offence,  it  appears  to  me,  comes  within  the  snbject 
of  criminal  law  referrol  to  in  section  Ul,  sub-section  27  of  the 
1).  N.  A.  Act.  That  term  mist,  in  my  opinion,  include  crei-ij 
net  (If  amission  ir/iii  li  irtis  iriianli-)!  as  criiiiiuid  Inj  tin'  loirs  of  thi' 
in-orinccs  when  the  Vninn  Art  was  //kssciI,  and  which  was  not 
merely  an  offence  against  a  by-law  of  a  local  authority.  If 
this  were  not  to  be  the  rule  of  construction,  more  diflficnlty 
than  ever  would  arise  in  drawing  the  line  between  the  jurisdic- 
tion of  the  Dominion  and  the  provincial  legislatures.  This 
gives  us  one  clear  line  of  demarcation  which  it  would  be 
dangerous  to  obliterate.  I  think  it  must  be  deemed  to  be  one 
line  which  was  intended  to  exist.     How  far  parliament  can  ex- 

(.»)  7  Man.  L.  R,  518. 


TIIK    H.  \.  A.  ACT— SMC.  !»1,  S.-S.  -27.  41 M 

elude  provincial  or  municipal  lt'<,'i«lation  hy  crealinj,'  new  crinies 
is  a  (luo.stion. 

"  This  bein^'  tho  view  which  I  tal<(',  I  think  that  the  act  of 
keeping  a  C()nnn(>n  j,'aniin,f,'  house  cannot  he  niiitle  an  oU'enee  l)y 
provincial  statute  ov  l)y  niiniicipal  hy  law,  hut  that  it  can  ije 
punished  only  as  an  ott'ence  a<i;ainst  the  ;jrt'Ht'ial  criminal  law 
by  indictment  or  such  other  procedure  as  the  parliament  of 
('ana<la  may  provide." 

It  will  Ik'  noticed  that  the  huimni'-t'  of  this  iudunicnt 
jH'oes  heyond  what  was  neeesHai'X'  to  the  deeisi(»ii  oj"  the 
case,  and  the  |)art  itaHeis«'(l  conflicts  with  see.  12!>  of  the 
IJ.  X.  A.  Act.  See  ante,  p.  41().  On  a]»]»eal,  howevrr,  to 
the  full  Court,  Taylor,  C'.-i.,  intimates  his  entirt"  e(»n- 
curi'ence  with  the  view  exj)i-esMe(l  hy  Killam,  .1.  He 
sjx'aks  of  the  ort'ence  as  one  which  niiyht  have  heen 
<lealt  with  under  the  Dominion  statute  li.  S.  C  c.  loS. 
Ueferi'iujn'  to  Re<;ina  v.  Wason  {  f>\  Itefoj-e  the  Court  of 
Appeal  for  Ontai'io,  he  points  out  that  the  oli'eneo  created 
hy  the  provincial  Act  there  im])u<4ned  formed  no  i)ai't  of 
the  criminal  law  })revi()usly  existing,  and  that  the  ap[)arent 
object  of  the  Act  whs  to  protect  private  rights  i-ather  than 
inmisli  ])ul)lic  wrongs.  Mr.  Justice  Bain,  referi-ing  to  the 
same  case,  says : 

"  The  remarks  of  all  the  judges  clearly  imply  that  had  the 
Act  in  (juestion  been  one  that  was  punishable  as  a  crime  under 
the  general  criminal  law  of  the  Dominion,  the  nuitter  would  have 
been  ultni  rirt'soi  the  legislature." 

Mr.  Justice  Duhnc  did  not  dissent  from  the  judgment  of 
the  court,  lait  expressed  his  d<ml»ts  in  these  woi'ds  : 

"It  is  objected  that  keeping  a  gambling  house  is  a  criminal 
olience  over  which  the  Dominion  parliament  has  exclusive  juris- 
diction. It  is,  undoubtedly,  a  criminal  offence  ;  but  I  am  in- 
clined to  think  that  such  houses  might  also  be  regarded  as 
centres  of  disorder  and  immorality  in  the  community,  which 
municipal  corporations  have  a  right  and  even  a  duty  to  suppress." 

We  might  remark,  in  reference  to  this  case,  that  the 
(p)  17  O.  A.  R.  221. 


414  THK   B.  N.  A.  ACT — SEC.  91,  S.-S.  27. 

ultiiiiiiU'  (li'fiHion  of  tliu  point  rained  by  Mr.  Justico  Duidic 
will  (K'pond  Hoiiiewlmt  upon  the  scopo  {.(ivon  to  section  92, 
Huh-section  «S — "  municipal  institution.s  in  the  province." 
If  the  view.s  expreHsed  l»y  the  Court  of  Appt^al  for  Ontario 
in  lie  Local  Option  Act  (7),  receive  final  sanction,  and  the 
term  "  municipal  iiiHtitutions "  he  held  to  cover,  in  the 
newly  ac(|uire(l  provinces,  what  the  Court  of  Appeal  has 
held  it  to  cover  in  tlu>  province  of  Ontario,  then  the  view 
to  which  Mr.  Justice  Duhuc  inclined  would  he  supported 
l»y  tln'  fact  that  prior  to  Confederation,  the  power  t(t  i)ut 
down  such  estahlishments  was  vested  in  nnniicipal  boilies, 
in  Cp])ei'  (^mada  at  least.  If,  howevej",  the  ])owers  of  a 
mujiicii)al  hody  cannot,  so  farastho.se  powers  are  conferred 
by  a  provincial  legislature,  extend  heyon<l  the  limits  of  tlie 
powers  directly  exerciseahle  hy  such  lej^islature  (/•)  under 
the  other  sub-sections  of  section  02,  it  will  have  to  be  con- 
sidere<l  whether  any  sub-section  does  support  the  <j;Tant  to  a 
nuuiicipal  body  of  wiiat  liave  been  called  police  powei-s. 
This  nnist  ])e  discus.sed  later,  but,  in  either  view,  the.  point 
raised  by  Mr.  Justice  Dubuc  would  necessitate  consideration 
of  what  was  said  by  the  Privy  Council  in  Russell  v.  Reg., 
that,  in  one  aspect,  a  subject  niay  fall  within  section  1)1, 
and,  in  another,  within  section  J)2,  and  of  how  far  that  prin- 
ciple can  apply  to  the  determination  of  tlie  scope  of  this 
sub-section  27  and  sub-section  15  of  section  02. 

Provincial  statutes  regulating  the  killing  and  possession 
of  game  at  certain  seasons  of  the  year,  were  held  by  the 
Court  of  Queen's  Bench  in  ManitoV»a,  not  to  fall  within  this 
sub-section  (.s-).  At  common  law,  no  prohibition  whatever 
exists  in  regard  to  the  taking  of  game  at  any  season  of  the 
year ;  no  public  general  statute  of  the  Dominion  purports 

('/)  18  O.  A.  B.  572 ;  see  notes  to  s.  91,  s-s.  2,  ante.  p.  iiOU  and  to  s.  92, 
s-8.  8,  post. 

(r)  See  Leprohon  v.  Ottawa,  2  O.  A.  R.  522,  referred  to  in  the  notes  to 
8-8.  8  of  8.  92,  post. 

(s)  Reg.  V.  Robertson,  3  Man.  L.  R.  013;  see  also  notes  to  s-s.  16  of 
8.  92,  post. 


THE    n.  N.  A.  ACT — SFX'.  S»l,  H.-S.  27.  415 

to  Miako  ciiininal  interference  with  wild  iiniiiialH ;  and 
therefore  the  matter  i.s  under  the  B.  N.  A.  Act,  left  to  bo 
dealt  with  Ity  each  province  as  a  matter  of  a  merely  local 
or  pi'ivate  nature.  TIuh  view  is  HUj;'^eHte<l  hy  the  Jud<j^ment 
of  the  c<»urt  in  that  case:  that,  if  by  reason  of  inter-pro- 
vincial mi}.,^ration  of  birds  and  other  nanic,  the  subject  should 
liecome  one  of  the  Dominion  or  (piasi-national  importance, 
it  would  then  be  in  order  for  the  Dominion  government,  if 
deemed  advisable,  to  enact  laws,  makiuj^'  acts,  which  mi/^ht 
tend  to  the  extermination  or  undue  decrease  of  game, 
criminal. 

That  provincial  legislatures  have  exclusive  authority  to 
regulate  the  procedure  in  prosecutions  for  offences  against 
provincial  statutes  is  now  recognized  as  the  law  in  all  the 
provinces. 

In  Regina  v.  Koddy  (f),  it  was  held  that  a  provincial 
statute  could  so  far  create  a  crime  as  to  make  applicable  to 
the  prosecution  therefor  the  rules  of  evidence,  procedure, 
etc.,  laid  down  by  Dominion  legislation,  to  the  exclusion  of 
any  provincial  law:  but  this  decision  has  been  clearly  over- 
ruled by  Rogina  v.  Wason  {(i\  This  case  will  be  found 
referred  to  more  at  length  in  the  notes  to  sub-section  15  of 
section  92.  It  is  a  clear  authority  that  the  provincial  legis- 
latures have  full  power  to  regulate  procedure  in  all  prose- 
cutions arising  under  provincial  Acts.  As  will  be  seen,  the 
authorities  in  the  <;ther  provinces  are  to  the  same  effect. 

On  the  other  hand,  in  Regina  v.  Lake  (v),  it  was  held 
that  a  provincial  legislature  has  no  power  to  enact  that  an 
offence  against  a  Dominion  Act  (in  that  case  the  Canada 
Temperance  Act),  may  be  treated  as,  and  be  proceeded  upon, 
under  a  provincial  statute ;  and  in  Regina  v.  Eli  (w),  also  a 
prosecution  under  the  Canada  Temperance  Act,  it  was  held 

(t)  41  U.  C.  Q.  B.  291 ;  see  Reg.  v.  Bittle,  21  O.  R.  60.5. 
(u)  17  O.A.  R.  221. 
(r)  43  U.  C.  Q.  B.  515. 
(w)  13  O.  A.  R.  526. 


416  THE    H.  N.  A.  ACT — SEC.  91,  S.-S.  27. 

that  all  procedure  connected  with  the  infliction  of  punish- 
ment f(»r  ott'ences  against  that  Act  must  be  fixed  l)y  tlie 
Dominion  parliament,  and  that  no  appeal  lay  to  the  Court 
of  A})peal  undei"  the  procedure  as  to  appeals  laid  down  hy 
})rovincial  statutes.  To  the  same  eft'ect  are  many  dicta  of 
judues  in  the  other  provinces  in  cases  involving  the  other 
as]»ect  of  this  (piestion  of  procedure.  The  latest  enuncia- 
tiow  of  the  rule  is  in  The  Queen  v.  ])t'  Coste  (.v),  in  which  the 
Supreme  Coui't  of  Nova  Scotia  held  that  a  provincial  k'gis- 
latui'e  has  no  power  to  authorize  the  removal  by  cvrt'iorn  ri 
of  a  conviction  under  the  Canada  Temperance  Act.  This 
agrees  with  the  decision  in  all  the  provinces. 

We  should  note,  also,  that  in  Ward  v.  Reid  (//),  it  was 
held  by  the  Supreme  Court  of  New  Brunswick,  that  the 
Dominion  Act,  ^^2  t.^  88  Vic.  c.  81,  s.  7(S,  M'hich  provided 
that  penalties  against  justices  of  the  peace  for  the  non- 
return of  C(mvictions,  mav  be  recovered  in  an  action  of 
debt  l)y  any  pei-son  suing  for  the  same  m  any  court  of 
record,  was  within  the  competence  of  the  Dominion  parlia- 
ment, and  that  a  provincial  enactment  declaring  that 
county  courts  should  not  have  Jurisdiction  in  such  cases, 
was  thereby  overborne.  It  is  submitted  that  the  Dominion 
Act  can  only  be  held  to  apply  to  convictions  for  offences 
under  Dominion  legislation,  and  can  have  no  application  to 
cinivictions  for  offences  against  provincial  laws. 

Although  we  defer  consideration  of  the  excepted  matt«n' 
of  the  constitution  of  courts  of  criminal  jurisdiction,  we 
should  here  u)  *ke  reference  to  some  cases  in  which  ques- 
tion has  arisen  as  to  the  nature  of  the  legislation  impugned, 
whether  relative  to  the  "  constitution'  of  the  court  or  to 
procedure. 

In  Regina  v.  Bradshaw  {z),  it  was  held  that  trial  with 
or   without  jury  is  a  question  of  procedure,  and  is  not 

(r)  21  N.  S.  R.  21(5. 

((/)  22  N.  B.  Rep.  271) ;  a  Cart.  405. 

i^)  as  U.  C.  Q.  B.  hU. 


THE   B.  N,  A.  ACT — SEC.  91,  S.-S.  27.  417 

a  matter  relating  to  the  "  organization  "  of  courts.  The 
validity  of  Dominion  legislation  adopting,  for  purposes  of 
criminal  trials,  provincial  law  in  reference  to  the  selection 
of  juroi-s  was  upheld  in  Reg.  v.  O'Rourke  (a),  a  case  suffi- 
ciently referred  to  in  Reg.  v.  Plante,  about  to  be  noted. 

In  reference  to  the  provision  in  the  Dominion  Criminal 
Procedure  Act  (see  R.  S.  C,  c.  174,  s.  160),  adopting  the 
provincial  jury  law,  this  saving  clause  is  inserted :  "  sub- 
ject always  to  any  provision  in  any  Act  of  the  parliament 
of  Canada,  and  in  so  far  as  such  laws  are  not  inconsistent 
with  any  such  Act."  Section  166  of  the  same  statute 
makes  provision  for  a  mixed  jury,  when  duly  demanded  in 
the  province  of  Quebec,  and  section  167  makes  a  somewhat 
similar  provision  for  the  province  of  Manitoba.  In  the 
latter  province,  prior  to  1890,  the  jury  laws  were  adapted 
and  conformed  to  the  requirements  of  the  Criminal  Pro- 
cedure Act.  There  were  provisions  for  the  selecting,  sum- 
moning and  impanelling  of  French-speaking  jurors  in  case 
a  mixed  jury  was  required,  but  in  1890  these  provisions 
were  repealed.  In  Queen  v.  Plante  {h),  the  defendant 
demanded  a  mixed  jury,  or  a  jury  composed  of  at  least  six 
persons  skilled  in  the  language  of  the  defence,  as  pre- 
scribed for  in  section  167  of  the  Criminal  Procedure  Act, 
but  such  a  jury  could  not  be  obtained.  Upon  a  case 
reserved,  the  majority  of  the  court  gave  judgment,  (juash- 
ing  the  case,  upon  the  ground  that,  as  judgment  had  been 
given  on  demurrer  at  the  trial  upon  the  point  raised,  it  had 
become  matter  of  record  and  could  not  therefore  be 
leserved,  a  writ  of  error  being  the  only  remedy.  Mr. 
Justice  Dubuc  dissented  from  this  view,  and  therefore 
found  it  necessary  to  consider  the  constitutional  (juestion 
involved.  After  referring  to  Regina  v.  O'Rourke  and  the 
views  of  Wilson,  C.J.,  and  Hagarty,  C.J.,  therein  expressed, 
his  judi  ment  proceeds  : 

(a)  1    ).  R.  4G5  ;  32  U.  C.  C.  P.  388  ;  see  note  (h)  ante,  p.  202. 
(h)  7   Jan.  L.  R.  537. 
Can.  Con.— 27 


418  THE   B.  X.  A.  ACT — SEC.  91,  S.-S.  28,  29. 

"  I  perfectly  agree  with  those  views.  I  think  that  the  jury, 
when  empanelled  and  sworn,  became  part  of  the  constitution  of 
the  court ;  but,  at  the  same  time,  I  am  of  opinion  that  the 
selecting  and  summoning  of  jurors  are  matters  of  criminal 
procedure  over  which  the  Dominion  parliament  has  exclusive 
jurisdiction.  It  being  so,  section  169  of  the  Criminal  Procedure 
Act,  by  which  the  power  to  select  and  summon  jurors  is 
delegated  to  the  province,  must  be  held  to  bo  intra  vires.  As, 
therefore,  the  provinces  exorcise  the  power  of  selecting  and 
summoning  jurors  only  by  delegation  of  the  Dominion  parlia- 
ment, and  as,  by  section  160,  the  delegation  is  made  *  subject 
always  to  any  provision  in  any  Act  of  the  parliament  of  Canada, 
and  in  so  far  as  such  laws  are  not  inconsistent  with  any  such 
Act,'  it  follows  that  section  167  of  the  Criminal  Procedure  Act, 
by  which,  in  Manitoba,  that  power,  delegated  to  the  province, 
of  selecting  and  summoning  jurors  is  qualified  in  providing  for 
a  mixed  jury  when  duly  demanded,  is  also  intra  vires. 

•*  The  authority  to  delegate  implies  the  authority  to  qualify 
and  restrict  the  power  delegated.  By  section  160,  in  delegating 
to  the  provinces  the  power  of  selecting  and  summoning  jurors, 
the  parliament  of  Canada  reserved  to  itself  the  right  to  make 
provisions  in  regard  to  the  same.  .  .  .  The  parliament  of 
Canada,  by  said  section  167,  has  prescribed  and  determined 
what  kind  of  jury  shall,  in  certain  cases,  be  required  for  criminal 
assize.  It  follows  that  any  jury  summoned  to  serve  at  a 
criminal  assize,  and  different  in  its  composition  from  the  jury 
required  by  the  provisions  of  section  167,  may  be,  by  any 
prisoner  entitled  to  the  benefit  of  such  provisions,  challenged  as 
not  properly  and  duly  summoned  "  Ic). 

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  as- 
signed exclusively  to  the  Legislatures  of 
the  Provinces. 

(c)  See  also  Reg.  v.  Foley,  2  Cart.  653  (n). 


THE   B.  N.  A.  ACT — SEC.  91,  S.-S.  29.  419 

Referring  to  the  various  sub-sections  of  Section  92,  the 
only  express  exceptions  are  those  mentioned  in  sub-sections 
1  and  10.  With  reference  to  the  latter  we  need  say  noth- 
ing here,  as  the  notes  to  that  sub-section  discuss  the  matter 
with  sufficient  fullness.  As  to  the  former,  it  is  submitted 
that  this  sub-section  29  does  not  apply  to  warrant  the 
Dominion  parliament  in  amending  the  provincial  constitu- 
tions "  as  regards  the  office  of  Lieutenant-Governor."  Any 
such  legislation  would  be  repugnant  to  the  spirit,  if  not  the 
express  terms,  of  the  B.  N.  A.  Act.  The  office  of  the  Lieu- 
tenant-Governor is,  as  we  have  frequently  remarked,  a 
link  in  the  chain  of  connection  between  the  provinces  and 
the  Empire,  and  the  whole  spirit  of  the  B.  N.  A.  Act  is  that 
this  is  one  of  those  fundamental  matters  in  connection  with 
the  scheme  of  Canadian  political  organization,  which  is 
matter  of  Imperial  concern.  This  is  recognized  in  that 
passage  of  the  judgment  of  the  Privy  Council  in  Liquida- 
tors of  Maritime  Bank  v.  Beceiver-General  of  New  Bruns- 
wick (d),  in  which  their  Lordships  say  that  the  Dominion 
government  is,  in  relation  to  a  Lieutenant-Governor,  "a 
governing  body,  who  have  no  powers  and  no  functions 
except  as  representatives  of  the  Crown." 

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  enumera- 
tion of  the  classes  of  subjects  by  this  Act 
assigned  exclusively  to  the  Legislatures 
of  the  Provinces. 

As  to  the  wide  effect  given  to  this  concluding  clause  in 
the  earlier  decisions  in  our  courts,  see  chapter  X.,  (intc,  p. 
207.  Its  reference  to  sub-section  16  of  section  92  is  now 
clearly  settled  by  authority.     In  L'Union  St.  Jacques  v. 

id)  Times  L.  R.  Vol.  VIII.  677 ;  see  ante,  p.  307. 


420  THE   B.  N.  A.  ACT — SEC.  92,  S.-S.  1. 

Belisle  (e\  Lord  Selborne  lays  it  down  that  the  onus  is  on 
the  party  who  contends  that  any  matter,  "  being  of  a  private 
nature,"  does  also  come  within  the  clays  of  subjects  specially 
enumerated  in  the  91st  section.  Note,  too,  the  way  in 
wliich  the  reporter  (piotes  this  clause,  putting  "  matters  of 
a  local  or  private  nature  "'  in  inverted  commas  as  a  (juota- 
tion  from  section  92,  sub-section  16.  See  also  Dow  w 
Black  (/),  and  Citizens  v.  Parsons  {(j)  where  the  grammat- 
ical connection  with  sub-section  10  of  section  92  is  clearly 
pointed  out.  In  note  (xi)  to  section  91,  (i7}te,  p.  352,  we 
have  pointed  out  the  bearing  of  this  clause  on  the  (]uestion 
as  to  the  power  of  the  Dominion  parliament  to  pass 
"private  Acts,"  and  the  n(jt's  to  sub-section  10  of  section 
92  contain  further  reference  to  it. 

Exclusive  Powers  of  Provincial  Legis- 
latures. 

fxdSe'pro-        92.  In  each  Province  the  Legislature 
En'^^^'^'  may  exclusively  make  laws  in  relation  to 
matters  coming  within  the  classes  of  sub- 
jects next   hereinafter  enumerated,  that 
is  to  say  :— 

As  to  the  powei-s,  other  than  legislative,  and  the  privi- 
leges and  innnunities  of  provincial  legislatu  es,  see  the 
notes  to  section  09,  (infe,  p.  820.  The  notes  to  the  openhig 
clause  of  section  91  should  be  read  preparatory  to  the  con- 
sideration of  the  various  sub-sections  of  this  section  92. 

1.  The  Amendment  from  time  to  time, 
notwithstanding  anything  in  this  Act,  of 
the  Constitution  of  the  Province,  except 
as  regards  the  office  of  Lieutenant-Gov- 
ernor. 

(e)  L.  R.  (iP.  C.  31.  (/)  L.  R.  (5  P.  C.  272,  at  p.  282. 

(O)  7  App.  Crts.  9(i,  at  p.  108. 


THE   B.  N,  A.  ACT — SEC.  92,  S.-S.  1.  421 

When,  in  the  early  'fifties,  it  was  considered  desirable  to 
make  the  Legislative  Council  of  (Old)  Canada  elective,  it 
was  thought  that  nothing  short  of  Imperial  legislation 
could  effect  the  change  ;  that  any  colonial  legislation  to  that 
end  would  be  "  repugnant "  to  the  provisions  of  the  Union 
Act,  1(S40,  which  prescriljed  the  form  of  political  organiza- 
tion in  the  province.  Accordingly,  an  Imperial  Act  (17  & 
1(S  Vic.  c.  ILS)  was  passed  (h)  authorizing  the  parliament  of 
Canada  to  make  the  desired  change.  The  Act  authorized 
further  alteration,  from  time  to  time,  but  with  the  proviso 
that  any  Bill  for  such  purpose  shouM  be  reserved  for  the 
signification  of  Her  Majesty's  pleasure  thei'eon  ;  and  it  also 
repealed  certain  clauses  of  the  Union  Act  limiting  the 
power  of  the  Canadian  parliament  in  the  matter  of  making 
alteraticai  in  the  mend)ership  of  the  Legislative  Assembly 
of  the  Province. 

When,  in  the  early  'sixties,  the  legislature  of  South 
Australia  desired  to  alter  the  constitution  of  the  Lejiislative 
Council  and  House  of  Assend)ly  of  that  colony.  Imperial 
intervention  was  not  sought.  Doubts  were,  in  consecpience, 
raised  as  to  the  validity  of  the  colonial  Acts  by  which  the 
<lesired  change  had  been  enacted,  and,  to  set  at  rest  these 
doubts,  26  k  27  Vic.  c.  (S4  (Imp.)  was  passed,  by  which  it 
was  enacted  : 

"  All  laws  heretofore  passed  or  purporting  to  have  been  passed 
by  any  colonial  legislature  with  the  object  of  declaring  or  alter- 
ing the  constitution  of  such  legislature,  or  of  any  branch  thereof, 
or  the  mode  of  appointing  or  electing  the  members  of  the  same, 
shall  have,  and  be  deemed  to  have  had,  from  the  date  at  which 
the  same  shall  have  received  the  assent  of  Her  Majesty,  or  of  the 
Governor  of  the  colony  on  behalf  of  Her  Majesty,  the  same  force 
and  effect  for  all  purposes  whatever  as  if  the  said  legislature  had 
possessed  full  powers  of  enacting  laws  for  the  objects  aforesaid, 
and  as  if  all  formalities  and  conditions  by  Act  of  parliament  or 
otherwise  prescribed  in  respect  of  the  passing  of  such  laws  had 
been  duly  observed." 

[h)  See  it  printed  in  full  in  Houston'a  "  Const.  Doc.  of  Can."  at  p.  177. 


422  THE   B.  N.  A.  ACT — SEC.  92,  S.-S.  1. 

but  thi.s  Act  though  applicable  to  all  the  colonies  of  the 
Empire  was  retrospective,  merely,  in  its  operation. 

In  the  next  year,  however,  was  passed  the  Colonial  Laws 
Validity  Act,  18(55,  to  many  of  the  provisions  of  which  we 
have  already  ivferred.  The  Act  is  one  of  such  importance, 
that,  although  we  have  ([uoted  nearly  every  section  of  it  in 
various  parts  of  this  book,  we  have  given  it  a  place  in  the 
appendix,  in  order  that  it  may  be  studied  in  its  entirety. 
Upon  our  present  subject,  the  important  clause  is  the  oth. 
enacting  that — 

" Every  representative  legislature  shall,  in  respect  to  the 

colony  under  its  jurisdiction,  have,  and  be  deemed  at  ull  times 
to  have  had,  full  power  to  make  laws  respecting  the  viDistitntiim. 
{Kjirrrs,  find  //rotw/uyv  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 
colony." 

Such  was  the  position  of  affairs  at  the  time  the  B.  X.  A. 
Act,  1<S()7,  was  passed.  What  is  the  effect  of  this  latei- 
Imperial  Act,  in  respect  of  the  applicability,  to  the  legisla- 
tive bodies  now  existiny',  under  it,  in  Canada,  of  this  clause 
of  the  Colonial  Laws  Validity  Act,  l!S()o.  We  have  already 
discussed  this  (juestion,  to  a  slight  extent,  in  reference  to 
the  power  of  the  Dominion  parliament — see  (ii)f<',  p.  2.SU  — 
and  have  pointed  out  that  under  the  words  "to  make  laws 
respecting  the  constitution  "  no  ])()wer  is  conferred  l)y  the 
clause  upon  any  colonial  legislative  body  to  enlarge  the 
sphere  of  its  legislative  authority.  ^1  fot'tiori,  the  fact  that 
by  the  B.  N.  A.  Act,  the  field  for  the  exercise,  in  Canada,  of 
colonial  legisbitive  power  is  exhaustively  divided,  into  di\i- 
sions  exclusive  each  of  the  other,  clearly' prevents  any  such 
enlargement,  l)y  any  one  of  <au'  legislatures,  of  the  sphei'e  of 
its  authority.  The  W(n'd  "constitution,"  therefore,  nnist  be 
limited  to  the  defining  liow,  within  its  allotted  spl^^re,  the 
work  of  government,  legislative  and  executive,  is  to  be 
carried  on— what  is  to  be  the  machinery  of  government. 


THE    H.  \.  A.  ACT — SEC.  92,  S.-S.  ],  423 

Of  "powei-s"  and  "procedure"  we  have  already  said  (/)  that, 
as  to  the  Dominion  parliament  and  provincial  legislatures, 
tliis  clause  of  the  C<»lonial  Laws  Validity  Act,  1  iS(J5,  is  still  in 
f( »rce  to  enal »le  them  (save  where,  as  hy  section  1  (S,  tlie  B.  N.  A. 
Act  expressly  limits  its  force)  to  define  their  powei-s,  other 
tiian  legislative,  and  to  regulate  their  procedure. 

It  has  at  length  heen  authoritatively  enunciated  hy  the 
highest  tribunal  in  the  Empire  that  the  form  of  political 
organization  in  Canada  is  truly  federal;  that  the  B.  X.  A. 
Act  had  for  its  ohject  "neither  to  weld  tlie  provinces  into 
one,  nor  to  suhoi-dinate  provincial  governments  to  a  central 
authority,  hut  to  create  a  federal  jiovernment  in  which  they 
shoidd  all  be  represented,  intrusted  with  the  exch.si\e  ad- 
ministration of  afi'airs  in  which  thev  had  a  connnon  interest, 
each  province  irfninivrj  its  independence  and  autonomy." 
The  word  "federal"  can  have  signilicance  only  as  between 
the  parties  to  the  federal  union,  and  in  no  way  can  it  have 
any  bearing  upon  our  relations  to  the  government  of  the 
Ignited  Kingdom,  although  the  agreement  entered  into  by 
the  provinces  recjuired,  for  its  legal  validity,  to  be  clothed 
in  the  garb  of  an  Imperial  Act.  While,  however,  the  "con- 
stitution" of  the  fedei'al  government  was  thus  matter  of 
agreenufjit  between  the  ])rovinces,  and  while  the  B.  X.  A. 
Act  confers  no  general  power  (j)  u^wn  the  parliament  of 
Canada  to  make  alteration  therein,  no  limitation  would 
have  been  proper  in  regard  to  the  "  constitutions  '  of  the 
pi'(»vincial  governments — no  restriction  upon  the  manner  in 
which  the  Avork  of  fjovernment  shoidd  be  carried  on  in  rela- 
tion  to  tho.se  matters  in  respect  of  which  they  retained  their 
"independence  and  autonomy" — other  than  in  regard  to  the 
position  of  the  executive  head,  designed  to  be  the  connect- 
ing link,  binding  the  provinces,  through  the  Dominion 
executive,  to  the  home  govei'ument  and  the  Empire.  Apart 
from  this  new  feature,  the  provincial  "  constitutions  '  were 

(/'I  Bee  notes  to  ss.  ;<")  and  til),  (uite. 

( j)  Spacial  power  is  t^iven,  for  obvious  reasons,  in  relation  to  elections, 
etc.     See  s.  40,  et  seq.  .  / 


424  THE   B.  N.  A.  ACT — SEC.  92,  S.-S.  2. 

to  continue  as  before  the  Union — employed,  of  course,  upon 
a  small  range  of  matters — and  no  withdrawal  of  the  powei-s 
which  had  been  conferred  by  the  Colonial  Laws  Validity 
Act  was  contemplated.  By  way  of  abundant  caution,  how- 
ever, it  was  deemed  advisable  to  enact  that  "  notwithstand- 
ing anything  in  tliis  Act"  the  provincial  legislatures  should 
have  still  the  power  to  amend  the  provincial  constitutions, 
save,  for  the  reasons  above  indicated,  "as  regards  the  office 
of  Lieutenant-Governor." 

We  have,  from  time  to  time,  in  the  notes  to  the  various 
sections  relating  to  the  provinces  and  their  form  of  govern- 
ment, pointed  out  alterations  and  amendments  which  have 
been  made  under  the  authority  of  this  sub-section.  Under 
it  IManitoba  has  aboli.shed  her  second  chamber,  and  there  are 
signs  of  a  dispositic^i  on  the  part  of  some  of  the  other  pro- 
vinces to  follow  suit  to  this  lead  on  the  part  of  our  youngest 
pi'ovince.  'fhere  is  no  limit,  howevei",  to  the  extent  to 
nvhicli  the  "amendment"  may  pi'oceed,  save  in  so  far  as  it 
may  be  restrained  l)y  the  exercise  of  the  power  of  disallow- 
ance. No  particular  form  of  provincial  government  is 
"guaranteed"  by  our  charter  of  government — beyond  this, 
that  it.s  executive  head  nmst  be  the  Queen,  represented  in 
each  province  by  a  Lieutenant-Governor,  appointed  ))y  the 
federal  executive,  and  through  this  representative  she  is 
entitled  to  share  in  all  provincial  legislation. 

An  Act  of  the  Ontario  legislature  conferring  upon  the 
Lieutenant-Governor  power  to  remit,  by  order  in  council, 
any  tine  or  penalty,  to  which  any  person  might  have  become 
liable  through  breach  of  any  provincial  law,  was  held  (/.•) 
not  to  oftend  against  the  exception — not  being  an  amend- 
ment of  the  constitution  "as  regards  the  office  of  Lieutenant- 
Qovernor. 

2.  Direct  Taxation  within  the  Pro- 
vince in  order  to  the  raising  of  a  Revenue 
for  Provincial  purposes. 

{k)  Atty.-Genl.    for  Canadi  v.  Atty.-Genl.   (Ont.),  20  O.  R.  222  ;  19 
0.  A.  R.  31.    See  notes  to  s.  58,  aiite,  p.  305. 


THE   B.  N.  A    ACT — SEC.  92,  S.-S.  i,  3.  425 

3.  The  borrowing  of   money  on   the 
sole  credit  of  the  Province. 

As  to  the  other  source  of  provincial  revenue,  see  suh- 
Hections  5,  9  and  15  of  this  section  92,  and  section  102  cf  se(f., 
and  notes  thereto.  See  also  notes  to  sub-sections  8  and 
4  of  section  91,  ante,  p.  370. 

The  operation  of  the  power  conveyed  by  sub-section  2 
is  limited — "in  order  to  the  raising"  of  a  revenue  for  pro- 
vincial purposes" — but,  in  Dow  v.  Black  (^),  it  was  held 
that  this  sub-section  authorizes  the  imposition  of  "  direct 
taxation  for  a  local  purpose  upon  a  particular  localit}' 
within  the  province,"  and  is  not  to  be  limited  to  direct 
taxation,  "  only  for  the  purpose  of  raising  revenue  for 
general  provincial  purposes,  that  is,  taxation  incident  on 
the  whfde  province  for  the  genei'al  purposes  of  the  whole 
province."  In  that  case  the  tax  necessary  to  pay  a  local 
}>()!)  UK  was  directly  imposed  by  the  Act  imi)vigned,  but, 
bearing  in  mind  the  principle  of  Hodge  v.  The  Queen,  as  to 
the  delegation  of  power  (see  <nif(',  p.  202),  the  decision  in 
Dow  V.  Black  is  sufficient  warrant  for  the  whole  system  of 
nuuiicipal  taxation  now  operative  throughout  Canada. 
Had  the  construction  contended  for  prevailed,  the  taxing- 
powers  of  a  municipality  would  have  been  cut  down  to 
license  fees  under  sub-section  9 ;  and  direct  subsidies  from 
the  provincial  governments  must  have  been  resorted  to  {in), 
if  indeed  that  method  could  have  been  upheld  as  being  for 
the  general  benefit  and  purposes  of  the  whole  province. 

What  is  direct  taxation  ?  This  question  lias  been  under 
consideration  l)y  the  Judicial  Committee  of  the  Privy 
Council  in  several  cases,  the  last  being  Bank  of  Toronto  v. 
Land)e  (/?),  in  which  it  was  held  that  a  tax  imposed  upon 

(/)  L.  R.  G  P.  C.  272. 

(m)  See,  however,  Lynch  v.  Canada  N.  W.  Land  Co..  19  S.  C.  R.  204, 
in  which  Chief  Justice  Ritchie  speaks  of  the  power  of  taxation  as  being 
•essential  to  "  municipal  institutions."       See  the  notes  to  s.  92,  s-s.  8, 

{ii)  12  App.  Caa.  575. 


426  THE    M.  \.  A.  ACT — SEC.  92,  S -S.  2,3. 

banks  which  carry  on  luiHiness  within  the  province,  vary- 
ing in  amount  witli  the  paid-up  capital,  and  with  the  nuin- 
l»er  of  its  (tffice.s,  is  direct  taxation. 

"First,  is  the  tax  a  direct  tax?  For  the  argument  of  this 
(juestion,  the  opinions  of  a  great  many  writers  on  poHtieal 
economy  have  batn  cited lint  it  must  iiot  bo  for- 
gotten that  the  question  is  a  legal  one,  namely,  what  tlie  words 
mean  as  used  in  this  statute  ;  whereas  the  economists  are  always 
seeking  to  tra?*'  the  effects  of  taxation  throughout  the  com- 
munity, and  are  apt  to  use  the  words  '  direct '  and  '  indirect ' 
according  as  they  find  tlie  burden  of  a  tax  abides  more  or  less 
with  the  person  who  fii'st  pays  it.  This  distinction  is  illustrated 
very  clearly  by  the  quotations  from  a  very  ahle  and  clear  thinkt-r, 
the  late  Mr.  Fawcett,  who  after  giving  his  tests  of  direct  aiul 
indirect  taxation,  makes  remarks  to  the  effect  that  a  tax  may  be 
made  direct  or  indirect  by  the  position  of  the  tax-payers  or  by 
private  bargains  about  its  payment.  Doubtless  such  remarks 
have  their  value  in  an  economical  discussion.  Probably  it  is  wue 
of  every  indirect  tax  that  some  persons  are  both  the  first  ;ind 
the  final  payers  of  it ;  and  of  every  direct  tax  that  it  ali'ects 
persons  other  than  the  first  payers;  and  the  excellence  of  an 
economist's  definition  will  be  measui'cd  by  the  accuracy  with 
which  it  contemplatfs  and  embraces  every  incidert  of  the  thing 
defined.  But  that  very  excellence  impairs  its  value  for  the  pur- 
poses of  the  lawyer.  The  legislature  cannot  possibly  have  meant 
to  give  a  power  of  taxation  valid  or  invalid  according  to  its 
actual  results  in  particular  cases.  It  must  have  contemplated 
some  tangible  dividing  line  referable  to  and  ascertainable  by  the 
general  tendencies  of  the  tax  and  the  common  undei'standing  of 
men  as  to  those  tendencies. 

"After  some  consideration,  Mr.  Kerr  chose  tlie  definition  of 
John  Stuart  Mill  as  the  one  he  would  prefer  to  abide  by.  The 
definition  is  as  follows  : 

"  '  Taxes  are  either  direct  or  indirect.  A  direct  tax  is  one 
which  is  demanded  from  the  very  persons  who  it  is  intended  or 
desired  should  pay  it.  Indirect  taxes  are  those  which  are  de- 
manded from  one  person  in  the  expectation  and  intention  that 
he  shall  indemnify  himself  at  the  expense  of  another.  Such  are 
the  excise  or  customs.     The  producer  or  importer  of  a  commod- 


THE    R  \.  A.  ACT — SEC.  92,  S.-S.  2,  H.  427 

ity  is  called  upon  to  pay  a  tax  on  it,  not  with  tlio  intention  to 
levy  a  contribution  upon  hiui,  but  to  tax  through  hiui  the  con- 
sumers of  the  commodity,  from  whom  it  is  supposed  he  will 
recover  the  amount  by  means  of  an  advance  in  price.' 

"  It  is  said  that  Mill  adds  a  term,  that,  to  be  strictly  direct,  a 
tax  must  be  f,'eneral,  and  this  condition  was  nmch  pressed  at  the 
bar. .  Their  Lordships  have  not  thought  it  necessary  to  exaniiiic 
Mill's  works  for  the  purpose  of  ascertaining  precisely  what  \\v. 
does  say  on  this  point,  nor  would  they  presume  to  say  whether, 
for  economical  purposes,  such  a  condition  is  sound  or  unsound, 
but  they  have  no  hesitation  in  rejecting  it  for  legal  purposes. 
It  would  deny  the  character  of  a  direct  tax  to  the  income  tax  of 
this  country,  which  is  always  si)oken  of  as  such,  and  is  generally 
looked  upon  as  a  direct  tax  of  the  most  obvious  kind  ;  and  it 
would  run  counter  to  the  common  understanding  of  men  on  this 
subject,  which  is  one  main  clue  to  the  meaning  of  the  legisla- 
ture. 

"  Their  Lordships,  then,  take  Mill's  definition,  above  quoted, 
as  a  fair  basis  for  testing  the  character  of  the  tax  in  question, 
not  only  because  it  is  chosen  by  the  appellants'  counsel,  nor 
only  because  it  is  that  of  an  eminent  writ^^r,  nor  witli  the  inten- 
tion that  it  should  be  considered  a  binding  legal  definition,  but 
because  it  seems  to  them  to  embody  with  sufficient  accuracy  for 
this  purpose  an  understanding  of  the  most  obvious  iiitlicid  of 
direct  and  indirect  taxation,  whicJi  is  a  common  understanding, 
and  is  likely  to  have  been  present  to  the  minds  of  those  who 
passed  the  Federation  Act. 

"  Now,  whether  the  probabilities  of  the  case  or  the  frame  of 
the  Quebec  Act  are  considered,  it  appears  to  theii-  Lordships  that 
the  Quebec  Legislature  must  have  intended  and  dusiied  that  tiie 
very  corporations  from  whom  the  tax  is  demanded  should  pay 
and  finally  bear  it.  It  is  carefully  designed  for  that  purpose. 
It  is  not  like  a  customs'  duty,  which  enters  at  once  into  the  price 
of  the  taxed  commodity.  There  the  tax  is  demanded  of  the 
importer,  while  nobody  expects  or  intends  that  he  shall  finally 
bear  it.  All  scientific  economists  teach  that  it  is  paid,  and 
scientific  financiers  intend  that  it  shall  be  paid,  by  the  consumer  ; 
and  even  those  who  do  not  accept  the  conclusions  of  the  econom- 
ists maintain  that  it  is  paid  and  intended  to  bo  paid  by   the 


428  THE    H.  N.  A.  ACT — HEC.  92,  S.-S.  2,  3. 

foreign  producer.  Nobody  thinks  that  it  is,  or  intends  that  it 
shall  he,  paid  by  the  importer  from  wiiom  it  is  demanded.  .  But 
the  tax  now  in  question  is  demanded  directly  of  the  bank,  appar- 
ently for  the  reasonable  purpo^^e  of  getting  contributions  for 
provincial  purposes  from  those  who  are  making  profits  by  pro- 
vincial business.  It  is  not  a  tax  on  any  commodity  which  the 
bank  deals  in  and  can  sell  ut  an  enhanced  price  to  its  customers. 
It  is  not  a  tax  on  its  profits,  nor  on  its  several  transactions.  It 
is  a  direct  lump  sum  to  be  assessed  by  simple  reference  to  its 
paid-up  capital  and  its  places  of  business.  It  may  possibly 
happen  that  in  the  intricacies  of  mercantile  dealings  the  bank 
may  find  a  way  to  recoup  itself  out  of  the  pockets  of  its  Quebec 
customers.  Hut  the  way  must  be  an  obscure  and  circuitous 
one.  The  amount  of  recoupment  cannot  bear  any  direct  relat.on 
to  tho  amount  of  tax  paid,  and,  if  the  bank  does  manage  it,  the 
result  will  not  improbably  disappoint  the  intention  and  desire  of 
the  (iJuebt'O  government.  For  theso  reasons,  their  Ijordsbips 
liold  the  tax  to  be  '  direct  taxation.'  " 

With  this  (Inscription  of  <lii'ect  taxation  nuiy  l»e  com- 
pared that  givun  by  the  same  Committee  in  Attorney- 
(leneral  (Quebec)  v.  Reed  (o),  where  Mill's  definition  was 
also  relied  on  in  support  of  the  holding  that  a  stamp  duty 
on  "exhibits,"  filed  in  the  course  of  judicial  proceedings,  is 
not  "  direct "  taxation,  and  that  the  Act  imposing  such  a 
<luty  was  therefore  ultra  vires  of  the  Quebec  legislature : 

"  Can  it  be  said  that  a  tax  of  this  nature,  a  stamp  duty  in 
the  nature  of  a  foe  payable  upon  a  step  of  a  proceeding  in  the 
administration  of  justice,  is  one  which  is  demanded  from  the 
very  persons  who  it  is  intended  or  desired  should  pay  it  ?  It 
must  be  paid  in  the  course  of  the  legal  proceeding,  whether  that 
is  of  a  friendly  or  of  a  litigious  nature.  It  must,  unless  in  the 
case  of  the  If^st  and  final  proceeding  after  judgment,  be  paid 
when  the  ultimate  termination  of  those  proceedings  is  uncertain ; 
and  from  the  very  nature  of  such  proceedings  until  they  termi- 
nate, as  a  rule,  and  speaking  generally,  the  ultimate  incidence  of 
such  a  payment  cannot  be  ascertained.  In  many  proceedings  of 
a  friendly  character,  the  person  who  pays  it  may  be  a  trustee,  an 

(")  10  App.  Chs.  141. 


THE   B.  X.  A.  ACT — SEC.  91,  S.-S.  2,  8.  429 

adminiatrator,  a  person  who  will  have  to  be  indemnified  by  some- 
body else  afterwards.  In  most  proceedings  of  a  contentious 
character,  the  person  who  pays  it  is  a  litigant,  expecting  or 
hoping  for  success  in  the  suit,  and  whether  he  or  his  adversary 
will  have  to  pay  it  in  the  end  must  depend  on  the  ultimate 
termination  of  the  controversy  between  them.  The  legislature 
in  imposing  the  tax  cannot  have  in  contemplation,  one  way  or 
the  other,  the  ultimate  determination  of  the  suit,  or  the  final 
incidence  of  the  burden,  whether  upon  the  person  who  had  to 
pay  it  at  the  moment  when  it  was  exigible,  or  upon  anyone  else. 
Therefore  it  cannot  be  a  tax  demanded  '  from  the  very  persons 
who  it  is  intended  or  desired  should  pay  it ';  for,  in  truth,  that  is 
a  matter  of  absolute  indiU'erenco  to  the  intention  of  the  legisla- 
ture. And,  on  the  other  hand,  so  far  as  relates  to  the  knowledge 
which  it  is  possible  to  have  in  a  general  way  of  the  position  of 
things  at  such  a  moment  of  time,  it  may  be  assumed  that  the 
person  who  pays  it  is  in  the  expectation  and  intention  that  he 
may  be  indemnified;  and  the  law  wh'ch  exacts  it  cannot  assume 
that  that  expectation  and  intention  may  not  be  realized.  As  in 
all  other  cases  of  indirect  taxation,  in  particular  instances,  by 
particular  bargains  and  arrangements  of  individuals,  that,  which 
is  the  generally  presumable  incidence  may  be  altered.  An  im- 
porter may  Le  himself  a  consumer.  Where  a  stamp  duty  upon 
transactions  of  purchase  and  sale  is  payable,  there  may  be 
special  arrangements  between  the  parties  determining  who  shall 
bear  it.  The  question  whether  it  is  a  direct  or  indirect  tax  can- 
not depend  upon  those  special  events  which  may  vary  in  par- 
ticular cases ;  but  the  best  general  rule  is  to  look  to  the  time  of 
payment ;  and  if  at  the  time  the  ultimate  incidence  is  uncertain, 
•then,  as  it  appears  to  their  Lordships,  it  cannot,  in  this  view, 
be  called  direct  taxation  within  the  meaning  of  the  second  sec- 
tion of  the  ninety-second  clause  of  the  Act  in  question." 

The  legislature  of  Quebec  passed,  in  1875,  an  Act  (89 
Vic.  c.  7)  providing'  for  the  issue  of  licenses  to  insurance 
companies  doing  business  in  the  province.  Nothing  v^as  to 
be  paid  on  the  issue  of  the  license,  but,  on  the  issue  of  any 
policy  by  an  insurance  company,  stamps  were  to  be  affixed 
to  an  amount  varA^ing  with  the  amount  of  the  premium. 
This  was  held  by  the  Judicial  Committee  of  the  Privy 


480  THE    U.  N.  A.  ACT — SEC,  92,  S.-H.  2,3. 

Council  ill  Attoriujy-Otmonil  v.  The  Queen  IiiHurance 
Company  (/>),  to  be  not  a  license,  Imt  a  stamp  duty  on 
policies.  In  the  latter  view  it  was  held  to  he  indirect  taxa- 
tion. In  arrivin;^  at  the  nKianinj^  to  be  attributed  U)  the 
wcrds  "direct  taxation"  the  Committee  point  out  that 
they  may  have  a  technical  (economical  or  le<jfal)  or  popular 
meaninj^.  No  at*^'3mpt  is  made  to  decide  this  (piestion, 
because  it  was  held  that,  by  whichever  key  interpreted,  a 
stamj)  duty,  such  as  was  imposed  V)y  the  Act,  was  not  direct 
taxation. 

The  <l»'cisir)n  of  the  Su[)reme  Court  of  Canada,  in  Sev- 
<;rn  v.  The  Queen  {(/),  must  upon  this  point  be  considei'e*! 
ovei'rtile<l.  It  was  held  in  that  case  that  a  license  fee 
reipiireil  to  be  paid  })y  l^rewei-s,  under  an  Act  of  the  legis- 
lative asseiidjly  of  Ontario,  was  indirect  taxation;  applying, 
however,  the  considerations  dwelt  upon  by  the  Privy 
Council,  particularly  in  Bank  of  Toronto  v.  Lambe  (r),  such 
a  license  fee  nmst  be  held  to  be  direct  taxation.  It  is 
intended  to  be  pai  I  by  the  very  jjcrson  on  whom  it  is 
iinposed,  and  if  that  person  manages  to  recoup  himself,  it 
must  be  by  some  circuitous  method,  the  amount  of  recoup- 
ment on  each  sale  of  beer  l)earing  no  relation  whatevtsr  to 
the  tax  iinposed.  Even  before  Ha.nk  of  Toronto  '  .  Lambe 
was  decided  the  Judges  of  the  Supi-eme  Court  seem  to  hav(} 
lecognized  that  the  authoi'ity  of  S(;vern  v.  The  Quecni  had 
))een  seriously  impugned.  Se«!,  however,  th(j  o])servations 
of  (Jwynnc!,  J.,  in  Molwon  v.  Lambe  (.s);  but,  so  far  as 
aj>i)(;arH  from  the  report  of  this  case;,  liank  of  Toronto  v^ 
Lambe  was  not  refei're*!  to.  Tin;  holding,  too,  of  thtj 
Supreme  Court  that  such  a  license  fee  upon  brewers  was  a 
"  regulation  of  tra<ie  and  connnei'ce"  cannot  Ix^  su[)[)ort«;d, 
t'o/'  r<'aHons  also  set  out  in  Hank  of  Toronto  v.  Lambe,  as  well 
as  in  <!arli<;r  cases  to  which  I'cfftrence  has  alrt^ady  becsn 
mM<l('  in  the  notes  to  sub-section  2  of  section  1)1. 

(/>):{  A  pp.  Cap.  1090.  (/•)  12  App.  Cub.  .'575. 

(7)  2  '.  C.  11.  70.  {»)  ir.  S.  C.  K.  at  pp.  2HB-9. 


THE    |{.  N.  A.  ACT — SEC.  92.  S.-S.  2,3.  481 

In  Loiiguouil  Navigation  (yo.  v.  Montnjal  (f),  an  Act  of 
the  Quebec  le<(iHlature  autlioriziiif^-  the  city  of  Montreal  to 
Jinj)ose  an  animal  tax  on  ferry nnsn  and  ferry  conj[)ani«;H, 
was  held  to  lie  intra  viren.  See  notes  to  .section  01,  suh- 
Hectiofi  10,  a/nfe,  p.  iW-i. 

Heferrinfjf  to  the  other  sources  of  provincial  revenuis, 
an<l  to  the  various  institutions  which  a  province  has  to 
niainbiin,  the  (juestion  aris«!S,  ai'e  tlie  powers  of  provincial 
lej^islatures  under  those  suV)-sections  limited  to  "dir«;ct" 
taxation  ?  In  Attorney-()(;neral  (Quebec)  v.  Reed  (u), 
jiViove  referred  to,  the  Judicial  Connnittee  of  the  Privy 
Oouncil  declined  to  determine  "  whether,  if  a  special  fund 
liad  been  created  l)y  a  provincial  Act  for  the  maint(inance 
of  the  administration  of  Justice  in  the  provincial  courts, 
raised  for  tliat  pui'pose,  and  not  available  >is  jr»ineral 
reveinie  for  general  provincial  [)ur]>oses,  in  that  cjise  tln^ 
limitation  to  <lirect  taxation  would  still  luive  Ixien  applic- 
able." The  |)oint  was  considered  ))y  Mr.  Justice  (iwynne  in 
the  same  case  when  befoi'e*  the  Supreme  Court  of  Canada 
{v).  Th<j  contention  was,  that  under  sub-section  15  of 
section  J)2,  "  the  constitutif>n,  riw/inlevAinre  atid  organiza- 
tion of  [)rovincial  courts"  indir<;ct  taxation  might  be  i-e- 
sorted  to,  an<l  that,  therefore.',  a  stamp  duty  on  "  exliibits  " 
might  1)<!  im[>os(;d  under  the  authority  of  a  provincial  Act. 

Mr.  Justice  Cwynrie  says: 

"  Tlic  cxpresH  provision  made  by  item  2,  which,  while  it 
antliori/0H  tlic  legislatures  to  makf;  laws  in  onlcu'  to  tlie  raising 
of  a  rovemie  for  provincial  i)iirpost;H  5)y  taxation,  limits  the  cx- 
erciso  of  the  authority  thus  conferred  to  dii'ect  taxation,  very 
clearly  excludes,  in  my  judgment,  the  power  of  raising  a  revenu(! 
by  any  species  of  taxation  other  tlian  by  direct..  .  .  .  That 
the  maintenance  of  i)rovincial  courts  and  the  administration  of 
justice  are  provincial  purposes,  tlic^recan  l)e  no  doubt.  Tbc-y  are 
therefore  comprehended  within  the  purview  of  it(!m  2  of  section 
J)2,  which  in  express  terms  prescribes  direct  taxation  as  the  mode 

(t)  Ui  S.  C.  11.  .Wf).  («)  10  App.  CiiH.  141. 

(r)  8  B.C.  11.  40H;  at  p.  4:Jl. 


4S2  THE    15.  N.  A.  ACT — KKC  {)2,  H.-S.  2,  8. 

of  taxation  to  be  adopted  for  raising  rcivonue  for  provincial  pur- 
poHOH,  HO  that  upon  the  pTmc\])\eo{  t'.rpn's.sniii  ftinin'mnetadfuin, 
there  can  he  no  Huch  implied  power  involved  in  thiH  item  14,  an 
is  insisted  upon  ;  moreover,  if  the  contention  were  sound,  then 
upon  the  same  principle  they  could  equally  pass  an  Act  impoHiii<,' 
a  special  tax  of  an  indirect  character  f»)r  the  payment  of  provincial 
officers  under  a  power  implied  under  item  4  of  this  {)2nd  section, 
and  another  Act  imposing  another  special  tax,  also  of  an  indirect 
character,  to  defray  the  expense  attending  the  estahlishment, 
maintenance,  and  management  of  public  and  reformatory  prisons, 
inider  the  powers  conferred  by  item  0,  and  another  to  defray  the 
expense  attending  the  establishment,  maintenance,  and  manage- 
ment of  hospitals,  asylums,  etc.,  under  the  powers  conferred  by 
item  7; and  so  the  effect  would  be  that  this  im- 
plied power  of  raising  n^venue  by  indirect  taxation,  which,  it  is 
contended,  the  legislatures  have,  being  exercised,  as  it  might  be 
if  they  have  the  power,  to  raise  sulKcient  revenue  to  defray  all 
the  expejiaes  of  the  government  and  legislatures  in  respect  of  all 
the  several  mattiirs  under  their  control  and  jurisdiction,  it  would 
be  quite  unnecessary  for  them  to  exercise  the  power  conferred  by 
item  2,  raising  by  direct  taxation  the  revenue  for  provincial  pur- 
poses, or  to  draw  upon  the  revenue  created  by  the  subsidy  paid 
by  the  Dominion,  or  by  sale  of  the  public  property,  or  otluir  in- 
come arising  therefrom,  or  from  the  assets  asHigned  to  each 
province.  Such  a  contention  appears  to  me  to  involve  so 
palpable  a  ii'diirtio  ml  (ihsurdniii ,  as  to  carry  with  it  its  own  refu- 
tation ;  and  indeed  the  judgment  of  the  Privy  Council  in 
Attorney-deneral  (Quebec)  v.  'Vha  Queen  Insurance  Company, 
in  effect,  d<!cides  that  the  provincial  legislatures  cannot,  by  nny 
Act  of  theirs,  authorize  the  raising  a  revenue  by  any  mode  of 
taxation  other  than  direct." 

That  the  I'riv}'  (Council  did  not  con.sidiir  the  (juestion 
(|('t«!rniiiHMl  hy  uny  })r(!viouH  deeiwion  of  tli«Mi"  own  is 
Hppaient  from  tlu;  Inn^uuf^*!  of  the  jud<^nK;ntof  that  ti'ihunal 
when  th(5  cane  came  before  tlK^ni.  TIk;  (|U(!Htion  is  touched 
ujjon  in  other  Cm  twidian  antlioiities — for  (^xanijde,  in  lleojtia 
V.  Taylor  (w),  where  Mr-.  .JuKtic*;  Wilson — ai'terwardH  Chief 
JuHticc?  Sii*  Adam  Wilson — sayH  : 

(wj  'M\  U.  C.  (^.  B.  liiH,  at  p.  '201. 


rHK    15,  N.  A.  AC'I' — SKC;.  92,  S.-S.  2,  B.  4liH 

"  Tli(!  power  which  is  vested  in  Ontario  to  raise  money  hy 
direct  taxation  exchidcH,  of  course,  as  a  general  rule,  the  right 
to  raise  it  by  indirect  taxation.  IJut,  by  means  of  the  powers, 
numbers  H  and  9,  relating  to  licenses  and  to  municipal  institu- 
lioMS,  it  is  plain  that  Ontario  may,  and  do<;s,  by  virtue  of  these 
powers,  raise  very  large  sums  of  money  by  indirect  taxation, 
l^ower  No.  2  must  be  read  as  qualified  in  its  absoluteness,  there- 
fore, by  powers  No.  8  and  9." 

In  L(!pr<>li<»n  v.  Ottawa  (,/;),  the  late  (Jhaneellor  S[)ra_n;4«; 
(!X[)roHKerl  the  opinion  that  a  jirovincia!  le<^iHlatur(',  cannot 
confer  upon  a  muni(vipality  of  its  own  creation  jjower  to  do 
what  it  cannot  itsidf  do;  and  if  this  he  sound  law,  tiu; 
j)owerMof  municipal  corporations  in  tlu;  matt'-r  «)f  taxation 
mUHt  he  limited  to  dir(ict  taxation,  if  th«;  pow«!i".M  of  th(i 
province  are  no  limited. 

Ah  to  the  pow<!rH  under  Huh-Hection  0  of  HCiction  1)2,  it 
may  he  said  that  thi;  jud^^nnent  of  tlu;  l*i'ivy  ( Council  in 
liank  of  Toronto  v.  Lamh(!  establishes  that  lic(!ns<;  fiies  are, 
"dir(!(;t"  taxation:  mo  that  tin;  controviirsy  would  aj)|)ear 
to  he  limited  to  thos(;  suh-sections  of  sciction  1)2  (//),  which 
<j;\vo.  j)rovincial  le^^islaturc^s  powei"  to  pnjvide  for  the  iintln- 
h'lKi lice,  of  certain  institutions,  an<l  as  to  t!i(!S(!  it  is  suh- 
mitti.'d,  th(;  same;  limitations  (^xist.  The  raisin;^'  of  money 
to  maintain  theses  institutions — coui'ts,  pi'isons,  hospitals, 
(!tc. — would  he  foi"  "  j)rovincial  ))ur[)ost'S,"  as  int(!i'[)ret<'d  in 
Dow  V.  Black  {z). 

Followin<4'  Atty.-CJenl.  v.  RccmI,  tin;  (Jourt  of  Qmsen's 
Hetich  in  Muiiitolta  h(dd  in  IMununer  Wa^on  (Jo.  v.  W'ilsou 
(a),  that  the  then  existing-  provincial  statutes  r('<juirin<4' 
[)ayment  of  fe(!S  hy  means  of  law  stamps  on  ])roc('<!din;4S  in 
that  court  \vei"e  altni  vlrrs.  Thd'eupon,  actiiij^'  upon  tlu; 
distinction  su^'"<^ested  hy  the(Jominitt('<!,  the  .Manitoba  lenis- 

(./)  2  ().  A.  K.  .'322;  ut  p.  .^(i. 
iy)  8-B8.  f»,  7  and  14. 
(z)  L.  li.  «  P.  C.  272;  hoc  ante,  p.  42.1. 
(a)  «  Man.  L.  K.  ««.■,•. 
Can.  Con.— 2H 


434  THE   B.  N.  A.  ACT — SEC.  92.  S.-S.  2,  3. 

lature  passed  an  Act  creating  a  special  fund  "solely  for  the 
maintenance  of  the  administration  of  justice  in  the  courts 
of  this  province,"  to  which  fund  the  fees  payable  in  stamps 
upon  legal  proceedings  were  appropriated.  This  Act  was 
impugned,  and  in  Dulmage  v.  Douglas  (h),  was  upheld  by 
Mr.  Justice  Dubuc,  but,  on  appeal  to  the  full  court,  this 
decision  was  reversed  and  the  statute  pronounced  idtra 
vires.  In  the  opinion  of  the  court,  the  only  exception  to 
the  limitation  laid  down  in  this  sub-section  2  is  that 
expressed  in  sub-section  9,  but  as  the  judgment  of  the 
Privy  Council  in  Bank -of  Toronto  v.  Lambe  (c),  in  effect 
holds  that  license  fees  are  "  direct  taxation,"  no  doubt  the 
Manitoba  Court  would  agree  with  the  view  we  have  ven- 
tured to  express,  that  there  is  no  exception  to  the  rule  laid 
down  in  this  sub-section  2.  The  Manitoba  legislature  sur- 
mounted the  difficulty  by  49  Vic.  c.  51,  declaring  law  stamps 
to  be  a  direct  tax,  and  making  good  this  declaration  by  en- 
acting that  such  fees,  so  payable  in  stamps,  are  not  to  foruj 
any  part  of  the  costs  of  an  action  taxable  between  party 
and  party,  but  are,  in  fact,  to  be  borne  once  for  all  by  the 
party  actually  paying  them  in  the  first  instance.  This  Act 
was  declared  intra  vires  by  the  full  court  in  Crawford  v. 
Duffield  {d). 

We  have  ab-eady  referred  to  that  part  of  the  judgment 
in  Bank  of  Toronto  v.  Lambe  which  lays  it  down  that  the 
powers  of  taxation  vested  in  the  provincial  legislatures  by 
this  sub-section  are  not  to  be  curtailed,  because  possibly 
they  may  be  abused  or  so  exercised  as  to  prejudicially  affect 
corporations  and  institutions  existing  under  Dominion 
laws  (e).  See  also  notes  to  section  91,  sub-section  8,  for  a 
further  reference  to  the  case  of  Leprohon  v.  Ottawa  (/),  in 

(b)  3  Man.  L.  B.  562 ;  4  ih,  495. 

(c)  12  App.  Caa.  575. 

(d)  5  Man.  L.  B.  121. 

(e)  See  notes  to  s.  91,  b-b.  15. 

(/;  2  O.  A.  B.  522  ;  see  also  the  note  to  the  next  sub-section. 


THE   B.  N.  A.  ACT — SEC.  92,  S.-S.  4.  435 

which  it  was  held  that  provincial  legislatures  have  no 
power  to  tax  the  salaries  of  menibei-s  of  the  executive  statt' 
of  the  Dominion. 

With  regard  to  the  meaning  of  the  expression,  "  within 
the  province,"  we  may  again  refer  to  Bank  of  Toronto  v. 
Lanibe,  which  decides  that  it  is  not  necessary  tlui^  the 
persons  to  be  taxed  under  a  provincial  law  be  domiciled,  or 
even  resident,  in  the  province.  It  was  urged  in  that  case 
that  the  Bank  of  Toronto  was  an  Ontario  corporation, 
having  its  domicile  in  Toronto,  and  that  the  taxation  must 
therefore  fall  on  persons  not  within  the  province  of 
Quebec ;  but  to  this  it  was  answered  : — "  Any  person  found 
within  the  province  may  be  legally  taxed  there.  This 
Bank  is  found  to  be  carrying  on  business  there,  and  on 
that  ground  alone  it  is  taxed." 

4.  The  establishment  and  tenure  of 
Provincial  offices  and  the  appointment 
and  payment  of  Provincial  officers. 

This  sub-section  is  the  guarantee  for  the  continuance  of 
"responsible  government."  It  covers  the  entite  executive 
department  of  provincial  government — with  the  sole  excep- 
tion of  the  Lieutenant-Governor,  and  of  those  judges 
mentioned  in  section  96  of  the  B.  N.  A.  Act — and  ensures 
tliat  the  people  of  the  province,  through  the  provincial 
assembly,  shall  always  be  able  to  make  the  members — high 
and  low — of  the  provincial  executive  staff  feel  responsi- 
l)ility.  In  the  third  chapter  of  this  book  we  have 
endeavored  to  make  clear, the  intimate  connection  which 
exists  between  "  tenure  of  office  "  and  the  power  to  "  with- 
hold supplies,"  and  have  there  pointed  out  that  the  grant  to 
colonial  legislatures  of  the  latter  power  necessarily  carried 
with  it  that  the  tenure  of  office  in  the  colony  should  be  at 
their  "  pleasure," 

With  reference,  however,  to  the  existence  of  dual  gov- 
ernment in  Canada,  it   has  been  laid  down  {g)  that  the 

(r;)  2  O.  A.  R.  522. 


436  THE   K.  N.  A.  ACT — SEC.  92,  H.-S.  4. 

provincial  legislatures  cannot  impose  burdens — ('..f/.,ii  muni- 
cipal income  tax — upon  the  "  instruments  "  by  which  tlie 
Df)minion  government  is  carried  on.  Whetlier  this  .judg- 
ment can  stand  in  the  face  of  Bank  of  Toronto  v.  Land)e  (/«,) 
is,  perhaps,  (questionable.  The  impossibility  of  applying 
the  principle,  conversely,  to  relieve  provincial  officers  from 
the  burden  of  federal  tariffs  rather  tends  to  weaken  the  <ih 
inconvenienti  argument. 

It  has  been  held  that  a  provincial  legislature  is  within 
its  powers  in  appointing  officers  entrusted  with  the  enforce- 
ment of  The  Canada  Temperance  Acts  of  lcS64  (/)  and  bS7S 
{])  in  nuinicipalities  where  either  of  them  had  Iteen 
adopted.  In  the  last  case  the  ground  for  the  decision  is 
thus  put  by  the  present  Chancellor  of  Ontario : 

"  The  general  law  as  to  prohibition  respecting  all  Canada, 
which  can  only  be  enacted  by  the  Dominion,  being  localized  by 
municipal  suffrages,  its  enforcement  becomes  also  a  matter  of 
local  importance  in  the  province  within  the  meaning  of  the 
B.  N.  A.  Act,  section  92,  item  16.  The  enforcement  of  the  Act 
in  the  adopting  municipalities  involves  questions  of  local  police 
regulation.  For  the  purpose  of  ensuring  uniformity  and  efficiency 
of  action,  the  prosecution  of  offenders  may  be  properly  relegated 
to  the  hands  of  provincial  officers,  for  the  appointment  and  pay- 
ment and  governance  of  whom  laws  may  be  made  under  the 

B.  N.  A.  Act,  section  92,  item  4.  Tlie  expense  of  carrying  the 
Act  into  effect  within  the  adopting  county  is  a  burden  to  be 
borne  by  the  ratepayers  of  that  locality.  So  that  the  legislation 
now  questioned  may  also  fall  within  the  scope  of  the  13.  N.  A. 
Act,  section  92,  item  8,  as  pertaining  to  municipal  institutions 
within  the  province." 

With  much  misgiving,  we  venture  to  (juestion  tlie  cor- 
rectness of  these  decisitms.     The  "  local  option  "  character 

(//)  12  App.  Cas.  575. 

(j)  Licenae  Commissioners  v.  Prince  Edward,  26  Gr.  452— per  Spra^ge, 

C,  (1879). 

ij)  License  Commissioners  v.  Frontenac,  14  O.  E.  741 — per  Boyd,  C, 

(1887). 


THE   B.  N.  A,  ACT — SEC.  92,  S.-S.  6.  437 

of  the  Canada  Temperance  Act — its  localization  by  muni- 
cipal Huffrages — was  much  pressed  in  argument  in  Russell 
V.  The  Queen,  as  shewing  the  subject  matter  of  that  Act  to 
be  within  the  legislative  competence  of  a  provincial  legis- 
lature only.  The  argument  was  rejected  by  the  Privy 
Council,  and  it  appears  to  us  that,  so  long  as  that  decision 
stands,  the  enactment  of  laws  for  the  enforcement  of  the 
provisions  of  that  Act  cannot  be  said  to  be  a  matter  of 
a  merely  local  or  private  nature  in  the  province.  Laws 
"  in  relation  to "  any  subject  matter  must  come  in  their 
entirety  from  that  legislature  to  which  the  subject  matter 
is  committed.  It  is  the  question  over  again  of  the  necessary 
connection  between  legislature  and  executive.  It  is,  of 
course,  open  to  the  Dominion  parliament  to  utilize  existing 
provincial  macliinery  (/'),  or  to  confer  upon  "boards"  or 
bodies  of  provincial  creation  powers  and  authorities  in 
relation  to  the  enforcement  of  Dominion  laws,  Irut,  quoad 
the  duties  im})osed  by  Dominion  legislation,  the  meml)ers 
of  the  nuinicipal  bodies  or  "boards"  are  not  provincial 
officers.  The  above  cases,  howev^er,  did  not  involve  con- 
sideration of  the  power  of  the  Dominion  legislature  to 
delegate  its  authority  or  to  adopt  existing  institutions,  but 
of  the  power  of  a  provincial  legislature  to  supplement 
Dominion  legislation  upon  a  matter  admittedly  within  the 
exclusive  ken  of  the  lattei',  by  the  appointment  of  an 
executive  staff  to  carry  it  out. 

5.  The  Management  and  Sale  of  the 

Public  Lands  belonging  to  the  Province 

and  of  the  timber  and  wood  thereon. 

"  It  must  always  be  kept  in  view  that,  wherever  public  land 
with  its  incidents  is  described  as  *  the  property  of '  or  as  '  belong- 
ing to'  the  Dominion  or  a  province,  these  expressions  merely 
import  that  the  right  to  its  beneficial  use,  or  to  its  proceeds,  has 

(h)  See  ante,  p.  417,  as  to  their  adoption  of  provincial  laws  as  to 
jurors;  and  ante,  p.  '232,  as  to  the  trial  of  (Dominion)  election  petitions 
by  provincial  courts.    .  •  .   .    - 


488  THE   H.  N.  A.  ACT. — SEC.  92,  S.-S.  6,  7. 

been  appropriated  to  the  Dominion  or  the  province,  as  the  case 
may  be,  and  is  subject  to  the  control  of  its  legislature,  the  land 
itself  being  vested  in  the  Crown. —  I'er  Lord  "Watson  in  St. 
Catherines  Milling  Co.  v.  The  Queen  (/). 

The  case  from  which  the  above  extract  is  (juoted  is  a 
decision  that  the  "  lands  reserved  for  the  Indians  "  men- 
tioned in  sub-section  24  of  section  91,  become,  when  <lis- 
encumbered  of  the  Indian  usufructuary  interest,  "  public 
lands  belonfring  to  the  province,"  or,  perhaps  we  sliould 
say,  that  they  are  always  such,  subject  to  the  encum- 
brance of  that  Indian  interest. 

The  matter,  however,  of  public  assets,  revenue  pro- 
ducing and  otherwise,  will  be  fully  considered  in  the  notes 
to  the  group  of  clauses  of  this  Act,  which  deal  more  fully 
therewith — 102,  et  seq. 

As  to  the  position  of  Manitoba  and  the  North- West 
Territories  in  reference  to  the  public  lands  within  those 
areas  we  shall  have  to  speak  in  Part  IV.  of  this  book. 

6.  The  Establishment,  Maintenance 
(i)  and  Management  of  PubHc  and  Ee- 
formatory  Prisons  in  and  for  the  Pro- 
vince. 

7.  The  Establishment,  Maintenance 
and  Management  of  Hospitals,  Asylums, 
Charities  and  Eleemosynary  Institutions 
in  and  for  the  Province,  other  than  Marine 
Hospitals. 

(i)  "  Maintenance." — See  note  to  sub-section  2  of  sec- 
tion 92,  where  reference  is  made  to  the  query — suggested 
by  the  Privy  Council  in  Attorney-General  of  Quebec  v. 
Reed  (ni) — as  to  the  power  of  a  province  to  maintain 
prisons,  hospitals,  etc.,  and  courts  by  "  indirect  taxation." 

(0  14  App.  Cas.  46.  (m)  10  App.  Gas.  141. 


THE   B.  N.  A.  ACT — SEC.  92,  S.-S.  8.  439 

8.  Municipal  Institutions  in  the  Pro- 
vince. 

It  must  be  adinitted  that  the  authorities  are  in  a  very 
unsatisfactory  state  as  to  the  precise  scope  of  this  sub-sec- 
tion, and  as  to  the  powers  intended  to  V>e  thereby  conferred 
upon  provincial  legishitures.  The  main  (juestion  is  one  that 
goes  to  the  very  root,  and  it  has  been  brought  prominently 
into  discussion  in  connection  with  that  most  prolific  cause 
of  litigation — the  traffic  in  intoxicating  liquor.  In  one  of 
the  earliest  cases  (n )  which  arose  in  Ontario  in  reference  to 
the  power  of  a  provincial  legislature  to  authorize  municipal 
bodies  to  restrict  the  traffic,  the  late  Chief  Justice  Richards 
intimated  his  opinion  that  the  Imperial  parliament,  in 
passing  the  B.  N.  A.  Act,  "on  the  suggestion  of,  and  on 
conference  with  the  delegates  from  the  various  provinces  " 
must  have  intended  to  empower  those  provinces  to  establish 
municipalities  which  "  would  possess  the  same  powers  as 
those  which  were  then  in  existence,  under  the  same  name, 
in  the  province  " — i.e.,  in  that  part  of  (old)  Canada,  formerly 
known  as  Upper  Canada,  and  now  forming  the  province  of 
Ontario.  To  the  like  effect,  the  court  of  final  resort  in 
Quebec  held  (o),  in  1888,  that  the  state  of  things  existing 
in  the  provinces  at  the  time  of  Confederation,  and  more 
pa.'ticularly  that  which  was  recognized  by  law  in  all  or 
most  of  the  provinces,  is  a  useful  guide  in  the  interpreta- 
tion of  the  meaning  attached  by  the  Imperial  parliament  to 
indefinite  expressions  employed  in  the  B.  N.  A.  Act.  At 
the  time  of  Confederation,  the  right  to  prohibit  the  sale  of 
intoxicating  liquoi-s  wa^  possessed  by  municipal  authorities 
under  the  laws  in  force  respecting  municipal  institutions  in 
both  parts  of  the  province  of  Canada,  and  in  Nova  Scotia ; 
and  the  court  held  that  in  consequence  it  should  be  deemed 
to  be  included  within  the  term  "  municipal  institutions  "  in 

(n)  Slavin  v.  Orillia,  36  U.  C.  Q.  B.  159 ;  see  ante,  p.  359. 

(o)  Suite  V.  Three  Kivers,  5  Leg.  News,  330 ;  2  Cart.  280 ;  see  ante, 
p.  362. 


440  THE   B.  N.  A.  ACT — SEC.  92,  S.-S.  8. 

thiH  Hul)-section.  In  the  opinion  of  the  Court,  the  provin- 
cial legislatures  have  the  power  for  the  purposes  of 
"  municipal  institutions  "  to  pass  a  proliibitory  licjuor  law, 
applicable  to  all  municipalities  M'ithin  the  province.  In 
<leli\  erin<»"  the  judgment  of  the  court  Mr.  Justice  Ramsay 
thus  deals  with  the  (juestion  of  the  meaning  to  be  given  to 
the  term  "  municipal  institutions  "  : 

"  It  may  be  at  once  conceded  that  the  power  to  pass  pro- 
hibitory liquor  laws  is  not  essential  to  the  existence  of  municipal 
institutions,  and  that  consequently  in  a  vei'y  restricted  reading 
of  sub-section  8,  it  would  not  justify  the  local  legislature  in  pass- 
ing a  prohibitory  liquor  law.  But,  it  may  fairly  be  asked, 
whether  it  was  the  intention  of  the  Imperial  parliament  in  an 
enumeration  of  this  sort  to  confine  '  municipal  institutions  '  to 
those  matters  only  which  are  of  the  essence  of  municipal  insti- 
tutions ?  If  such  was  the  intention  of  parliament,  a  wide  field 
for  speculation  was  left  open,  or  it  was  contemplated  to  restrict 
municipal  institutions  within  very  narrow  limits.  It  would 
seem,  however,  we  have  not  to  determine  what  institutions  are 
essential  to  municipal  existence  in  the  absti-act,  but  the  meaning 
of  the  term  at  the  time  of  Confederation." 

Reference  is  made  in  the  judgment  to  tlie  fact  that  in 
New  Brunsv.'ick,  prior  to  Confederation,  no  statute  con- 
ferred any  such  powers  upon  nmnicipal  corporations,  but 
their  existence  in  "  the  two  great  provinces  of  Confedera- 
tion and  one  of  the  small  ones  "  was,  in  the  opinion  of  the 
court,  sufficient  to  include  them  within  the  powers  intended 
to  be  conferred  under  the  expression  "  municipal  institu- 
tions "  in  this  sub-section  8. 

The  Court  of  Appeal  for  Ontario  has  lately  had 
occasion  to  review  the  earlier  decision  of  Chief  Justice 
Richards,  and,  as  we  have  before  intimated,  it  was  held  ( j}); 
that  a  provincial  legislature  can  empower  a  municipal 
body  to  pass  a  prohibitory  by-law,  because,  at  the  date  of 
Confederation,  municipalities   had   that   power   in  Upper 

(p)  Re  Local  Option  Act,  18  0."A.  R,  572:  see  2}er  Maclennan,  J. A., 
at  p.  596. 


THE   l\.  N.  A.  ACT — SEC.  92,  S.-S.  8.  441 

Canada,  now  Ontario,  thus   confirniino-   the   opinion   ox- 
prt'Hsed  in  the  earHer  case. 

In  both  Ontario  and  Quebec,  therefore,  this  must  be 
taken  as  hiw,  that  whatever  powers  nuniicipal  V)odies  had 
been  invested  with  prior  to  the  Union,  those  powei-s  can 
now  l>e  conferred  upon  them  />//  a  provlvcUd  lef/Mlnfii re — 
that  the  term  "nuniicipal  institutions"  must  be  taken  to 
cover  all  such  powers. 

In  the  case  to  which  we  have  last  referred,  an  admis- 
sion is  made  to  much  the  same  effect  as  that  made  by  Mr. 
Justice  Ramsay  in  the  Quebec  case — "  that  there  is  no 
inlierent  connection  between  the  li([Uoi'  traffic  an<l  nuini- 
cipal  institutions  " ;  but  this  is  (pialified  l)y  the  statement- 
that  there  is  — as  to  Ontario  at  least — a  constitutional  con- 
nection, and  that,  in  fact,  in  all  tlie  provinces  there  was  the 
power  to  regulate  the  ti'affic,  in  some  to  even  prohibit  it, 
within  the  bounds  of  the  municipality. 

It  must  not  be  forgcjtten,  liowever,  that  the  })re-Con- 
federation  provinces  had  all  the  powers  of  colonial  self- 
government;  their  legislatures  could  make  laws  in  relation 
to  all  matters  not  of  Imperial  concern,  or  governed  by 
Imperial  legislation ;  there  was  then  no  sul)-division  of  the 
field  between  co-ordinate  legislative  bodies  within  the 
colony,  and  upon  the  principle  of  The  Queen  v.  Burah,  and 
subsetjuent  cases  (g),  these  pre-Confederation  legislatures 
could,  from  time  to  time,  invest  nuinicipal  bodies  with  such 
of  their  own  powern  as  to  them  seemed  fit. 

The  late  Mr.  Justice  Dunkin  adverts  to  this  in  Cooey  v. 
Brome  (v)  in  the  following  terms  : 

"Nor  is  there  wanting  a  sense  of  the  woi'cls  'municipal 
institutions  in  the  province  '  which  would  extend  them  also  over 
ground  assigned  exclusively  to  parliament,  and  notably  would 
limit  its  trade  and  commerce  powers.  Under  legislation  not 
federally  limited  in  that  behalf,  all  sorts  of  powers  are  of  course 

(f/)  See  ajite,  p.  177,  et  seq. 

{)■)  21  L.  C.  Jur.  182,  2  Cart.  385  ;  see  ante,  p.  301.  ' 


442  THE   B.  N.  A.  ACT — SEC.  92,  S.-S.  8. 

more  or  less  delegated  to  municipal  bodies  whenever  convenience 
may  seem  so  to  require.  But  for  a  legislature  of  strictly  limited 
jurisdiction,  nothirg  is  clearer  than  that  it  can  delegate  no 
powers  beyond  those  ii  can  directly  exercise.  Our  legislature 
can  delegate  no  power  of  regulation  of  trade  and  commerce,  nor 
over  fisheries,  nor  weights  and  measures,  nor  anything  else 
matter  of  merely  parliamentary  legislation.  Each  provincial 
legislature  alone  can  create  municipalities  properly  so-called ; 
establish  their  functionaries,  and  assign  them  their  proper  duties 
and  their  powers — but  always  within  the  limits  of  its  own. 
Whether  or  not  it  can  render  them  incapable  of  other  duties  and 
powers,  to  be  delegated  by  parliament,  is  a  question  that  need 
not  here  be  considered.  Our  legislature,  as  will  presently  be 
seen,  has  been  careful  to  declare  them  not  so.  And  as  to  all 
powers  not  of  provincial  competency,  so  to  speak,  which  they 
may  hold  under  antecedent  delegation  of  the  unlimited  legisla- 
ture of  the  late  province  of  Canada,  these  can  be  resumed  or 
altered  by  parliament  alone.  As  being  exercised  by  municipali- 
ties, they  may  be  styled  in  a  certain  sense  municipal.  But  such 
sense  is  not  that  of  the  Union  Act ;  nor  even  as  mere  matter  of 
presumption,  pt-ima  facie,  is  it  that  of  provincial  legislation  under 
authority  of  the  Union  Act." 

and  the  same  view  is  very  clearly  put  by  Mr.  Justice  Bur- 
ton in  Re  Local  Option  Act  (s) : 

"  It  does  not  suggest  itself  to  my  mind  as  at  all  conclusive 
in  favor  of  the  power  of  the  Local  Legislature  to  deal  with  the 
subject  of  prohibition  under  the  words  *  municipal  institutions ' 
that  provisions  in  reference  to  that  subject  were,  at  the  time  of 
the  passing  of  the  Confederation  Act,  to  be  found  in  our  own 
municipal  Acts,  and  had  been  so  for  many  years.  It  must  not 
be  forgotten  that  the  legislature  of  the  old  province  of  Canada, 
which  passed  those  Acts,  had  plenary  powers  of  legislation, 
.  .  .  in  fact,  all  the  powers  which  are  now  distributed  be* 
tween  the  parliament  of  the  Dominion  and  the  legislatures  of 
the  provinces.  Having  that  power,  it  was  clearly  competent  to 
the  legislature  to  confide  to  a  municipal  council  or  any  other 

(«)  18  O.  A.  R.  at  p.  585.    See  also  per  Spragge.  C.  in  Leprohon  v. 
Ottawa,  2  O.  A.  R.,  522,  ante,  p.  3S0. 


THE  B.  N.  A.  ACT — SEC.  92,  S.-S.  8.  443 

body  of  its  own  creation,  or  to  individuals  of  its  selection, 
authority  to  make  by-laws  or  resolutions  as  to  subjects  specified 
in  the  enactment  with  the  object  of  carrying  it  into  effect  "; 
but,  nevertheless,  by  reason  of  the  constitutional  connec- 
tion above  referred  to,  he  gave  the  term  "municipal  insti- 
tutions "  the  wide  scope  we  have  mentioned. 

As  indicated  in  the  above  cases  in  Ontario  and  Quebec, 
the  municipal  institutions  in  the  various  pre-Confederation 
provinces  were  widely  dissimilar  (t),  ranging  from  the  (for 
those  days)  very  complete  system  of  Upper  Canada  to  the 
very  incomplete  and  primitive  methods  of  local  government 
in  vogue  in  New  Brunswick.  In  fact,  the  maritime  pro- 
vincep  can  hardly  be  said  to  have  had  any  system  of  muni- 
cipal government,  and  the  systems  of  Upper  and  Lower 
Canada  were  by  no  means  identical.  Now,  admitting,  for 
the  sake  of  the  argument,  that  the  term  "municipal  institu- 
tions" is  to  be  construed  according  to  the  meaning  attached 
to  it  in  the  minds,  not  of^  those  by  whom  but  of  those  far 
whom  it  was  pissed,  it  is  not  conceivable  that  this  Imperial 
Act  is  to  receive  a  construction  geographically  variable  (u). 
The  decisions  above  noted,  therefore,  put  the  Imperial  par- 
liament in  the  peculiar  position  of  having  used,  as  to  all  the 
provinces,  a  phrase  which,  at  the  date  of  Confederation,  had 
a  different  meaning  in  the  different  provinces,  intending, 
without  expressly  saying  so,  that  the  phrase  should  bear 
the  meaning  attached  to  it  in  one  particular  province,  with- 
out iTidicating  which. 

It  seems  to  us  that  such  an  interpretation  must  be  put 
upon  this  sub-section  as  will  obviate  these  difficulties. 
"Municipal  institutions"  is  but  another  form  of  expression 

(t)  See  Slavin  v.  Orillia  (Ontario),  Suite  v.  Three  Rivers  (Quebec), 
Eeefe  v.  McLennan  (Nova  Scotia),  and  Beg.  v.  Justices  of  Kings  (New 
Brunswick). 

(u)  "  The  Act  placed  the  constitutions  of  all  the  provinces  on  the  same 
level,  and  what  was  true  with  respect  to  the  legislature  of  Ontario  had 
equal  application  to  the  legislature  of  New  Brunswick." — Per  Lord  Wat- 
son, in  Liquidators  v.  Receiver-General,  Times  L.R.  Vol.  VIII.i  p.  677. 


444  THE   B.  N.  A.  ACT — SEC.  92,  S.-S.  5. 

for  local  self-government  by  boards  or  corporate  lx)dies, 
entrusted  with  powers  of  administration  and,  to  some 
extent,  of  legislation — but  delegated  pawera  merely.  Irre- 
spective of  detail  this  was  a  familiar  phase  of  political 
organization.  The  essentials  of  a  municipality  would  appear 
to  be,  fii-st,  territorial  limitation ;  and,  secondly,  the  organi- 
zation therein  of  the  executive  and  legislative  machinery 
and  staff  for  the  administration  of  local  affaii-s.  Under  a 
'unitarian"  form  of  government  power  all  flows  from  the 
one  source,  but  under  a  dual  government  power  over 
any  given  subject  matter  must  come  from,  and  the  mode  of 
its  exercise  be  regulated  by,  that  legislature  which  has 
itself  power  over  the  particular  subject  matter.  Giv^en  the 
municipalities  "instituted"  under  provincial  legislation,  the 
Dominion  parliament  as  well  as  the  provincial  legislatures' 
can  confer  on  such  municipalities  powei-s  of  local  self-gov- 
ernment, each  in  relation  to  matters  within  its  own  com- 
petence (v).  The  vast  mojoritiies  of  the  pbwers  exercisable 
by  municipal  bodies  throughout  Canada  are  conferred  by 
the  provincial  legislatures,  because  nearly  all  those  matters 
which  touch  the  daily  life  of  a  man,  and  regulate  his  rights 
and  duties  as  a  citizen  of  a  municipality,  are  comprehended 
within  some  one  or  other  of  the  various  sub-sections  of  sec- 
tion 92.  Very  few,  if  any,  of  the  cases  which  have  arisen 
under  the  B.  N.  A.  Act,  touching  the  powers  of  municipal 
bodies,  depend  upon  a  widier  scope  being  given  to  this  sub- 
section 8,  than  we  have  given  it.  Sub-sections  2,  7, 9, 10, 13, 
14, 15  and  16  of  section  92,  suffice  to  sustain  the  exercise  of 
municipal  powers  in  all  cases  in  which  it  has  been  ques- 
tioned (iv)  ;  but  that  a  provincial  legislature  cannot  delegate 
to  a  municipal  or  other  body  created  by  it,  power  over  any 
subject  matter  not,  by  the  B.  N.  A.  Act  allotted  to  such 
provincial  legislature,  is  a  view  which  seems  to  be  forced 

(v)  The  Canada  Temperance  Act  is  an  example  of  power  conferred 
and  duties  imposed  by  Dominion  legislation. 

(uf)*  These  cases  have  all  been  noted  under  these  various  sub-sections. 


THE  B.  N.  A.  ACT — SEC.  92,  S.-S.  9.  445 

upon  us  by  the  exhaustive  character  of  the  division  effected 
by  that  Act,  and  the  exclusive  character  of  tlie  jurisdiction 
conferred  upon  our  legislative  bodies,  Dominion  and  pro- 
provincial. 

Under  this  sub-section  we  should,  perhaps,  note  the  case 
of  Reg.  ex  rel.  McGuire  v.  Birkett  (x),  in  which  it  has  lately 
been  held  that  a  provincial  legislature  has  the  exclusive 
right  to  designate  the  judicial  officer  by  whom  controverted 
umnicipal  election  cases  are  to  be  determined.  This  is  a 
matter  clearly  relating  to  municipal  organization,  and  has 
no  relation  to  the  nature  of  the  powers  to  be  exercised  by 
municipal  bodies  or  officers  thereof.  We  note  it  here  rather 
than  under  sub-section  14,  because  of  the  expression  of 
opinion  by  the  Privy  Council  in  Valin  v.  Langlois  (y)  that 
the  trial  of  election  cases  does  not  "(|uite  plainly"  come 
within  "  the  administration  of  justice  in  the  province." 

9.  Shop,  Saloon,  Tavern,  Auctioneer, 
and  other  Licenses  in  order  to  the  raising 
of  a  Revenue  for  Provincial,  local,  or 
municipal  purposes. 

The  scope  of  this  sub-section  is  limited  by  the  last 
clause,  in  m\ler  to  the  raising,  etc.  (z),  and  in  Russell  v. 
The  Queen  (a),  it  was  held  that  the  Canada  Temperance 
Act,  is  not  an  infringement  on  the  powers  of  the  provincial 
legislatures  under  this  sub-section  : 

"  The  Act  in  question  is  not  a  fiscal  law ;  it  is  not  a  law  for 
raising  revenue ;  on  the  contrary,  the  effect  of  it  may  be  to 
destroy  or  diminish  revenue ;  indeed,  it  was  a  main  objection  to 
the  Act,  that  in  the  Qity  of  Fredericton  it  did,  in  point  of  fact, 

.     (.t)  21  O.  R.  162. 

(y)  5  App.  Gas.  at  p.  119. 

(«)  Sae  Three  Rivers  v.  Suite,  5  Leg.  News  330,  2  Cart.  280.  This 
does  not  conflict  with  the  views  expressed  in  earlier  cases  in  Ontario  that 
this  sab-section  does  not  exhaust  the  powers  of  a  provincial  legislature  in 
relation  to  the  liquor  trikffic. 

(a)  7  App.  Gas.  829. 


4.46  THE   B.  N.  A.  ACT — SEC.  93,  S.-S.  9. 

diminish  the  sources  of  municipal  revenue.  It  is  evident,  there- 
fore, that  the  matter  of  the  Act  is  not  within  the  class  of  sub- 
jects No.  9,  and  consequently  that  it  could  not  have  been  passed 
by  the  provincial  legislature  by  virtue  of  any  authority  conferred 
upon  it  by  that  sub-section." 

Referring  to  what  we  have  aaid  in  the  notes  to  sub- 
section 8,  it  is  to  be  noticed  that  in  Russell  v.  The  Queen 
the  effect  of  sub-section  8  upon  the  questions  there  under 
consideration  is  not  in  any  way  touched  upon  (6).  The 
previous  legislation  of  New  Brunywick  on  the  subject  of 
tavern  licenses  was  looked  at  merely  as  the  exercise  of 
power  under  this  sub-section  9 ;  and  it  was  held  that  the 
mere  fact  that  Dominion  legislation  upon  any  matter 
within  its  legislative  competence  might  prejudicially  affect 
the  revenue  derivable  from  license  fees  imposed  under  this 
sub-section  9,  would  in  no  way  invalidate  such  Dominion 
legislation  (c). 

In  the  notes  to  sub-section  2  of  section  92  reference 
was  made  to  the  case  of  Attorney -General  (Quebec)  v.  The 
Queen  Insurance  Co.  (d),  in  which  a  license  tax  (so  called) 
imposed  upon  insurance  companies,  payable  not  upon  the 
taking  out  of  the  license,  but  upon  the  issue  of  policies, 
and  to  an  amount  depending  upon  the  amount  of  premium 
payable  upon  a  policy,  was  held  not  to  be  a  license  tax  at 
all,  but  a  stamp  duty : 

"  Now,  the  first  point  which  strikes  their  Lordships,  and  will 
strike  every  one  as  regards  this  Licensing  Act,  is  that  it  is  a  com- 
plete novelty.  No  such  Licensing  Act  has  ever  been  seen  before. 
It  purports  to  be  a  Licensing  Act,  but  the  licensee  is  not  com- 
pelled to  pay  anything  for  the  license,  and,  what  is  more  singular, 
is  not  compelled  to  take  out  the  license  because  there  is  no  penalty 
at  all  upon  the  licensee  for  not  taking  it  up ;  and,  further  than 
that,  if  the  policies  are  issued  with  the  stamp,  they  appear  to  be 
valid,  although  no  license  has  been  taken  out  at  all.    The  result, 

(b)  See  Re  Local  Option  Act,  18  O.  A.  B.  572. 

(c)  See  ante,  p.  213,  et  aeq. 

(d)  3  App.  Gas.  1090. 


THE   B.  N.  A.  ACT — SEC.  92,  S.-S.  9.  447 

therefore,  is,  that  a  license  is  granted  which  there  are  no  means 
of  compelling  the  licensee  to  take,  and  which  he  pays  nothing 
for  if  he  does  take;  which  is  certainly  a  singular  thing  to  be 
stated  of  a  license.  They  say  un  the  face  of  the  statute,  "  the  price 
of  each  license  shall  consist,"  and  so  on.  But  it  is  not  a  price 
to  be  paid  by  the  licensee.  It  is  a  price  to  be  paid  by  anybody 
who  wants  a  policy,  because,  without  that,  no  policy  can  be  ob- 
tained. It  may  be  that  the  company  buys  the  adhesive  stamps, 
and  affixes  them  ;  or  it  may  be  that  the  assured  buys  the  adhesive 
stamps  and  affixes  them,  or  pays  an  officer  of  the  company  the 
money  necessary  to  purchase  them  and  affix  them  ;  but  whoever 
does  it  complies  with  the  Act. 

Another  observation  which  may  be  made  upon  the  Act  is 
this :  that,  if  you  leave  out  the  clauses  about  the  license, 
the  e£fect  of  the  Act  remains  the  same.  It  is  really  nothing 
more  nor  less  than  a  stamp  Act  if  you  leave  out  these  clauses. 
If  you  leave  out  every  direction  for  taking  out  a  license,  and 
everything  said  about  the  price  of  a  license,  and  merely  leave 
the  rest  of  the  Act  in,  the  government  of  the  province  of 
Quebec  obtains  exactly  the  same  amount  by  virtue  of  the  statute 
as  it  does  with  the  license  clauses  remaining  in  the  statute.  The 
penalty  is  on  the  issuing  of  the  policy,  receipt  or  renewal ;  it  is 
not  a  penalty  for  not  taking  out  the  license.  The  result  there- 
fore is  this,  that  it  is  not  in  substance  a  license  Act  at  all.  It 
is  nothing  more  or  less  than  a  simple  stamp  Act  on  policies 
with  provisions  referring  to  a  license,  because  it  must  be  pre- 
sumed, the  framers  of  the  statute  thought  it  was  necessary  in 
order  to  cover  the  kind  of  tax  in  question  with  legal  sanction, 
that  it  should  be  made  in  the  shape  of  the  price  paid  for  a 
license." 

In  the  notes  to  sub-section  2  {ante,  p.  430)  will  also 
be  found  a  reference  to  the  eases  involving  the  question 
whether  these  license  fees  are  to  be  considered  direct  or  in- 
direct taxation.  See  Pigeon  v.  The  Recorder's  Court  (e), 
where  the  effect  of  the  decision  in  Bank  of  Toronto  v. 
Lambe  (/),  seems  to  have  been  considered  to  be,  in  effect, 
that  all  these  license  fees  are  direct  taxation.     It  is  to  be 

(e)  17  S.  C.  R.  495.  (/)  12  App.  Cas.  587. 


448  THE   B.  N.  A.  ACT — SEC.  92,  S.-S.  10. 

noted,  however,  that  in  Bank  of  Toronto  v.  Lambe,  tlie 
Committee  speak  of  "  direct  taxation  and  lieensea."  The 
difference  of  opinion,  therefore,  which  may  very  reasonably 
exist  upon  the  point  would  be  sufficient  warrant  for  the 
insertion,  by  the  framers  of  the  B.  N,  A.  Act,  of  this  sub- 
section "  by  way  of  abundant  caution." 

If  the  decision  in  Severn  v.  Reg.  (y),  that  a  brewer's 
license  cannot  be  imposed  by  a  province,  is  still  law,  it  can 
only  be  upon  the  ground  that  it  is  "  indirect "  taxation  and 
not  ejusdem  generis  with  the  licenses  particularly  men- 
tioned in  this  sub-section.  If  it  is  "  direct "  taxation,  it 
does  not  matter  whether  it  is  or  is  not  ejusdeni  generic,  for 
Bank  of  Toronto  v.  Lambe  would  distinctly  uphold  it. 

10.  Local  Works  and  Undertakings, 
other  than  such  as  are  of  the  following 
classes, — 

a.  Ijines   of   Steam   or  other   Ships^ 

Eailways,  Canals,  Telegraphs, 
and  other  works  and  under- 
takings connecting  the  Pro- 
vince with  any  other  or  others 
of  the  Provinces,  or  extending 
beyond  the  limits  of  the  Pro- 
vince : 

b.  Lines  of  Steam  Ships  between  the 

Province  and  any  British  or 
Foreign  Country  : 

c.  Such   works    as,   although   wholly 

situate  within  the  Province,  are 
before  or  after  their  execution 
declared  by  the  Parliament  of 
Canada  to  be  for  the  general 
advantage  of  Cangi^a  oy  for  the 

{g)  2  S.  C.  B.  70  ;  see  ante,  p.  364. 


THE   B.  N.  A.  ACT — SEC.  92,  S.-S.  10,  11.  449 

advantage  of  two  or  more  of  the 
Provinces. 

11,  The  Incorporation  of  Companies 
with  Provincial  objects. 

Tlie  authorities  upon  these  two  sub-sections  so  run  into 
each  other  that  it  will  simplify  niattei'S  if  we  discuss  them 
together. '  Their  connection  is  obvious,  the  "  provincial 
objects  "  for  which  incorporation  is  sought  under  sub-sec- 
tion 1 1  being,  in  probably  the  majority  of  cases,  "  local 
works  and  undertakings"  falling  within  sub-section  10. 
The  power  lodged  by  exception  (c)  in  the  hands  of  the 
Dominion  government  gives  that  government  the  anoma- 
lous privilege  of  defining  its  own  sphere  of  authority,  in 
reference  to  these  matters,  as  against  the  provinces.  Much 
the  same  power  is  vested  in  Congress  in  reference  to 
"  internal  improvements,"  and  this  has  been  the  subject  of 
much  adverse  comment  from  those  who  view  with  alarm 
the  encroachment  of  the  central  authority.  Witli  this 
phase  of  the  question,  however,  we  should  not  perhaps 
concern  oui*selves  in  this  place,  for,  at  any  given  moment  of 
time,  the  line  of  division  is  a  legal  one,  though  subject  to 
be  thereafter  shifted  at  the  will  of  the  parliament  of 
Canada. 

It  has  been  held  by  the  Court  of  Queen's  Bench  of 
Quebec  (h)  that  all  works  which  are  wholly  within  one 
province,  whether  the  undertaking  to  which  they  belong  be 
for  a  commercial  purpose  or  otherwise,  are  within  the  con- 
trol, and  subject  to  the  legislation  of  the  province  in  which 
they  are  situate,  unless  they  are  by  the  parliament  of 
Canada  declared  to  be  for  the  general  advantage  of  Canada, 
or  for  the  advantage  of  two  or  more  of  the  provinces.  The 
Dominion  parliament  cannot,  it  was  held,  without  such 
declaration,  authorize  a  company  to  establish  in  two  or 

(h)  Reg.  V.  Mohr,  7  Q.  L.  R.  183,  2  Cart.  257. 
Can.  Con.— 29 


450  THE   B.  N.  A.  ACT — SEC.  92,  S.-S.  10,  11. 

more  provinces,  works  needing  special  legislative  authority^ 
and  which  are  in  their  nature  local  in  each  province,  the 
jurisdiction  in  such  case  to  give  the  needed  authority  being 
determined  by  the  location  and  object  of  the  works,  and  not 
by  the  circumstance  that  the  company  is  authorized  to  make 
them  in  several  provinces. 

Applying  the  law  so  laid  down,  the  Dominion  Act  (43 
Vic.  c.  67),  incorporating  the  Bell  Telephone  Company,  and 
authorizing  the  establishment  by  that  company  of  telephone 
lines  in  the  several  provinces  of  the  Dominion,  but  which 
contained  no  provision  as  to  utilizing  their  powei's  for  the 
purpose  of  connecting  two  or  more  provinces,  was  declared 
ultra  vires.     Dorion,  C.J.,  says: 

"  If  the  Dominion  cannot  incorporate  separate  companies 
for  the  purpose  of  establishing  separate  lines  of  telegraph  in  one, 
or  two,  or  more  of  the  provinces,  unless  such  lines  are  to  con- 
nect two  or  more  provinces,  or  extend  beyond  the  limits  of  one 
province,  or  are  expressly  declared  to  be  for  the  advantage  of 
the  Dominion,  or  of  two  or  more  provinces,  it  is  because  by 
their  nature  these  separate  telegraph  lines  are  local  works  and 
undertakings,  subject  to  the  exclusive  control  of  the  piovincial 
legislatures. 

"And  if  the  Dominion  cannot  authorize  separate  companies 
to  establish  such  separate  lines  of  telegraph,  whence  could  it 
derive  its  authority  to  incorporate  one  company  to  establish 
those  several  works  ?  It  is  evident  that  the  nature  and  charac- 
ter of  such  undertakings  cannot  be  altered  from  being  local 
undertakings  to  become  general  by  the  mere  fact  that  they  are 
to  be  established  by  one  company  instead  of  several  companies. 
Their  character  is  determined  by  their  location  and  object,  or 
by  an  express  declaration  of  the  Dominion  parliament,  and  not 
by  the  accident  that  the  same  company  is  authorized  to  make 
them  all." 

In  view,  however,  of  the  judgment  of  the  Judicial  Com- 
mittee of  the  Privy  Council,  in  the  case  about  to  be  noted 
(i),  Regina  v.  Mohr  can  no  longer  be  considered  a  binding 

(j)  Colonial  Bldg.  Abb,  v.  Atty.-Genl.  of  Quebec,  9  App.  Cas.  157. 


THE   B.  N.  A.  ACT — SEC.  92,  H.-S.  10,  11.  451 

authority  even  in  Quebec — ho  far,  at  least,  as  it  declared 
the  entire  invalidity  of  the  Act  of  incorporation.  The  lar^'cr 
(juestion  aa  to  the  subjection  of  such  a  company  to  pro- 
vincial law — just  how  far  the  Dominion  parliament  can  go, 
lieyond  merely  conferringcoi'porate  capacity — is  not  touched 
upon  in  the  judf^ment.  It  should  be  pointed  out,  perhaps, 
that  no  doubt  was  expressed  by  the  court  as  to  the  power  of 
the  Dominion  parliament  to  authorize  the  incorporation  of 
a  company,  with  power  to  establish  general  telephime  com- 
munication throughout  the  various  provinces  of  the  Do- 
minion, or  between  any  two  of  them.  The  judgment  pro- 
ceeded solely  upon  the  ground  that  the  Act  in  question  gave 
the  company  no  power  to  establish  such  a  system,  or  to  make 
such  connection  between  two  provinces.  The  work  which 
\va»  actually  being  carried  on,  under  this  statute,  was  held  to 
be  a  local  work  falling  within  sub-section  10,  and  being 
such,  it  could  only  be  authorized  by  a  provincial  Act.  The 
judgment  of  the  Privy  Council,  however,  distinctly  enunci- 
ates that  the  territorial  extensibility  of  the  power,  and  not 
the  extent  to  which  it  is  actually  exercised,  is  to  decide 
the  (juestion  as  to  which  legislature  should  grant  a  charter 
<>f  incorporation. 

The  power  to  incorporate  companies  with  powei-s  extend- 
ing beyond  one  province,  is  clearly  with  the  parliament 
of  Canada,  and  the  fact  that  a  company,  so  incorporated, 
may  not  see  lit  to  extend  its  operations  beyond  one  pro- 
vince, does  not  affect  its  status  as  a  duly  incorporated  com- 
pany, or  render  its  Act  of  incorporation  (if  incorporated 
by  Act  of  parliament)  idtra  vires.  The  difference  between 
a  Dominion  and  s  provincial  company  is  in  the  territorial 
sphere  within  which  the  company's  powers  may  be,  not 
within  which  they  are  actually,  exercised. 

In  Clarke  v.  Union  Fire  Insurance  Co.  (j),  it  was  held 
by  the  Master  in  Ordinary  (Mr.  Hodgins,  Q.C.),  that  an  in- 

(j)  lOF.  B.  (Ont.)  313.     The  affirmance  of  thi<i  jadgment  on  appeal 
does  not  touch  the  constitutional  point ;  see  6  ().  B.  223. 


452  THE   B.  N.  A.  ACT—SEC.  92,  H.-S.  10,  11. 

surance  company  incorporated  under  a  provincial  statute 
can  enter  into  insurance  contracts  abroad,  i.e.,  insuring  pro- 
perty situated  out  of  the  province.  Sed  quwre.  No  doubt 
it  can  validly  contract  in  matters  collateral  to  the  objects 
for  which  it  was  incorporated,  but  (apart  from  the  view 
which  might  be  taken  in  foreign  courts  if  such  contract 
were  sued  upon  there)  it  is  Mubmitted  that,  in  respect  of 
such  insurance  contracts,  thf  company  must  be  treated  by 
the  courts  of  these  provinces  as  an  unincorporated  associa- 
tion of  individuals. 

In  European  and  N.  A.  Railway  Company  v.  Thomas 
(/•),  a  provincial  legislature  was  held  by  the  New  Bruns- 
wick Supreme  Court  to  be  entitled  to  legislate  with  respect 
to  a  provincial  railway  running  only  to  the  boundaries  of  the 
province,  such  railway  being  a  focal  work  and  undertaking 
within  sub-section  10,  although,  as  appeared  by  the  facts  of 
that  case,  legislation  had  been  procured  in  the  State  of 
Maine  incorporating  an  American  company  to  build  a  rail- 
way in  that  State  to  connect  with  the  provincial  railway 
in  question. 

This  sub-section  10  was  considered  by  the  Privy  Council 
in  Dow  V.  Black  (I),  in  which  a  provincial  Act  authorizing 
a  municipality  to  grant  a  bonus  to  a  railway  company 
extending  beyond  the  province,  was  held  to  fall  within 
sub-section  2  of  section  92,  ante,  or,  if  not  under  that  sub- 
section, then  under  sub-section  16,  as  to  which  see  post.  It 
was  held  not  to  be  touched  by  sub-section  10  at  all.  A 
question,  however,  was  raised  in  that  case  which  the  Com- 
mittee abstained  f  i*om  deciding,  namely — does  exception  (a) 
apply  to  a  railway  extending  from  one  province,  not  into 
another,  but  into  a  foreign  country  ?  The  limitation  of 
exception  (b)  to  steanishi}^  lines  was  urged  in  support  of 
the  view  that, a  provincial  legislature  has  power  to  enact 
laws  as  to  railway 8  extending  from  one  province  into  a 

{k)  1  Pug.  42,  2  Cart.  439. 
(I)  L.  R.  6  P.  C.  272. 


THE  B.  N.  A.  ACT — SEC.  92,  S.-S.  10,  11.  463 

foreign"  country.  For  reasons  which  will  be  found  dis- 
cussed in  chapter  IX.,  ante,  p.  185,  et  mq.,  it  is  submitted 
that  a  provincial  legislature  has  no  such  power,  nor  indeed 
has  the  Dominion  parliament,  so  far  as  the  operation  of  the 
road  without  Canada  is  concerned.  So  far  as  the  incorpo- 
ration of  any  such  company  is  concerned,  sub-section  11 
would  appear  to  prevent  a  provincial  legislature  from 
passing  any  laws  in  referenc3  thereto.  The  question  of 
the  status  and  rights  of  a  corporation  without  the  limits  of 
the  country  under  whose  laws  it  is  incorporated  is  not 
within  the  scope  of  this  work,  being  a  matter  of  inter- 
national, rather  than  of  colonial,  law. 

A  number  of  very  interesting  cases  have  arisen  involv- 
ing consideration  of  the  position  occupied  by  federal 
"  works  and  undertakings  "and  federal  companies  in  refer- 
ence to  provincial  law  upon  matters  within  the  legisla- 
tive competence  of  a  provincial  legislature — and  vice  versa. 
In  reference  to  the  incorporation  of  companies  with  objects 
other  than  provincial  and  other  than  those  covered  by  the 
exceptions  to  subsection  10,  no  difficulty  perhaps'  should 
arise.  For  the  very  same  reasons  which  led  us  to  limit  the 
scope  of  the  term  "  municipal  institutions,"  we  submit  that 
a  company  incorporated  under  Dominion  legislation  can 
exercise  no  power  which  its  creator  could  not  directly  exer- 
cise ;  its  Act  of  incorporation  can  confer  corporate  capacity 
merely  and  powers  in  relation  to  matters  within  the  legis- 
lative competence  of  that  creator.  We  have  already 
touched  upon  this  question  (m)and  shall  refer  in  a  moment 
to  certain  cases  which,  we  think,  bear  out  the  view  we  have 
ventured  to  express.  As  to  works  and  undertakings  falling 
within  the  exceptions  to  sub-section  10 — wliether  carried 
on  by  a  company  or  by  individuals — a  somewhat  different 
(juestion  arises,  namely — what  is  covered  by  the  term 
"  works  and  undertakings  "  ? — but  this  question  must,  it 
seems  to  us,  be  ultimately  decided  up«  n  the  very  same  prin- 

(m)  See  ante,  p.  353. 


454  THE   H.  N.  A,  ACT — SEC.  92,  S.-S.  10,  11. 

ciple.  The  difficulty  arises  from  the  fact  that  a  work  or 
un<lertaking  may  to-day  be  provincial  and  to-morrow 
federal,  and,  it  may  be  asked,  how  can  the  subject  matter  of 
such  work  or  undertaking'  be — as  a  matter  of  law — within 
the  legislative  competence  of  a  provincial  legislature,  one 
day,  and  within  that  of  the  parliament  of  Canada  the 
next.  Without  attempting  any  elaborate  discussion  we 
may  venture  the  opinion  that  the  solution  of  these  ques- 
tions will  require  a  freer  application  of  the  rule  laid  down 
in  Bank  of  Toronto  v.  Lambe — that  legislation  by  one  legis- 
lature may  limit  the  range  open  to  the  other  (n) — than  has 
yet  been  attempted.  We  now  proceed  to  examine  the 
cases. 

A  railway  incorporated  under  a  provincial  Act  was 
declared  to  be  a  federal  railway  under  clause  (c)  of  sub- 
section 10,  by  an  Act  of  the  parliament  of  Canada.  An 
Act  of  the  legislative  assembly  of  Quebec  amalgamating  the 
company  at  its  own  request  with  another  provincial  rail- 
way, was  held  ultra  vires  by  the  Judicial  Committee  of  the 
Privy  Council  (o). 

Mr.  Justice  Killam  in  Manitoba  held  in  Canadian 
Pacific  Ry.  v.  North  Pacific  &  Man.  Ry.  (j)),  that  it  is 
within  the  competence  of  the  Dominion  parliament  to 
enact  that  no  provincial  railway  shall  cross  a  Dominion 
railway  without  the  approval  of  the  Railway  Connnittee  of 
the  Piivy  Council.  He  treats  the  power  to  legislate  in  re- 
ference to  "  crossings "  as  incidental  to  the  power  of  the 
Dominion  parliament  in  relation  to  general  undertakings 
as  well  as  to  the  power  of  the  local  legislatures  in  relation 
to  local  undertakings  within  this  sub-section.  It  would 
seem  therefore  to  depend  upon  the  question — which  occu- 
pied the  ground  first  ?  Unless  this  is  to  be  the  rule  for  de- 
termining these  disputes,  it  must  be  conceded  that,  in  this 

(n;  See  ante,  p.  213,  and  notes  to  aab-seotion  16,  post, 
(o)  Bourgoin  v.  M.  O.  and  O.  By.,  5  App.  Gas.  381. 
(/))  Man.  L.  B. 


THE   B.  N.  A.  ACT — SEC.  92,  S.-S.  10,  11.  455 

instance  at  least,  pi-ovincial  legislation  must  be  subordinate 
to  Dominion  legislation. 

Where  it  is  necessary  for  a  provincial  railway  in 
Ontario  to  cross  a  Dominion  railway,  the  company  desiring 
to  effect  such  crossing,  must  procure  the  approval  of  the 
Minister  of  Public  Works  for  Ontario,  as  well  as  the 
approval  of  the  Railway  Committee  of  the  Frivy  Council 
for  the  Dominion,  and  the  railway  companies  concerned 
cannot  waive  this  provision  (q). 

The  power  of  a  provincial  legislature  to  pass  laws  as  to 
insurance  contracts  entered  into  within  the  province  by  a 
Dominion  or  a  foreign  corporation,  was  considered  in  Par- 
sons V.  Citizens  (r),  and  the  view  of  the  Judicial  Committee 
of  the  Privy  Council  is  thus  expressed : 

"  It  was  contended,  in  the  case  of  the  Citizens  Insurance 
Company  of  Canada,  that  the  company  having  been  originally  in- 
corporated by  the  parliament  of  the  late  province  of  Canada,  and 
having  had  its  incorporation  and  corporate  rights  confirmed  by 
the  Dominion  parliament,  could  not  be  afifected  by  an  Act  of  the 
Ontario  legislature.  But  the  latter  Act  does  not  assume  to  in- 
terfere with  the  constitution  or  statm  of  corporations.  It  deals 
with  all  insurers  alike,  including  corporations  and  companies, 
whatever  may  be  their  origin,  whether  incorporated  by  British 
authority,  as  in  the  case  of  the  Queen  Insurance  Company,  or  by 
foreign  or  colonial  authority,  and  without  touching  their  statm, 
requires  that  if  they  chdoso  to  make  contracts  of  insurance  in 
Ontario,  relating  to  property  in  that  province,  such  contract  shall 
be  subject  to  certain  conditions." 

and   this,  it  was  held,   a   provincial   legislature  had  full 
power  to  do,  under  section  92,  sub-section  13. 

In  Colonial  Building  and  Investment  Association  v. 
Attorney-General  of  Quebec  (s),  the  Judicial  Committee  of 
the  Privy  Council,  referred  to  the  hypothetical  case,  put  by 
way  of  illustration  in  Citizens  v.  Paraons,  as  to  the  applica- 

{q)  Credit  Valley  R.  R.  Co.  v.  Great  Western  Ry.  Co.,  25  Grant,  507. 
(r)  7  App.  Caa,  96. 
(s)  9  App.  Gas.  157. 


456  THE   B.  N.  A.  ACT — SEC.  92,  S.-S.  10,  11. 

bility,  to  a  Dominion  company,  of  a  provincial  mortmain 
law,  and  expressed  their  continued  adherence  to  the  view- 
then  entertained  as  to  the  respective  powers  of  the  Do- 
minion and  provincial  legislatures  in  regard  to  incorporated 
companies.  The  two  cases  lay  down  very  clearly  that  a 
Dominion  company  can  only  exercise  its  powei*s  subject  to 
the  law  of  the  particular  province  in  which  any  of  its 
transactions  may  be  carried  on.  In  the  fii-st  named  case 
the  matter  was  merely  put  by  way  of  illustration  in  refer- 
ence, as  we  have  said,  to  the  operation  of  provincial  mort- 
main laws : 

"Suppose  the  Dominion  parliament  were  to  incorporate  a  com- 
pany with  power,  among  other  things,  to  purchase  and  hold  lands 
throughout  Canada  in  mortmain,  it  could  scarcely  be  contended 
if  such  a  company  were  to  carry  on  business  in  a  province  where 
a  law  against  holding  land  in  mortmain  prevailed  (each  province 
having  exclusive  legislative  power  over  'property  and  civil  lights 
in  the  province')  that  it  could  hold  land  in  that  province  in  con- 
travention of  the  provincial  legislation  ;  and,  if  a  company  were 
incorporated  for  the  sole  purpose  of  purchasing  and  holding  land 
in  the  Dominion,  it  might  happen  that  it  could  do  no  business 
in  any  part  of  it,  by  reason  of  all  the  provinces  having  passed 
mortmain  Acts,  though  the  corporation  would  still  exist  and  pre- 
serve its  statiii  as  a  corporate  body." 

This  the  Committee  explain  in  the  later  case  by  saying 
that  they  had  not  in  view  the  special  law  of  any  one  pro- 
vince, nor  the  question  whether  the  prohibition  was  absolute, 
or  only  in  the  absence  of  the  Crown's  consent ;  that  their 
object  had  merely  been  to  point  out  that  a  corporation 
could  only  exercise  its  powers,  subject  to  the  law  of  the 
province,  whatever  that  may  be,  in  this  regard. 

In  this  connection  may  be  mentioned  the  case  of  Mc- 
Diarmid  v.  Hughes  (t),  in  which  the  Divisional  Court  of 
the  Queen's  Bench  Division  (Armour,  C.J.,  and  Street,  J.), 
held  that  the  Dominion  parliament  has  power  to  enact 
that  a  license  from  the  Crown  shall   not  be   necessary 

(t)  16  O.  R.  670. 


THE   B.  N.  A.  ACT — SEC.  92,  S.-S.  10,  11.  457 

to  enable  corporations  to  hold  lands  within  the  Dominion ; 
and  that  a  Dominion  Act  enabling  a  Quebec  corporation  to 
hold  lands  in  Ontario,  would  operate  as  a  license ; — a  view 
difficult  to  reconcile  with  the  above  cases.  No  doubt,  as 
put  by  the  Chief  Justice,  an  Imperial  Act  might  be  passed, 
extending  to  all  Her  Majesty's  possessions,  providing  that 
thereafter  a  license  from  the  Crown  should  not  be  neces- 
sary to  enable  any  corporation  to  hold  lands  therein,  but  it 
seems  to  us  a  non  sequihvr  to  say  that  an  Act  of  the 
Dominion  parliament  would  have  effect  throughout  the 
Dominion  in  relation  to  matters  over  which,  as  between 
the  Dominion  parliament  and  the  provincial  legislatures, 
the  latter  have  exclusive  jurisdiction.  The  power  of  a 
corporation  to  hold  land  is  part  of  the  law  relating  to  real 
property,  and  governed  therefore  by  the  lex  loci,  and  the 
grant  of  a  license  from  the  Crown  to  hold  lands,  non 
obstante  the  Mortmain  Acts,  must  be  made  by  the  execu- 
tive head  of  that  goveniment  whose  legislature  has  power 
to  pass  laws  in  relation  to  real  property  within  its  terri- 
torial limits. 

In  Monkhouse  v.  Grand  Trunk  R.  R.  (u,).  it  was  held 
that  a  provincial  statute  which  made  provision  as  to 
"  frog-packing "  applicable  only  "  to  every  railway  and 
railway  company  in  respect  to  which  the  legislature  of 
Ontario  has  authority  to  enact  such  provisions,"  did  not 
apply  to  the  Grand  Trunk  R.  R.  Company,  which  falls 
within  exception  (a)  to  this  sub-section  10.  Just  what  is 
the  scope  of  legislation  relating  to  a  work  or  undertaking 
such  as  a  railway  connecting  one  province  with  another, 
is  left  by  this  case  still  uncertain.  Mr.  Justice  Pattoi-son 
puts  his  decision  on  the  ground  that  the  statute,  there  in 
(juestion,  "which  relates  to  the  mrnagement  and  in  some 
respects  to  the  construction  of  railways,  and  deals  only 
with  railways  as  such "  did  not  apply  to  the  defendant 
company ;  and  he  expressly  reserves  the  question  how  far 

(m)  8  O.  A.  R.  637. 


458  THE   B.  N.  A.  ACT — SEC.  92,  S.-S.  10,  11. 

Huch  an  undertaking  may  be  affected  by  provincial  legisla- 
tion touching  property  and  civil  rights  or  other  subjects 
within  the  jurisdiction  of  the  provincial  legislatures.  In 
Canada  Southern  Railway  v.  Jackson  (v),  before  the 
Supreme  Court  of  Canada,  it  was  held  that  the  Workmen's 
Compensation  for  Injuries  Act  of  Ontario  (49  Vic.  c.  28), 
applied  to  the  appellant  company,  notwithstanding  that  it 
had  been  brought  under  the  operation  of  the  Government 
Railways  Act  of  the  Dominion.  Mr.  Justice  Patterson 
says : 

"  It  is  not  legislation  respecting  such  local  works  and  under- 
takings as  are  excepted  from  the  legislative  jurisdiction  of  the 
province  by  article  10  of  section  92  of  the  B.  N.  A.  Act.  It 
touches  civil  rights  in  the  province.  The  rule  of  law  which  it 
alters  was  a  rule  of  common  law  in  no  way  depending  on  or 
arising  out  of  Dominion  legislation,  and  the  measure  is  strictly 
of  the  same  class  as  Lord  Campbell's  Act,  which,  as  adopted  by 
provincial  legislation,  has  been  applied  without  question  to  all 
our  railways." 

The  difference  in  opinion  which  is  still  possible  upon 
this  question  is  made  manifest  in  McArthur  v.  N.  and  P. 
Junction  Ry.  Co.  (17  O.  A.  R.  86)  in  which  the  Court  of 
Appeal  was  evenly  divided  upon  the  question  of  the 
validity  of  the  clause  in  the  Dominion  Railway  Act  limit- 
ing the  time  within  which  an  action  may  be  brought  for 
injury  sustained  "  by  reason  of  the  railway. — R.  S.  C 
c.  109,  s.  27.  Hagarty,  C.J.O.  and  Osier,  J.A.  upheld  the 
enactment  as  being  an  almost  essential  part  of  railway 
legislation,  while  Burton  and  Maclennan,  JJ.A.  considered 
it  an  unnecessary  interference  with  "  property  and  civil 
rights  in  the  province."  The  injury  complained  of,  we 
should  perhaps  state,  was  trespass  to  timber  in  connection 
with  the  construction  and  operation  of  the  road. 

As  to  the  applicability  of  the  Dominion  Winding-up 
Acts  to  companies  incorporated  under  provincial  legislation, 

(r)  17  8.  C.  R.  aiC. 


THE   B.  N.  A.  ACT — SEC.  92,  S.-S.  12.  459 

sec  Shoolbred  v.  Clarke  (w)  and  other  f  ases  under  section 
91,  sub-section  21,  ante,  p.  394. 

In  like  manner,  companies  incorporated  under  provincial 
legislation,  for  the  purpose  of  carrying  on  these  "  local 
works  and  undertakings,"  have  without  hesitation  been  held 
to  be  subject  to  the  provisions  of  Dominion  law  and  legisla- 
tion upon  the  subject  of  "navigation  and  shipping."  See 
Qu;?ddy  River  Boom  Co.  v.  Davidson  (x)  and  other  cases 
noted  under  section  91,  sub-section  10. 

As  to  the  power  of  a  provincial  legislature  over  a  cor- 
poration existing  prior  to  Confederation,  see  Dobie  v.  Tem- 
poralities Board  (y)  cited  in  the  notes  to  eection  129,  2)08t. 

In  Jones  v.  Canada  Central  (s)  it  was  held  that  provin- 
cial legislation  in  reference  to  the  bonds  of  a  railway 
company  falling  within  this  sub-section  10  is  operative  to 
govern  bonds  held  out  of  the  province.  Mr.  Justice  Osier 
says : 

"I  am  of  opinion  that  where  debts  and  other  obligations 
arise  out  of,  or  are  authorised  to  be  contracted  under,  a  local  Act 
which  is  passed  in  relation  to  a  matter  within  the  powers  of  the 
local  legislature,  such  debts  or  obligations  may  be  dealt  with  or 
affected  by  subsequent  Acts  of  the  same  legislature  in  relation  to 
the  same  matter,  and  this  notwithstanding  that  by  a  fiction  of 
law  such  debts  may  be  domiciled  out  of  the  province." 

12.  The  Solemnization  of  Marriage  in 
the  Province. 

This  sub-section  will  be  found  noted,  so  far  as  is  neces- 
sary, in  the  notes  to  sub-section  26  of  section  91.  We  may 
also  refer  to  chapter  V.,  ante,  page  116,  et  neq.,  as  to  the  ex- 

(to)  17  8.  C.  R|265. 
(x)  10  S.  C.  R.  222. 
{y)  7  App.  Cas.  133;  see  ante,  p.  200. 

(z)  46  U.  C.  Q.  ».  250.  See  Redfisld  v.  Corporation  of  Wickham,  Ig 
App.  Cas.  467,  as  to  the  right  of  an  ezecntion  creditor  to  sell  under 
Ji.fa.,  a  Canadian  railway  as  a  whole,  and  the  difference,  in  this  respect, 
between  English  and  Canadian  law. 


460  THE   B.  N.  A.  ACT — SEC.  92,  .S.-S.  18. 

tent  to  wliich  English  marriage  law  is  in  force  in  Upper 
Canada.  Owing  to  the  decided  religious  convictions  of 
Roman  Catholics  upon  this  question,  there  has  been  nc) 
general  legislation  by  the  Dominion  parliament  upon  the 
subject  of  marriage  and  divorce  ;  and  its  jurisdiction  un<ler 
sub-section  26  of  section  91,  has  been  limited  to  the  passage 
of  private  Divorce  Acts. 

13.  Property  and  Civil  Rights  iu  the 
Province. 

In  what  may  be  termed  the  leading  case  as  to  the  mean- 
ing to  be  attached  to  this  sub-section,  and  the  range  of 
matters  embraced  therein — Citizens  v.  Pai"sons  (d) — it  .was 
contended  that  "civil  riifhts"  should  be  limited  to  such  riohts 
only  as  flowed  from  the  law,  e.g.,  the  shttas  of  pei*sons,  an<l 
should  not  be  interpreted  to  cover  rights  arising  from  con- 
tract. Had  this  contention  prevailed,  the  provinces  would 
have  been  driven  out  of  the  largei*  part  of  the  field  of 
activity,  which  now,  by  the  authoritative  deliverance  of  the 
Judicial  Committee  of  the  Privy  Council  in  tluit  case,  they 
are  undoubtedly  entitled  to  occupy. 

"  Their  Lordships  cannot  think  that  the  latter  construction 
is  the  correct  one.  They  find  no  sufficient  reason  in  the, 
language  itself,  nor  in  the  other  parts  of  the  Act,  for  giving  so 
narrow  an  interpretation  to  the  words  'civil  rights.'  The  word-> 
are  sufficiently  large  to  embrace,  in  their  fair  and  ordinary  mean- 
ing, rights  arising  from  contract ;  and  such  rights  are  not  included 
in  express  terms  in  any  of  the  enumerated  classes  of  subjects  in 
section  91. 

"  It  becomes  obvious,  as  soon  as  an  attempt  is  made  to  con- 
strue the  general  terms  in  which  the  classes  of  subjects  in  sec- 
tions 91  and  92  are  described,  that  both  sections  and  the  other 
parts  of  the  Act  must  be  looked  at  to  ascertain  whether  language 
of  a  general  nature  must  not  by  necessary  implication  or  reason- 
able intendment  be  modified  and  limited.  In  looking  at  section 
91,  it  will  be  found  not  only  that  there  is  no  class  including, 

(a)  7  App.  Cas.  96. 


THE   B.  N.  A.  ACT — SEC.  i2,  S.-S.  13.  461 

generally,  contracts  and  the  rights  arising  from  them,  but  that 
one  class  of  contracts  is  mentioned  and  enumerated,  viz :  *  18.— 
bills  of  exchange,  and  promissory  notes,'  which  it  would  have 
been  unnecessary  to  specify,  if  authority  over  all  contracts,  and 
the  rights  arising  from  them,  had  belonged  to  the  Dominion 
parliament. 

"  The  provision  found  in  section  94  of  the  Act,  which  is  one 
of  the  sections  relating  to  the  distribution  of  legislative  powers, 
was  referred  to  by  the  learned  counsel  on  both  sides,  as  throwing 
light  upon  the  sense  in  which  the  words  'property  and  civil 
rights'  are  used.  By  that  section,  the  parliament  of  Canada  is 
empowered  to  make  provision  for  the  uniformity  of  any  laws 
relative  to  '  property  and  civil  rights '  in  Ontario,  Nova  Scotia 
and  New  Brunswick,  and  to  the  procedure  of  the  courts  in  these 
three  provinces,  if  the  provincial  legislatures  choose  to  adopt  the 
provisions  so  made.  The  province  of  Quebec  is  omitted  from 
this  section  for  the  obvious  reason  that  the  law  which  governs 
property  and  civil  rights  in  Quebec  is,  in  the  main,  the  French 
law  as  it  existed  at  the  time  of  the  session  of  Canada,  and  not 
the  English  law  which  prevails  in  the  other  provinces.  The 
words  '  property  and  civil  rights '  are,  obviously,  used  in  the  same 
sense  in  this  section  as  in  No.  13  of  section  92,  and  there  seems 
no  reason  for  presuming  that  contracts,  and  the  rights  arising 
from  them,  were  not  intended  to  be  included  in  this  provision  for 
uniformity.  If,  however,  the  narrow  construction  of  the  words, 
'  civil  rights '  contended  for  by  the  appellants  were  to  prevail,  the 
Dominion  parliament  could,  under  its  general  power,  legislate  in 
regard  to  contracts  in  all  and  each  of  the  provinces,  and,  as  a 
consequence  of  this,  the  province  of  Quebec,  though  now 
governed  by  its  own  Civil  Code,  founded  on  the  French  law,  as 
regards  contracts  and  their  incidents,  would  be  subject  to  have 
its  law  on  that  subject  altered  by  the  Dominion  legislature,  and 
brought  into  uniformity  with  the  English  law  prevailing  in  the 
other  three  provinces,  notwithstanding  that  Quebec  had  been 
carefully  left  out  of  the  uniformity  section  of  the  Act. 

"It  is  to  be  observed  that  the  same  words  'civil  rights'  are 
employed  in  the  Act  of  14  Geo.  Ill,  chapter  83,  which  made 
provision  for  the  government  of  the  province  of  Quebec.  Section 
8  of  that  Act  enacted  '  that  His  Majesty's  Canadian  subjects, 


462  TKE   n.  N.  A.  ACT — SEC.  92,  S.-S.  13. 

within  the  province  of  Quebec,  should  enjoy  their  property,  usages, 
and  other  civil  rights  as  they  had  before  done,  and  that  in  all 
matters  of  controversy  relative  to  prnprttif  ami  cin'l  rii/hts,  resort 
dhould  be  had  to  the  laws  of  Canada,  and  be  determined  agree- 
ably to  the  said  laws.'  In  this  statute,  the  words,  '  property  and 
civil  rights '  are  plainly  used  in  their  largest  sense ;  and  there^ 
is  no  r6Uson  for  holding  that  in  the  statute  under  discussion^ 
tliey  are  used  in  a  different  or  narrower  one." 

The  Quebec  Act,  1774,  referred  to  in  the  last  paragrapli 
of  this  ({notation,  draws  a  sharp  distinction  between  the 
criminal  and  the  civil  law  (b),  the  two  branches  tof^ether 
being  treated  as  inclusive  of  the  whole  field;  and  the  Com- 
mittee, in  holding  that  the  same  wide  meaning  must  be 
given  to  the  term  "  property  and  civil  rights  "  in  this  sub- 
section, have,  it  may  be  thought,  decided  that  the  various 
other  sub-sections  of  section  92  are  to  be  treated  as 
unnecessary  surplusage.  A  reference,  however,  to  those 
other  sub-sections  will  show  that  with  one  or  two  excep- 
tions, they  treat,  not  of  civil  rights  as  between  subject  and 
sul)ject,  but  of  what  may  be  called  political  rights,  as 
between  the  subject,  on  the  one  hand,  and  the  provincial 
government  and  bodies  organized  for  the  purposes  of  local 
self-government  throughout  the  various  sections  of  the  prov- 
ince, on  the  other.  The  judgment  of  the  Committee  does, 
however,  indicate  a  very  wide  range  of  subjects  as  included 
within  this  sub-section — a  range  subject  only  to  the  terri- 
torial limitation  indicated  by  the  words  "  in  the  province," 
and  subject  also,  as  the  cases  show,  to  be  cut  down  to  the 
extent  necessary  to  give  proper  play  to  the  powers  of  the 
Dominion  parliament  under  the  various  sub-sections  of 
section  91.  It  would  seem  as  if  this  sub-section  really 
throws  the  largest  "  residuum  "  to  the  provinces. 

As  to  the  first  limitation,  reference  may  be  had  to  Re 
Goodhue  (c),  in  which  it  was  held  by  some  of  the  judges 

(b)  See  ante,  p.  105. 

(c)  19  Gr.  366.     See  Jones  v.  Canada  Central,  46  U.  C.  Q.  B.  250,  for 
some  observations  by  Osier,  J.  (now  J. A.),  upon  Re  Goodhue. 


THE   B.  N.  A.  ACT — SEC.  92,  H.-S.  13.  463 

that  a  provincial  statute  cannot  prejudicially  att'ect  the 
rightH  of  a  person  living  out  of  the  province  in  respect  to 
pei-sonal  property  within.  If,  however,  this  is  to  be  taken 
»i8  more  than  a  decision  tus  to  the  proper  interpretation  to 
V)e  given  to  the  language  of  the  provincial  Act  there  in 
(question,  we  find  it  very  difficult  to  agree  with  it.  Al- 
though, in  a  sense,  that  the  law  of  the  domicile  governs 
as  to  personal  property  is  a  rule  of  private  international 
law  which  has  been  admitted  into  the  jurisprudence 
of  many  modem  states,  it  is  only  so  in  the  absence  of 
express  legislation  in  the  c^mntry  in  which  it  is  sought  to 
be  enforced,  and,  viewing  the  matter  as  a  (juestion  of 
power,  it  seems  to  us  that  provincial  legislation  altering  the 
law  in  this  respect  would  fall  within  sub-section  Ifi  of  sec 
tion  92.  It  may  be  thought  that  this  view  is  inconsistent 
with  what  has  been  laid  down  in  chapter  IX.,  (nitc.  The 
({uestion  is  certainly  (me  of  considerable  difficulty,  Imt  it 
seems  to  us  that  there  is  a  clear  distinction  between  rights 
arising  from  contract  accrued  abroad  irrespective  altogether 
of  the  locality  of  the  property  covered  by  the  contract, 
and  rights  to  be  enjoyed  by  foreignei-s  in  respect  to 
property  situate  in  the  pi'ovince.  There  is  no  doubt  a  well 
recognized  distinction  between  land  and  movables,  but  a 
reference  to  Von  Savigny  an<l  other  writers  on  this  (question 
of  international  law,  will  show  that  the  rule  is  not  by  any 
means  universal ;  and  that,  in  the  jurisprudence  of  many 
modern  states,  the  le,x  loci  governs  as  well  in  reference  to 
movables  as  to  land  and  other  immovable  property. 

We  may  also  refer  to  the  language  of  the  Chancellor  of 
Ontario,  in  Re  North  Perth  {(f).  The  particular  passage  to 
which  we  refer  will  be  found  (pioted  at  length,  mite,  p.  287. 
What  is  there  said — although  spoken  in  reference  to  rights 
enjoyed  by  voters  as  citizens  of  Canada — accords  with  the 
view  above  expressed,  that  this  sub-section  is  not  to  be 
taken  as  dealinsr  with  a  man's  riarhts  in  relation  to  the 


o 


(d)  21  O.  R.  538. 


464  THE   B.  N.  A.  ACT — SEC.  92,  H.-S.  18. 

organized  political  institutions  of  a  province,  but,  na  the 
Chancellor  puts  it,  "  regards  mainly  the  meimi  and  tmim 
as  between  citizens."  See  also  the  language  ot*  the  Judi- 
cial Conunittee  of  the  Privy  Council  in  Thfeberge  v. 
Landry  (e). 

In  reference  to  the  second  limitation  above  noted,  that 
while  this  sub-section  is  to  be  read  in  the  very  wide  sense 
indicated  by  the  Connnittee  in  Citizens  v.  Pai-sons,  it  is 
subject  always  to  be  cut  down  and  limited  by  Dominion 
laws  passed  in  relation  to  matters  falling  fairly  within  any 
of  the  sul)-sections  of  section  01,  it  may,  as  we  have  inti- 
mated in  the  notes  to  the  opening  clause  of  section  91  (/), 
be  deemed  (questionable  whether  this  sub-section  13  can  be 
limited  in  its  scope  l»y  anything  short  of  general  legisla- 
tion by  the  Dominion  parliament  in  reference  to  the 
various  matters  comprised  in  the  several  sub-sections  of 
section  91.  That  question  has  been  fully  discussed  in 
those  notes;  but  we  may  here  mention  that,  in  the  various 
decisions  in  which  Dominion  legislation  has  been  upheld 
notwithstanding  the  provisions  of  this  sub-section,  such 
legislation  has  been  general  legislation.  The  decision  of 
the  Supreme  Court  in  Quirt  v.  The  Queen  ((/),  is  we  think 
the  only  exception.  The  decision  of  the  Privy  Council  in 
Colonial  Building  Association  v.  Attorney-General  (Quebec) 
(h),  while  it,  in  effect,  upheld  the  valid?  y  of  a  Dominion 
Act  incorporating  the  appellant  company,  lays  down  that 
the  company,  so  incorporated,  is.  subject  to  the  local  laws 
of  the  province  in  which  its  business  may  be  carried  on — 
such,  for  instance,  as  laws  limiting  the  right  of  a  corpora- 
tion to  hold  land.  The  case  of  Citizens  v.  Parsons  (i), 
affords  another  instance — the  appellant  company  in  that 
case  being  held  to  be  subject  to  provincial  laws  as  to  the 
form  and  effect  of  contracts  entered  into  by  it  within  the 

(e)  2  App.  Cas.  102 ;  see  ante,  p.  288.     (h)  9  App.  Cas.  157. 

(/)  Ante,  ^.  350,  et  seq.  (t)  7  App.  Cas.  96;  see  ante,  p.  353. 

{g)  19  S.  C.  R.  510. 


THE   B.  X.  A.  ACT — SEC.  92,  S.-H.  13.  405 

province.  Upon  this  (luestioii  further  reference  may  Jm) 
luvl  to  tlie  notes  to  Hub-sections  10  and  10  of  this  sec- 
tion 92. 

Revei*tin«f,  now,  to  the  question  of  tlie  extent  to  whicli 
Dominion  legishition  of  a  {general  character,  in  reference  to 
niattei-s  falling'  within  any  of  the  suh-sections  of  sectit)n  f)l, 
may  overi'ide  provincial  hiw  as  to  property  and  civil 
rights,  we  may  refer  to  Gushing  v.  Dupuy  {J ),  in  which  the 
Judicial  Conunittee  of  the  Privy  Council  determined  the 
scope  proper  to  be  given  to  the  terms  "  bankruptcy  and 
insolvency,"  in  sub-section  21  of  section  91.  The  passage 
will  be  found  quoted  in  the  notes  to  that  sub-section.  Wo 
may  refer  also  to  Doyle  v.  Bell  (k),  in  which  it  was  held  by 
the  Court  of  Appeal  for  Ontario  tiiat  Dominion  legislation 
in  reference  to  the  conduct  of  elections  of  members  of  the 
House  of  Commons  of  Canada,  does  not  infringe  upon  the 
powers  of  a  provincial  legislature  under  this  sub-section — or, 
perhaps  we  should  rather  say,  that  this  sub-section  must  be 
read  subject  to  the  provisions  of  any  Dominion  Act  dealing 
with  that  subject.  It  should  be  noticed,  however,  that  the 
language  of  the  judges  in  that  case  recognizes  the  distinction, 
afterwards  so  clearly  pointed  out  by  the  Chancellor  in  Re 
North  Perth,  that  the  rights  of  an  inhabitant  of  Ontario  in 
connection  with  Dominion  elections,  is  one  of  his  political 
rights  in  Canada,  rather  than  a  civil  right  in  any  one 
province.  Hagarty,  C.J.O.,  however,  refei-s  to  a  number  of 
the  sub-sections  of  section  91  ;  any  legislation  upon  which 
must  necessarily  deal  with  rights  of  property  and  civil 
rights  in  the  different  provinces,  and  to  a  certain  extent 
control  and  modify  the  provincial  law  which  ordinanly 
governs  them. 

In  Russell  v.  The  Queen  {I),  the  Judicial  Committee  of 
the  Privy  Council  held  that  the  Canada  Temperance  Act  is 
not  an  Act  in  relation  to  "  property  and  civil  rights  in  the 
province  " : 

(j)  5  App.  Cas.  409.  (/&)  11  O.  A.  R.  326. 

(I)  7  App.  Cas.  829. 
Can,  Con.-*-30 


40()  THE    B.  N.  A.  ACT — SEC.  92,  H.-S.  18, 

"  Their  Lordships  cannot  think  that  the  Temperance  Act  in 
([uestion  properly  belongs  to  the  class  of  subjects,  '  property  and 
civil  rights.'  It  has,  in  its  legal  aspect,  an  obvious  and  close 
similarity  to  laws  which  place  restriction  on  the  sale  or  custody 
of  poisonous  drugs,  or  of  dangerously  explosive  substances. 
These  things,  as  well  as  intoxicating  liquors,  can,  of  course,  be 
held  as  property,  but  a  law  placing  restrictions  on  their  sale, 
custody,  or  removal,  on  the  ground  that  the  free  sale  or  use  of 
them  is  dangerous  to  public  safety,  nnil  makmj  it  tt  crinunnl 
ojf'enci'  punishable  by  fine  or  imprisonment  to  violate  these 
restrictions  cannot  properly  be  deemed  a  law  in  relation  to 
property  in  the  sense  in  which  those  words  are  used  in  the  91st 
section.  What  parliament  is  dealing  with,  in  legislation  of  this 
kind,  is  not  a  matter  in  relutiun  to  property  and  its  rights,  but 
one  relating  to  public  order  and  safety.  That  is  the  primary 
matter  dealt  with,  and  though  incidentally  the  free  use  of  things 
in  which  men  may  have  property  is  interfered  with,  that  inci- 
dental interference  does  not  alter  the  character  of  the  law. 
Upon  the  same  considerations,  the  Act  in  question  cannot  be 
regarded  as  legislation  in  regard  to  civil  rights.  In  however 
large  a  sense  these  words  are  used  it  could  not  have  been 
intended  to  prevent  the  parliament  of  Canada  from  declaring 
and  enacting  certain  uses  of  property,  and  certain  acts  in 
relation  to  property,  to  be  criminal  and  wrongful.  Laws  which 
make  it  a  criminal  offence  for  a  man  wilfully  to  set  fire  to  his 
own  house  on  the  ground  that  such  an  act  endangers  the  public 
safety,  or  to  overwork  his  horse  on  the  ground  of  cruelty  to 
the  animal,  though  affecting,  in  some  sense,  property,  and  the 
right  of  a  man  to  do  as  he  pleases  with  his  own,  cannot  properly 
be  regarded  as  being  legislation  in  relation  to  property  or  to  civil 
rights.  Nor  could  a  law  which  restricted  the  sale  or  exposure  of 
cattle  having  a  contagious  disease,  be  so  regarded.  Laws  of 
this  nature,  designed  for  the  promotion  of  public  order,  safety, 
or  morals,  and  which  subject  those  who  contravene  them 
to  criminal  prosecution  and  punishment,  belong  to  the  subject  of 
public  wrongs  rather  than  to  that  of  civil  rights.  They  are  of  a 
nature  which  fall  within  the  general  authority  of  parliament  to 
make  laws  for  the  order  and  good  government  of  Canada,  and 
hare  direct  relation  to  criminal  law,  which  is  one  of  the  enumer- 


THE   B.  N.  A.  ACT — HEC.  92,  S.-S.  18.  4(i7 

atod  classes  of  subjects  assigned  exclusively  to  the  parliament  of 
Canada.  It  was  said  in  the  course  of  the  judgment  of  this  Board 
in  the  case  of  the  Citizens  v.  Parsons,  that  the  two  sections 
must  be  read  together  and  the  language  of  one  interpreted,  and, 
where  necessary,  modified  by  that  of  the  other.  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 
atlect  property  and  civil  rights ;  and  it  could  not  have  been 
intended,  when  assuring  to  the  province  exclusive  legislative 
authority  on  the  subject  of  property  and  civil  rights,  to  exclude 
the  parliament  from  the  exercise  of  this  general  power  whenever 
any  such  incidental  interference  would  result  from  it.  The  true 
nature  and  character  of  the  legislation  in  the  particular  instance 
under  discussion  must  always  be  determined  in  order  to  ascer- 
tain the  class  of  subject  to  which  it  really  belongs." 

There  is  much  in  this  lanj^uage  which  supports  wliat  we 
have  said  in  regard  to  Dominion  legislation  being  limited  to 
general  legislation  upon  the  mattei's  entrusted  to  it,  as  being 
matters  of  common  concern  to  the  whole  country. 

It  would  seem,  therefore,  upon  review  of  these  authori- 
ties that  the  words  of  this  sub-section  are  to  be  inter- 
preted in  their  largest  sense,  subject  only  to  the  territorial 
limit  to  which  we  have  referred  ;  and  subject,  also,  to  the 
abstraction  therefrom  of  so  much  of  the  field  naturally 
covered  by  them  as  is  necessary  to  afford  scope  for  the 
operation  of  the  powera  bestowed  upon  the  Dominion  par- 
liament by  the  various  sub-sections  of  section  91.  Just  to 
what  extent  such  withdrawal  from  provincial  jurisdiction 
may  take  place,  <iepends  upon  the  construction  to  be  given 
to  section  91  and  its  various  sub-sections.  We  may  refer 
in  this  connection  to  what  was  said  in  chapter  X.,  ante,  p. 
213,  et  seq.,  as  to  the  possibility  of  legislation  by  one  legis- 
lature, Dominion  or  provincial,  limiting  the  range  open  to 
the  other.  In  this  view  it  would, appear  that  this  sub- 
section 13,  is  one,  the  scope  of  which  will,  from  time  to 
time,  grow  narrower  as  the  necessity  for  general  legisla- 
tion by  the  Dominion  parliament,  upon  matters  covered  by 
the  various  sub-sections  of  section  91,  increases. 


468  THE   B.  N.  A.  ACT — SEC.  92,  S.-S.  14. 

In  the  notes  to  other  sections  and  sub-sections  we  have 
cited  the  various  cases  in  which  this  sub-section  13  of  sec- 
tion 92  has  been  invoked,  and  need  here,  therefore,  merely 
indicate  the  cases  and  the  various  sub-sections  under  whicli 
they  will  be  found  noted  (m). 

14.  The  Administration  of  Justice  in 
the  Province,  including  the  Constitution, 
Maintenance,  and  Organization  of  Pro- 
vincial Courts,  both  of  Civil  and  of  Crim- 
inal Jurisdiction,  and  including  Procedure 
in  Civil  Matters  in  those  Courts. 

Our  judicial  system  has  already  received  attention  to 
the  extent  of  an  entire  chapter  (n),  and  in  the  notes  to  sub- 
section 27  of  section  91  we  have  necessarily  had  to  deal 
with  some  phases  of  the  criminal  law,  for  which  reasons  we 
need  here  deal  merely  with  certain  other  details  of  the 
general  subject  and  collect  those  authorities  which  have  not 
yet  been  cited.  As,  however,  we  refrained,  in  commenting 
upon  sub-section  27  of  section  91,  from  discussing  "the  con- 
stitution of  courts  of  criminal  jurisdiction,"  there  excluded, 
here  included,  we  may  here  refer  to  the  difficulties  which 
have  arisen  in  connection  with  the  administi'ation  of 
criminal  justice,  using  the  word  "criminal"  in  the  restricted 
sense  which,  as  has  been  pointed  out,  it  bears  in  Canadian 
jurisprudence.  The  constitution  of  courts  of  criminal  juris- 
diction is — subject  to  the  provisions  of  section  101,  of  which 
more  anon — with  the  provincial  governments ;   the   pro- 

(m)  Re  SimmonB  and  Dalton,  12  O.  K.  505,  ante,  p.  286;  Slavin  t. 
Orillia,  36  U.  C.  Q.  B.  159,  a7ite,  p.  359  ;  Beard  v.  Steele,  34  U.  C.  Q.  B. 
43,  ante,  p.  374 ;  Reg.  v.  Robertson,  6  S.  C.  R.  52,  ante,  p.  385 ;  Mer- 
chants Bank  v.  Smith,  8  S.  C.  R.  512,  ante,  p.  387  ;  Clarkson  v.  Ontario 
Bank,  15  O.  A.  R.  166,  mite,  p.  395 ;  Re  Wallace  Heustis  Co.,  3  Cart. 
374,  ante,  p.  400;  McDiarmid  v.  Hughes,  16  O.  R.  570,  ante,  p.  456-, 
Monkhouse  v.  G.  T.  R.  8  O.  A.  R.  637,  ante,  p.  457  ;  C.  S.  Ry.  v.  Jackson, 
17  S.  C.  R.  316,  ante,  p.  458  ;  McArthur  v.  N.  &  P.  June.  Ry.  17  O.  A.  R. 
86,  ante,  p.  458;  Reg.  v.  Wason,  17  O.  A.  R.  221,  post,  p.  478;  Reg.  v. 
Robertson,  3  Man.  L.  R.  613,  post,  p.  480. 

(n)  Chapter  XI.,  ante,  p.  223. 


THE   B.  N.  A.  ACT — SEC.  92,  S.-S.  14.  469 

cedure  in  criminal  matters  is  exclusively  with  the  Domin- 
ion government;  and  already  it  is  apparent  that  it  is,  in 
many,  if  not  most,  instances,  almost  impossible  to  decide 
with  any  reasonable  certainty  whether  a  law  relates  to 
"constitution"  or  "procedure."  In  this  sub-section,  it  should 
be  pointed  out,  the  full  rounded  phrase  is  used — "constitu- 
tion, maintenance,  and  organization" — and  the  difficulty 
perhaps  is  rather  to  decide  between  "organization"  and 
"procedure."  The  authorities  which  deal  with  the  (juestion 
of  juroi*s  and  the  position  of  the  jury  in  relation  to  the 
organization  of  a  court  have  already  been  cited  (o).  A  jury, 
empanelled  and  sworn,  is  part  of  the  "organization"  of  the 
court;  the  selecting  and  summoning  of  the  members  of  the 
jury  is  "  procedure "  !  Whether  a  man  accused  of  crime  is 
to  be  tried  with  or  without  a  jury  is  question  of  "  procedure  " 
and  can  only  be  determined  by  the  parliament  of  Canada 
(p).  Consequently,  in  Reg.  v,  Toland  (q)  it  ha«  just  been 
held  that  an  Ontario  Statute  (35  Vic.  c.  18,  sec.  2)  purport- 
ing to  give  to  a  police  magistrate  power  to  try  oftences 
under  the  Dominion  Act  respecting  forgery  is  altra  vires, 
there  being  no  jury  in  connection  with  that  tribunal.  It 
would  appear  that  there  is  here  occasion  for  "remedial" 
legislation  by  the  parliament  of  Canada;  otherwise  the 
power  to  constitute  courts  of  criminal  jurisdiction  is  seri- 
ously circumscribed.  In  its  organization  of  those  courts,  a 
province  may  find  it  difficult  to  keep  pace  with  the  require- 
ments of  Dominion  laws  as  to  "procedure,"  unless  the  par- 
liament of  Canada  delegates  to  the  provinces  the  regulation 
of  all  procedure  in  criminal  matters,  just  as  it  has  practically 
done  in  the  matter  of  the  selecting  and  summoning  of 
jurors.  Another  course  is  open  to  the  Dominion  govern- 
ment, for  by  section  101  (see  post)  the  parliament  of  Canada 
may,  "notwithstanding  anything  in  this  Ac^  "  constitute 
additional  courts  for  the  better  administration  of  the  laws 
of  Canada,  and  whether  the  jurisdiction  of  such  "additional" 

(o)  ante,  p.  416.  et  seq.  (p)  Reg.  v.  Bradshaw,  38  U.  C.  Q.  B.  564. 

iq)  Not  yet  reported ;  July,  1892. 


470  THE   H.  N.  A.  ACT — SEC.  92,  S.-S.  14. 

CourtH  wouM  1)0,  or  couhl  be  inmlo  to  be,  excluHive,  would 
not  be  of  inucli  practical  inoiiuiiit,  as  by  attention  to  "  pro- 
ce«lure"  the  provincial  ^un.s  couM  be.  effectually  spiked. 

In  treating  of  the  <jU(!Htion  of  tluj  juri.s<Hction  of  courts, 
Dominion  an<l  provincial,  wc;  ventured  to  lay  it  down  that 
the  jurisdictional  liiu;  in  the  case  of  the  former  is  the  line 
which  divides  thos«!  subject  matters  over  which  the  Do- 
minion parliament  has  jurisdiction  from  those  committed 
to  provincial  legislatures,  while  as  to  provincial  couits, 
wdiether  oM  or  new,  no  such  jui'isdictional  lin«^  exists. 
Herein  lies  the  anomaly  of  our  system.  The  legislative 
and  e.xecutive  departments  of  the  federal  govcirnment  are, 
so  far  jis  reganls  the  judicial  ]>ranch  of  the  latter,  and  in  the 
absence  of  resort  to  sectioti  101,  divorced,  and  the  enforce- 
ment of  the  laws  of  Canada — /.''.,  Dominion  laws — through 
th(!  courts  is  in  the  hands  of  tlui  provincial  governments. 
To  counterbalance  one  anomaly  by  another  the  appoint- 
ment of  part  of  the  organization  of  the  provincial  courts  is 
with  the  Dominion  government ! 

In  Regina  v.  Horner  (r),  the  Court  of  Queen's  Bench 
(Quebec),  uphehl  the  Act  of  that  province  respecting  <lis- 
trict  magistrates  and  magistrates'  courts,  and  the  power  of 
the  provincial  executive  to  appoint  such  magistrates.  Refer- 
ence is  made  by  Mr.  Justice  Ramsay,  in  delivering  the 
judgment  of  the  coiu't,  to  Regina  v.  Coote  («),  decided  in 
the  Privy  Council,  as  expressly  recognizing  the  power  of 
provincial  legislatures  to  create  new  courts  for  the  execu- 
tion of  the  criminal  law,  as  also  to  nominate  the  magistrates 
to  sit  in  such  courts.  "So  much  being  established  almost 
all  difficulty  dLsappeai-s.  The  Privy  C^ouncil  recognizes  the 
general  principle  that  the  executive  power  is  derived  from 
the  legislative  power  unless  there  be  some  restraining  enact- 
ment." It  appeal's,  we  should  perhaps  say,  from  the  report 
of  the  case,  that  the  Act  in  question  expressly  provided  for 
the  appointment  of  such  magistrates  by  the  Lieutenant- 
Governor  in  Council. 

(r)  2  Steph.  Dig.  450 ;  2  Cart.  317.  («)  L.  R.  4  P.  C.  599. 


THE   n.  N.  A.  ACT— SEC.  t)2,  S.-S.  14.  471 

To  Hpcak  now  of  courtH  of  civil  juriHiHctioii,  we  may 
note  that  in  Ganonj»-  v.  Bayley  (t),  in  tlie  New  Brunswick 
Supn^nie  Court,  it  was  held  hy  the  majority  of  the  co»n"t 
that  an  Act  of  the  New  Brunswick  legislature  estahlishinj^ 
commissioners'  courts  in  that  province,  and  for  the  appoint- 
ment by  the  Lieutenant-Governer  in  Council  of  commis- 
sioners to  preside  therein,  was  valid.  The  power  of  the 
local  le<(islature  to  establish  coui-ts  seems  to  liave  Iwien 
treated  aH  beyond  question^  the  point  more  fully  discussed 
beinj;-  as  to  the  valiflity  f)f  the  Act  in  so  far  as  it  con- 
ferred on  the  Lieutenant-Governor  of  the  province  power 
t<)  appoint  the  jud^(!S  who  should  preside  in  such  courts, 
and  tlu!  case,  therefore,  should  perhaps  be  noted  rather  as 
an  aflirmance  of  the  doctrine  that  an  Act  of  provincial 
legislation  in  I'eference  to  the  exercise  of  the  prerogatives 
of  th(!  (3rown  in  relation  to  matters  falling  within  the 
legislative  competence  of  such  legislature,  is  a  proper 
exercise  of  its  legislative  power.  The  opinions  of  Chief 
Justice  Allen  and  Mr.  Justice  Dutt",  who  dissented  from  the 
judgment  of  the  nmjority  of  the  court,  are  place<l  upon  the 
ground  that  the  exercise  of  this  prerogative  is,  by  the 
B.  N.  A.  Act,  vested  exclusively  in  the  Governor-General 
HH  Her  Majesty's  only  representative  in  Canada.  But,  in 
view  of  the  authorities  noted  under  section  58,  a7ite,  this 
view  is  untenable. 

As  to  the  appointment  of  ju<lges  and  officei-s  connected 
with  the  administration  of  justice  reference  nia^  l)e  had  to 
chapter  XI.  (ante,  p.  288,  fit  se^q.),  and  to  the  cases  in  the 
foot  note  {u). 

The  ({uestion  of  the  power  of  a  provincial  legislature 
to  regulate  procedure  affecting  penal  laws  which  such 
legislature  is  authorized  to  enact  {v),  came  before  the  Que- 

(/)  1  Fug  &  Burb.  821 ;  2  Cart.  609. 

(»)  Reg.  V.  Reno,  4  P.  B.  (Ont.)  281 ;  Re){.  v.  Bennett,  1  O.  R.  415; 
Richardaon  v.  Ransom,  10  O.  R.  887  ;  Ex  parte  Williamaon,  24  N.  B.  G4 ; 
and /Jx  j:»'rr(«  Perkins,  t&.  66.  '-    ■ 

(v)  Bee  8-B.  15,  jpoit. 


472  THE  B.  N.  A.  ACT — SEC.  92,  S.-S,  14.       * 

bee  Courts  in  three  early  cases,  and  was  very  emphatically 
affirmed.  In  Pope  v.  Griffith  (w),  a  case  arising  under  the 
Quebec  License  Act,  Mr.  Justice  Ramsay  says : 

"  Appellant  at  once  admits  that  the  local  legislature  have  the 
power  to  attach  a  fine,  penalty,  or  imprisonment,  to  the  sale  or 
keeping  of  spirituous  liquors  without  a  license ;  but  that  having 
done  that,  a  crime  was  created,  and  that  all  the  procedure  con- 
nected with  the  infliction  of  punishment  for  this  crime  must 
necessarily  be  fixed  by  parliament,  and  could  not  be  fixed  by  the 
legislature  of  the  province.  In  support  of  this  pretension  appel- 
lant maintains  that  every  infraction  of  a  public  law  to  which  any 
penalty  is  attached  is  a  crime.  .  .  .  Whatever  may  be  the 
definition  of  a  crime,  I  would  remind  those  who  lean  too  much 
upon  definitions,  of  their  danger ;  it  will  not  be  denied  that,  in  one 
sense  of  the  word,  the  act  of  which  the  appellant  is  accused,  is  a 
crime  ;  but  it  is  equally  plain  that  it  is  not  a  criim  in  the  scnxe  of 
sub-section  27,  section  91  of  the  B.  N.  A.  Act.  Now,  if  the  signifi- 
cation attached  to  the  word  "  criminal "  is  restricted  when  re- 
ferring to  law  in  this  sub-section,  why  should  it  be  used  in  a 
different  sense  when  applied  to  procedure?  It  cannot  be  pre- 
sumed that  in  one  short  paragraph,  particularly  a  paragraph  of 
an  enumeration  of  powers,  the  legislature  should  have  intended 
to  apply  two  different  meanings  to  the  same  word,  especially 
when  by  doing  so  they  would  be  transferring  the  legisla- 
tion with  regard  to  a  purely  local  matter  to  parliament.  The 
rule  is  all  the  other  way." 

In  Ex  parte  Duncan  {x),  Mr.  Justice  Dunkin  held  that 
34  Vic.  c.  2  (Quebec)  taking  away  the  right  to  certiorari^ 
to  remove  proceedings  in  civil  matter's  before  a  district 
magistrate,  was  valid,  and  that  under  the  term  "civil 
mattens,"  a  proceeding  before  a  district  magisti-ate  for  the 
enforcement  of  penalties  under  a  license  law  of  the  pro- 
vince would  be  included. 

"  These  words  '  civil '  and  '  criminal '  are  used  in  a  sense  which 
excludes  from  the  idea  conveyed  by  the  latter  and  includes 
within  that  conveyed  by  the  former  this  matter  of  '  punishment 

(w)  16  L.  C.  Jar.  169;  2  Cart.  291. 
(x)  16  L.  C.  Jar.  188 ;  2  Cart.  297. 


THE   B.  N.  A.  ACT — SEC.  92,  S.-S.  14.  473 

by  fine,  penalty,  or  imprisonment,  for  enforcing  any  law' 
whicb,  under  this  92nd  section,  a  province  alone  can  legally 
enact.  Jurisdiction  is  characterized  simply  as  being  civil  or  else 
criminal.  Criitu- — of  whatever  kind  or  degree — can  be  created, 
its  punishment  assigned,  and  procedure  relative  to  it  laid  down 
by  parliament  alone.  No  enactment  of  a  local  legislature  can 
give  to  any  Act  that  quality,  or  subject  it  to  that  punishment,  or 
bring  it  within  the  purview  of  that  procedure.  But  every  local 
legislature  without  let  or  hindrance  from  parliament— and 
therefore  without  need  of  aid  from  parliament — can  impose  pun- 
ishment by  fine,  penalty,  or  imprisonment,  for  enforcing  certain 
laws,  which  it  alone  can  make.     .     .     . 

"  Whatever  infractions  of  law,  whether  as  to  matters  of 
Dominion  or  provincial  (//)  legislation,  parliament  sees  fit  to 
designate  as  crimes,  it — and  it  alone — can  so  declare,  and  as  such 
punish,  and  to  that  end  regulate  procedure.  Whatever  infrac- 
tions of  any  provincial  law  coming  within  the  purview  of  this 
92nd  section,  parliament  may  not  see  fit  thus  to  deal  with,  the 
interested  province  may  punish  by  fine,  penalty,  or  imprison- 
ment ;  but  its  so  doing  does  not  make  the  ofience  to  be  thus 
punished  a  crime,  nor  the  procedure  laid  down  in  order  to  its 
punishment  procedure  in  a  criminal  matter.  On  the  contrary, 
such  whole  tuatter  tmist  renmin  a  civil  matter,  ivithin  what  is  here 
the  time  meaninfi  of  these  respective  terms. 

In  Page  v.  GriflSth  {z),  Mr.  Justice  Sanborn  expresses 
the  same  opinion,  intimating  that,  in  his  view,  the  pow^er 
to  prescribe  procedure  in  criminal  mattera  refers  to  "  the 
general  public  criminal  law  comprised  in  the  criminal 
statutes  of  the  Dominion  and  in  the  common  law.  This 
view  is  confirmed  by  the  Criminal  Procedure  Act,  which 
has  no  reference  whatever  to  local  penal  laws,  but  to  laws 
in  force  thi-oughout  the  Dominion,"  and  in  Cote  v.  Chaveau 
(a),  the  law  is  laid  down  to  the  same  effect  by  Mr.  Justice 
Casault. 

(y)  See  ante,  p.  414. 

(2)  17  L.  C.  Jar.  302;  2  Cart.  808. 

(a)  7  Q.  L.  R.  5>68 ;  2  Cart.  311. 


474  THE   B.  N.  A.  ACT — SEC.  92,  S.-S.  14. 

Having  held  valid  the  provincial  game  laws,  the  full 
Court  of  Queen's  Bench  of  Manitoba,  in  1886  (6),  adopted 
the  view  which  was  then  practically  recognized  in  all  the 
other  provinces,  that  procedure  In  connection  with  prose- 
cutions under  such  laws  is  matter  of  exclusively  provincial 
jurisdiction.  We  say  practically  recognized,  although  the 
([uestion  was  only  in  1890  authoritatively  passed  upon  in 
Ontario  by  the  Court  of  Appeal  for  that  province  in  Reg.  v. 
Wason  (e),  a  case  which  will  call  for  more  extended  notice 
in  the  notes  to  sub-section  15,  post. 

In  Reg.  V.  Bittle  (d),  the  Divisional  Court  of  the  Common 
Pleas  Division,  reviewed  the  decisions  upon  this  question. 
MacMahon,  J.,  delivering  the  judgment  of  the  court,  uphold- 
ing the  validity  of  R.  S.  O.  c.  61,  s.  9,  which  provides 
that,  in  proceedings  under  provincial  Acts,  the  defendant 
is  neither  a  competent  nor  compellable  witness,  refei*s  to 
the  diversity  of  nomenclature  applied  to  provincial  laws 
falling  within  this  sub-section — "provincial  criminal  laws" 
(7  App.  Cas.  840);  "penal  laws"  (2  Cart.  291);  "a  civil 
matter  within  the  true  meaning  of  these  respective  terms" 
(2  Cart.  297) — adopts  the  language  of  Hodge  v.  Reg.,  that, 
however  styled,  such  laws  are  "not  in  conflict  with  No. 
27  of  section  91,"  and  concludes: 

"  It  is  manifestly  clear  from  the  authorities  that  the  pro- 
cedure by  the  tribunals  intrusted  with  adjudicating  on  the 
ofifences  so  created  cannot  be  prescribed  by  the  Dominion  parlia- 
ment." 

It  was  held  in  Manitoba,  by  Mr.  Justice  Killam  (e),  that 
the  provisions  of  the  Dominon  Act  (46  Vic.  c.  17)  (f),  for 
tlie  reception  in  evidence  of  certified  copies  of  documents 

{h)  Reg.  V.  Robertson,  3  Man.  L  ^.  618 ;  see  notes  to  s-s.  15,  post. 

(c)  17  O.  A.  R.  221. 

(d)  21  O.  R.  605. 

te)  McKilligan  v.  Machar,  3  Man.  L.  R.  418. 

(./')  See  R.  S.  C.  c.  189;  see  particularly  section  10,  which  makes 
applio  ible  to  proceedings  under  Dominion  law,  provincial  lawa  of  evi- 
dence "  subject  to  the  provisions  of  this  and  other  Acts  of  the  parliament 
of  Canada." 


THE   B.  N.  A.  ACT — SEC.  92,  S.-S,  14.  475 

an<l  records  in  the  Dominion  Lands  Office,  were  ultra  viren, 
so  far  as  they  might  be  taken  to  apply  to  suits  merely  for 
the  cancellation,  as  clouds  upon  title,  of  conveyances  regis- 
tered under  the  Lands  Registration  Act  of  Manitoba.  As 
the  point  is  of  some  importance,  and,  so  far  as  we  are 
aware,  has  not  been  touched  upon  in  any  other  case,  we 
quote  somewhat  at  length  from  his  judgment : 

••  It  does  not  appear  to  me  that  the  Dominion  parliament 
could  make  any  binding  provision  as  to  the  nature  of  the  evi- 
dence to  be  received  in  a  case  like  the  present.     The  suit  is  one  to 
determine  the  right  to,  or  property  in,  certain  lands  in  this  prov- 
ince.    The  decision  of  the  question  may  involve  to  a  certain 
extent  the  interpretation  of  statutes  of  the  parliament  of  Canada, 
and  of  orders  of  the  Governor-General  in  Council ;  but  the  suit 
is  not  instituted  under  any  authority  of  the  Dominion  parlia- 
ment.    Whether  there  had  been,  at  a  certain  date,  a  grant  from 
tlie  down,  represented  by  the  Governor-General,  of  lands  held 
for  the  benefit  of  the  Dominion,  must  be  determined  by  a  consid- 
eration of  certain  statutes  and  Orders  in  Council,  as  well  as  of 
evidence  of  acts  done  under  them.     This  court,  in  interpreting 
those  statutes  and  Orders  in  Council,  has  to  apply  the  ordinary 
rules  of  interpretation.    In  so  far  as  the  Dominion  parliament  lays 
down  rules  to  show  the  meaning  of  its  own  statutes  they  will  be 
used  for  the  purpose,  just  as  any  statement  in  any  document  of  the 
meaning  of  certain  phrases  or  words  therein,  will  be  used  in  the 
interpretation  of  the  document.    This,  however,  in  no  way  shows 
that  the  Dominion  parliament  could  lay  down  rules  as  to  the 
method  of  proving  acts  done  under  its  statutes,  or  Orders  of  the 
Governor-General  in  Council.     Whether  the  registration  of  an 
instrument  appearing  to  show  a  claim  adverse  to  that  of  the  real 
owner  of  land,  forms  a  cloud  upon  the  title  of  the  owner  which 
should  be  removed  by  a  decree  of  this  court,  is  a  matter  upon 
which  the  provincial  legislature  alone  could  legislate ;  though  in 
such  a  suit,  title  may  be  deduced  from  the  Crown,  holding  origin- 
ally for  the   Dominion.     The   provincial  legislature   has  the 
authority  to  regulate  the  administration  of  justice  in  the  province, 
including  procedure  in  civil  matters  in  the  courts  ;   though  it 
has  in  some  cases  been  held  that  the  Dominion  parliament  could 
establish  courts  for  the  determination  of  matters  arising  under 


470  THE    W.  N.  A.  ACT — SEC.  92,  S.-S.  14. 

statutes  within  its  powers,  or,  perhaps,  reguhite  to  some  extent, 
procedure  in  the  ordinary  courts,  in  suits  upon  subjects  within 
its  legislative  authority." 

Whittier  v.  DiMee  (if),  is  simply  a  qiuvre  whether  the 
Dominion  Act,  82  k  88  Vic.  c.  89,  relatinj^  to  costs 
aj^ainst  justices  is  not  ultra  viren  of  the  federal  parliament 
as  relating  to  procedure  in  a  civil  matter.  It  is  difficult  to 
suggest  any  principle  in  denial  of  the  right  of  the  Dominion 
parliament,  as  part  of  general  legislation  in  regard  to  a 
criminal  law,  to  pass  an  Act  protecting  magistrates  in  the 
exercise  of  their  criminal  jurisdiction  in  the  proper  sense 
of  that  term. 

We  have  already  noted  some  cases  which  deal  with  the 
(|uestion  of  the  position  of  iinpnsoned  debtoi-s,  and  may 
here  refer  to  some  othera  dealing  with  the  same  topic. 
Prior  to  Confederation,  there  were  no  county  courts  in 
Nova  Scotia.  By  an  Act  in  force  in  the  Province  of  Nova 
Scotia  at  the  Union,  every  debtor  imprisoned  under  process 
in  any  court,  was  entitled  to  apply  for  and,  on  certain  con- 
diti(ms,  to  obtain  his  discharge.  Doubts  having  been 
expressed  as  to  the  jurisdiction  of  the  county  courts  estaV)- 
lished  after  Confederation  to  entertain  such  application,  an 
Act  of  the  provincial  legislature  was  passed  making  tlie 
above  provisions  applical>le  to  persons  imprisoned  by  ct)unty 
courts ;  and  this  Act  was  held  {h)  to  be  valid,  as  being  a 
matter  relating  to  procedure  in  "  civil "  matters  in  provin- 
cial courts.  With  this  case  should  be  compared  the  Queen 
V.  Chandler  (i),  an  earlier  decision  of  the  New  Bininswick 
Supreme  Court,  which  with  other  cases  will  be  found  noted 
more  fully  in  sub-section  21  of  section  91. 

The  Supreme  Court  of  New  Brunswick,  in  Ex  parte 
Ellis  {j),  upheld  the  validity  of  a  provincial  Act  for  the 

(g)  2Pag. 'J43;  2  Cart.  492. 

{h)  Johnston  v.  Poyntz,  2  Riss.  &  Geld.  IftJ ;  2  C:\rt.  416. 

(/)  1  Hannay,  556;  2  Cart.  421. 

(j)  1  Pug.  and  Burb.  593  ;  2  Cart.  527. 


THE   H.  N.  A.  ACT — SEC,  92,  S.-S.  14.  477 

iiiiprisoninent  of  a  perHon  making-  default  in  payment  of  a 
HUm  of  money  due  on  a  judgment  in  cei'tm  i  cases  as  being 
a  matter  relating  to  proceeding  in  "  civil "  matters  and 
not  falling  within  the  criminal  law,  or  the  law  relating  to 
b.mkruptcy  and  insolvency.     Allen,  C.J.,  says  : 

"  Now  surely  the  enforcing  the  payment  of  a  judgment  is  a 
civil  right,  and  the  mode  of  enforcing  it  a  part  of  the  adminis- 
tration of  justice,  and  procedure  in  civil  matters  in  the  province; 
all  of  which  are  expressly  within  the  jurisdiction  of  the  provin- 
cial legislature.  Having  therefore  the  right  to  legislate  on  these 
subjects,  the  15th  sub-section  gives  them  power  to  enforce  any 
such  laws  by  imposing  iinpiisonmeiit.  It  would  seem,  therefore, 
that  the  powers  conferred  by  this  Act  are  directly  within  the 
92nd  section  of  the  B.  N.  A.  Act." 

Mr.  Justice  Weldon  dissented  from  the  judgment  of  the 
majority  of  the  court,  the  legislation  impugned  being,  in 
liis  opinion,  legislation  relating  to  the  criminal  law. 

Other  cases  in  which  reference  1ms  been  made  to  thia 
sub-section  will  be  found  in  the  foot  note  {k).  Those  sub- 
sections of  section  91  which  involve  "  procedure  "  as  an 
essential  part  of  any  legislation  thereon  are  treated  of 
generally  in  chapter  XI,  (t?«<e,  p.  236,  and  more  particularly 
in  the  notes  to  the  sub-sections  themselves, 

(fc)  Wilaon  v.  McGuire,  2  O.  R.  118,  ante,  p.  232 ;  Peak  v.  Shiehis. 
8  S.  C.  R.  591,  ante,  p.  236  ;  Reg.  v.  Bush,  15  O.  R.  398,  ante,  p.  239 ;  Re 
N.  Perth,  21  O.  R.  638,  ante,  p.  240 ;  Valin  v.  Langlois,  5  App.  Cas.  115, 
ante,  p.  287  ;  Re  Wetherell  and  Jones,  4  O.  R.  713,  ante,  p.  346  ;  Gushing 
V.  Dupuy,  5  App.  Cas.  409,  ante,  p.  391 ;  Crombie  v.  Jackson,  34  U.  C. 
Q.  B.  675,  ante,  p.  393 ;  Armstrong  v.  McCutchin,  2  Cart.  494,  ante, 
p.  397 ;  Reg.  v.  Boardman,  30  U.  C.  Q.  B.  553,  ante,  p.  410 ;  Reg.  v. 
Lawrence,  43  U.  C.  Q.  B.  164,  ante,  p.  411 ;  Reg.  v.  Roddy,  41  U.  C.Q.  B. 
291,  ante,  p.  415;  Ward  v.  Reid,  3  Cart.  405,  ante.  p.  416;  Atty.-Genl. 
of  Quebec  v.  Reed,  10  App.  Cas.  141,  ante,  p.  431 ;  Piummer  Wagon  Co. 
V.  Wilson,  3  Man.  L.  R.  68,  ante,  p.  433  ;  Dulmage  v.  Douglas,  3  Man. 
L.  R.  562,  ante,  p.  434 ;  Crawford  v.  Duffield,  5  Man.  L.  R.  121,  ante, 
p.  434  ;  Keg.  ex  rel.  McGuire  v.  Birkett,  21  O.  R.  162,  ante,  p.  445 ; 
McArthur  v.  N.  &  P.  June.  Ry.  17  O.  A.  R.  86,  ante,  p.  458 ;  Reg.  v. 
Amer,  42  IT.  C.  Q.  B.  391,  ante,  p.  259 ;  Lenoir  v.  Ritchie,  3  S.  C.  R.  675, 
ante,  p.  317  ;  Re  Squier,  46  U.  C.  Q.  B.  474  ;  see  notes  to  section  96, 
post. 


478  THE   H.  N.  A.  ACT — SEC.  92,  S.-S.  18. 

15.  The  imposition  of  punishment  by 
fine,  penalty,  or  imprisonment  for  enforc- 
ing any  lav/  of  the  Province  made  in 
relation  to  any  matter  coming  within  any 
of  the  classes  of  subjects  enumerated  in 
this  section. 

This  Hul)-secti«)n  was  recjuired  in  order  to  rouiul  up  the 
.sphere  of  authority  of  the  provinces  and  make  the  le^is- 
hitive  and  executive  departments,  beyond  doubt,  co- 
terminous. By  it,  moreover,  that  power  to  "  sanction  "  its 
enactments  without  which  hiw  is  but  a  brutuin  fidiitcn,  is 
phiced  within  the  hands  of  provincial  legislatures.  Subject 
to  the  anomaly  perpetrated  by  section  96,  the  provinces 
have  control  to  the  fartliest  bounds  over  the  execution  of 
provincial  laws. 

In  the  notes  to  the  last  sub-section  (14),  the  authorities 
were  collected  which  have  now  clearly  established  that  the 
matters  covered  by  this  sub-section  are  not  "  criminal  "  in 
the  sense  of  sub-section  27  of  section  91, but  "must  remain 
civil  matter's  within  what  is  here  the  true  meaning  of 
these  respective  terms";  and  the  procedure  necessarj'^  to 
enforce  punishment  for  breach  of  any  provincial  law  is 
procedure  in  a  "  civil "  matter. 

But,  by  whatever  name  called,  the  body  of  laws  passed 
under  the  authority  of  this  sub-section  nuist  necessarily 
present  features  closely  resembling  the  ordinary  criminal 
law  as  it  is  to  be  found  in  the  Dominion  statute  books,  and 
because  this  fact  is  the  one  most  prominent  in  Reg.  v. 
Wason  {I),  we  have  left  that  case  to  be  noted  here  rather 
than  under  sub-section  13,  although,  as  will  appear,  the 
decision  of  the  Court  of  Appeal  for  Ontario  was  unani- 
mously to  the  effect  that  the  provincial  legislation  there 
impugned  was  legislation  as  to  "property  and  civil  rights." 
The  statute  in  question  w^as  entitled  "  An  Act  to  protect 

(0  17  O.  A.  R.  221. 


THE   n.  N.  A.  ACT — SEC.  92,  H.-S.  15.  479 

agaiiiHt  frauclH  in  the  Hupplyinj,^  of  milk  to  cheeHc  or  Imtter 
manufactorieH,"  and  by  itH  fii-st  section  it  provided  that 
"  no  person  shall  knowingly  ami  wilfully  "  supply  diluted, 
adulterated,  or  skininied  milked  to  a  cheese  or  butter 
manufactory  without  notifyinj^  the  owner  or  manager  of 
such  dilution,  etc.,  under  a  penalty  as  provide<l  in  the  Act. 
The  Divisional  Court  of  the  Queen's  Bench  Division  de- 
clared the  Act  ultrd  vires,  on  the  ground,  as  put  by 
Armour,  C.J.,  that  "the  primary  object  of  the  Act  is  to 
create  new  offences  and  to  punish  them  by  tine,  and,  in  de- 
fault of  payment,  by  imprisonment,  and  this  is  its  true 
nature  and  character."  Mr.  Justice  Street  dissented,  and 
his  view  was  adopted  by  the  Court  of  Appeal.  He  says  in 
his  judgment : 

"  Is  it  an  Act  constituting  a  new  crime  for  the  purpose  of 
punishing  that  crime  in  the  interest  of  i>Miv  niomUty  .'  Or  is  it  an 
Act  for  the  regulation  of  the  dealings  and  rights  of  cheesemakers 
and  their  patrons,  with  punishments  imposed  for  the  protection 
of  the  former  ?  If  it  is  found  to  come  under  the  former  head,  I 
think  it  is  bad  as  dealing  with  criminal  law  ;  if  under  the  latter, 
I  think  it  is  good  as  an  exercise  of  the  rights  conferred  on  the 
province  by  the  92nd  section  of  the  B.  N.  A.  Act.  An  examina- 
tion of  the  Act  satisfies  me  that  the  latter  is  '^is  true  object,  in- 
tention and  character." 

It  may  now,  therefore,  be  taken,  ao  far  as  the  courts  of 
Ontario  are  concerned,  that  the  criterion  here  suggested  is  to 
be  our  guide  in  determining  this  question  in  any  given 
case.  As  will  have  been  noticed,  the  difference  in  opinion 
which  existed  in  the  Queen's  Bench  was  as  to  the  primary 
object  of  the  Act  there  impugned,  the  majority  of  the 
court  answering  Mr.  Justice  Street's  questions  in  the 
reverse  way.  It  would  appear,  therefore,  that,  as  Mr. 
Justice  Osier  puts  it,  "  Thou  shalt  not "  is  not  necessarily 
"  criminal "  legislation  within  the  meaning  of  the  B.  N.  A. 
Act. 

'♦  The  legislature  when  really  dealing  with  property  and  civil 
rights  must  have  power  to  say  *  thou  shalt '  or  *  thou  shalt  not,' 


480  THE   H.  N.  A.  ACT — SEC.  92,  H.-S.  15. 

and,  as  the  breaclt  of  the  legislative  command  is  always,  in  one 
sense,  an  offence,  the  line  between  what  may,  and  what  may  not 
be  lawfully  prescribed  without  touchijig  upon  '  criminal '  law  is 
sometimes  difticult  to  ascertain,  and  may  shift  according  to  cir- 
cumstances  The  criminal  law,  so  far  as  regards 

human  legislation,  in  its  ultimate  object,  even  when  dealing 
with  public  order,  safety,  or  morals,  is  chiefly  concerned  with 
preventing  and  punishing  the  violation  of  personal  rights  and 
rights  respecting  property,  and  hence,  in  a  very  wide  sen^e,  with 
property  and  civil  rights.  But  while  in  this  sense,  and  in  making 
provisions  applicable  to  the  community  at  large,  whether  we 
speak  of  all  the  confederated  provinces  or  of  one,  the  right  to 
legislate  rests  with  parliament,  I  do  not  see  how  the  right  can  be 
denied  to  the  provincial  assemblies  to  legislate  for  the  better  pro- 
tection of  the  rights  of  property  by  preventing  fraud  in  relation 
to  contracts  or  dealings  in  a  particular  business  or  trade,  or  upon 
other  subjects  coming  within  section  02,  and  to  punish  the  infrac- 
tion of  the  law  in  a  3uitable  manner,  so  long,  at  all  events,  as 
parliament  has  not  occupied  the  precise  field ;  for  I  suppose  it 
will  not  be  denied  that  the  latter  may  draw  into  the  domain  of 
criminal  law  an  act  which  has  hitherto  been  punishable  only 
under  a  provincial  statute  :  Hodge  v.  The  Q<  een,  9  App.  Gas.  at 
p.  181.  But  if  a  particular  species  of  fraud  has  not  been  con- 
verted into  a  crime  by  Dominion  legislation,  I  think  that  the 
local  legislature  must  be  at  liberty  to  deal  with  it  for  the  better 
protection  of  the  class  of  persons  immediately  afifected  by  it." 

We  have  quoted  this  passage  at  length,  because  it  ex- 
presses views  in  relation  to  the  question  of  "concurrent" 
powers  which  go  far  to  support  what  we  have  ventured  to 
lay  down  in  chapter  X.  (ante,  p.  213,  et  seq.)  upon  this  vexed 
question. 

Having  held  the  Act  intra  vires,  the  Court  of  Appeal 
decided  without  hesitation  that  the  procedure  laid  down  for 
its  enforcement  was  procedure  in  a  civil  matter  within  the 
meaning  of  sub-section  14  of  section  92. 

To  the  like  effect,  the  full  Court  of  Queen's  Bench,  in  Man- 
itoba, in  Queen  v.  Robertson  (m),  held  that  laws  relating  to 

(ffl)  3  Man.  L.  B.  613.    This  case  is  noted  more  fully  under  the  next 
s-B.  16. 


THE  n.  N.  A.  ACT — SEC.  02,  H.-S.  15.  481 

tlio  killing  junl  poHHession  of  {^ame  at  certain  seasons  of  the 
year,  are  laws  relating-  to  property  and  civil  rights.  Re- 
ference is  made  to  the  works  of  Blackstone  and  other  old 
writei-H  as  showing  that  the  taking  of  animals /Wvt'  ntitiinv 
is  an  ordinary  right  which,  in  the  absence  of  legislation, 
any  citizen  possesses;  and  therefore  that  laws  curtailing 
such  rights  are  laws  relating  to  civil  rights  in  the  province, 
within  the  meaning  of  this  suh-section. 

The  (juery  in  Regina  v.  Boardman  {n),  as  to  the  power 
of  a  provincial  assembly  to  pass  a  general  law  in  reference 
to  the  punishment  to  be  meted  out  for  v'iolation  of  pro- 
vincial laws,  is  now  answered  in  favor  of  the  power — so 
far  at  all  events  as  the  authority  of  the  Court  of  Appeal 
for  Ontario  extends — by  the  decision  of  that  trilmnal  in 
Attoniey-General  (Canada)  v.  Attorney-General  (Ont.)  (o). 
It  w(nild  seem  also  to  be  covered  \)y  the  principle  of  Hodge 
V.  The  Queen  (p),  applied  a  fortiori. 

However,  as  late  as  July,  1890,  Mr.  Justice  Wurtele,  of 
the  Quebec  Superior  Court,  held,  in  Tarte  v.  B<^ique  (g), 
that  a  provincial  legislature,  for  enforcing  a  law  made  by 
it,  must  enact  a  special  line  or  imprisonment,  and  cannot 
confer  the  power  on  any  pei*son  or  body  of  pei^sons  to 
determine  what  penalty  shall  be  incurred  by  a  violation  of 
such  law.  But  this  seems  to  be  qualified  by  a  remark, 
made  later,  that  the  legislature  has  no  power  to  decree  that 
the  punishment  of  an  offender  shall  be  at  the  discretion  of 
the  court  before  which  he  may  be  tried.  No  reference  is 
made  in  the  judgment  to  the  doctrine  enunciated  in  Queen 
V.  Burah,  and  the  other  cases,  particularly  Hodge  v.  The 

(w)  30  U.  C.  Q.  B.  553  ;  see  ante,  p.  410. 
(o)  19  O.  A.  R.  31. 
{p)  9  App.  Cas.  117. 

(q)  6  Mont.  L.  K.  289.    It  was  also  held  in  this  case  that  a  commis- 
sion of  inquiry  issued  by  a  Lieutenant-Governor  in  Council,  under  a 
provincial  statute,  is  not  a  judicial  tribunal,  and  does  not  possess  any  in- 
herent power  to  commit  for  contempt. 
Can.  Con.— 31   ■ 


482  THE   B.  N.  A.  ACT — SEC.  92,  S.-S.  15. 

Queen  (r),  which  support  the  doctrine  of  "plenary  powers" ; 
and  it  is  difficult  in  view  of  these  authorities  to  acquiesce 
in  the  correctness  of  this  decision.  • 

In  Bennett  v.  The  Pharmaceutical  Association  (s),  it  was 
held  by  Chief  Justice  Dorion,  that  the  provisions  of  the 
Quebec  Pharmacy  Act,  1875,  appropriating  fines  imposed 
for  breaches  of  that  Act  to  the  respondent  corporation,  was 
intra  vires : 

"  It  can  direct  that  a  portion  or  the  whole  of  it  shall  be  for 
the  benefit  of  the  prosecutor,  or  of  a  municipal  or  other  corpora- 
tion, just  as  it  distributes  the  provincial  revenue,  in  any  manner 
it  may  choose  to  direct.  It  had  the  same  power  to  enact  that 
the  fines  levied  under  the  Act  should  be  for  the  benefit  of  the 
society  respondent  as  it  would  have,  after  receiving  the  fines  as 
part  of  the  provincial  revenue,  to  order  that  the  amount  should 
be  paid  back  to  the  society  for  the  objects  of  its  incorporation." 

a  decision  which  is  in  agreement  with  the  later  decision 
of  the  Court  of  Appeal  for  Ontario  in  the  case  above  noted 
(t),  in  which  general  legislation  authorizing  the  Lieutenant- 
Governor  in  Council  to  remit  fines,  etc.,  if  thought  proper, 
was  upheld. 

In  the  province  of  Quebec  conflicting  decisions  were 
given  in  certain  cases  which  came  before  the  Courts  of  that 
province  in  1871-3.  Mr.  Justice  Drummond  held  (u)  that 
the  local  legislature  could  not  authorize  punishment  by  both 
fine  and  imprisonment,  and  in  this  view  he  was  followed 
by  Mr.  Justice  Torrance  (v).  In  Paige  v.  Griffith  (w),  Mr. 
Justice  Sanborn  declined  to  follow  the  earlier  cases,  and 
construed  the  word  "or"  as  being  cumulative.  In  Blouin  v. 
Quebec  (x),  Chief  Justice  Meredith  intimated  his  agree- 

(r)  See  ante,  p.  177,  et  seq. 

(s)  1  Dor.  336 ;  2  Cr,  ^t.  250. 

(t)  Atty.-Gen.  (Can.)  v.  Atty.-Gen.  (Ont.),  19  O.  A.  R.  31. 

(«)  Ex  parte  Papin,  15  L.  C.  Jur.  334 ;  2  Cart.  320. 

(v)  Ex  parte  Papin,  16  L.  0.  Jur.  319  ;  2  Cart.  322. 

(w)  18  L.  0.  Jur.  119;  2  Cart.  324. 

(x)  7  Q.  L.  R.  18  ;  2  Cart.  368. 


THE   B.  N.  A.  ACT — SEC.  92,  S.-S.  16.  483 

ment  with  the  View  w^hich  had  also  been  expressed  in 
earUer  cases  in  that  province  that  a  local  legislature  has  no 
power  to  impose  hard  labor  as  a  term  of  imprisonment 
under  this  sub-section  15 ;  but  the  contrary  has  now  been 
distinctly  held  by  the  Judicial  Committee  of  the  Privy 
Council  in  Hodge  v.  The  Queen,  which  also  supports  the 
•cumulative  reading  of  the  word  "or"  (xx). 

16.  Generally  all  matters  of  a  merely 
local  or  private  nature  in  the  Province. 

This  sub-section  must  be  read  in  connection  with — per- 
liaps  we  should  sa}^  subject  to — the  concluding  paragraph 
of  section  91 : — 

"  And  any  matter  coming  within  any  of  the  classes  of  sub- 
jects enumerated  in  this  section  shall  not  be  deemed  to  come 
witliin  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." 

As  has  been  pointed  out,  the  grammatical  connection  of 
this  concluding  paragraph  of  section  91  with  this  sub-section 
16  is  now  clearly  established  by  authority.  In  note  (xi)  to 
the  opening  paragraph  of  section  91  we  referred  to  the  con- 
cluding paragraph  of  that  section  as  weakening  somewhat 
the  argument  that  the  legislative  power  conferred  on  the 
Dominion  parliament  should  be  limited  to  the  passing  of 
general  laws,  to  operate  throughout  Canada  or  for  the 
general  benefit  of  Canada  as  a  whole ;  because  it  would 
seem  to  be  implied  that  matters  would  come  before  the 
Dominion  parliament   for   legislative   action  which  upon 

(xx)  For  other  cases  in  which  this  sub- section  has  received  attention, 
see: 

Reg.  V.  Lawrence,  43  U.  C.  Q.  B.  104,  ante,  p.  411 ; 
Reg.  V.  Shaw,  7  Man.  L.  R.  518,  ante,  p.  412 ; 
Reg.  V.  Roddy,  41  U.  C.  Q.  B.  291,  ante,  p.  415 ; 
Reg.  V.  Lake,  43  U.  C.  Q.  B.  615,  ante,  p.  415 ; 
Pope  V.  Griffith,  2  Cart.  291,  ante,  p.  472 ; 
Ex  parte  Duncan,  2  Cart.  297,  ante,  p.  472 ; 
-Page  V.  Griffith,  2  Cart.  308,  ante,  p.  473. 


484  THE   B.  N.  A.  ACT— SEC.  92,  S.-S.  16. 

their  face,  so  to  speak,  would  appear  to  be  matters  of  a. 
merely  local  or  private  concern  in  one  province.  It  may  be 
argued,  however,  that  what  is  meant  by  the  concluding 
paragraph  of  section  91  is  simply  this :  that  if  a  Dominion 
law,  ex  hypothcsi  of  a  general  character,  should  affect 
local  and  private  interests  in  one  province  in  a  particular 
manner,  or  to  a  degree  peculiar  to  such  province,  such  law 
must  not  on  that  account  be  deemed  to  be  a  law  relating  to  a 
matter  of  a  merely  local  or  private  nature  in  such  province, 
and  therefore  invalid.  For  example,  a  general  law  in  rela- 
tion to  sea-coast  fisheries  might  peculiarly  or  even  exclu- 
sively affect  one  province — and  so  as  to  the  establishment 
of  lighthouses,  inter-provincial  or  international  ferries,  and 
other  mattei-s  which  might  be  named.  We  have  already 
discussed  various  aspects  of  this  question  {y).  It  is 
involved  in  the  larger  question  as  to  "  concurrent  "  powers 
(so-called),  and  as  to  the  difference  in  the  range  of  mattei-s 
open  to  one  legislature  in  the  absence  or  presence  of  legis- 
lation enacted  by  the  other.  If  the  powers  of  the  parlia- 
ment of  Canada  are,  in  every  instance,  powers  of  genera] 
legislation  only,  it  would  appear  that  all  laws  for  the  peace, 
order,  and  good  government  of  a  province  as  a  self-govern- 
ing unit,  passed  in  relation  to  matters  not  covered  by 
general  legislation  by  the  parliament  of  Canada  upon  those 
matters  of  common  concern  committed  to  it,  would  be  laws 
of  a  "  merely  local  or  private  nature  in  the  province."  In 
this  view  no  difficulty  would  arise  from  the  limitation  upon 
the  scope  of  the  term  "  municipal  institutions " ;  for  as  a 
province  could  itself  pass,  so  it  could  delegate  to  a  muni- 
cipal body  power  to  pass,  any  laws  in  relation  to  local  self- 
government  not  overborne  by  general  laws  passed  by  the 
parliament  of  Canada  in  the  interests  of  the  Dominion  as 
a  whole.  In  this  connection  we  may  refer  to  what  was 
laid  down  by  Lord  Selborne  in  L' Union  St.  Jacques  v. 
B^lisle  {z)'. 

(y)  See  ante,  p.  213,  c^  seq.;  and  note  (xi)  to  sec.  91,  ante,  p.  350. 
(x)  L.  R.  6  P.  C.  31. 


THE   B.  N.  a;  act — SEC.  92,  S.-S.  IG.  485 

*'The  omts  is  on  tlie  respondent  to  show  that  this,  being  of 
itself  of  a  local  or  private  nature,  does  also  come  within  one  or 
more  of  the  classes  of  subjects  specially  enumerated  in  the  91st 
section." 

a  passage  which  is  immediately  followed  by  that  other 
which  we  have  already  (luoted,  to  the  effect  that,  in  the 
various  sub-set  -as  of  section  91,  there  is  no  indication  in 
any  instance  of  anything  Ijeing  contemplated  beyond  what 
may  be  properly  described  as  general  legislation. 

The  main  difficulty  about  the  whole  matter  is  that  the 
"  residuum "  of  subject  matters  is  assigned  to  the  parlia- 
ment of  Canada.  But  here  again  it  may  be  argued  that 
the  legislation  must  be  general,  for  the  peace,  order  and 
good  government  of  Canada  as  a  federal  Dominion,  and 
that,  in  truth,  the  '•  residuum,"  at  any  given  moment,  must 
be  with  the  provinces,  the  matters  comprised  in  such  "  resi- 
duum "  being  deemed  matters  of  a  local  or  private  nature 
in  each  province  as  would  be  evidenced  by  the  absence  of 
general  federal  legislation  thereon. 

The  whole  subject  is  one  upon  which  much  may  be 
said,  but,  confining  our  attention  now  to  this  sub-section 
16,  we  proceed  to  indicate  what  particular  provincial  legis- 
lative Acts  have  been  held  to  fall  within  it. 

In  L'Union  St.  Jacques  v.  Belisle,  above  referred  to,  an 
Act  of  the  Quebec  legislature,  passed  in  aid  of  a  society 
which  was  in  financial  straiis,  forcing  comnmtation  upon 
certain  annuitants,  was  held  to  be  an  Act  relating  to  a 
matter  of  a  merely  local  or  private  concern  in  the  pro- 
vince. It  was  contended — held  in  the  judgment  appealed 
from — that  the  legislation  was  insolvency  legislation,  and 
the  Judicial  Committee  intimated  that  if  a  Dominion  Act 
had  been  in  existence  making  such  acts  on  the  part  of  the 
society  as  were  authorized  by  the  statute  in  question,  acts 
of  insolvency  rendering  all  societies  who  committed  them 
liable  to  be  wound  up  under  insolvency  proceedings,  it 
might  be  that  the  statute  in  question  would  have  been 


486  THE   B.  N.  A,  ACT — SEC.  92,  S.-S.  16. 

lUtra  vires;  but  that,  as  no  such  general  Dominion  legis- 
hition  was  in  existence,  the  Quebec  statute  was  intra  vires 
as  relating  to  a  matter  which,  as  the  law  stood,  must  be 
taken  to  be  a  matter  of  local  concern  in  Quebec. 

In  Dow  V.  Black  (a),  an  Act  of  the  New  Brunswick 
legislature  authorizing  a  levy  to  pay  a  "  bonus  "  to  a  rail- 
way extending  beyond  the  boundaries  of  the  province  waa 
upheld  under  this  sub-section. 

In  Hodge  v.  The  Queen  {h),  the  regulation  of  taverns,, 
etc.,  was  held  to  fall  within  this  8ul)-section,  although  in 
the  earlier  ctise  of  Russell  v.  The  Queen  (c),  the  "  local 
option  "  character  of  the  Canada  Temperance  Act  did  not^ 
in  the  opinion  of  the  Connnittee,  make  that  Act  other  than 
one  for  the  peace,  order  and  good  government  of  Canada,, 
falling  within  the  residuary  clause  of  section  91 : 

**  The  Act  as  soon  as  it  was  passed  became  a  law  for  the  whole 
Dominion,  and  the  enactment  of  the  first  part,  relating  to  the 
machinery  for  bringing  the  second  part  into  force,  took  effect,  and 
might  be  put  in  motion  at  once  and  everywhere  within  it.  .  . 
The  manner  of  bringing  the  prohibitions  and  penalties  into  force, 
which  parliament  has  thought  fit  to  adopt,  does  not  alter  its- 
general  and  uniform  character.  Parliament  deals  with  the  sub- 
ject as  one  of  general  concern  to  the  Dominion,  upon  which 
uniformity  of  legidation  is  desirable,  and  the  parliament  alone 
can  so  deal  with  it." 

In  Hodge  v.  The  Queen  the  regulations  there  supported 
were  said  not  to  conflict  with  the  Canada  Temperance  Act, 
"which  was  not  locally  adopted."  In  a  number  of  the 
cases  which  dealt  with  the  question  of  the  power  of  a  pro- 
vincial legislature  to  deal  with  certain  phases  of  the  liquor 
traffic,  (Uda  are  to  be  found  to  the  effect  that  the  exercise 
of  regulative   power  falls   within   this   sub-section  as  a. 

(a)  L.  R.  6  P.  C.  272. 
(fc)  9  App.  Cas.  117. 
(c)  7  App.  Gaa.  829. 


THE  B.  N.  A.  ACT — SEC.  92,  S.-S.  16.  487 

matter  of  "police"  {d),  for  the  repression  of  disorderly  and 
riotous  conduct  such  as  would  injuriously  affect  local 
morals  and  local  good  government ;  but  there  can  be  no 
doubt  that  upon  the  adoption  of  the  Canada  Temperance 
Act  all  such  provincial  powers  in  relation  to  that  traffic 
would  be  overborne. 

And  so  as  to  "nuisances,"  it  was  held  in  Ex  ixirte 
Pillow  (e),  that  the  power  of  a  provincial  legislature  to 
pass,  or  to  authorize  a  municipal  body  to  pass,  laws  for 
their  abatement  as  being  injurious  to  the  public  health  of 
the  community,  was  not  in  conflict  with  the  power  of  the 
parliament  of  Canada  to  pass,  as  part  of  the  criminal  law 
of  the  Dominion,  a  general  law  as  to  nuisances. 

In  Bennett  v.  The  Pharmaceutical  Association  (/),  it 
was  held  by  Chief  Justice  Dorion  : 

"  The  determining  of  the  age  or  other  qualifications,  required 
by  those  residing  in  the  province  of  Quebec,  to  manage  their  own 
business,  or  to  exercise  certain  professions  or  certain  branches  of 
business  attended  with  danger  or  risk  for  the  public,  are  local 
subjects  in  the  nature  of  internal  police  regulations;  and  in  pass- 
ing laws  upon  those  subjects,  even  if  those  laws  incidentally 
affect  trade  and  commerce,  it  must  be  held  that  this  incidental 
power  is  included  in  the  right  to  deal  with  the  subjects  placed 
especially  under  their  control,  the  exercise  of  which  can  not  be 
considered  to  be  unconstitutional.  The  Pharmacy  Act  of  1875> 
in  so  far  as  this  case  is  concerned,  does  not  regulate  trade  and 
commerce.  It  merely  determined  the  status  of  persons  exercising 
the  business  of  chemist  and  druggist.  This  is  a  civil  right 
coming  clearly  within  the  powers  of  the  local  legislature." 

(d)  See  the  cases  collected  in  the  notes  to  s.  01,  b-s.  2,  ante,  p.  359, 
et  seq.  In  Slavin  v.  Orillia,  the  late  Sir  Wm.  Richards  colleclis  a  num- 
ber of  American  authorities  as  to  "  police  "  powers. 

(e)  27  L.  C.  Jur.  216 ;  3  Cart.  357.  See  also  Reg.  v.  Wason,  noted 
under  s-s.  15 ;  it  would  support  laws  as  to  "  nuisances  "  as  being  for  the 
protection  of  property  and  civil  rights. 

(/)  1  Dor.  336 ;  2  Cart.  250. 


488  THE   B.  N.  A.  ACT — SEC.  92,  S.-S.  16. 

It  has  been  held  (g),  by  the  full  Court  of  Queen's  Bench 
of  Manitoba  that  provincial  Acts,  regulatini^  the  killing-  and 
possession  of  game  at  certain  seasons  of  the  year,  are 
intra  vires.  Mr.  Justice  Killani,  in  delivering  the  judg- 
ment of  the  court,  refers  to  the  action  of  the  Dominion 
parliament  in  not  assuming  to  pass  any  such  laws,  and  to 
their  action  in  placing  among  the  subjects  <^)f  legislation  V»y 
the  Council  of  the  North-West  Territories  the  subject 
''  Game  and  wild  animals,  and  the  protection  thereof " ; 
venturing  the  opinion  that  the  Dominion  parliament  wouM 
not  be  likely  to  give  to  the  North-West  Council  powers  of 
legislation  more  extended  than  those  possessed  by  pro- 
vincial legislatures.  Apart  from  this  consideration,  the 
statutes  were  held  to  fall  within  both  sub-sections  13  and 
16  of  section  92.  The  object  of  such  Acts  is  8ai<l  to  be 
"  essentially  local."  "  It  is  to  secure  the  increase,  or  to  pre- 
vent at  any  rate  as  far  as  possible  the  decrease  of  the 
supply  of  game  within  the  province."  Hodge  v.  The 
Queen  is  spoken  of  as  showing  that  a  law  is  considered 
to  be  local  within  the  meaning  of  this  sub-section, 
nlthough  having  operation  throughout  the  whole  of  the 
province,  and  although  the  subject  with  which  it  deals 
may  be  an  important  subj'ect  of  legislation  in  other  pro- 
vinces also ;  and  further,  that  the  sub-section  cannot  be 
confined  in  its  operation  to  local  and  private,  as  dis- 
tinguished from  public  Acts.  The  judgment  discusses  these 
various  matters  in  a  most  instructive  and  interesting  way. 
The  difficulty  we  have  to  contend  with  in  all  these  cases  is 
that  formerly  noted  in  reference  to  Hodge  v.  The  Queen, 
namely,  that  in  scarcely  any  of  them  is  the  legislation  up- 
held under  this  sub-section  alone.  This  is,  of  courae,  to  be 
expected,  but  at  the  same  time  it  increases  the  difficulty 


{(j)  Reg.  V.  Robertson,  3  Man.  L.  R.  613.     See  also,  ante,  p.  414  and 
p.  480. 


THE   B.  N.  A.  ACT — SEC.  93.  489 

one  finds  in  attempting  to  asHign  a  limit  to  the  scope  of 
the  sub-section  {(/fj). 

Education. 

93.  In   and  for  each   Province   the  ,^et^;'Si^^^^^ 
Legislature  may   exclusively   make  laws  '"^"*'**'°"- 
in   relation    to   Education,    subject    and 
according  to  the  following  provisions  : — 

(1)  Nothing   in   any   such   law   shall 

prejudicially  affect  any  right 
or  privilege  with  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  Eoman  Catholic  sub- 
jects shall  be  and  the  same  are 
hereby    extended  to   the   dis- 

{gg)  For  other  cases,  see  Cleveland  v.  Melbourne,  4  Le^al  News,  2  Cart. 
241,  in  which  an  Act  of  the  Quebec  Legislature  authorizing  the  Lieut- 
Oovernor  in  Council  to  revoke  the  right  to  exact  tolls  on  a  toll-bridge 
(for  default  in  making  repairs)  and  to  transfer  the  bridge  to  others;  was 
upheld.  Note  this  case  in  connection  with  Atty.-Gen.  of  Can.  v.  Atty.- 
Gen.  of  Ont.,  19  O.  A.  R.  31.    See  also  :— 

Reg.  V.  Mohr,  2  Cart.  257,  ante,  p.  351 ; 

Quirt  V.  Reg.,  19  S.  (J.  R.  510,  atite,  p.  354  ; 

lie  Windsor  and  Annapolis  Ry.  3  Cart.  387,  ante.  p.  400; 

And  see  also  the  cases  under  section  92,  sub-sections  8,  10  and  11, 
•ante. 


490  THE  B.  N.  A.  ACT.— SEC.  98. 


sentient  schools  of  the  Queen's- 
Protestant  and  Roman  Catho- 
lic subjects  in  Quebec: 

(3)  Where   in   any    Province   a    sys- 

tem of  separate  or  dissentient 
schools  exists  by  law  at  the 
Union,  or  is  thereafter  estab- 
lished by  the  Legislature  of 
the  Province,  an  appeal  shall 
lie  to  the  Governor-General  in 
Council  from  any  Act  or  de- 
cision of  any  Provincial  author- 
ity affecting  any  right  or  privi- 
lege of  the  Protestant  or  Roman 
Catholic  minority  of  the  Queen's 
subjects  in  relation  to  Edu- 
cation. 

(4)  In  case  any  such  Provincial  law 

as  from  time  to  time  seems  to 
the  Governor- General  in  Coun- 
cil requisite  for  the  due  execu- 
tion of  the  provisions  of  this 
section  is  not  made,  or  in  case 
any  decision  of  the  Governor- 
General  in  Council  on  any  ap- 
peal under  this  section  is  not 
duly  executed  by  the  proper 
Provincial  authority  in  that 
behalf,  then  and  in  every  such 
case,  and  as  far  only  as  the 
circumstances  of  each  case  re- 
quire, the  Parliament  of  Canada. 


THE   B.  X.  A.  ACT — SEC.  93.  49T 

may  make  remedial  laws  for 
the  due  execution  of  the  pro- 
visions of  this  section  and  of 
any  decision  of  the  Governor- 
General  in  Council  under  this 
section. 

In  reference  to  the  poHition  of  what  are  known  as 
"  separate  "  or  denoniinational  achooLs,  it  will  be  advisable 
to  treat  the  entire  sulyeet  in  one  place,  for  althou<,^h  the 
position  of  the  provinces  and  territories  acquiretl  since 
Confederation  is  somewhat  different  from  that  of  the  pro- 
vinces, orij^inal  parties  to  the  Union,  there  is  so  nuich 
ground  connnon  to  all  the  provinces  in  connection  with 
tiiis  question  that  it  nnght  lead  to  undue  repetition  were 
we  to  divide  the  discussion. 

This  section  92  with  its  sub-sections,  was  somewhat 
modified  in  the  case  of  Manitoba,  but,  as  we  shall  have 
occasion  to  show,  upon  the  admission  of  Prince  Edward 
Island  and  British  Columbia,  this  section  as  it  stands  was, 
w^ith  other  parts  of  the  B.  N.  A.  Act,  made  applicable  to 
those  provinces  as  if  they  had  been  originally  parties  to 
the  Union.  The  North- West  Territories  are  in  a  somewhat 
peculiar  position  with  regard  to  this  question,  owing  to 
the  legislative  supremacy  exercised  over  these  territories 
by  the  Dominion  parliament.  Although,  therefore,  we 
deem  it  advisable  to  treat  the  whole  subject  in  this  place, 
it  will  be  equally  advisable  to  consider  the  matter  by 
provinces. 

Ontario  and  Quebec. 

At  the  date  of  Confederation  that  part  of  the  then 
province  of  Canada  known  as  Upper  Canada  had  a  Roman 
Catholic  separate  school  system  established  by  law — 26 
Vic.  c.  5:  "An  Act  to  restore  to  Roman  Catholics  in  Upper 


492  THE   H.  N.  A.  ACT — SEC.  93. 

CanHilrt  certain  rigliis  in  respect  to  separate  Hchools." 
With  the  political  agitation  which  resulted  in  tlie  passage 
of  this  Act,  anil  the  subsequent  agitations  for  its  repeal, 
we  have  of  coui*ae  nothing-  to  do  here.  There  was  also 
upon  the  statute  hook  of  (old)  Canada  an  Act  conferring- 
rights  and  privileges  upon  Protestants  and  "coloured 
peo[)le  "  in  regard  t()  the  establishment  of  separate  schools. 
The  separate  schools  of  the  "  coloured  people,"  not  being 
denominational,  are  not  protected  by  the  B.  N,  A.  Act.  Im- 
mediately prior  to  Confederation  it  was  in  contemplation 
to  pass  an  Act  placing  the  denominational  minorities  of 
what  is  now  the  province  of  Quebec  in  the  same  position 
as  the  Roman  Catholic  minority  of  the  Upper  Province,  but 
no  Canadian  legislation  took  place  upon  the  subject,  the 
end  aimed  at  being  secured  by  sub-section  2  of  this  section 
93,  which  sub-section,  as  it  is  applicable  to  only  the  one 
province  of  Quebec,  we  need  not  further  consider,  beyond 
noting  that  it  puts  the  two  provinces  of  Quebec  and 
Ontario  upon  so  much  the  same  footing  that  we  are 
justified  in  dealing-  with  these  two  provinces  together. 

Pi-ior  to  Confedei'ation  the  position  of  the  Roman 
Catholic  minority  in  Upper  Canada,  under  the  Roman 
Catholic  Separate  School  Act,  had  been  considered  in  the 
courts  of  that  part  of  the  province,  and  the  view  taken 
by  those  courts  is  summed  up  in  the  following  extract 
from  the  judgment  of  Hagarty,  C.J.,  in  Free  v.  Mc- 
Hugh  {h): 

"  As  Burns,  J.,  remarked  in  /.V  Ridsdale  &  Brash,  22  U.  C. 
Q.  B.  124  :  '  The  legislature  intended  the  provisions  creating  the 
common  school  system,  and  for  working  and  carrying  that  out, 
were  to  be  the  rult,  and  that  all  the  provisions  for  the  separate 
schools  were  only  exceptions  to  the  rule,  and  carved  out  of  it  for 
the  convenience  of  such  separatists  as  availed  themselves  of  the 
provisions  in  their  favor' ;  and  my  brother  Gwynne,  commenting 

(h)  24  U.  C.  C.  P.  at  p.  20. 


THE   B.  N.  A,  ACT — SEC.  93.  401^ 

on  these  words  in  Harding  v.  Mayville,  says,  at  p.  511  of  21 
U.  C.  C.  P.,  that  <  it  lies  on  the  plaintiff  claiming  exemption  as 
a  separatist  to  aver  and  prove  all  those  exceptional  matters, 
taking  him  out  of  the  general  rule.'  " 

These  exceptional  and  speciul  rights — privile^^eH  enjoyed 
by  religious  minorities  in  the  different  «liHtrietH  of  the  pro- 
vinces over  and  above  those  rights  enjoyed  at  connnon  law 
or  under  statutory  enactment  by  the  inhabitants  of  the 
province  at  large — are  the  rights  and  privileges  pn^tected 
by  this  93rd  section,  and  we  may  conclude  our  remarks  as 
to  the  provinces  of  Ontario  and  Quebec,  so  far  as  the  posi- 
tion of  those  provinces  re(|uires  separate  treatment,  by 
saying  that,  having  in  view  what  is  laid  down  by  the 
Judicial  Committee  of  the  Privy  Council  in  Winnipeg  v. 
Barrett  (i),  the  rights  and  privileges  referred  to,  and  pro- 
tected by  the  various  sub-sections  of  section  93,  may  be 
shortly  stated  as  follows: 

1.  The  right  to  establish  denominational  schools ; 

2.  The  right  to  invoke  state  aid  in  the  collection  of  taxes 
necessary  for  the  support  of  such  schools  from  the  sup- 
porters thereof ; 

3.  The  privilege  of  exemption  from  taxation  for  the 
support  of  the  public  schools  of  the  province ; 

4.  The  privilege  of  having  taught  in  such  separate 
schools  the  religious  tenets  of  their  denomination; 

to  which  we  should  perhaps  add  the  right  or  privilege  which 
any  member  of  any  denomination  has  to  choose,  as  between 
the  separate  schools  of  his  denomination  and  the  public 
schools  of  the  province,  which  he  will  support.  Any  legisla- 
tion of  a  compulsory  character  would  be  unconstitutional  as 
prejudicially  affecting  the  right  or  privilege  which  such  per- 
sons had  by  law  at  the  date  of  Confederation. 

(t)  See  post. 


494  THE   B.  N.  A.  ACT — SEC.  93. 

In  Boanl  of  School  TruHtees  v.  Orainj,'er  (j),  Vice- 
Chuncellor  Blake  had  to  coiiHidor  the  genoral  effect  of  this 
section  Oli  and  its  varioUH  sub-sections.  Shortly  stated,  his 
tleeision  was  that  provincial  le«ifislatures  have  full  power  of 
leii;islation  in  relation  to  education  and  educational  systems 
in  the  province,  including'  the  separate  school  system  tliere- 
in,  so  lonjr  as  such  legislation  does  not  offend  a<^ainst  the 
provisions  of  sub-section  I,  that  is  to  say,  does  not  prejadi- 
cialhj  afi'ect  any  right  or  privilege  thereby  protected;  and 
he  refers  to  sub-sections  3  and  4  as  indicative  of  the  expect- 
ations of  the  framers  of  the  B.  N.  A.  Act  that  there  would 
be  legislation  by  provincial  legishitures  in  relation  to 
denominational  schools.  The  validity  of  such  legislation  is, 
in  a  sense,  recognized  by  the  deliverance  by  the  Divisional 
Court  of  the  Chancery  Divisi(m  of  an  opinion  (/i)  on  certain 
questions  submitted  to  that  tribunal  as  to  the  ett'ect  to  l)e 
fifiven  to  certain  clauses  of  the  Assessment  Act  of  Ontario 
working  amendment  of  the  separate  school  laAV  as  it 
existed  at  the  Union  by  making  more  elaborate  pro- 
vision for  classifying  ratepayers  into  two  classes  :  supporter 
of  public,  and  supporters  of  separate,  schools ;  although,  we 
should  note,  no  discussion  seems  to  have  taken  place,  and 
no  expression  of  opinion  is  to  be  found  in  the  judgment, 
upon  this  constituti(jnal  question.  The  matter  however 
appears  so  clearly  upon  the  construction  of  the  statute  that, 
so  far  as  we  are  aware,  no  doubt  has  ever  been  expressed  as 
to  the  correctness  of  the  views  enunciated  by  Vice-Chan- 
cellor  Blake.     As  put  by  him  in  the  case  w^e  have  cited: 

"  It  would  be  a  most  unfortunate  result  of  this  enactment,  if  it 
were  found  that  it  precluded  the  remedying  defects  in,  or  im- 
proving the  machinery  for,  working  out  the  separate  school 
system.     ...     It  is  therefore  clear  that  the  provincial  legis- 

(j)  25  Grant,  570. 

{k)  In  re  B.  C.  Sep.  Schools,  18  O.  B.  606.    See  also  Trustees  of  B.  C. 
Sep.  School  V.  Arthur,  21  O.  B.  60. 


THE    H.  N.  A.  ACT — HEC.  93.  495 

lature  has  some  power  to  legislate  as  to  denominational  schools; 
and  it  is  scarcely  possible  to  conceive  a  case  in  which  it  could, 
and  should,  more  properly  interfere  than  where,  as  here,  it  is 
asked  to  remove  an  ambiguity  in  the  working  of  the  Act,  and  to 
give  to  separate  schools  the  same  class  of  machinery  for  carrying 
on  its  work,  as  is  given  to  the  public  schools — a  machinery 
which,  after  much  thought  and  many  years  experience,  is  found 
to  be  the  best  and  simplest  we  have  yet  had." 

It  has  been  contended  that  owing  to  the  appeal  provided 
for  by  sub-section  3,  and  the  power  given  to  ihe  parliament 
of  Canada  to  pais  remedial  laws  in  certain  cases,  under 
sub-section  4,  the  question  of  the  validity  of  separate  school 
legislation  has  been  entirely  withdrawn  from  the  courts^ 
but  this  has  been  decisively  negatived  hy  the  judgment  of 
the  Judicial  Connnittee  of  the  Privy  Council  in  Winnipeg 
V,  Barrett  (/),  which  we  shall  have  occasion  to  note  more 
at  length  when  we  come  to  deal  with  the  position  of 
Manitoba  in  reference  to  this  matter  of  separate  schools. 
In  reference  to  this  question  of  appeal,  and  its  effect  upon 
the  jurisdiction  of  the  ordinary  tribunals,  Lord  Macnagh- 
ten  in  delivering  the  judgment  of  the  Connnittee,  says: 

"  At  the  commencement  of  the  argument  a  doubt  was  sug- 
gested as  to  the  competency  of  the  present  appeal  in  consequence 
of  the  so-called  appeal  to  the  Governor-General  in  Council  pro- 
vided by  the  Act.  But  their  Lordships  are  satisfied  that  the 
provisions  of  sub-sections  2  and  3  (m)  do  not  operate  to  with- 
draw such  a  question  as  that  involved  in  the  present  case  from 
the  jurisdiction  of  the  ordinary  tribunals  of  the  country." 

It  devolves  upon  the  courts,  therefore,  in  any  given  case, 
to  decide  whether  or  not  any  provincial  legislation  regarding 
denominational  schools  does,  or  does  not,  "prejudicially 
affect  any  right  or  privilege  with  respect  to  denominational 
schools  which  any  class  of  persons  have  by  law  in  the  pro- 
vinces at  the  Union." 

(I)  0  Times  L.  R.  746. 

(m)  Sections  3  and  4  of  the  B.  N.  A.  Act. 


496  THE   B.  N.  A.  ACT — SEC.  93. 

Nova  Scotia,  New  Brnnsivick,  Prince   Edward   Island^ 
and  British  Columbia. 

The  affirmance  by  the  Privy  Council  (n)  of  the  judg- 
ment of  the  Supreme  Court  of  New  Brunswick,  in  Ex  2'>arte 
Renantl  (o),  places  the  provinces  above  named  in  the  same 
position  upon  this  (juestion.  All  are  governed  by  the  pro- 
visions of  section  93  and  its  sub-sections,  and  only  in  the 
event  of  the  future  establish i:c;ic  of  a  system  of  separate 
or  dissentient  schools  by  any  one  of  these  provinces,  can 
their  full  autonomy  in  relation  to  educational  mattera  be 
interfered  with  by  the  parliament  of  Canada.  In  none, 
of  these  provinces  other  than  New  Brunswick  could  the 
claim  to  a  "  right  or  privilege "  existing  at  the  time  of 
the  Union  be  as  strongly  supported  as  it  was  in  the  last- 
named  province ;  and  the  position  of  aifairs  there  is  so 
clearly  disclosed  and  the  legal  question  so  exhaustively 
treated  by  the  judgment  of  Chief  Justice  Ritchie — now  Sir 
\Vm.  Ritchie,  Chief  Justice  of  the  Supreme  Court  of  Canada 
— that  we  venture  to  quote  somewhat  fully  from  it : 

"It  is  contended  that  the  rights  and  privileges  of  the  Roman 
Catholic  inhabitants  of  this  province,  as  a  class  of  persons,  have 
been  prejudicially  affected  by  the  Common  Schools  Act,  1871, 
contrary  to  the  provisions  of  sub-section  1  of  section  93  of  the 
B.  N.  A.  Act.  We  have  now  to  determine  whether  any  class  of 
persons  had,  by  law  in  this  province,  any  right  or  privilege 
with  respect  to  denominational  schools  at  the  Union,  which  are 
prejudicially  affected  by  the  Common  Schools  Act  of  1871.  This 
renders  it  necessary  that  we  should,  with  accuracy  and  precision, 
ascertain  exactly  what  the  state  of  the  law  was  with  reference  to 
denominational  schools,  and  the  rights  of  classes  of  persons  in 
respect  thereto,  at  the  Union.  At  that  time,  what  may  fairly 
and  legitimately  be  called  the  common  school  system  of  the 
province  was  carried  on  under  an  Act  passed  in  21  Vic.  (c.  9) 

(n)  Seei^ost. 

(o)  1  Pug.  273;  2  Cart.  445.     For  the  political  turmoil  raised  by  thia- 
decision,  see  Dom.  Seas.  Pap.,  1877,  No.  89. 


THE   B.  N.  A.  ACT — SEC.  93.  497 

entitled  "  An  Act  relating  to  Parish  Schools."  There  were,  no 
doubt,  at  the  same  time  in  existence,  in  addition  to  the  schools 
established  under  the  Parish  School  Act,  schools  of  an  unques- 
tionably denominational  character,  belonging  to  and  under  the 
immediate  government  and  control  of  particular  denominations, 
and  in  which  there  can  be  no  doubt,  or  it  may  reasonably  be 
inferred,  the  peculiar  doctrines  and  tenets  of  the  denominations 
to  which  they  respectively  belonged  were  exclusively  taught,  and 
therefore  had,  what  may  rightly  be  esteemed,  all  the  characteris- 
tics of  denominational  schools,  pure  and  simple It 

is  obvious  that  there  were  in  existence  at  the  time  of  the  Union, 
and  have  been  ever  since  in  this  province,  apart  from  schools 
established  under  the  Parish  School  Act,  denominational  schools, 
recognized  by  the  legislature,  and  aided  from  the  public  revenues. 
"  But  as  it  is  not  contended  that  the  Common  Schools  Act 
prejudicially  affects  any  right  or  privilege  with  respect  to  thc.si' 
schools  which  any  class  of  persons  had  by  law  at  the  Union,  it 
will  be  necessary  to  examine  minutely  and  critically  the  Parish 
School  Act  of  1858,  under  which,  it  is  contended,  'rights  and 
privileges '  existed,  which,  it  is  alleged,  have  been  so  affected.  .  . 
The  Parish  School  Act,  1658,  clearly  contemplated  the  estab- 
lishment throughout  the  province  of  public  common  schools  for 
the  benefit  of  the  inhabitants  of  the  province  generally ;  and  it 
cannot,  we  think,  be  disputed  that  the  governing  bodies  under 
that  Act  were  not,  in  any  one  respect  or  particular,  '  denomina- 
tional.' .  .  .  The  schools  established  under  this  Act  were, 
then,  public  parish  or  district  schools,  not  belonging  to  or  under 
the  control  of  any  particular  denomination ;  neither  had  any  class 
of  persons,  nor  any  one  denomination — whether  Protestant  or 
Catholic — any  rights  or  privileges  in  the  government  or  control 
of  the  schools,  that  did  not  belong  to  every  other  class  or  denom- 
ination, in  fact,  to  every  other  inhabitant  of  the  parish  or  dis- 
trict; neither  had  any  one  class  of  persons  or  denomination,  nor 
any  individual,  any  right  or  privilege  to  have  any  peculiar 
religious  doctrines  or  tenets  exclusively  taught  or  taught  at  all, 
in  any  such  school.  What  is  there,  then,  in  this  Act  to  make  a 
school  established  under  it  a  denominational  school,  or  to  give  it 
a  denominational  character  ?      ...      It  has  been  said  that 

Can.  Con.— 32 


498  THE   B.  N.  A.  ACT — SEC.  93. 

under  the  Parish  School  Act,  schools  were  in  fact  established  in 
certain  localities  where  all,  or  a  large  majority,  of  the  ratepayers 
happened  to  belong  to  one  particular  persuasion  in  which  the 
catechisms  of  particular  churches  were  taught,  prayers  peculiar 
to  a  particular  religious  body  were  used,  and  books  inculcating 
the  doctrines,  views,  and  practices  of  a  particular  denomination 
were  used  as  class-books  ;  and  that  these  schools  were  therefore 
denominational,  and  consequently  the  class  of  persons  belonging 
to  any  such  denomination  had  a  legal  right  or  privilege  with 
respect  to  denominational  schools.  Assuming  Avhat  has  been 
alleged  to  have  been  the  case — though  on  this  point  we  have  no 
information  before  us  of  which  we  can  take  judicial  notice — surely 
it  is  begging  the  whole  question.  How  can  the  mere  fact  that, 
in  exceptional  cases,  certain  schools  under  the  Parish  tSchool 
Act,  drawing  provincial  aid,  may  have  been  made,  for  the  timp 
being,  with  or  without  the  knowledge  or  sanction  of  the  Board  of 
»  Education,  denominational,  by  reason  of  the  teacher  instructing 
the  children  exclusively  in  doctrines  of  a  particular  denomination, 
or  using  the  prayers  or  books,  or  daily  teaching  the  catechism 
peculiar  to  such  denomination,  confer  an  /  legal  right  or  privilege 
on  any  class  of  persons  with  respect  to  denominational  schools, 
or  give  the  denomination  whose  tenets  may  have  been  so  taught 
in  any  such  schools,  rights  and  privileges  other  than  those  pos- 
sessed by  all  and  every  the  humblest  inhabitant  of  the  parish  in 
which  such  schools  existed  free  and  independent  of  all  denomina- 
tional connection  ?  It  is  not  by  what  the  Board  of  Education, 
Superintendent,  Inspectors,  or  Trustees  may  have  done,  or 
allowed  to  be  done  under  the  Act,  nor  is  it  from  the  mode  in 
which  the  principles  of  Chistianity  may  have  been  actually 
taught  in  one  or  a  hundred  schools  which  may  have  drawn  pub- 
lic money  under  the  Parish  School  Act,  that  the  question  in  a 
legal  view  must  be  determined ;  we  must  look  to  the  law  as  it 
was  at  the  time  of  the  Union,  and  by  that,  and  that  alone,  be 
governed.  Where,  then,  do  we  find  any  legal  exclusive  right  or 
privilege  conferred  on  any  denomination  to  any  school  estab- 
lished, or  that  might  be  established  under  that  Act ;  or  any  right 
or  privilege  conferred  on  any  class  of  persons  to  deal  with  such  a 
school  as  belonging  to  such  persons  as  a  class  or  denomination ; 
or  as  being  under  their  control  as  such ;  or  that,  as  a  class,  they 


THE   B.  N.  A.  ACT — SEC.  93.  499 

liad  any  right  to  have  taught  therein  the  peculiar  doctrines  of 
their  denomination  ?  .  .  .  If,  then,  the  estabhshment  of 
denominational  schools,  or  the  teaching  of  denominational  doc- 
trines, was  not  recognized  or  provided  for  by  the  Ant,  and  the 
Eoman  Catholics  had  therefore  no  legal  rights,  as  a  class,  to 
claim  any  control  over,  or  to  insist  that  the  doctrines  of  their 
church  should  be  taught  in  all  or  any  schools  under  the  Parish 
School  Act,  how  can  it  be  said  (though,  as  a  matter  of  fact,  such 
doctrines  may  have  been  taught  in  numbers  of  such  schools)  that 
as  a  class  of  persons  they  have  been  prejudicially  affected  in  any 
legal  right  or  privilege  with  respect  to '  denominational  schools,' — 
construing  those  words  in  their  ordinary  meaning — because  under 
the  Common  Schools  Act,  1871,  it  is  provided  that  the  schools 
shall  be  non-sectarian.  .  .  .  But  it  is  contended,  that  the 
section  declaring  *  that  all  schools  conducted  under  the  provisions 
of  this  Act  shall  be  non-sectarian,'  prejudicially  aflects  the 
rights  and  privileges  which  the  Roman  Catholics,  as  a  class,  had 
in  the  parish  schools  at  the  time  of  the  Union.  It  cannot  be 
denied  that  to  the  provincial  legislatures  is  confided  the  exclusive 
right  of  making  laws  in  relation  to  education ;  and  that  they, 
and  they  only,  have  the  right  to  establish  a  general  system  of 
education  applicable  to  the  whole  province  and  all  classes  and 
denominations,  provided  always  they  have  due  regard  to  the 
rights  and  privileges  protected  by  section  93  of  the  B.  N.  A.  Act. 
Now,  what,  in  this  case,  is  the  right  or  privilege  claimed  to  have 
been  prejudicially  affected?  Is  it  a  legal  right  or  privilege  that 
could  have  been  put  forward  and  enforced  by  the  Roman  Catho- 
lics, as  a  class,  under  all  circumstances,  and  in  every  parish  or 
common  school ;  or  is  it  a  legal  right  confined  to  the  Roman 
Catholics  as  a  body ;  or  does  it  belong  equally  to  all  and  every 
of  the  other  denominations  of  Christians  in  this  province,  and 
capable  by  them  of  enforcement;  or,  on  the  contrary,  was  it  not 
the  mere  possible  chance  of  having  religious  denominational 
teaching  in  certain  schools,  depending  entirely  upon  accidental 
circumstances  ;  as,  on  what  might  happen  to  be  the  religious 
views  of  the  majority  in  a  parish,  and  then  on  the  accidental 
result  of  the  election  of  trustees  and  school  committees,  and  on 
the  views  of  the  parties  so  elected  as  to  religious  denominational 
leaching,   and   their  willingness  to  permit  it  in   the   schools 


500  THE   B.  N.  A.  ACT — SEC.  93. 

(admitting  that  the  trustees  or  committee  had  any  discretion  in 
the  matter,  which  is  more  than  doubtful) ;  was  it  not  also 
dependent  on  the  Board  of  Education  who  had  the  general  con- 
trolling power  ?  If  depending  on  circumstances  such  as  these, 
how  can  it  be  considered  such  a  legal  right  as  could  have  been 
contemplated  by  the  Imperial  parliament  in  passing  the  93rd 
section  of  the  B.  N.  A.  Act  *?  Where  is  there  anything  that  can, 
with  any  propriety,  be  termed  a  legal  right  ?  Surely  the  legisla- 
ture must  have  intended  to  deal  with  legal  rights  and  privileges. 
How  is  it  to  be  defined  ? — How  enforced  ?  " 

It  should  be  noted  that  all  the  members  of  the  court 
concurred  in  upholding  the  constitutionality  of  the  Act, 
and  this  judgment  was  upheld  (in  another  case)  upon 
appeal  to  the  Judicial  Committee  of  the  Privy  Council — 
Maher  v.  Portland  {/>) — the  judgment  of  the  Committee 
being  delivered  without  calling  upon  the  respondents.  It 
simply  expressed  concurrence  in  the  views  of  the  New 
Brunswick  Supreme  Court. 

Mmiitolni. 

This  province  became  part  of  the  Dominion  in  1870, 
and  by  what  is  popularly  known  as  the  Manitoba  Act 
(83  Vic.  c.  8,  Dom.),  the  power  of  the  provincial  legislature 
in  reference  to  education  is  defined  : 

Legislation  22.  In  and  for  the  Province,  the  said  Legislature 

Bchoois  8ub-    ji^ay  exclusively  make  Laws  in  relation  to  Education, 

)ect  to  certatn         •'  •'        _  ... 

provisioua       subject  and  according  to  the  following  provisions  : — 

(1)  Nothing  in  any  such  Law  shall  prejudicially 
affect  any  right  or  privilege  with  respect  to  Denomi- 
national Schools  which  any  class  of  persons  have  by 
Law  or  pnicticc  in  the  Province  at  the  Union  : 

(2)  An  appeal  shall  lie  to  the  Governor-General 
in  Council  from  any  Act  or  decision  of  the  Legisla- . 
ture  of  the  Province,  or  of  any  Provincial  Authority 
affecting  any  right  or  privilege  of  the  Protestant  or 
Eoman  Catholic  minority  of  the  Queen's  subjects  in 
relation  to  Education : 

{!>)  2  Cart.  486  (n). 


THE   R.  N.  A.  ACT — SEC.  93.  501 

(8)  In  case  any   such   Provincial  Law,  as  from  Power 

''''_''  '  vosorvcd  to 

time  to  time  seems  to  the  Governor-General  in  Coun-  Parliament, 
cil  requisite  for  the  due  execution  of  the  provisions 
of  this  section,  is  not  made,  or  in  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  as  far  only  as  the  circum- 
stances of  each  case  reqnire,  the  Parliament  of  Can- 
r.da  may  make  remedial  Laws  for  the  due  execution 
of  the  provisions  of  this  section,  and  of  any  decision 
of  the  Governor-General  in  Council  under  this 
suction. 

So  fjir  as  affects  the  genoral  (inestion,  we  need  here  only 
point  out  that  one  important  ilistinctioii  (q)  to  he  drawn 
1  lotween  this  section  and  section  93  of  the  B.  N.  A.  Act,  and 
its  sub-sections,  is  in  the  insertion  of  the  words  "or  prdcficc," 
after  the  word  "law"  in  sub-section  L  The  insertion  of 
these  words  rendered  necessary  an  incpiiry  into  the  nature 
of  the  school  system  existing  in  the  province  of  Manitoba 
at  the  time  when  that  province  l)ecame  part  of  the  Domin- 
ion. The  whole  njatter  is  thus  discussed,  and  disposed  of 
by  the  Judicial  Committee  of  the  Privy  Council  in  the  two 
cases  of  Winnipeg  v.  Barrett,  and  Winnipeg  v.  Logan,  before 
referred  to : 

"  These  two  appeals  were  heard  together.  In  the  one  case 
the  City  of  Winnipeg  appeals  from  a  judgment  of  the  Supreme 
Court  of  Canada  (r),  reversing  a  judgment  of  the  Court  of  Queen's 
Bench  for  Manitoba,  and  in  the  other  from  a  subsequent  judg- 
ment of  the  Court  of  Queen's  Bench  for  Manitoba,  following  the 
judgment  of  the  Supreme  Court.  The  judgments  under  appeal 
quashed  certain  by-laws  of  the  City  of  Winnipeg,  which  author- 
ized assessments  for  school  purposes  in  pursuance  of  the  Public 
Schools  Act,  1890,  a  statute  of  Manitoba  to  which  Roman 
Catholics  and  members  of  the  Church  of  England  alike  take 
exception. 

{q)  Another  equally^mportant  one  will  be  found  noted  post. 
(»•)  19  S.  C.  R.  374. 


502  THE   B.  N.  A.  ACT — SEC.  93. 

"  Sub-sections  1,  2  and  3  of  section  22  of  the  Manitoba  Act, 
1870,  differ  but  slightly  from  the  corresponding  sub-sections  of 
section  93  of  the  British  North  America  Act,  18G7.  The  only 
important  difference  is  that  in  the  Manitoba  Act,  in  sub-section 
1,  the  words  'bylaw'  are  followed  by  the  words  'or  practice,' 
which  do  not  occur  in  the  corresponding  passage  in  the  British 
North  America  Act,  1867.  These  words  were  no  doubt  intro- 
duced to  meet  the  special  case  of  a  country  which  had  not  as  yet 
enjoyed  the  security  of  laws  properly  so  called.  It  is  not,  per- 
haps, very  easy  to  define  precisely  the  meaning  of  such  an  expres- 
sion as  '  having  a  right  or  privilege  by  practice.'  But  the  object  of 
the  enactment  is  tolerably  clear.  Evidently  the  word  '  practice ' 
is  not  to  be  construed  as  equivalent  to  '  custom  having  the  force 
of  law.'  Their  Lordships  are  convinced  that  it  must  have  been 
the  intention  of  the  legislature  to  preserve  every  legal  right  or 
privilege  and  every  benefit  or  advantage  in  the  nature  of  a  right 
or  privilege,  with  respect  to  denominational  schools  which  any 
class  of  persons  practically  enjoyed  at  the  time  of  the  Union. 

"  What,  then,  was  the  state  of  things  when  Manitoba  was 
admitted  to  the  Union  ?  On  this  point  there  is  no  dispute.  It 
is  agreed  that  there  was  no  laAv  or  regulation  or  ordinance  with 
respect  to  education  in  force  at  the  time.  There  were  therefore 
no  rights  or  privileges  with  respect  to  denominational  schools 
existing  by  law.  The  practice  which  prevailed  in  Manitoba 
before  the  Union  is  also  a  matter  on  which  all  parties  are  agreed. 
The  statement  on  the  subject  by  Archbishop  Tache,  the  Eoman 
Catholic  archbishop  of  St.  Boniface,  who  has  given  evidence  m 
Barrett's  case,  has  been  accepted  as  accurate  and  complete. 
•  There  existed,'  he  says,  '  in  the  territory  now  constituting  the 
province  of  Manitoba  a  number  of  effective  schools  for  children. 
These  schools  were  denominational  schools,  some  of  them  being 
regulated  and  controlled  by  the  Roman  Catholic  Church,  and 
others  by  various  Protestant  denominations.  The  means  neces- 
sary for  the  support  of  Roman  Catholic  schools  were  supplied,  to 
some  extent,  by  school  fees,  paid  by  some  of  the  parents  of  the 
children  who  attended  the  schools,  and  the  rest  were  paid  out  of 
the  funds  of  the  church  contributed  by  its  members.  During 
the  period  referred  to  Roman  Catholics  had  no  interest  in  or 
control  over  the  schools  of  the  Protestant  denominations,  and 


THE   n.  N.  A.  ACT — SEC.  93.  503 

the  members  of  the  Protestant  denominations  had  no  interest  in 
or  control  over  the  schools  of  the  Roman  Catholics.  There  were 
no  public  schools  in  the  sense  of  state  schools.  The  members  of 
the  Roman  Catholic  Chm'ch  supported  the  schools  of  their  own 
Church  for  the  benefit  of  the  Roman  Catholic  children  and  were 
not  under  obligation  to  and  did  not  contribute  to  the  support  of 
any  other  schools.'  Now,  if  the  state  of  things  which  the  arch- 
bishop describes  as  existing  before  tlie  Union  had  been  a  system 
established  by  law,  what  would  have  been  the  rights  and  privi- 
leges of  the  Roman  Catholics  with  respect  to  denominational 
schools  ■?  They  would  have  had  by  law  the  right  to  establish 
schools  at  their  own  expense,  to  maintain  their  schools  by  school 
fees  or  voluntary  contributions,  and  to  conduct  them  in  accord- 
ance with  their  own  religious  tenets.  Every  other  reUgious 
body  which  was  engaged  in  a  similar  work  at  the  time  of  the 
Union  would  have  had  precisely  the  same  right  with  respect  to 
their  denominational  schools.  Possibly  this  right,  if  it  had 
been  defined  or  recognized  by  positive  enactment,  might  have 
had  attached  to  it,  as  a  necessary  or  appropriate  incident,  the 
right  of  exemption  from  any  contribution  under  any  circum- 
stances to  schools  of  a  different  denomination.  But,  in  their 
Lordships'  opinion,  it  would  be  going  much  too  far  to  hold  that 
the  establishment  of  a  national  system  of  education  upon  an 
unsectarian  basis  is  so  inconsistent  with  the  right  to  set  up  and 
maintain  denominational  schools  that  the  two  things  cannot 
exist  together,  or  that  the  existence  of  the  one  necessarily 
implies  or  involves  immunity  from  taxation  for  the  purpose  of 
the  other.  It  has  been  objected  that  if  the  rights  of  Roman 
Catholics,  and  of  other  religious  bodies,  in  respect  of  their  de- 
nominational schools,  are  to  be  so  strictly  measured  and  limited 
by  the  practice  which  actually  prevailed  at  the  time  of  the  Union > 
they  will  be  reduced  to  the  condition  of  a  '  natural  right '  which 
'does  not  want  any  legislation  to  protect  it.'  Such  a  right,  it 
was  said,  cannot  be  called  a  privilege  in  any  proper  sense  of  the 
word.  If  that  be  so,  the  only  result  is  that  the  protection  which 
the  Act  purports  to  extend  to  rights  and  privileges  existing  '  by 
practice'  has  no  more  operation  than  the  protection  which  it 
purports  to  afford  to  rights  and  privileges  existing  '  by- 
law.'     It  can  hardly  be  contended  that,  in  order  to  give  a  sub- 


504  THE   B.  \.  A.  ACT — SEC.  93. 

stantial  operation  and  effect  to  a  saving  clause  expressed  in 
general  terms,  it  is  incumbent  upon  the  court  to  discover  privi- 
leges which  are  not  apparent  of  thauiselves,  oi  to  ascribe  dis- 
tinctive and  peculiar  features  to  rights  which  seem  to  be  of  such 
11  common  type  as  not  to  deserve  special  notice  or  require 
special  protection. 

"  Manitoba  having  been  constituted  a  province  of  the  Dominion 
in  1870,  the  provincial  legislature  lost  no  time  in  dealing  with 
the  question  of  education.  In  1H71  a  law  was  passed  which 
established  a  system  of  denominational  education  in  the  connnon 
schools,  as  they  were  then  called.  A  board  of  education  was 
formed,  which  was  to  be  divided  into  two  sections,  Protestant 
and  Roman  Catholic.  Each  section  was  to  have  under  its  con- 
trol and  management  the  discipline  of  the  schools  of  the  section. 
Under  the  Manitoba  Act  the  province  had  been  divided  into 
twenty-four  electoral  divisions,  for  the  purpose  of  electing  mem- 
bers to  serve  in  the  Legislative  Assembly.  By  the  Act  of  1871 
each  electoral  division  was  constituted  a  school  district,  in  tJie 
first  instance.  Twelve  electoral  divisions,  '  comprising  mainly 
a  Protestant  population,'  were  to  be  considered  Protestant  school 
districts  ;  twelve,  '  comprising  mainly  a  Roman  Catholic  popu- 
lation,' were  to  be  considered  Roman  Catholic  school  districts. 
Without  the  special  sanction  of  the  section  there  was  not  to  be 
more  tlian  one  school  in  any  school  district.  The  male  inhabi- 
tants of  each  school  district,  ass^jmbled  at  an  annual  meeting, 
were  to  decide  in  what  manner  tney  should  raise  their  contribu- 
tions towards  the  support  of  the  school,  in  addition  to  what  was 
derived  from  public  funds.  It  is,  perhaps,  not  out  of  place  to 
observe  that  one  of  the  modes  prescribed  was  '  assessment  on 
the  property  of  the  school  district,'  which  must  have  involved, 
in  some  cases  at  any  rate,  an  assessment  on  Roman  Catholics 
for  the  support  of  a  Protestant  school,  and  an  assessment  on  Pro- 
testants for  the  support  of  a  Roman  Catholic  school.  In  the 
event  of  an  assessment  there  was  no  provision  for  exception, 
except  in  the  case  of  the  father  or  guardian  of  a  school  child — a 
Protestant  in  a  Roman  Catholic  school  district  or  a  Roman 
Catholic  in  a  Protestant  school  district — who  might  escape  by 
sending  the  child  to  the  school  of  the  nearest  district  of  the  other 
section  and  contributing  to  it  an  amount  equal  to  what  he  would 


THE    M.  X.  A.  ACT — SEC.  93.  505 

liavo  paid  if  he  had  belonged  to  that  district.  The  laws  relating 
to  education  were  niodifietl  from  time  to  time,  but  the  system  of 
denominational  education  was  maintained  in  full  vigor  until 
1H90.  An  Act  passed  in  1881,  following  an  Act  of  187o,  pro- 
vided among  other  things  that  the  establishment  of  a  school 
district  of  one  denomination  should  not  prevent  the  establish- 
ment of  a  school  district  of  the  other  denomination  in  the  same 
place,  and  that  a  Protestant  and  a  Roman  Catholic  district  might 
include  the  same  territory  in  whole  or  in  part.  From  the  year 
1H7(5  until  1890  enactments  were  in  force  declaring  that  in  no 
case  should  a  Protestant  ratepayer  be  obliged  to  pay  for  a  Roman 
Catholic  school  or  a  Roman  Catholic  ratepayer  for  a  Protestant 
school.  In  1890  the  policy  of  the  last  nineteen  years  was  re- 
versed, and  the  denominational  system  of  public  education  was 
entirely  swept  away.  Two  Acts  in  relation  to  education  were 
passed.  The  first  (53  Vic.  c.  87)  established  a  department  of 
education  and  a  board  consisting  of  seven  members,  known  as 
the  'Advisory  Board.'  Four  members  of  the  board  were  to  be 
appointed  by  the  department  of  education,  two  were  to  be  elected 
by  the  public  and  high  school  teachers,  and  the  seventh  member 
was  to  be  appointed  by  the  University  Council.  One  of  the 
powers  of  the  Advisory  Board  was  to  prescribe  the  forms  of 
religious  exercises  to  be  used  in  the  schools.  The  Public  Schools 
Act,  1890  (53  Vic.  c.  38),  enacted  that  all  Protestant  and  Roman 
Catholic  school  districts  should  be  subje'jted  to"  the  provisions  of 
the  Act,  and  that  all  public  schools  should  be  free  schools.  The 
provisions  of  the  Aei  with  reg;;rd  to  religious  exercises  are  as 
follows  : — *  (6)  Religious  exercises  in  the  public  schools  shall  be 
conducted  according  to  the  regulations  of  the  Advisory  Board. 
The  time  for  such  religious  exercises  shall  be  just  before  the 
closing  hour  in  the  afternoon.  In  case  the  parent  or  guardian 
of  any  pupil  notifies  the  teacher  that  he  does  not  wish  such  pupil 
to  attend  such  religious  exercises,  then  such  pupil  shall  be  dis- 
missed before  such  religious  exercises  shall  take  place.  (7)  Re- 
ligious exercises  shall  be  held  in  a  public  school  entirely  at  the 
option  of  the  school  trustees  for  the  district,  and,  upon  receiving 
authority  from  the  trustees,  it  shall  be  the  duty  of  the  teachers 
to  hold  such  religious  exercises.  (8)  The  public  schools  shall 
be  entirely  non-sectarian,  and  no  religious  exercises  shall  be 


506  THE   B.  N.  A.  ACT — SEC.  93. 

allowed  therein  except  ag  above  provided.'  The  Act  then  pro- 
vides for  the  formation,  alteration,  and  union  of  school  districts, 
for  the  election  of  school  trustees,  and  for  levying  a  rate  on  the 
taxable  property  in  each  school  district  for  school  purposes.  In 
cities  the  municipal  council  is  required  to  levy  and  collect  upon 
the  taxable  property  within  the  municipality  such  sums  as  the 
school  trustees  may  require  for  school  purposes.  A  portion  of 
the  legislative  grant  for  educational  purposes  is  allotted  to  public 
schools  ;  but  it  is  provided  that  any  school  not  conducted  accord- 
ing to  all  the  provisions  of  the  Act,  or  any  Act  in  force  for  the 
time  being,  or  the  regulations  of  the  Department  of  Education,  or 
the  Advisory  Board,  shall  not  be  deemed  a  public  school  within 
the  meaning  of  the  law  and  shall  not  participate  in  the  legisla- 
tive grant.  Section  141  provides  that  no  teacher  shall  use  or 
permit  to  be  used  as  text  books  any  books  except  such  as  are 
authorised  by  the  Advisory  Hoard,  and  that  no  portion  of  the 
legislative  grant  shall  be  paid  to  any  school  in  which  unauthor- 
ised books  are  used.  Then  there  are  two  sections  (178  and  179) 
which  call  for  a  passing  notice,  because,  owing  apparently  to 
some  misapprehension,  they  are  spoken  of  in  one  of  the  judg- 
ments under  appeal  as  if  their  effect  was  to  confiscate  Roman 
Catholic  property.  They  apply  io  cases  where  the  same  territory 
was  covered  by  a  Protestant  school  district  and  by  a  Roman 
Catholic  school  district.  In  such  a  case  Roman  Catholics  were 
really  placed  in  a  better  position  than  Protestants.  Certain  ex- 
emptions were  to  be  made  in  their  favor  if  the  assets  of  their 
district  exceeded  its  liabilities,  or  if  the  liabilities  of  the  Pro- 
testant school  district  exceeded  its  assets.  But  no  corresponding 
exemptions  were  to  be  made  in  the  case  of  Protestants. 

"  Such  being  the  main  provisions  of  the  Public  Schools  Act^ 
1890,  their  Lordships  have  to  determine  whether  that  Act  pre- 
judicially affects  any  right  or  privilege  with  respect  to  denomi- 
national schools  which  any  class  of  persons  had  by  law  or  prac- 
tice in  the  province  at  the  Union.  NotnithatnndirKj  the  Iiblic 
Schools  Act,  1890,  lioman  Catholics  and  members  of  every  other 
religiom  body  in  Manitoba  are  free  to  establish  schools  throughout  the 
province;  tJiey  are  free  to  maintain  their  schools  by  school  fees  or 
voluntary  subscriptio}is ;  they  are  free  to  conduct  their  schools  accord- 
ing to  their  own  religious  tenets  without  molestation  or  interference^ 


THE   B.  N.  A.  ACT — SEC.  98.  50T 

No  child  is  niiniH'llt'd  to  attend  a  jiuldir  .v/idoI.  No  special  advan- 
tage other  than  the  advantage  of  a  free  education  in  schools  con- 
ducted under  puhlic  management  is  held  out  to  those  who  do 
attend.  Ikit  then  it  is  said  that  it  is  impossible  for  Roman 
Catholics  or  for  members  of  the  Church  of  England  (if  their 
views  are  correctly  represented  by  the  bisliop  of  Rupert's  Land, 
who  has  given  evidence  in  Logan's  case)  to  send  their  children 
to  public  schools  where  the  education  is  not  superintended  and 
directed  by  the  authorities  of  their  church,  and  that  therefore 
Roman  Catholics  and  members  of  the  Church  of  England  who 
are  taxed  for  public  schools,  and  at  the  same  time  feel  the.aselves 
compelled  to  support  their  own  schools,  are  in  a  less  favourable 
position  than  those  who  can  take  advantrge  of  the  free  education 
provided  by  the  Act  of  1890.  That  may  be  so.  But  what  right 
or  privilege  is  violated  or  prejudicially  aftected  by  the  law?  It 
is  not  the  law  that  is  in  fault ;  it  is  owing  to  religious  convictions, 
which  everybody  must  respect,  and  to  the  teaching  of  their 
church,  that  Roman  Catholics  and  the  members  of  the  Church 
of  England  find  themselves  unable  to  partake  of  advantages 
which  the  law  offers  to  all  alike. 

"  Their  Lordships  are  sensible  of  the  weight  which  must, 
attach  to  the  unanimous  decision  of  the  Supreme  Court.  They 
have  anxiously  considered  the  able  and  elaborate  judgments  by 
which  that  decision  has  been  supported.  But  they  are  unable  to 
agree  \^ith  the  opinion  which  the  learned  Judges  of  the  Supreme 
Coui't  have  expressed  as  to  the  rights  and  privileges  of  Roman 
Catholics  in  Manitoba  at  the  time  of  the  Union.  They  doubt 
whether  it  is  permi'^sible  to  refer  to  the  course  of  legislation 
between  1871  and  1890,  as  a  means  of  throwing  light  on  the 
previous  practice  or  on  the  construction  of  the  saving  clause  in 
the  Manitoba  Act.  They  cannot  assent  to  the  view,  which 
seems  to  be  indicated  by  one  of  the  members  of  the  Supreme 
Court,  that  public  schools  under  the  Act  of  1890  are  in  reality 
Protestant  schools.  The  legislature  has  declared  in  so  many 
words  that  the  public  schools  shall  be  entirely  unsectarian,  and 
that  is  carried  out  throughout  the  Act." 

In  a  sense  this  decision  has  no  reference  to  the  other 
provinces  or  to  the  North-West  Territories.  So  far  as  Man- 
itoba alone  is  concerned,  it  decisively  disposes  of  the  ques- 


508  THE   IJ.  X.  A.  ACT — SFX'.  03. 

tion.  Till'  Manitolia  Act,  l.S7(),  whh  jit'tcrwiudM  coiiiirincd 
l»y  Inipci'iiil  K';^isliiti(>ii,  ami  put  l.jyoiid  the  h'<j;islative  coni- 
pi'tenci!  of  tlio  Doinitiion  parliaiiicnt  to  alter  it  in  any 
particular;  and  the  tiuK'  within  which  the  Manitoba  School 
Act  niii^ht  have  leen  disallowed  hy  the  Govenior-Cleneral 
in  Council  han  lon<ji'  .since  ex})ired. 

In  view,  however,  of  this  decision  nuich  discussion  has 
taken  place  in  reference  to  the  powers  of  the  (iovernor- 
(ieneral  in  Council  under  suh-section  3,  a.id  of  the  parlia- 
ment of  Canaila  inider  suh-section  4.  So  far  as  the  province 
of  IVIanitoha  is  concerned,  it  is  to  he  noticed,  that  the  open- 
inu'  clause  of  suh-section  3  of  section  93  of  the  B.  N.  A.  Act 
is  not  contained  in  the  correspondino-  suh-section  of  the 
]\Ianitoha  Act,  LSTO,  and,  therefoi-e,  the  fact  that,  since  its 
adnnssion  to  the  Dominion,  there  has  been  legislation  in 
that  province  which  might  1»e  contended  to  liave  established 
a  system  of  separate  schools  there,  can  have  no  ])earing 
upon  this  (juestion.  As  to  that  province  the  pronoiuice- 
ment  of  the  Privy  Council  is  decisive,  that  the  Manitoba 
Public  Schools  Act  tloea  not  affect,  prejudicially  or  other- 
wise, any  right  or  privilege  protected  l)y  secti(jn  22  of  the 
Manitoba  Act,  1870. 

It  may  not,  however,  be  out  of  place  to  consid'er  the 
position  of  all  the  provinces  in  reference  to  this  matter  of 
an  appeal  to  the  Governor-General  in  Council,  and  of  the 
power  of  the  Dominion  parliament  to  pass  "remedial"  laws. 
The  provision  as  to  an  appeal  to  the  Governor-General  in 
■Council  is  a  very  peculiar  one,  because  no  provision 
whatever  is  made  for  the  enforcement  of  the  decision  of  the 
Dominion  executive,  otherwise  than  by  legislation  by  the 
Dominion  parliament  under  sub-section  4.  The  language 
of  the  Committee,  in  Barrett  v,  Winnipeg,  leads  one  to  infer 
that,  in  their  opinion,  the  functions  of  the  Governor-Generpl 
in  Council  are  not  of  a  judicial  character,  that  is  to  say, 
that  it  does  not  properly  devolve  upon  the  Dominion  execu- 
tive to  consider  the  constitutionality  of  provincial  enact- 


THE   «.  N.  A.  ACT— HEC.  98.  500 

inonts,  or  of  tho  deciHion  ot'  tlie  "provincial  authority" 
(whatovor  tliat  may  be  taken  to  mean)  mentioned  in  the  Huh- 
Hection.  Tile  ap])eal,  therefore,  would  .seem  to  be  limited 
to  HUpervising  and  HUj^gesting  alterations  to  provincial 
enactments,  "affecting  any  right  or  privilege  of  the  Pro- 
testant or  Ronuin  Catholic  minority  of  the  Queen's  subjects, 
in  relation  to  education."  In  the  event  of  the  ruling, 
decision,  or  whatever  it  may  be  called,  of  the  Douiinion 
executive  not  being  duly  executed  by  the  provincial 
authorities,  the  provisions  of  sub-section  4,  may  be  invoked. 
But  as  a  condition  precedent  to  any  right  to  interfere  with 
provincial  legislation,  one  must  be  able  to  predicate  that  in 
the  province  concerned  there  exists  any  "right  or  privilege'' 
enjoyed  by  the  Protestant  or  Roman  Catholic  minority  in 
such  province,  and  that  the  provincial  legislation  com- 
plained of  aft'cota  such  right  or  privilege.  It  is  to  be  noted 
that  the  word  '  prejudicially '  does  not  occur  in  this  sub- 
section, and  this  bears  out  the  view  for  which  we  have 
been  contending,  that  interference  on  the  part  of  the 
Dominion  authorities  can  properly  take  place  only  in  con- 
nection with  valid  provincial  legislation.  Legislation 
prejadicially  affecting  such  right  or  privilege  is  void. 
Legislation  affecting  it  otherwise  than  prejudicially  is  valid, 
but  may  be  clumsy  and  unworkable.  Such  defects  the 
parliament  of  Canada  can  remedy. 

We  have  attempted  in  a  former  place  to  summarize  the 
rights  and  privileges  enjoyed  by  the  religious  minorities  of 
Ontario  and  Quebec,  and,  as  to  the  other  provinces,  the  posi- 
tion would  seem  to  be,  at  best — from  the  separatist  stand- 
point— that  indicated  in  the  judgment  of  the  Piivy  Council 
in  Winnipeg  v.  Barrett,  although,  perhaps,  it  is  matter  of 
doubt  whether  the  rights  and  privileges  there  enumerated 
as  to  Manitoba,  exist  to  their  full  extent  in  the  other  pro- 
vinces. In  fact,  the  judgment  in  Ex  iiarte  Renaud 
(affirmed,  as  we  have  seen,  in  the  Privy  Council)  seems  to 
indicate  that  in  the  provinces  other  than  Ontario,  Quebec, 
and  Manitoba,  religious  denominations  have  no  "right  or 


.310  THE   B.  N.  A.  ACT — SEC.  93. 

privilege"  hy  latv  in  respect  to  education,  within  the  mean- 
ing of,  and  requiring  the  protection  of,  the  various  sub- 
sections of  section  93.  The  question  which  suggests  itself 
as  doubtful  is  as  to  the  power  to  entirely  prohibit  denom- 
inational schools,  or,  in  other  words,  to  compel  universal 
attendance  at  state  schools. 

The  Nortli-West  Territories. 

The  parliament  of  Canada  having  power  (subject  always 
to  the  paramount  legislative  supremacy  of  the  Imperial 
parliament)  to  pass  laws  for  the  "  peace,  order  and  good 
government"  of  these  territories,  not  as  yet  elevated  to  pro- 
vincial dignity  (.s),  the  position  of  affairs  there  is  as  yet 
embryonic.  In  respect  to  educational  matters,  the  powers 
of  the  Legislative  Assembl}^  are  at  present  circumscribed, 
as  will  appear  from  the  following  section  of  the  North-West 
Territories  Act— R.  S.  C,  c.  50. 

14.  The  Lieutenant-Governor  in  Council  {t)  shall  pass  all 
necessary  oi'dinances  in  respect  to  education ;  but  it  shall 
therein  always  be  provided,  that  a  majority  of  the  ratepayers  of 
any  district  or  portion  of  the  Territories,  or  of  any  less  portion 
or  sub-division  thereof,  by  whatever  name  the  same  is  known, 
may  establish  such  schools  therein  as  they  think  fit,  and  make 
the  necessary  assessment  and  collection  of  rates  therefor ;  and 
also  that  the  minority  of  the  ratepayers  therein,  whether  Protes- 
tant or  Roman  Catholic,  riay  establish  separate  schools  thereui 
— and  in  such  case,  the  ratepayers  establishing  such  Protestant 
or  Roman  Catholic  separate  schools  shall  be  liable  only  to 
assessments  of  such  rates  as  they  impose  upon  themselves  in 
respect  thereof : 

2.  The  power  to  pass  ordinances,  conferred  upon  the  Lieu- 
tenant-Governor by  this  section  is  hereby  declared  to  have  been 
vested  in  him  from  the  seventh  day  of  May,  1880. 

(s)  See  ante,  p.  347.    The  position  of  these  Territories  will  be  dealt 
with  more  at  length  in  Part  IV. 

{t)  Now  the  Legislative  Assembly.    See  post. 


THE   B.  N.  A.  ACT — SEC.  94.  511 

It  is  much  to  be  hoped  that  when  (as  will  doubtless 
soon  be  the  ease)  new  provinces  are  erected  in  these  Terri- 
tories, they  will  be  given  full  control  of  educational 
matters.  In  expressing  this  hope  we  perhaps  "  travel 
beyond  the  record." 

Uniformity   of  Laivs   in    Ontario,  Nova 
Scotia  and  New  BrunsivicJi. 

94.  Notwithstanding  anything  in  this  KSm- 
Act,  the  Parliament  of  Canada  may  make  un-ecPio-^*" 
provision  for  the  uniformity  of  all  or  any 
of  the  laws  relative  to  property  and  civil 
rights  in  Ontario,  Nova  Scotia  and  New 
Brunswick,  and  of  the  procedure  of  all 
or  any  of  the  Courts  in  those  three  Pro- 
vinces ;  and  from  and  after  the  passing 
of  any  Act  in  that  behalf  the  power  of 
the  Parliament  of  Canada  to  make  laws 
in  relation  to  any  matter  comprised  in 
any  such  Act  shall,  notwithstanding  any- 
thing 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  law 
by  the  Legislature  thereof. 

Nothing  has  ever  been  done  toward  carrying  out  this 
idea.  The  only  use  to  which  the  section  has  been  put  has 
been  in  utilizing  the  expression  "property  and  civil  rights" 
which  occurs  ii  it  as  a  key  to  the  interpretation  of  the 
same  term  in  si  b-section  13  of  section  92.  The  passage  in 
Citizens  v.  Par,  ons  is  quoted  at  length  in  the  notes  to  that 
sub-section. 


512 


THE   B.  N.  A.  ACT — SECS.  95-7. 


Concurrent 

iiowors  of 

LeRislntion 

resiiecting 

Af!i-iculture, 

&c. 


Agriculture  and  Immigration. 

95.  In  each  Province  the  Legislature 
may  make  laws  in  relation  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 
Agriculture  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 
is  not  repugnant  to  any  Act  of  the  Parlia- 
ment of  Canada. 

See  ante,  p.  215,  as  to  the  bearing  of  this  section  on  the 
general  (juestion  of  "  concurrent  "  powers. 


Appointment 
of  Juilges. 


Selection  of 
JudKer,  in 
Ontario,  «&c. 


VII. — Judicature. 

96.  The  Governor- General  shall  ap- 
point the  Judges  of  the  Superior,  District, 
and  County  Courts  in  each  Province,  ex- 
cept those  of  the  Courts  of  Probate  in 
Nova  Scotia  and  New  Brunswick. 

97.  Until  the  laws  relative  to  pro- 
perty and  civil  rights  in  Ontario,  Nova 
Scotia,  and  New  Brunswick,  and  the  pro- 
cedure of  the  Courts  in  those  Provinces, 
are  made  uniform,  the  Judges  of  the 
Courts  of  those  Provinces  appointed  by 
the  Governor-General   shall  be  selected 


THE   B.  X.  A.  ACT — SECS.  98-100.  513 

from  the  respective  Burs  of  those  Pro- 
vinces. 


98.  The   Judges    of   the   Courts   offf^lgTr' 
Quebec  shall  be  selected  from  the  Bar  of 
that  Province. 


t(JO! 

Quobec. 


Tenure  of 
ottleo  of 


99.  The     Judges    of    the    Superior 
Courts    shall    hold    office    during    good  Jedor'^cmuts. 
behaviour,  but  shall  be  removable  by  the 
Governor-General  on  address  of  the  Sen- 
ate and  House  of  Commons. 

100.  The   salaries,   allowances,  and  ^f'/Jgg**= 
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  Admiralty 
Courts  in  cases  where  th(^  Judges  thereof 
are  for  the  time  being  paid  by  salary, 
shall  be  lixed  and  provided  by  the  Parlia- 
ment of  Canada. 

"  JadicaAare." — We  have  alreudy  deviated  a  cliapter  to 
a  (liKCUHsion  of  t)ur  judicial  system  (a),  and  it  remains  now 
merely  to  refer  to  the  (|uestion  of  the  "  tenur*^  of  office  "  of 
those  judges  wliose  appointment  under  the  9Gth  section  is 
with  the  Dominion  government.  The  B.  N.  A.  Act  con- 
tains no  express  provision  beyond  section  99,  which  applies 
only  to  the  Superior  Court  judges,  and  beyond  what  may 
he  inferred  from  the  provision  in  section  100  that  the 
salaries  of  all  these  judges  are  to  be  "  fixed  and  provided  " 
by  the  parliament  of  Canada. 

Does  the  power  to  appoint  carry  with  it  the  power  to 
remove  ?   It  is  submitted  that  it  does,  and  that,  not  with - 

(«)  See  chapter  XI.  and  notes  to  s.  92,  s-s.  14. 
Can.  Con.— 33 


514  THE   B.  N.  A.  ACT — SEC.  101. 

standing  sub-section  14  of  section  92  by  which  "the 
administration  of  justice  in  the.  province"  is  assigned  to 
provincial  legislatures,  the  parliament  of  Canada  alone  can 
legislate  (subject,  as  to  Superior  Court  judges,  to  section  99) 
as  to  the  qualifications  and  nature  of  tenure  (including,  of 
coui*se,  provisions  as  to  removal  from  office)  of  the  judges 
mentioned  in  section  96.  In  Re  Squier  (v)  the  validity  of 
a  commission  of  enquiry  issued  by  the  Governor-General 
purporting  to  be  under  the  Imperial  Act  (22  Geo.  III.  c.  75) 
relating  to  the  removal  of  colonial  officers,  was  in  question. 
It  seems  to  have  been  admitted  on  the  argument  and  held 
by  the  court  that  the  legislative  assembly  of  Ontario, 
had  no  power  to  abolish  the  old  Court  of  Impeachment 
established  before  Confederation  by  the  parliament  of  (old) 
Canada  for  trying  complaints  against  County  Court 
judges — C.  S.  U.  C.  c.  14.  The  precise  ground  is  not  stated, 
but  as  a  proceeding  under  the  Consolidated  Statute  is 
enumerated  as  one  of  the  methods  of  attack  then  open,  the 
decision  could  not  have  been  based  on  the  ground  of  the 
"repugnancy"  of  such  provincial  legislation  to  Imperial 
enactment.  Such  ground  would  equally  affirm  the  inval- 
idity of  the  original  Act,  and  the  decision  therefore  nmst 
be  taken  to  be  that  legislation  in  reference  to  the  remo^-  \ 
of  those  judges  mentioned  in  section  96  must  come  from 
the  Dominion  parliament. 

of'AweaWc'  lOl-  The  Parliament  of  Canada  may, 
notwithstanding  anything  in  this  Act, 
from  time  to  time,  provide  for  the  con- 
stitution, maintenance,  and  organization 
of  a  general  Court  of  Appeal  for  Canada, 
and  for  the  establishment  of  any  addi- 
tional Courts  for  the  better  administra- 
tion of  the  Laws  of  Canada. 

{v)  46  U.  C.  Q.  B.  474. 


THE   B.  N.  A.  ACT — SEC.  101.  415 

This  section,  too,  has  ah'eady  been  fully  discussed.  In 
chapter  XI.  we  have  endeavored  to  make  clear  that  the 
jurisdiction  of  any  "  additional  courts  "  established  by  the 
Dominion  parliament  under  this  section  must  be  limited  to 
the  administration  of  laws  passed  by  that  parliament,  or 
in  relation  to  mattei*s  falling  within  the  purview  of  its 
powers. 

The  particular  line  of  division  adopted  to  secure  the 
administration  of  justice  throughout  Canada  is  a  very 
illogical  one,  so  far  as  relates  to  provincial  courts.  While 
power  to  constitute  courts,  with  such  jurisdiction,  civil  or 
criminal,  as  may  be  deemed  expedient,  is  with  the  provin- 
cial legislatures,  the  judges  in  the  most  important  of  them 
must  be  appointed  by  the  Dominion  government,  and  the 
"  procedure  "  in  criminal  matters  in  any  of  them  which 
have  jurisdiction  over  such  matters — as  well  as  procedure 
in  all  those  branches  of  jurisprudence  which  are  wrapped 
up  in  the  various  sub-sections  of  section  91  {iv) — is  matter 
to  be  regulated  exclusively  by  the  parliament  of  Canada. 
As  to  any  additional  courts  to  be  established  by  the 
Dominion  parliament  under  this  section,  the  position  is 
entirely  different.  The  provinces  should,  on  any  logical 
division,  have  been  given  full  control  of  provincial  courts. 
Then  if  Dominion  laws  were  found  to  be  unsatisfactorily 
administered  in  those  courts,  the  reserve  power  of  this 
section  101  could  be  invoked.  As  has  been  before  inti- 
mated, a  duly  constituted  court  of  law,  no  matter  by  what 
authority  constituted,  must  give  effect  to  the  law  which 
governs  the  "legal  relations"  arising  out  of  the  facts  in 
((uestion  in  any  litigation,  by  whatsoever  duly  constituted 
authority  those  legal  relations  are  determined  ;  and  there- 
fore the  appointment  of  the  judges  by  the  Dominion  gov- 
ernment was  in  no  way  necessary  for  the  administration  of 
Dominion  law ;  if  appointed  by  the  provincial  governments, 
they  would  be  equally  bound  by  their  oaths  of  office  to 


(w 


,)  See  ante,  p.  235,  et  seq. 


516  THE   K.  N.  A.  ACT — SECS.  102,  103. 

jidiiiinister  that  law  wlien  applicable  to  the  tacts  <tf  the 
case.  Ill  any  event,  thi«  section  101  would  siitHciently  pro- 
tect the  federal  government  in  the  administration  of  federal 
law. 

Under  the  authority  conferred  l»y  this  section  was 
eHtal)lislied  the  Supreme  Court  of  Canada  as  a  general 
court  of  appeal  for  the  Dominion.  Wiiat  its  jurisdiction 
shall  l)e  is  of  couivse  for  the  parliament  of  Canada  to  detei- 
mine.  In  Clarkson  v.  Ryan  {,e)  it  was  held  that  a  provin- 
cial legislature  has  no  power  to  aHi\  conditions  oi- 
limitations  upon  appeals  to  the  Supreme  Court.  That  is 
entirely  for  the  federal  parliament. 

YIII. — Eevenues;  Debts;  Assets;  Tax- 
ation (/y). 

Soikuted  102.  All  duties  and  revenues  over 
.HevonueFuiid.^^^j^.^j^  thc  respcctlve  LegislRtnres  of  Can- 
ada, Nova  Scotia,  and  New  Brnnswicd^ 
before  and  at  the  Union  had  and  have 
power  of  appropriation,  except  such  por- 
tions thereof  as  are  by  this  Act  reserved 
to  the  respective  Legislatures  of  the  Pro- 
vinces, or  are  raised  by  them  in  accord- 
ance wdth  the  special  powers  conferred  on 
them  by  this  Act,  shall  form  one  Consoli- 
dated Revenue  Fund,  to  be  appropriated 
for  the  public  service  of  Canada  in  the 
manner  and  subject  to  the  charges  in  this 
Act  provided. 

SFe'S.&c.        103  The  Consolidated  Revenue  Fund 
of  Canada  shall  be  permanently  charged 

(x)  17S.  C.R.  251. 

{y)  It  is  thought  advisable  to  note  this  group  together.  See  the 
general  discussion  in  note  (i)  following  section  120.  The  matter  of  the 
other  notes  sufficiently  appears  in  their  italicized  head-lines. 


THE    H.  \.  A.  ACT — SECS.  lOi-107.  517 

with  the  costs,  charges,  and  expenses 
incident  to  the  collection,  management, 
and  receipt  thereof,  and  the  same  shall 
form  the  first  charge  thereon,  snbject  to 
be  reviewed  and  audited  in  such  manner 
as  shall  be  ordered  by  the  Governor- 
General  in  Council,  until  the  Parliament 
otherwise  provides. 

104.  The  annual  interest  of  the  public  p'Sfciaf 
debts  of  the  several  Provinces  of  Canada, ''"''"'  ''"'"'■ 
Nova  Scotia,  and  New  Brunswick  at  the 
Union  shall  form  the  second  charge  on 

the  Consolidated  Revenue  Fund  of  Can- 
ada. 

105.  Unless  altered  by  the   Parlia-  f^^^l^.^:^^- 
ment  of  Canada,  the  salary  of  the  Gover-  '^''"'"■''' 
nor- General  shall  be  ten  thousand  pounds 
Stirling  money  of  the  United  Kingdom  of 
Great  Britain  and  Ireland,  payable  out  of 

the  Consolidated  lie  venue  Fund  of  Can- 
ada, and  the  same  shall  form  the  third 
charge  thereon. 

106.  Subject  to  the  several  payments  S'Sto" 
by  this  Act  charged  on  the  Consolidated 
Revenue  Fund  of  Canada,  the  same  shall 

be  appropriated  by  the  Parliament  of 
Canada  for  the  pubhc  service. 

107.  All   stocks,  cash,  banker's  bal-  ^S&c°' 
^nces,  and  securities  for  money  belonging 

to  each  Province  at  the  time  of  the 
Union,  except  as  in  this  Act  mentioned, 


518  THE   B.  N.  A.  ACT — SECS.  108,  109. 

shall  be  the  property  of  Canada,  and  shall 
be  taken  in  reduction  of  the  amount  of 
the  respective  debts  of  the  Provinces  at 
the  Union. 

propStyil  108.  The  public  works  and  property 

schedule.  ^j  QQ^ch  Provincc,  enumerated  in  the  third 
Schedule  to  this  Act,  shall  be  the  pro- 
perty of  Canada. 

THE  THIED  SCHEDULE. 
Provincial  Public  Works  and  Property  to  be  the  Property  of  Canadd. 

1.  Canals,  with  Land  and  Water  Power  connected  there- 

with. 

2.  Public  Harbours  (z). 

3.  Lighthouses  and  Piers,  and  Sable  Island. 

4.  Steamboats,  Dredges,  and  public  Vessels. 

5.  Rivers  and  Lake  Improvements  (a). 

6.  Railways   and  Railway   Stocks,  Mortgages,  and  other 

Debts  due  by  Railway  Companies  (b). 

7.  Military  Roads. 

8.  Custom  Houses,  Post  Offices  and  all  other  Public  Build- 

ings, except  such  as  the  Government  of  Canada  appro- 
priate for  the  use  of  the  Provincial  Legislatures  and 
Governments. 

9.  Property  transferred  by  the  Imperial  Government,  and 

known  as  Ordnance  Property  (c). 
10.  Armouries,  Drill  Sheds,  Mihtary  Clothing,  and  Muni- 
tions of  War,  and  Lands  set  apart  for  general  public 
purposes. 

unlsTmiiTes.        109.  All  lauds,  miucs,  minerals,  and 
**'■  royalties  belonging  to  the  several  Pro- 

vinces of  Canada,  Nova  Scotia  and  New 

{z)  See  note  (ii)  following  sec.  126,  post. 


(a) 

ki 

(iii) 

(b) 

tt 

(iv) 

(c) 

ti 

(V) 

THE   B.  N.  A.  ACT — SECS.  110-118.  519 

Brunswick  at  the  Union,  and  all  sums 
then  due  or  payable  for  such  lands,  mines, 
minerals,  or  royalties,  shall  belong  to  the 
several  Provinces  of  Ontario,  Quebec, 
Nova  Scotia,  and  New  Brunswick  in 
which  the  same  are  situate  or  arise,  sub- 
ject to  any  trusts  existing  in  respect 
thereof,  and  to  any  interest  other  than 
that  of  the  Province  in  the  same. 


110.  AH  assets  connected  with  such  ^^741^1?^" 
portions  of  the  public  debt  of  each  Prov- '""''"'   ^  ^^ 
ince  as  are   assumed  by  that  Province 
shall  belong  to  that  Province. 

•      111.  Canada  shall  be  liable  for  the  ,fawe^,^r°  ""^ 
debts   and  liabilities    of.,  each   Province  dobtB.""**' 
existing  at  the  Union. 

112.  Ontario  and  Quebec  conjointly  ?aS'aud°°* 
shall  be  liable  to  Canada  for  the  amount  '^"®^^*' 

(if  any)  by  which  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  oaTario  an* 
fourth  Schedule  to  this  Act  belonging  at  ^"^^®''- 
the  Union  to   the   Province   of  Canada 

shall  be  the  property  of  Ontario  and  Que- 
bec conjointly. 

THE  FOURTH  SCHEDULE. 
Assets  to  be  the  Property  of  Ontario  and  Quebec  conjointly. 

Upper  Canada  Building  Fund. 
Lunatic  Asylums. 


Lower  Canada. 


520  THE   a  X.  A.' ACT — SECS.  114,  Ho. 

Normal  School. 
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  Legislative  Grant. 
Quebec  Fire  Loan. 
Tamiscouata  Advance  Account. 
Quebec  Turnpike  Trust. 
Education — East. 

Building  and  Jury  Fund,  Lower  Canada. 
Municipalities  Fund. 
Lower  Canada  Superior  Education  Licome  Fund.' 

scttia"'^''"'''  114.  Nova  Scotia  shall  be  liable  to 
Canada  for  the  amount  (if  any)  hy  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. 

Kswicr  115.  New  Brunswick  shall  be  liable 
to  Canada  for  the  amount  (if  any)  by 
which  its  public  debt  exceeds  at  the 
Union  seven  million  dollars,  and  shall  be 
charged  with  interest  at  the  rate  of  five 
per  centum  per  annum  thereon. 


THE    H.  X.  A.  A< T — SECS.  lUMlH.  5-21 

116.  In  c-asc  the  public  debts  of  Nova  K^t't,?' 

Nova  Scotiii 
and  Ni'W 
lU'iiiiHwiuk. 


Scotia  and  New  Brunswick  do  not  at  the  in.i  Niw"'" 


Union  amount  to  ei^ht  million  and  seven 
million  dollars  respectively,  they  shall 
respectively  receive  by  half-yearly  pay- 
ments in  advance  from  the  Government 
of  Canada  interest  at  live  per  centum  per 
annum  on  the  difference  between  the 
actual  amounts  of  their  respective  debts 
and  such  stipulated  amounts. 


Provincitil 


117-  "file  several  Provinces  shall  re- pubuc  i.ro- 
tain  all  their  respective  public  property  ''*"'  ^' 
not  otherwise  disposed  of  in  this  Act,  sub- 
ject to  the  right  of  Canada  to  assume  any 
lands  or  public  property  required  for  for- 
tifications or  for  the  defence  of  the  coun- 
try. 

118.    The   following  sums   shall   be  ?™;^^,t°. 
paid  yearly  by  Canada  to  the  several  Pro- 
vinces for  the  support  of  their  Govern- 
ments and  Legislatures : 

Dollars. 
Ontario     -     -     -     -  Eighty  thousand. 
Quebec     -     -     -     -  Seventy  thousand. 
Nova  Scotia  -     -     -  SixLy  thousand. 
New  Brunswick  -     -  Fifty  thousand. 


Two  hundred  and  sixty  thousand  ; 
and  an  annual  grant  in  aid  of  each  Pro- 
vince shall  be  made,  equal  to  eighty  cents 
per  head  of  the  population  as  ascertained 
by  the  Census  of  one  thousand  eight  hun- 


522 


THE   B.  N.  A.  ACT— SECS.  119,  120. 


Further  grant 
to  New 
Brunswick. 


Form  of 
payments. 


dred  and  sixty-one,  and  in  the  case  of 
Nova  Scotia  and  New  Brunswick,  by  each 
subsequent  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  grants  shall  be  in  full 
settlement  of  all  future  demands  on  Can- 
ada, and  shall  be  paid  half-yearly  in 
advance  to  each  Province ;  but  the  Gov- 
ernment 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  half-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  remains  under  seven  million 
dollars,  a  deduction  equal  to  the  interest 
at  five  per  centum  per  annum  on  such 
deficiency  shall  be  made  from  that, allow- 
ance 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  Bruns- 
wick respectively,  and  assumed  by  Can- 
ada, sha.ll,  until  the  Parliament  of  Can- 


THE   B.  N.  A.  ACT— SECS.  121.124.  523 

ada  otherwise  directs,  be  made  in  such 
form  and  manner  as  may  from  time  to 
time  be  ordered  by  the  Governor-General 
in  Council. 

121.  AH  articles  of  the  growth,  pro- ,SrmffiureB. 
duce,  or  manufacture  of  any  one  of  the*"" 
Provinces  shall,  from  and  after  the  Union, 

be  admitted  free  into  each  of  the  other 
Provinces. 

122.  The  Customs  and  Excise  Laws  ^t^cuZm^ 
of  each   Province  shall,  subject   to   the  Lawf'"*''^^ 
provisions  of  this  Act,  continue  in  force 

until  altered  by  the  Parliament  of  Canada. 

123.  Where  Customs  duties  are,  at  ^n^Hmnona- 

ii         TT     'I'll  1  tioii  as  b«- 

the  Union,  leviable  on  any  goods,  wares,  tweentwo 

'     _.  .  -r^  ■  Provinces. 

or  merchandises  in  any  two  Provinces, 
those  goods,  wares,  and  merchandises 
may,  from  and  after  the  Union,  be  im- 
ported 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  pay- 
ment of  such  further  amount  (if  any)  of 
Customs  duty  as  is  leviable  thereon  in  the 
Province  of  importation. 

124.  Nothing  in  this  Act  shall  affect  li.Tew'; '^"'' 
the  right  of  New  Brunswick  to  levy  ^^g  ^'""^^'*=''<'*>- 
lumber  dues  provided  in  chapter  fifteen  of 

title  three  of  the  Eevised  Statutes  of  New 
Brunswick,  or  in  any  Act  amending  that 

(d)  See  note  (vi)  following  section  12(5,  post. 


524  THE   H.  N.  A.  ACT — SECS.  125,  120. 

•  Act  before  or  after  the  Union,  and  not 
increasing  the  amount  of  such  dues  ;  but 
the  himber  of  any  of  the  Provinces  other 
than  New  Brunswick  shall  not  be  subject 
to  such  dues. 


■Rxoinption  of 
|)ublic  lands, 
Ac. 


Vroviucial 

Consoliclatccl 


125-  ^0  lands  or  property  belonging 
to  Canada  or  any  Province  shall  be  liable 
to  taxation  (e). 

126-  Such  portions  of  the  duties  and 
Fund""*'  revenues  over  which  the  respective  Legis- 
latures of  Canada,  Nova  Scotia,  and  New 
Brunswick  had  before  the  Union  power  of 
appropriation  a^  are  by  this  Act  reserved 
to  the  respective  Governments  or  Legis- 
latures of  the  Provinces,  and  all  duties 
and  revenues  raised  by  them  in  accord- 
ance with  the  special  powers  conferred 
upon  them  by  this  Act,  shall  in  each  Pro- 
vince form  one  Consolidated  Revenue 
Fund  to  be  appropriated  for  the  public 
service  of  the  Province. 

(i)  "  Rereuues,  etc." — In  amving  at  a  determination  of 
tlu'  line  ot;'  div'ision  of  revenues,  etc.,  effected  by  this  group 
of  clauses  we  must  bear  in  mind  what  is  said  by  Lord 
Watson  in  delivering  the  judgment  of  the  Judicial  Com- 
mittee of  the  Privy  Council  in  a  case  to  wliich  we  liave 
already  had  occasion  to  refer — St.  Catharines'  Milling  Co. 
V.  The  Queen  (/): 

"  There  can  be  no  f/j;r.?fi;7  probability  that  the  British  Legis- 
lature, in  a  branch  of  the  statute  which  professes  to  deal  only 

(«')  See  note  (vii)  following  section  120,  post. 

(/')  14  App.  Gas.  46,  at  p.  59.     See  notes  to  sec.  91,  s-s.  24,  ante. 


THE   B.  N.  A.  ACT — SEC.  126.  525 

with  the  distribution  of  legislative  power,  intended  to  deprive  the 

provinces  of  rights  which  are  expressly  given   them  in  that 

In-anch  of  it  which  relates  to  the  distribution  of  revenues  and 

assets." 

hy  way  of  application  of  which  rule  to  the  case  then  in 

liand,  he  says : 

"  The  fact  that  the  power  of  legislating  for  Indians,  and  for 
lands  which  are  reserved  to  their  use,  has  been  entrusted  to  the 
parliament  of  the  Dominion  is  not  in  the  least  degree  inconsistent 
with  the  right  of  the  provinces  to  a  beneficial  interest  in  those 
lands,  available  to  them  as  a  source  of  revenue  whenever  the 
estate  of  the  Crown  is  disencumbered  of  the  Indian  title." 

It  is  matter  for  remark,  too,  that  in  construing-  these 
sections,  the  Conunittee  has  taken  into  consideration  the 
"  high  political  nature  "  of  the  B.  N.  A.  Act.  In  Attorney- 
(Jeneral  of  Ontario  v.  Mercer  ((j),  they  speak  of  "the  attri- 
liution  of  royal  territorial  nghts  for  purposes  of  revenue 
and  government."  Their  reference  in  the  later  case  to  a 
jtr'iorl  prol)abilities  indicates  the  usu  of  aids  to  the  inter- 
prt  lation  of  these  sections  somewhat  wider  than  those 
wliich  they  h we  felt  free  to  use  in  construing  the  various 
sub-sections  of  sections  91  and  92,  which  provide  for  the 
division  of  the  field  of  subject  matters  proper  for  legisla- 
tive action  between  the  Dominion  and  the  provinces. 

Owing  to  the  reference  made  in  these  sections  to  the 
power  of  appropriation  over  the  duties  and  revenues  arising 
in  tlie  pre-Con federation  provinces  we  may  refer  to  what 
has  l)cen  already  said  in  chapter  II.  (A)-  Taking  up  the 
thread  at  the  date  of  the  Union  Act,  IH-iO,  the  Committee 
thus  characterize  its  provisions  upon  this  head  (i) : 

"  By  an  Imperial  statute  passed  in  the  year  1840  (3  &  4  Vic. 
c.  35)  the  provinces  of  Ontario  and  Quebec,  then  known  as  Upper 
and  Lower  Canada,  were  united  under  the  name  of  the  Province 
of  Canada,  and  it  was,  inter  alio,  enacted  that  in  consideration 
of  certain  annual  payments  which  Her  Majesty  had  agreed  to 

(/if)  8  App.  Cas.  767.  ('0  Ante,  p.  35,  e.t  seq. 

(i)  14  App.  Cas.  at  p.  55. 


526  THE   B.  N.  A.  ACT — SEC.  126. 

accept  by  way  of  'civil  list,'  the  produce  of  all  territorial  and 
other  revenues  at  the  disposal  of  the  Crown  arising  in  either  of 
the  united  provinces  should  be  paid  into  the  Consolidated 
Revenue  Fund  of  the  said  province.  There  was  no  transfer  to 
the  province  of  any  legal  estate  in  the  Crown  lands,  which  con- 
tinued to  be  vested  in  the  Sovereign ;  but  all  monies  realized  by 
sales  or  in  any  other  manner  became  the  property  of  the 
province.  In  other  words,  all  beneficial  interest  in  such  lands 
within  the  provincial  boundaries  belonging  to  the  Queen,  and 
either  producing  or  capable  of  producing  revenue,  passed  to  the 
province,  the  title  still  remaining  in  the  Crown.  That  continued 
to  be  the  right  of  the  province  until  the  passing  of  the  British 
North  America  Act,  1867." 

The  Conbolidated  Revenue  Fund  created  by  this  Act 
was  to  be  appropriated — subject  to  the  payment  of  the 
"  civil  list "  charges — by  the  Canadian  parliament  "  for  the 
public  service  in  such  manner  as  they  shall  think  proper." 
We  should,  perhaps,  point  out  that  the  42nd  section  of  the 
Union  Act,  1840,  limited  the  right  of  the  then  province  to 
dispose  of  the  "  w^aste  lands  of  the  Crown,"  but  this  section 
was  repealed  by  17  &  18  Vic.  c.  118,  s.  6.  We  may 
refer  also  to  the  Imperial  Act,  10  &  11  Vic.  c.  71,  which 
handed  over  to  the  province  the  control  of  the  civil  list. 
Prior  to  Confederation,  therefore,  the  parliament  of  (old) 
Canada  had  the  fullest  power  of  appropriation  over  these 
territorial  and  other  revenues,  as  had  also  the  assemblies 
of  the  Maritime  Provinces  over  the  revenues  therein 
arising  ( j). 

The  scheme  of  division  of  assets,  etc.,  effected  by  the 
B.  N.  A.  Act  has  been  the  subject  of  exhaustive  examination 
by  the  Judicial  Committee  of  the  Privy  Council  in  the  two 
cases  to  which  we  have  above  referred.  We  quote  from 
the  judgment  in  the  later  case  {k)  : 

Bee  note  (b),  ante,  p.  40. 

(k)  St.  Catharines'  Milling  Co.  v.  The  Queen,  14  App.  Cas.  at  p.  56 
et  seq. 


THE   B.  N.  A.  ACT — SEC.  126.  527 

*'  The  Act  also  contains  careful  provisions  for  the  distribu- 
tion of  legislative  powers  and  of  revenues  and  assets  between 
the  respective  provinces  included  in  the  Union,  on  the  one  hand, 
and  the  Dominion  on  the  other.  The  conflicting  claims  to  the 
ceded  territory  maintained  by  the  Dominion  and  the  province  of 
Ontario  are  wholly  dependent  upon  these  statutory  provisions. 
In  construing  these  enactments  it  must  be  always  kept  in  view 
that,  wherever  public  land  with  its  incidents  is  described  as 
'  the  property  of '  or  as  *  belonging  to  '  the  Dominion  or  a  pro- 
vince, these  expressions  merely  import  that  the  right  to  its 
beneficial  use,  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  itself  being  vested  in  the 
Crown. 

*'  Section  108  enacts  that  the  public  works  and  undertakings 
enumei  ,ted  in  Schedule  3  shall  be  the  property  of  Canada.  As 
specified  in  the  Schedule,  these  consist  of  public  undertakings 
which  might  be  fairly  considered  to  exist  for  the  benefit  of  all 
the  provinces  federally  united,  of  lands  and  buildings  necessary 
for  carrying  on  the  customs  or  postal  service  of  the  Dominion, 
or  required  for  the  purpose  of  national  defence,  and  of  *  lands 
set  apart  for  general  public  purposes.'  It  is  obvious  that  the 
enumeration  cannot  be  reasonably  held  to  include  Crown  lands 
which  are  reserved  for  Indian  use.  The  only  other  clause  in  the 
Act  by  which  a  share  of  what  previously  constituted  provincial 
revenues  and  assets  is  directly  assigned  to  the  Dominion  is  sec- 
tion 102.  It  enacts  that  all  '  duties  and  revenues  '  over  which 
the  respective  legislatures  of  the  united  provinces  had  and  have 
power  of  appropriation,  *  except  such  portions  thereof  as  are  by 
this  Act  reserved  to  the  respective  legislatures  of  the  provinces, 
or  are  raised  by  them  in  accordance  with  the  special  powers  con- 
ferred upon  them  by  this  Act,'  shall  form  one  consolidated 
fund,  to  be  appropriated  for  the  public  service  of  Canada.  The 
extent  to  which  duties  and  revenues  arising  within  the  limits  of 
Ontario,  and  over  which  the  legislature  of  the  old  province  of 
Canada  possessed  the  power  of  appropriation  before  the  passing 
of  the  Act,  have  been  transferred  to  the  Dominion  by  this 
clause,  can  only  be  ascertained  by  reference  to  the  two  excep- 
tions which  it  makes  in  favor  of  the  new  provincial  legislatures. 


52S  THE   B.  X.  A.  ACT — KEC.  126. 

"The  second  of  thetje  exceptions  has  really  no  bearing  on 
the  present  case,  because  it  comprises  nothing  beyond  the 
revenues  which  provincial  legislatures  are  empowered  to  raise  by 
means  of  direct  taxation  for  provincial  purposes  in  terms  of  sec- 
tion 92  (2).  The  first  of  them,  uliich  diipcars  to  riDiiiin'iieiiil  tin' 
ir/iiile  soio'ces  of  rcrenw  reserved  to  the  iirociwes  In/  seetion  109,  is 
of  material  consequence."  After  quoting  this  section  at  length, 
the  judgment  proceeds:  "In  connection  with  this  clause  it 
may  be  observed  that  by  section  117  it  is  declared  that  the  pro- 
vinces shall  retain  their  respective  public  property  not  otherwise 
disposed  of  in  the  Act,  subject  to  the  right  of  Canada  to  assume 
any  lands  or  public  property  required  for  fortifications  or  for  the 
defence  of  the  country.  A  different  form  of  expression  is  used 
to  define  the  subject  matter  of  the  first  exception,  and  the  pro- 
perty which  is  directly  appropriated  to  the  provinces ;  but  it 
hardly  admits  of  doubt  that  the  interests  in  laml,  niinen,  uiinenils, 
and  royalties,  lehieh  hij  seetion  109  ore  ileehired  to  heloni/  to  the  j)ri>- 
vinees,  inelude,  if  thei/  are  not  identieol  irith,  the  '  duties  and 
revenues  '   /irst  excepted  in  scetinn  102. 

"  The  enactments  of  section  109  are,  in  the  opinion  of  theii- 
Lordships,  sufficient  to  give  to  each  province,  subject  to  the 
administration  and  control  of  its  own  legislature,  the  entire  hene- 
liciai  i)iterest  of  the  Croirn  in  all  lands  within  its  houndaries,  which 
at  the  time  of  the  Union  were  vested  in  the  Crown,  with  the  ex- 
ception of  such  lands  as  the  Dominion  acquired  right  to  under 
section  108,  or  might  assume  for  the  purposes  specified  in  section 
117.  Its  legal  eft'ect  is  to  exclude  from  the  'duties  and  reve- 
nues '  appropriated  to  the  Dominion  all  the  ordinary  territorial 
revenues  of  the  Crown  arising  within  the  provinces.  That  con- 
struction of  the  statute  was  accepted  by  this  Board  in  deciding 
Attorney -General  of  Ontario  v.  Mercer,  where  the  controversy 
related  to  land  granted  in  fee  simple  to  a  subject  before  1867, 
which  became  escheat  to  the  Crown  in  1871.  The  Lord  Chan- 
cellor (Earl  Selborne)  in  delivering  judgment  in  that  case  said : 
'  It  was  not  disputed  in  the  argument  for  the  Dominion  at  the 
bar,  that  all  territorial  revenues  arising  within  each  province 
from  lands  (in  which  term  must  be  comprehended  all  estates  m 
land)  which  at  the  time  of  the  Union  belonged  to  the  Crov/n, 
were  reserved  to  the  respective  provinces  by  section  109;  and  it 


THE   B.  N.  A.  ACT — SEC.  126.  529 

"\vas  admitted  that  no  distinction  could,  in  that  respect,  be  made 
between  lauds  then  ungranted,  and  lands  which  had  previously 
reverted  to  the  Crown  by  escheat.  But  it  was  insisted  that  a 
line  was  drawn  at  the  date  of  the  Union,  and  that  the  words  were 
not  sufficient  to  reserve  any  lands  afterwards  escheated  which  at 
the  time  of  the  Union  were  in  private  hands,  and  did  not  then 
belong  to  the  Crown.'  Their  Lordships  indicated  an  opinion  to 
the  effect  that  the  escheat  would  not,  in  the  special  circumstances 
of  that  case,  have  passed  to  the  province  as  'lands';  but  they 
held  that  it  fell  within  the  class  of  rights  reserved  to  the  prov- 
ince as  '  royalties '  by  section  109. 

"  .  .  .  The  ceded  territory  was  at  the  time  of  the  Union 
land  vested  in  the  Crown,  subject  to  '  an  interest  other  than  that 
of  the  province  in  the  same,'  within  the  meaning  of  section  109 ; 
and  must  now  belong  to  Ontario  in  terms  of  that  clause,  unless 
its  rights  have  been  taken  away  by  some  provision  of  the  Act 
of  1867  other  than  those  already  noticed." 

Any  controlling  effect  which  might  be  claimed  in  respect 
of  "  lands  reserved  for  the  Indians  "  by  reason  of  the  legis- 
lative power  of  the  Dominion  in  respect  thereof  is 
negatived  in  the  passage  already  quoted  (I). 

In  Attorney-General  of  Ontario  v.  Mercer  (m)  the 
meaning  of  the  word  "  royalties  "  was  discussed  and  without 
deciding  whether  it  does  or  does  not  cover  royal  rights 
other  than  those  connected  with  lands,  mines,  and  minerals, 
it  was  held  that  it  does  cover  all  royal  rights — jt^ra  regalia 
omnia  ad  Jiscum  spectantia — connected  with  those  three 
subjects,  and  escheats  within  a  province  were  adjudged  to 
belong  to  such  province  and  not  to  the  Dominion. 

In  the  case  of  The  Liquidators  of  the  Maritime  Bank  v. 
The  Receiver-General  of  New  Brunswick  {n)  it  has  just 
been  held  that  the  prerogative  right  of  the  Crown  to  claim 
priority  for  debts  due  the  Crown  over  the  claims  of  private 

(I)  Ante,  p.  525. 

(m)  8  App.  Cas.  767.     See  Church  v.  Blake,  2  Q.  L.  R.  236. 
in)  8  Times  L.  R.  677. 
Can.  Con.— 34 


530  THE   B.  N,  A.  ACT — SEC.  126. 

creditors,  is  a  prerogative  right  vested  in  the  Lieutenant- 
Governor  of  a  province  so  far  as  relates  to  debts  due  the 
Crown  as  representing  such  province — a  decision  which 
would  appear  to  show  that  it  was  not  necessary  to  rely 
solely  upon  the  word  "  royalties  "  as  vesting  in  the  provinces 
(or  in  the  Lieutenant-Governors  as  chief  executive  officers 
thereof)  the  Crown's  prerogative  rights  in  connection  with 
lands  escheated  for  want  of  heirs.  See,  however,  Attorney- 
General  of  British  Columbia  v.  Attorney-General  of  Can- 
ada (o),  in  which  the  Committee  held  that  a  conveyance  by 
the  province  to  the  Dominion  of  "public  lantls"  was,  in  sub- 
stance, an  assignment  merely  of  its  right  to  appropriate  the 
territorial  revenues  arising  therefrom,  and  could  not  with- 
out express  evidence  of  intention  in  that  behalf,  be  con- 
strued as  a  transfer  of  the  precious  metals  in,  upon  and 
under  such  lands,  the  revenues  derivable  therefrom  not 
being  incident  to  the  land  (as  are  mines  of  baser  metal), 
but  arising  from  the  prerogative  rights  of  the  Crown, 
which,  under  the  word  "  royalties,"  passed  to  the  provinces 
by  force  of  section  109. 

In  reference  to  those  sections  of  this  group  VIII.  which 
deal  with  the  financial  arrangements  agreed  upon  by  the 
provinces  as  the  basis  of  the  federal  Union,  we  deem  it 
unnecessary  to  say  anything  here.  "  Better  terms  "  hav^e 
been  sought  and  granted  in  the  case  of  a  number  of  the 
provinces  {p).  The  whole  policy  of  provincial  "  subsidies  " 
has  been  the  subject  of  much  adverse  comment,  but,  in  any 
case,  these  financial  arrangements  are  hardly  matter  for 
discussion  in  a  work  of  this  kind.  The  same  may  be  said 
of  the  "  interprovincial  free  trade,"  section  (121). 

(ii)  "Pahlic  Harbours." — It  was  held  in  Holman  v. 
Green  (q)  by  the  Supreme  Court  of  Canada  that  this  in- 

(o)  14  App.  Cas.  295.    See  post,  Part  IV,  Chap.  XV. 
(p)  See  a  short  resrnn^  of  them  in  Houston,  "  Const.  Doc.  of  Canada,'' 
p,  237. 

{q)  6  S.  C.  R.  707. 


THE   B.  N.  A.  ACT — SEC.  126.  531 

eludes  all  harbours,  together  with  the  bed  and  soil  thereof, 
which  the  public  have  the  right  to  use,  and  is  not  limited 
to  such  as  at  the  date  of  the  Union  had  bean  artificially 
constructed  or  improved  at  the  public  expense;  and  whore 
a  grant  of  the  foreshore  of  a  natural  harbour  used  as  such 
by  the  public  was  made  by  a  provincial  government,  tlm 
grant  was  held  invalid. 

(iii)  "Rivers  and  Lake  Improvements" — "Rivers"  is  a 
mistake.  River  improvements  are  clearly  intended.  See 
per  Gwynne,  J.,  in  Reg.  v.  Robertson  (>).  In  the  Quebec 
Resolutions  it  appears  as  "River  and  Lake  Improvements." 

(iv)  " Riiilivays,  etc." — In  Western  Counties  Ry.  Co.  v. 
Windsor  ^  Annapolis  Ry.  Co.  (.s)  it  was  held  by  the  Judicial 
Committee  of  the  Privy  Council  that  the  Dominion  govern- 
ment acquired  provincial  railways — i.e.,  government  rail- 
ways— subject  to  all  claims  against  them,  or,  in  other  words, 
for  no  larger  interest  than  the  province  had  in  them.  It  was 
a  qiuare  with  the  Committee  whether  the  parliament  of 
Canada  could  afterwards  looislate  in  derogation  of  claims 
against,  or  obligations  incurred  by,  the  province  in  respect 
of  such  railways. 

(v)  "  Ordnance  property ." — See  Kennedy  v.  Toronto  (<). 

(vi)  "Liunher  Dues  in  New  Brunswick" — The  right  to 
levy  these  duties  was  surrendered  in  1871,  upon  certain 
terms  as  set  out  in  36  Vic.  c.  41  (Dom.). 

(vii)  "Exemption  of  piiblic  lands,  etc." — See  Church  v. 
Fenton  (h),  and  Reg.  v.  Wellington  (?j).  In  Attorney- 
General  of  Canada  v.  Montreal  {w)  it  was  held  by  the 
Supreme  Court  of  Canada  that  lands  under  lease  to  the  Do- 

(r)  6  S.  C.  R.  at  pp.  98-99. 

(s)  7  App.  Caa.  178. 

(«)  12  O.  R.  201. 

(if)  5  S.  G.  R.  239 ;  see  notes  to  sec.  91,  s-s.  24. 

{v)  17  O.  A.  R.  421 ;  snh  mm.  Quirt  v.  Reg.  19  S.  C.  R.  -510. 

(w)  13  S.  C.  R.  352. 


53;2  THE  B.  N.  A.  ACT — SECS.  127,  128. 

minion  government  for  military  purposes  cannot  be  taxed 
for  municipal  purposes ;  on  the  other  hand,  in  Attorney- 
General  of  Canada  v.  Toronto  (x)  the  Dominion  govern- 
ment was  held  liable  to  pay  water  rates  as  being  the  price 
charged  for  a  connnodity  furnished. 

IX. — Miscellaneous   Provisions. 
General. 

faifve^lSn-  127-  If  ^.iiy  persoii  being  at  the  pass- 
viucel  becom- ing  of  this  Act  a  Member  of  the  Legisla- 

iiig  Senators. 

tive  Council  of  Canada,  Nova  Scotia,  or 
New  Brunswick,  to  whom  a  place  in  the 
Senate  is  offered,  does  not  within  thirty 
days  thereafter,  by  writing  under  his  hand 
addressed  to  the  Governor-General  of  the 
Province  of  Canada  or  to  the  Lieutenant- 
Governor  of  Nova  Scotia  or  New  Bruns- 
wick (as  the  case  may  be),  accept  the 
same,  he  shall  be  deemed  to  have  declined 
the  same;  and  any  person  who,  being  at 
the  passing  of  this  Act  a  member  of  the 
Legislative  Council  of  Nova  Scotia  or 
Nev/  Brunswick,  accepts  a  place  in  the 
Senate  shall  thereby  vacate  his  seat  in 
such  Legislative  Council. 

Sa?ce*&"^'  128-  Every  member  of  the  Senate  or 
House  of  Commons  of  Canada  shall  be- 
fore taking  his  seat  therein  take  and  sub- 
scribe before  the  Governor- General  or 
some  person  authorized  by  him,  and  every 
member  of  a  Legislative  Council  or  Legis- 

(x)  18  O.  A.  R.  622. 


THE   B.  N.  A.  ACT — SEC.  128.  53S 

lative  Assembly  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  contained 
in  the  fifth  Schedule  to  this  Act ;  and 
every  member  of  the  Senate  of  Canada 
and  every  member  of  the  Legislative 
Council  of  Quebec  shall  also,  before  taking 
his  seat  therein,  take  and  subscribe  be- 
fore the  Governor- General,  or  some  person 
authorized  by  him,  the  declaration  of 
qualification  contained  in  the  same 
Schedule. 

THE  FIFTH  SCHEDULE. 


Oath  op  Allegiance, 

1,A.  B.  do  swear,  That  I  will  be  faithful  and  bear  true  Alle- 
giance to  Her  Majesty  Queen  Victoria. 

Xote. — llie  name  of  the  Kin;/  or  Queen  of  the  United  Kingdom 
of  Great  Britain  and  Ireland  for  the  time  heimj  is  to  be  sid)stitute(l 
from  time  to  time,  with  proper  terms  of  reference  thereto. 


Declaration  of  Qualification. 

I,  A.B.  do  declare  and  testify,  That  I  am  by  law  duly  quali- 
fied to  be  appointed  a  member  of  the  Senate  of  Canada  [or  as  the 
case  may  Af] ,  and  that  I  am  legally  or  equitably  seised  as  of  free- 
hold for  my  own  use  and  benefit  of  lands  and  tenements  held  in 
free  and  common  socage  [or  seised  or  possessed  for  my  own  uSi§ 
and  benefit  of  lands  or  tenements  held  in  franc-alleu  or  in  roture 


534  THE   B.  X.  A.  ACT — SEC.  129. 

(or  (IS  the  case  tnnij  /;<•),]  in  the  province  of  Nova  Scotia  [ar  <is  the 
ctise  iiKii/  he]  of  tlie  value  of  foui"  thousand  dollars  over  and  above 
all  rents,  dues,  debts,  mortgages,  charges,  and  incumbrances  due  or 
payable  out  of  or  charged  on  or  affecting  the  same,  and  that  I  have 
not  coUusively  or  colourably  obtained  a  title  to  or  become  possessed 
of  the  said  lands  and  tenements  or  any  part  thereof  for  the  pur- 
pose of  enabling  rae  to  become  a  member  of  the  Senate  of  Canada 
[('/•  tiH  the  case  mai/  he],  and  that  my  real  and  personal  property 
are  together  worth  four  thousand  dollars  over  and  above  my 
debts  and  liabilities. 

orexi"tinr°  129.  Except  RS  otlienvise  provided 
oSrsSc.^'by  this  Act,  all  laws  in  force  in  Canada, 
Nova  Scotia,  or  New  Brunswick  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  con- 
tinue in  Ontario,  Quebec,  Nova  Scotia, 
and  New  Brunswick  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  Ireland),  to  be  repealed, 
abolished,  or  altered  by  the  Parliament  of 
Canada,  or  by  the  Legislature  of  the  re- 
spective Province,  according  to  the 
authority  of  the  Parliament  or  of  that 
Legislature  under  this  Act. 

We  have  already  had  such  frequent  occasion  to  i-efer  to 
this  section  (?/),  that  we  need  here  only  sum  up  what  has 

(y)  See  particularly  p.  49,  et  seq,  and  p.  200. 


THE   n.  N.  A.  ACT— SEC.  129.  535 

heen  already  said  and  refer  to  some  of  the  more  important 
decisionH  whicli  deal  with  the  (|uestion  of  its  construction 
and  eti'ect. 

The  leoishitive  bodies  which  were,  after  the  Union,  to 
make  hiw  for  tiie  Dominion  and  for  the  respective  pro- 
vinces liave  their  "  constitution  "  and  powers  provided  for 
in  other  secti(jns  of  the  Act.  The  different  splieres  of 
authority  are  defined.  But,  apart  from  these  necessary 
provisions,  account  had  to  be  taken  of  the  body  of  laws 
and  legal  institutions — the  executive  staff',  administrative 
and  judicial — existing  in  the  provinces  at  the  Union,  and 
this  is  done  by  the  section  in  (question. 

Tlie  whole  body  of  laws — conmion  law  and  statutory 
enactments — was  continued,  but  with  a  clear  line  of  divi- 
sion drawn  through  it  l»y  this  section.  Any  alteration  of 
that  law,  any  Act  in  amendment  of  it,  can  now  l)e  enacted 
only  by  that  legislature  which,  if  the  law  which  it  is 
desired  to  repeal  or  alter  were  non-existent,  could  now 
enact  it.  As  an  example  of  the  application  of  this  rule  to 
provisions  of  the  connnon  law  in  force  in  any  province  at 
the  date  of  Confederation  w^e  may  refer  to  the  decision  of 
the  Supreme  Court  of  Canada  in  Queddy  River  Boom 
Co.  V.  Davidson  (z),  in  which  a  provincial  Act  was  held 
inoperative  to  authorize  the  obstruction  of  a  navigable 
river.  The  cases  in  reference  to  the  amendment  or  repeal 
of  provincial  Acts  of  date  prior  to  1867  are  numerous. 
We  have  from  time  to  time  referred  to  many  of  them. 
Dobie  V.  Temporalities  Board  («),  is  the  leading  case. 
Upon  the  secularization  of  the  "Clergy  Reserves,"  a 
statutory  commutation  of  the  claims  of  the  then  Presby- 
terian clergy  upon  the  revenues  derivable  from  these 
"  Reserves  "  was  effected,  and  by  an  Act  of  the  province  of 
Canada  a  Board  was  incorporated  for  the  management  of 
the  fund  so  created.     After  Confederation,  in  contempla- 

(z)  10  S.  C.  R.  222  ;  see  ante,  p.  383. 
(a)  7  App.  Caa.  136  ;  see  ante,  p.  319. 


536  THE  B.  N.  A.  ACT — SEC.  129. 

tion  of  the  union  of  the  various  Presbyterian  bodies 
throughout  Canada,  the  Quebec  legislature  p>  .ssed  sla  Act 
(38  Vic.  c.  64),  providing  for  the  future  disposal  of  thia 
fund  in  the  event  of  the  union  taking  place.  Somewhat 
similar  legislation  had  taken  place  in  Ontario  (b).  In  the 
view  of  the  Committee,  the  corporation  and  the  corporate 
funds  were  not  capable  of  division  according  to  the  limits 
of  provincial  authority,  and  the  Quebec  Act  was  therefore 
held  invalid : 

•*  The  Act  of  the  parliament  of  the  province  of  Canada  was, 
after  the  passing  of  the  B.  N.  A.  Act,  1867,  continued  in  fores' 
within  the  provinces  of  Ontario  and  Quebec  by  virtue  of  section 
129  of  the  latter  statute.  .  .  .  The  powers  conferred  by 
this  section  upon  the  provincial  legislatures  of  Ontario  and 
Quebec  to  repeal  and  alter  the  statutes  of  the  old  parliament  of 
the  province  of  Canada,  are  made  precisely  co- extensive  with 
the  powers  of  direct  legislation  with  Avliich  these  bodies  are  in- 
vested by  the  other  clauses  of  the  Act  of  1867.  In  order, 
therefore,  to  ascertain  how  far  the  provincial  legislature  of 
Quebec  had  power  to  alter  and  amend  the  Act  of  1858,  incor- 
^  porating  the  Board  for  the^  management  of  the  Temporalities 
Fund,  it  becomes  necessary  to  revert  to  sections  91  and  92  of  the 
B.  N.  A.  Act,  which  enumerate  and  define  the  various  matters 
which  are  within  the  exclusive  legislative  authority  of  the  par- 
liament of  Canada,  as  well  as  those  in  relation  to  which  the 
legislatures  of  the  rcdpective  provinces  have  the  exclusive  right, 
of  making  laws.  If  it  could  be  established  that,  in  the  absence 
of  all  previous  legislation  on  the  subject,  the  legislature  of  Que- 
bec would  have  been  authorized  by  section  92  to  pass  an  Act 
identical  in  its  terms  with  the  Act  of  1858,  then  it  would  follow- 
that  that  Act  has  been  validly  amended  by  the  38  Vic.  c.  64.. 
On  the  other  hand,  if  the  legislature  of  Quebec  has  not  derived 
such  power  of  enactment  from  section  92,  the  necessary  infer- 
ence is  that  the  legislative  authority  required  in  terms  of  section 
129  to  sustain  its  right  to  repeal  or  alter  an  old  law  of  the  par- 
11  iment  of  the  province  of  Canada  is  in  this  case  wanting," 

(b)  See  Cowan  v.  Wright,  23  Grant  616. 


THE  B.  N.  A.  ACT — SEC.  130.  537 

Upon  an  examination  of  the  Act  of  1858,  the  Committee 
was  of  opinion  that  it  could  not  have  been  validly 
passed  by  the  Quebec  legislature  and  could  not  therefore 
after  the  Union  be  altered  or  amended  by  provincial  legis- 
lation (c). 

In  reference  to  the  continuation  of  existing  courts  we 
need  add  nothing  to  what  was  said  in  chapter  XI.  (d), 
beyond  drawing  attention  to  the  fact  that  the  determina- 
tion of  the  line  between  "  the  authority  of  the  parliament 
or  of  that  legislature  under  this  Act "  in  relation  to  courts^ 
their  organization  and  procedure,  is  one  of  the  most  difficult 
tasks  set  by  the  B.  N.  A.  Act, 

In  reference  to  the  executive  staff,  this  section  should 
be  read  in  connection  with  sections  130  and  131,  and  (as  ta 
Ontario  and  Quebec)  134  and  135.  We  need  here  do  no 
more  than  refer  to  previous  pages  on  which  the  question  ia 
discussed  (e). 

130.  Until  the  Parliament  of  Canada  otofflSsto 
otherwise  provides,  all  officers  of  the 
several  Provinces  having  duties  to  dis- 
charge in  relation  to  matters  other  than 
those  coming  within  the  classes  of  sub- 
jects 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  liabilities,  respon- 

(c)  See  also  Willett  v.  DeGrosbois  {aJtte,  p.  285) ;  Noel  v.  Richmond 
(ante,  p.  362) ;  Cooey  v.  Brorae  (ante,  p.  361) ;  Hart  v.  Missiasquoi  (ante, 
p.  361) ;  Munn  v.  McCannell,  2  P.  E.  R.  148 ;  Keefe  v.  McLennan,  2  Russ. 
6i  Ches.  5  ;  2  Cart.  400 ;  Reed  v.  Mousseau,  8  S.  C.  R.  408 ;  Peak  v.  Shields^ 
6  O.  A.  R.  639.    Note  also  e.  137,  post. 

(d)  Ante,  p.  227,  et  seq.  See  also  notes  to  s.  91,  s-s.  27,  B.  92,  s-s.  14, 
and  s.  101. 

(e)  Ante,  p.  49,  et  seq.;  Reg.  v.  Reno,  4  P.  R.  (Ont.)  294. 


538  THE   B.  N.  A.  ACT — SEC.  131,  132. 

sibilities,  and  penalties  as  if  the  Union 
had  not  been  made. 

In  Regina  v.  Horner  (/),  Mr.  Justice  Ramsay,  delivering 
the  judgment  of  the  Court  of  Queen's  Bench  of  Quebec, 
says  : 

"  In  saying  they  are  federal  officers,  the  statute  must  be 
■understood  quoad  their  federal  duties,  for  the  parliament  of 
Canada  could  not  legislate  for  their  local  duties." 

Xw^offlcera  131.  Until  the  Parliament  of  Canada 
otherwise  provides,  the  Governor- General 
in  Council  may  from  time  to  time  appoint 
such  officers  as  the  Governor- General  in 
Council  deems  necessary  or  proper  for  the 
effectual  execution  of  this  Act. 

Treaty obiiga-  -^22,  The  ParHameut  and  Govern- 
ment 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  Empire, 
towards  foreign  countries,  arising  under 
treaties  between  the  Empire  and  such 
foreign  countries. 

In  Ex  parte  Worms,  before  Chief  Justice  Dorion  {z),  it 
was  argued  that  the  Imperial  Extradition  Act  of  1870 
could  not  apply  to  Canada,  because  of  the  express  power 
conveyed  by  this  section.  Tht,  Chief  Justice  however  held 
that  the  two  provisions  are  in  no  way  inconsistent,  and 
that,  if  they  were,  the  Extradition  Act,  being  an  Imperial 
Act  of  later  date,  must  govern  in  all  matters  relating  to  the 
extradition  of  fugitive  criminals.     The  overruling  legisla- 

(/)  2  Steph.  Dig.  450 ;  2   Cart.  .317.     See  ante,  p.        . 

(2)  22  L.  C.  Jur.  109  ;  2  Cart.  315.     See  also  In  re  Williams,  7  P.  K. 
(Ont.)275. 


THE   B.  N.  A.  ACT — SECS.  133,  134.  539 

tidn  of  the  Imperial  parliament  prevents  us  from  utilizing 
the  power  conferred  by  this  section. 

While  we  may  legislate  in  aid  of  British  treaties  affect- 
ing us,  we  have  as  yet  no  power  to  make  treaties  with  for- 
eign countries  («). 

133.  Either     the    EngHsh     or    the^rarrfni'^ 
French   language  may  be  used  by  any  ^^"*'"^^^^" 
person  in  the  debates  of  the  Houses  of 

the  Parliament  of  Canada  and  of  the 
Houses  of  the  Legislature  of  Quebec ;  and 
both  those  languages  shall  be  used  in  the 
respective  Kecords  and  Tournals  of  those 
Houses;  and  either  of  those  languages 
may  be  used  by  any  person  or  in  any 
pleading  or  process  m  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  Legislature  of  Quebec  shall  be 
printed  and  published  in  both  those 
languages. 

Ontario  and  Quebec. 

134.  Until  the  Legislature  of  Ontario  fctS* 
or  of  Quebec  otherwise  provides,  the  Lieu-  ouSaud 

Quebec. 

tenant-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   Attorney-General,   the    Secretary 

(e)  See  Todd,  "  Pari.  Govt.  Brit.  Col.,"  192. 


540  THE   B.  N.  A.  ACT — SEC.  135. 

and  Eegistrar  of  the  Province,  the  Trea- 
surer 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 
prescribe  the  duties  of  those  officers  and 
of  the  several  departments  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  officers  to  hold  office  during 
pleasure,  and  may  from  time  to  time  pre- 
scribe the  duties  of  those  officers,  and  of 
the  several  departments  over  which  they 
shall  preside  or  to  which  they  shall  be- 
long, and  of  the  officers  and  clerks 
thereof. 

Kr-of*"         135.  Until  the  Legislature  of  Ontario 

executive  /^i  j.i  •  •  i  ^^      '    ^  i. 

officers.  or  Qucbec  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 
Eegistrar  of  the  Province  of  Canada, 
Minister  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  Can- 
ada, or  Canada,  and  not   repugnant   to 


THE   B.  N.  A.  ACT — SECS.  136,  137.  541 

this  Act,  shall  be  vested  in  or  imposed  on 
any  officer  to  be  appointed  by  the  Lieu- 
tenant-Governor for  the  discharge  of  the 
same  or  any  of  them;  and  the  Commis- 
sioner 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  tha  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-  The  words  ''and  from  thence  to  XmJSraiT 
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   apply  to  the   next  Session  of  the 

Parliament   of    Canada,   if   the    subject 

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 

Ontario  and  Quebec  respectively,  if  the 
subject  matter  of  the  Act  is  within  the 


542  THE   B.  N.  A.  ACT — SEC.  138-140. 

powers  of  the  same  as  defined  by  this 
Act. 

hf  uameT'  138.  From  and  after  the  Union,  the 

use  of  the  words  "  Upper  Canada " 
instead  of  "  Ontario,"  or  "  Lower  Can- 
ada" instead  of  "  Quebec,"  in  any  deed, 
writ,  process,  pleading,  document,  matter, 
or  thing,  shall  not  invalidate  the  same. 

prVcunr°*  139.  Any  Proclamation  under  the 
Union  fo com- Great  Seal  of  the  Province  of  Canada 
uuion.  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  as  if  the  Union  had  not 
been  made. 


As  to  issuG  of 
Proclama- 
tions after 


140.  Any  Proclamation  which  is  au- 
uonsaiter  thoHzed  by  ally  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  now  issued  before  the  Union, 
may  be  issued  by  the  Lieutenant-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  pro- 


THE   B.  N.  A.  ACT — SECS.  l-tl-143.  543" 

claimed  shall  be  and  continue  of  the  lilie     • 
force  and  effect  in  Ontario  or  Quebec  as  if 
the  Union  had  not  been  made. 

141.  The  Penitentiary  of  the  Pro- ^^"^^^'^"^"^y- 
vince  of  Canada  shall,  until  the  Parlia- 
ment of  Canada  otherwise  provides,  be 

and  continue  the  Penitentiary  of  Ontario 
and  Quebec. 

142.  The  division  and  adjustment  of  ^JspSr 
the  debts,   credits,  liabilities,  properties  ^  ^^'  °  *'^ 
and  assets  of  Upper  Canada  and  Lower 
Canada  shall  be  referred  to  the  arbitra- 
ment of  three  arbitrators,  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  Legis- 
latures of  Ontario  and  Quebec  have  met ; 
and  the  arbitrator  chosen  by  the  Govern- 
ment of  Canada  shall  not  be  a  resident 
either  in  Ontario  or  in  Quebec. 

(i)  See  In  re  Arbitration  between  Ontario  and  Quebec  (h)' 

143.  The  Governor-General  in  Coun-  Sdr^* 
cil  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 

(6)  6  L.  J.  N.  S.  212 ;  4  Cart.  712.  > 


544  THE   B.  N.  A.  ACT — SECS.  144,  145. 

property  of  that  Province ;  and  any  copy 
thereof  or  extract  therefrom,  duly  certi- 
fied by  the  officer  having  charge  of  the 
original  thereof  shall  be  admitted  as 
evidence. 

^f"iow\*8hrir8  144.  The  Lieutenant-Governor  of 
an  Quebec.  QQgbec  may  from  time  to  time,  by  Pro- 
clamation under  the  Great  Seal  of  the 
Province,  to  take  effect  from  a  day  to  be 
appointed  therein,  constitute  townships 
in  those  parts  of  the  Province  of  Quebec 
in  which  townships  are  not  then  already 
constituted,  and  fix  the  metes  and  bounds 
thereof. 


X. — Intercolonial  Kailway. 

mument^a°7d        145.  Inasiiiuch  as  the  Provinces  of 
■cumdX°*  °' Canada,  Nova  Scotia,  and  New  Bruns- 

iiiake  railway       .,1  ..,.  t,  ..  n, 

herein  de-      WICK  havc  lomed  lu  a  declaration  that 

scribed.  "   ^ 

the  construction  of  the  Intercolonial  Rail- 
way is  essential  to  the  consolidation  of 
the  Union  of  British  North  America,  and 
to  the  assent  thereto  of  Nova  Scotia  and 
New  Brunswick,  and  have  consequently 
agreed  that  provision  should  be  made  for 
its  immediate  construction  by  the  Govr 
ernment  of  Canada:  Therefore,  in  order 
to  give  effect  to  that  agreement,  it  shall 
he  the  duty  of  the  trovernment  and  Par- 
liament of  Canada  to  provide  for  the  com- 
mencement within  six  months  after  t;he 


THE  B.  N.  A.  ACT — SEC.  146.  545 

Union,  of  a  railway  connecting  the  Eiver 
St.  Lawrence  with  City  of  Halifax  in 
Nova  Scotia,  and  for  the  construction 
thereof  without  intermission,  and  the 
completion  thereof  with  all  practicable 
speed. 

XI. — Admission  op  other  Colonies  (i). 

146-  It  shall  be  lawful  for  the  Queen,  SirNew-*'*' 
by  and  with  the  advice  of  Her  Majesty's  &nto the 
Most  Honourable  Privy  Council,  on  Ad- 
dresses from  the  Houses  of  Parliament  of 
Canada,  and  from  the  Houses  of  the 
respective  Legislatures  of  the  Colonies 
or  Provinces  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  Parliament  in 
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  Ad- 
dresses 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  Parliament  of  the  United  Kingdom  of 
Great  Britain  and  Ireland. 

(i)  See  Part  IV,  post. 

Can.  Con. — 86 


£46 


THE  B.  N.  A.  ACT — SEC.  147. 


147-   In   case   of  the   admission   of 


As  to  repre- 
sentation of 

laud  and  '     Newfoundlaiid  and  Prince  Edward  Island, 

Prince  Ert-  ri  iini  "i-i 

h^sen^t*""*    or  either  of  them,  each  shall  be  entitled 


to  a  representation  in  the  Senate  of  Can- 
ada of  four  members,  and  (notwithstand- 
ing anything  in  this  Act)  in  case  of  the 
admission  of  Newfoundland  the  normal 
number  of  Senators  shall  be  seventy-six 
and  their  maximum  number  shall  be 
eighty-two ;  but  Prince  Edward  Island 
when  admitted  shall  be  deemed  to  be 
comprised  in  the  third  of  the  three 
divisions  into  which  Canada  is,  in  rela- 
tion 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  representation  of  Nova  Scotia 
and  New  Brunswick  in  the  Senate  shall, 
as  vacancies  occur,  be  reduced  from 
twelve  to  ten  members  respectively,  and 
the  representation  of  each  of  those  Pro- 
vinces shall  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  direc- 
tion of  the  Queen. 


PAET  IV. 

SUBSEQUENT  GEOWTH. 


CHAPTER  XIII. 


THE  NORTH-WEST  TERRITORIES. 

The  future  extension  of  the  Dominion  of  Canada,  ho  as 
ultimately  to  enihrace  the  whole  of  British  North  America 
from  ocean  to  ocean,  was  anticipated,  as  appears  hy  sections 
14G  and  147  of  the  B.  N.  A.  Act,  18G7.  We  need  here  <lraw 
attention  to  the  former  section  only  (d),  hy  which  provision 
was  made.for  the  admission  of  the  other  British  territories, 
organized  and  unorganized.  The  important  point  to  he 
noted  is  that  hy  virtue  of  the  hist  clause  of  this  section,  the 
various  orders  in  council  sul)se(|uently  promulgated  effect- 
ing the  admission  to  the  Union  of  Rupert's  Land  and  the 
North-western  Territory,  and  of  British  Columl)ia  and 
Prince  Edward  Island  are,  in  ett'ect,  Imperial  Acts,  and  are, 
to  those  new  portions  of  the  Dominion,  their  constitutional 
charters,  amended,  however,  in  certain  particular  hy  subse- 
quent Imperial  legislation. 

The  Dominion  government  lost  no  time  in  setting  to 
work  to  secure  control  of  the  vast  territories  lying  between 
Ontario  and  British  Columl)ia.  At  the  very  first  session  of 
the  parliament  of  Canada,  an  address  (h)  wtis  passed  by  both 
Houses  representing  the  expediency,  both  from  a  Canadian 
and  an  Imperial  point  of  view,  of  an  early  extension  of  the 
Dominion  to  the  shores  of  the  Pacific.  This  address  pointed 
out  the  necessity  for  a  "stable  government"  and  the  estab- 

(a)  Bee  aN(«,  p,  645.    . 

(b)  See  Dom.  Btat.  1872,  p.  Ixiii.,  et  teq. 


550  THE   CANADIAN   CONSTITUTION. 

lishment  of  institutions  analogous  to  those  of  the  older  pro- 
vinces, in  order  to  the  development  of  the  agricultural, 
mineral,  and  commercial  resources  of  the  Great  Lone  Land, 
and  prayed  that  Her  Majesty  might  be  pleased  (pursuant 
to  section  146  of  the  B.  N.  A.  Act)  "  to  unite  Rupert's  Land 
and  the  North- Western  Territory  with  this  Dominion,  and 
to  grant  to  the  parliament  of  Canada  authority  to  legislate 
for  their  future  welfare  and  good  government." 

That  part  of  these  territories  (c)  known  as  Rupert's  Land 
had  been  under  the  control  of  the  Hudson's  Bay  Company 
ever  since,  in  1G70,  King  Charles  II.  granted  his  charter  to 
those  "adventurers  trading  into  Hudson's  Bay," and  as  lords- 
proprietors  they  had  full  right  of  government  and  adminis- 
tration therein  subject  to  the  sovereignty  of  England.  The 
boundaries  of  Rupert's  Land  were  never  accurately  deter- 
mined. Speaking  roughly,  the  country  known  by  that 
name  comprised  the  territory  watered  by  streams  flowing 
into  Hudson's  Bay;  but  the  company  had  extended  their 
operations  and  assumed  jurisdiction  (d)  over  other  parts  of 
the  North- Western  Territory.  We  note  this  distinction 
between  the  North- Western  Territory  proper  and  Rupert's 
Land,  because,  as  we  shall  see,  the  authority  of  the  Domin- 
ion parliament  to  legislate  for  these  two  portions  respect- 
ively of  this  great  country  flowed,  in  the  first  instance,  from 
different  Imperial  Acts. 

The  existence  of  the  Hudson  Bay  Company's  charter 
rendered  it  necessary,  in  the  view  of  the  home  government, 
that  terms  should  first  be  settled  with  that  company  for  a 
surrender  of  "all  the  rights  of  government"  and  other 
rights,  privileges,  etc.,  in  Rupert's  Land  enjoyed  by  the 
company  under  their  charter,  other  than  their  trading  and 
commercial  privileges.   To  this  end,  the  Rupeii's  Land  Act,.. 

(c)  See  a  very  interesting  article  in  WeBtern  Law  Times,  Vol.  I.,  June, 
1890,  which  contains  in  brief  an  account  of  the  early  organization  of  these 
territories  under  the  H.  B.  Co. 

(d)  Bee  post. 


THE    NORTH-WEST  TERRITORIES.  551 

1868,  was  passerl  by  the  Imperial  parliament,  empowering 
Her  Majesty  to  accept  such  surrender  on  terms  to  be  agreed 
upon — "  subject  to  the  approval  of  Her  Majesty  in  council 
of  the  terms  and  conditions  to  be  proposed  by  tlie  Domin- 
ion parliament  for  the  admission  of  Rupert's  Land  ..nd 
embodied  in  an  address."  The  5th  section  of  this  Act  pro- 
vides : 

"5.  It  shall  be  competent  to  Her  Majesty  by  any  such  order 
or  orders  in  council  as  aforesaid  on  address  from  the  Houses  of 
the  parliament  of  Canada  to  declare  that  Rupert's  Land  shall 
from  a  date  to  be  therein  mentioned,  be  admitted  into  and  be- 
come part  of  the  Dominion  of  Canada  ;  and  thereupon  it  shall  be 
lawful  for  the  parliament  of  Canada  from  the  date  aforesaid  to 
make,  ordain,  and  establish  within  the  land  and  territory  so  ad- 
mitted as  aforesaid  all  such  laws,  institutions,  and  ordinances, 
and  to  constitute  such  courts  and  officers  as  may  be  necessary 
for  the  peace,  order  and  good  gcvernment  of  Her  Majesty's  sub- 
jects and  others  therein  ;  provided  that  unti)  otherwise  enacted 
by  the  said  parliament  of  Canada  all  the  powers,  authorities  and 
jurisdiction  of  the  several  co''irts  of  justice  now  established  in 
Rupert's  Land  and  of  the  several  officers  thereof  and  of  all 
magistrates  and  justices  now  acting  within  the  said  limits  shall 
continue  in  full  force  and  effect  therein." 

This  Act,  it  will  be  noticed,  is  confined  to  Rupert's  Land, 
but,  under  tlie  terms  agreed  upon  by  the  Hudson  Bay  Com- 
pany and  the  Canadian  delegates,  the  Company  surrendered 
all  their  rights  of  government  and  other  riglits,  privileges, 
etc.,  etc.,  not  only  in  Rupert's  Land  but  also  in  any  other 
part  of  British  North  America  (other  than  Canada  and 
British  Columbia)  and  all  lands  and  territories  therein,  save 
some  50,000  acres  reserved  to  them  by  the  agreement.  We 
need  not  refer  further  to  the  terms  of  surrender  as  embodied 
in  the  Imperial  order  in  council  finally  passed,  because  those 
terms  were  simply  the  price  paid  by  the  Dominion  for  the 
surrender,  and  do  not  in  any  way  touch  our  subject.  The 
order  in  council — 23rd  June,  1870 — which  finally  admitted 
Rupert's  Land  and   the  North-Westem  Territory  to  the 


552  THE   CANADIAN   CONSTITUTION. 

Union  provided  that  from  and  after  the  15th  day  of  July, 
1870,  those  vast  areas  should  form  part  of  Canada,  and  that 
as  to  the  North- Western  Territory  "the  parliament  of 
Canada  shall  from  the  day  aforesaid  have  full  power  and 
authority  to  legislate  for  the  future  welfare  and  good  gov- 
ernment "  thereof ;  but  it  made  no  further  provision  as  to 
legislation  for  Rupert's  I^and,  because  that  was  pro^dded  for 
by  the  section  of  the  Rupert's  Land  Act,  1868,  which  we 
have  already  quoted.  As  to  the  North- Western  Territory 
proper,  therefore,  the  legislative  power  was  conferred  by 
the  order  in  council  operating  as  an  Imperial  Act  by  virtue 
of  section  146  of  the  B.  N.  A.  Act;  while  as  to  Rupert's  Land 
the  legislative  power  was  conferred  by  the  Rupert's  Land  Act, 
1868.  Nothing,  however,  turns  upon  this  distinction,  for,  as 
we  shall  see,  after  the  province  of  Manitoba  was  formed, 
full  legislative  power  was  given  to  the  parliament  of  Canada 
over  all  territories  not  included  within  the  boundaries  of 
any  province,  so  that  any  possible  distinction  which  might 
have  been  urged  as  arising  from  the  difference  in  the 
phraseology  of  the  two  earlier  enactments  is  entirely  oblit- 
erated. 

Anticipating  the  admission  of  these  territories,  the 
Dominion  parliament  in  1869  passed  "  An  Act  for  the  tem- 
porary government  of  Rupert's  Land  and  the  North- 
western Territory,  when  united  with  Canada  "  (32-33  Vic. 
c.  3),  providing  for  the  appointment  of  a  Lieutenant-Gov- 
ernor to  administer  the  government  of  these  territories 
under  instnictions  from  the  Governor-General  in  Council 
and  that  by  Order  in  Council  the  Lieutenant-Governor 
might  be  empowered  (subject  to  such  conditions  and  restric- 
tions as  might  be  imposed  by  such  Order  in  Council),  "to 
make  provision  for  the  administration  of  justice  therein, 
and  generally  to  make,  ordain,  and  establish  all  such  laws, 
institutions,  and  ordinances  as  may  be  necessary  for  the 
peace,  order,  and  good  government  of  Her  Majesty's  sub- 
jects and  others  therein."     The  Lieutenant-Governor  was  to 


THE   NORTH-WEST  TERRITORIES.  553 

be  aided  by  a  Council,  not  exceeding  fifteen,  nor  less  than 
seven  persons,  to  be  appointed  by  the  Governor-General 
in  Council.  The  powers  of  this  Council  were  to  be  from 
time  to  time  as  defined  by  Order  in  Council,  i.e.,  by  the 
Dominion  government.  By  the  5th  and  6th  sections  of 
this  Act  it  was  provided : 

"5.  All  the  laws  in  force  in  Rupert's  Land  and  the  North- 
western Territory  at  the  time  of  their  admission  to  the  Union 
shall  so  far  as  they  are  consistent  with  "the  British  North 
America  Act,  1867," — with  the  terms  and  conditions  of  such  ad- 
mission approved  of  by  the  Queen  under  the  146th  section 
thereof — and  with  this  Act — remain  in  force  until  altered  by  the 
parliament  of  Canada,  or  by  the  Lieutenant-Governor  under  the 
authority  of  this  Act. 

"6.  All  public  officers  and  functionaries  holding  office  in 
Rupert's  Land  and  the  North-Western  Territory  at  the  time  of 
their  admission  into  the  Union,  excepting  the  public  officer  or 
functionary  at  the  head  of  the  administration  of  affairs,  shall 
continue  to  be  public  officers  and  functionaries  of  the  North- 
West  Territories  with  the  same  duties  and  powers  as  before, 
until  otherwise  ordered  by  the  Lieutenant-Governor  under  the 
authority  of  this  Act." 

to  which  clauses  we  shall  shortly  have  occasion  again  to 
refer. 

Again,  in  1870  (the  admission  not  having  yet  taken 
place)  the  parliament  of  Canada  passed  "  An  Act  to  amend 
and  continue  the  Act  32-33  Vic.  c.  3 ;  and  to  establish  and 
provide  for  the  government  of  the  province  of  Manitoba  " 
— 33  Vic.  c.  3.  The  provisions  of  this  Act  as  to  Manitoba 
will  be  dealt  with  later.  As  to  the  remaining  portions  of 
the  territories  about  to  become  part  of  the  Dominion,  the 
only  amendment  of  the  Act  of  the  previous  session  was 
in  the  provision  that  the  Lieutenant-Governor  of  Manitoba 
should  also  be  commissioned  as  Lieutenant-Governor  of 
the  North- West  Territories — as  such  remaining  portions 
were  now  to  be  called.  With  this  amendment  the  Act  of 
1869  was  continued  to  the  end  of  the  session  of  1871. 


554  THE   CANADIAN   CONSTITUTION. 

Confining  our  attention,  then,  to  the  Nortli-West  Terri- 
tories ;  wlien  next  the  parliament  of  Canada  met,  these 
territories  were  part  of  the  Dominion,  and  much  of  the 
legishition  of  that  session  applied  to  them  ecjually  with  the 
other  parts  of  Canada.  From  that  time  to  the  present  the 
Dominion  pai'liament  has  had  the  power  to  hi^islate  for  the 
North-West  Teriitories  in  reference  to  all  matters  within 
the  ken  of  a  colcmial  legislature  (e);  and  although  large- 
powei-s  of  local  self-governnient  have  l)een  conceded  to  the 
inhahitants  of  these  Territories  they  are  held  at  the  will  of 
the  pailiam(!nt  of  Canada.  To  what  extent  that  parliament 
will  interpose  in  reference  to  inattens  over  which  legislative^ 
power  has  been  conferred  on  the  North-West  assembly, 
depend."  on  "conventions"  not  capable  of  accurate  definition. 
No  doubt  before  very  long  a  new  province  or  provinces 
will  be  formed  out  of  these  territories.  The  position, 
therefore,  is  so  evidently  temporary  that  we  feel  some  diflS- 
culty  in  deciding  to  what  extent  of  detail  we  should  go  in 
discussing  the  present  position  of  the  North-West  Terri- 
tories. What  we  write  will  in  all  probability  be  in  a  very 
short  time  of  historical  interest  merely.  Present  useful- 
ness therefore  must  be  our  guide,  leaving  the  future  to 
take  care  of  itself.  Because,  however,  cases  may  arise  in 
which  the  rights  of  litigants  will  depend  on  the  law  as  it 
stood  at  some  particular  time  since  liS70,  we  deem  it  advis- 
able before  discussing  the  Acts  which  are  to-day  the 
constitiiticmal  charters  of  the  North-West  Territories,  to 
state  shortly  the  changes  which  have  been  iriade  from  time 
to  iime  up  to  the  present,  in  order  that  the  proper  sources 
of  legislation  at  any  given  period,  and  in  relation  to  any 
given  matter,  may  be  consulted. 

On  the  15th  of  July,  1(S70,  these  Territories  became  part 
of  Canada.  The  Acts  of  the  two  previous  sessions  expiring 
at  the  end  of  the  session  of  1871,  a  permanent  Act  was 
passed  (34  Vic.  c.  16),  containing  the  same  provisions  as  had 

(<?)  See  chapter  IX.,  «ntc.  , 


THE   N<JHTH-WE.ST  TERIirrORIEH.  555 

been  mafle  by  tlioso  Acts.  We  sliould  note  here  the  B.  N.  A. 
Act,  1871  (34-85  Vic.  c.  28),  which  will  be  printed  in  full 
when  we  come  to  deal  with  ManitoVm.  So  far  as  conceniH 
the  North-WcHt  Territories,  it  merely  validated  the  pre- 
vious Canadian  legislation  (32-83  Vic.  c.  3,  and  83  Vic.  c.  3), 
and  made  the  general  provision  al)ove  noted  that  "the  par- 
liament of  Canada  may  from  time  to  time  make  provision 
for  the  a(hninistration,  peace,  order,  and  good  govern- 
ment (/)  of  any  territory  not  for  the  time  being  included 
in  any  territory." 

Per iod  from  Jo  July,  1.S70,  to  1  November,  187o. 

During  this  period,  then,  legislative  authority  over  the 
North-West  Territ<')ries  was  exercised  or  exerciseal)le — in 
the  order  of  efficacy — 

(a)  By  the  Imperial  Parliament : 

(b)  By  the  Parliament  of  Canada  : 

(c)  By  the  Lieutenant-Govei-nor  of  Manitol)a  in  relation 
only  to  such  matters  as  were  designated  by  order  (jf  the 
Governor-General  in  Council.  By  8()  Vic.  c.  5,  the  ninnber 
of  the  council  of  the  North- West  Territories  was  increased 
to  a  maxinmm  of  21,  instead  of  15,  the  mininnim  remaining 
at  7.  Nothing,  however,  was  done  toward  the  government, 
by  local  authority,  of  the  North-West  Territories  until 
Decendjcr,  1872,  when  Lieutenant-Governor  Morris  of  Mani- 
toba was  commissioned  to  act  as  Lieutenant-Governor  of 
these  Territories,  with  a  council  of  eleven  mendjers  to  aid 
him  in  the  administration  of  affairs  there.  By  Order  in 
Council  of  date  12th  February,  1873,  it  was  ordered: 

"  1.  That  tiie  Lieutenant-Governor  of  the  North-West  Terri- 
tories, hj)  and  with  the  advitr  of  the  said  Council  shall  be,  and  he  is 
hereby  authorized  to  make  provision  for  the  administration  of  jus- 
tice in  the  said  territories,  and  generally  to  make  and  establish  such 
ordinances  as  may  be  necessary  for  the  peace,  order,  and  good 
government   of  the   said   North-West   Territories   and   of  Her 

(f)  Sea  Riel  v.  Il'*cj;na,  10  App.  Cas.  075,  fully  noted,  (iiite,  p.  347. 


556  THE   CANADIAN   CONSTITUTION. 

Majesty's  subjects  and  others  therein.  Provided,  first,  that  no 
:snch  ordinance  shall  deal  with  or  affect  any  subjects  which  are 
beyond  the  jurisdiction  of  a  provincial  legislature,  under  the 
♦  British  North  America  Act,  1807,'  and  provided,  second,  that 
all  such  ordinances  shall  be  made  to  come  into  force  only  after 
they  have  been  approved  by  the  Governor-General  in  Council, 
unless  in  case  of  urgency,  and  in  that  case  the  urgency  shall  be 
stated  on  the  face  of  the  ordinance." 

with  further  provision  for  the  transmission  of  all  ordi- 
nances to  the  Governor-General,  who  should  be  at  liberty 
to  disallow  any  of  them  at  any  time  within  two  years  from 
their  passB^e. 

Perwd  from  1  November,  1873.  to  7  October,  1876. 

On  the  1st  of  November,  1873,  the  Act  36  Vic.  c.  34, 
came  into  force.  It  provided — probably  to  remove  doubts 
— that  the  local  lecfislation  on  the  various  subjects  whicli 
by  Order  in  Council  to  that  date  had  been  committed 
to  the  legislative  ken  of  the  Lieutenant-Governor  and  his 
Council,  should  thereafter  be  passed  by  the  Lieutenant- 
Governor,  by  and  with  the  advice  and  consent  of  the 
Council.  In  relation  to  all  mattei*s  not  so  committed, 
legislative  power  was  by  the  Act  conferred  on  the  Gov- 
ernor-General in  Council.  The  legislative  power  of  both 
the  Dominion  cabinet  and  the  Lieutenant-Governor  in 
Council — each  within  its  respective  sphere — might  be  ex- 
ercised in  the  way  of  extending  to  the  Territories  general 
Acts  of  the  parliament  of  Canada  with  such  modification 
a,s  might  be  thought  desirable,  or  in  the  way  of  repealing 
such  general  Acts  so  far  as  they  might  apply  to  the  terri- 
tories; with  this  proviso,  however,  that  no  law  to  be 
passed  by  either  of  these  bodies  should  (1)  be  inconsistent 
with  any  Act  of  the  parliament  of  Canada  of  express  ap- 
plication to  the  Territories ;  (2)  alter  the  punishment  pro- 
vided for  any  crime  or  the  legal  description  or  character  of 
the  crime  itself ;  (3)  impose  any  tax  or  any  duty  of 
customs  or  excise  or  any  penalty  exceeding  one  hundred 


THE   NORTH-WEST  TERRITORIES.  557 

dollars ;  or  (4)  appropriate  any  monies  or  property  of  the 
Dominion  without  the  authority  of  the  Dominion  parlia- 
ment. All  local  legislation  was  to  be  subject  to  disallow- 
ance within  two  yeara  after  its  passage. 

During  this  period,  therefore,  legislative  power  was 
exercisable — in  the  order  of  its  efficacy — 

(a)  By  the  Imperial  Parliament : 

(b)  By  the  Parliament  of  Canada : 

(c)  By  the  Governor-General  in  Council  in  relation  to 
all  matters  not  committed  to  the  Lieutenant-Governor  and 
his  Council ;  which  in  reality  placed  the  entire  legislative 
power  (subject  to  the  foregoing)  in  the  hands  of  the 
Dominion  government,  if  it  had  chosen  to  exercise  it,  for 
the  powers  of  the  Lieutenant-Governor  were  themselves 
defined  by  the  Order  in  Council  to  which  we  have 
referred,  and  could  of  course  be  at  any  time  curtailed : 

(d)  By  the  Lieutenant-Governor  in  Council  in  relation 
to  all  matters  from  time  to  time  committed  to  them  for 
legislative  action. 

During  this  period,  however,  no  further  Orders  in 
Council  were  passed  relative  to  the  powers  of  the  Lieuten- 
ant-Governor in  Council,  nor  was  the  legislative  power  of 
the  Governor-General  in  Council  exercised,  so  that  this  and 
the  earlier  period  are  practically  one.  Dominion  legisla- 
tion of  a  general  character  passed  during  this  period  w^ould 
prima  facie  apply  to  the  North- West  Territories,  and  in 
addition  we  may  note  36  Vic.  c.  35,  which  made  special 
provision  for  the  administration  of  justice  therein. 

Period  from  7  October,  1876,  to  28  April,  1877. 

In  1875  was  passed  "  The  North- West  Territories  Act, 
1875,"  which  came  into  force,  however,  only  on  the  7th 
of  October,  1876.  It  amended  and  consolidated  previous 
legislation,  and  under  it  the  first  resident  Lieutenant-Gov- 
ernor was  appointed,  and  the  first  legislative  session  took 


558  THE  CANADIAN   CONSTITUTION. 

place  in  the  Territories.  The  Council  was  reduced  in  num- 
ber— so  far  as  appointed  nieudiers  were  concerned — to  five 
persons,  with  powers  as  defined  in  the  Act,  and  with  such 
further  powers  not  inconsistent  therewith  as  might  from 
time  to  time  be  conferred  by  Order  in  Council.  As,  how- 
ever, the  section  of  the  Act  defining  the  legislative  powers 
of  the  Lieutenant-Governor  in  Council  (g),  was  in  force  for 
only  some  six  mcmths,  and  as  a  reference  to  the  ordinances 
passed  at  the  session  held  while  it  was  so  in  ft)rce  discloses 
that  nothing  was  done  in  the  way  of  legislation  which  was 
not  fully  justified  l)y  the  powera  conferred  by  the  Act,  we 
have  not  thought  it  necessary  to  quote  the  section.  By 
the  Oth  section  of  this  Act  all  laws  and  ordinances  then  in 
force  in  the  Territories  were  to  continue  until  altered  or  re- 
pealed by  competent  authority.  The  Governor-General  in 
Council  was  empowered  (h)  to  apply  any  Act,  or  part  of 
any  Act  of  the  Dominion  parliament  to  the  Territories 
generally  or  to  any  part  thereof.  The  Lieutenant-Governor 
was  empowered  to  establish,  as  population  increased,  elec- 
toral districts,  and  it  was  provided  that  so  soon  as  the 
number  of  elected  members  of  the  Council  should  reach 
21,  the  Council  should  cease  to  exist  and  a  Legislative 
Assembly  take  its  place.  In  the  electoral  districts  the 
Lieutenant-Governor  in  Council  might  impose  direct  tax- 
ation and  license  fees  for  raising  a  revenue  for  the  local  and 
municipal  purposes  of  each  district.  Power  was  also  given 
to  establish  inunicipalities  in  the  electoral  districts,  with 
powers  of  municipal  taxation  to  be  prescnbed  by  ordinance 
of  the  Lieutenant-Governor  in  Council.  In  reference  to 
education,  it  was  provided  that  any  legislation  upon  the 
subject  should  be  subject  to  the  right  of  the  minority  in 
any  district,  whether  Protestant  or  Roman  Catholic,  to  es- 
tablish separate  schools,  the  supporters  of  which  should  be 
exempt  from  taxation  for  the  support  of  the  schools  estab- 

{g)  38  Vic.  0.  49,  s.  7  ;  repealed  by  40  Vic.  c.  7. 
(h)  Sec.  8. 


THE   NOHTH-WEST   TEI?RIT()IUEH.  55!) 

lished  by  the  majority.  The  Act  also  contained  much 
lej^islation  upon  Huch  j:feneral  topicH  as  real  estate  and  ita 
descent,  wills,  married  women,  re<,nstrati<)n  of  deeds,  etc. 
Provision  was  made  for  the  administration  of  justice 
through  the  medium  of  local  courts  presided  over  hy 
stipendiary  magistrates,  who  in  more  serious  criminal  cases 
were  to  be  associated  with  the  chief  justice  or  one  of  the 
judges  of  the  Court  of  Queen's  Bench  of  Manitoba.  In 
capital  cases  an  appeal  lay  to  the  full  Court  of  Queen's 
Bench  of  that  province. 

Period  from  28  ^pvi7,  1877,  to  R  S.  C.  (1886). 

The  North-West  Territories  Act,  lcS75,  was,  as  we  have 
intimated,  amended  in  a  most  important  particular  by 
40  Vic.  c.  7,  passed  about  six  months  after  the  Act  of  1875 
came  into  operation.  The  section  defining  the  legislative 
powers  of  the  Lieutenant-Governor  in  Council  was  repealed 
and  the  following  section  substituted  therefor : 

"  T.  The  Lieutenant-Governor  in  Council,  or  the  Lieutenant- 
Governor  by  and  with  the  advice  and  consent  of  the  Legislative 
Assembly,  as  the  case  may  be,  shall  have  such  powers  to  make 
ordinances  for  the  Government  of  the  North-West  Territories  as 
the  Governor  in  Council  may,  from  time  to  time  confer  upon 
him ;  Provided  always  that  such  powers  shall  not  at  any  time 
be  in  excess  of  those  conferred  by  the  ninety-second  section  of 
'  The  British  North  America  Act,  1867,"  upon  the  Legislatures 
of  the  several  Provinces  of  the  Dominion  : 

"  2.  Provided  that  no  ordinance  to  be  so  made  shall, — (1)  be 
inconsistent  with  or  alter  or  repeal  any  provision  of  any  Act 
of  the  Parliament  of  Canada  in  Schedule  B.  of  this  Act,  or  of 
any  Act  of  the  parliament  of  Canada,  which  may  now,  or  at  any 
time  hereafter,  expressly  refer  to  the  said  Territories  or  which  or 
any  part  of  which  may  be  at  any  time  made  by  the  Governor  in 
Council,  applicable  to  or  declared  to  be  in  force,  in  the  said  Ter- 
ritories, or, — (2)  impose  any  fine  or  penalty  exceeding  one 
hundred  dollars: 

"  3.  And  provided  that  a  copy  of  every  such  ordinance  shall 
be  mailed  for  transmission  to  the  Secretary  of  State,  within  ten 


560  THE   CANADIAN   CONSTITUTION. 

days  after  its  passing,  and  it  may  be  disallowed  by  the  Governor 
in  Council  at  any  time  within  two  years  after  its  receipt  by  the 
Secretary  of  State ;  Provided,  also,  that  all  ordinances  so  made, 
and  all  Orders  in  Council  disallowing  any  ordinances  so  made, 
shall  be  laid  before  both  Houses  of  Parliament,  as  soon  as  con- 
veniently may  be  after  the  making  and  enactment  thereof 
respectively." 

On  the  11th  of  May,  1877,  an  Order  in  Council  was 
pasHed  which,  after  reciting  the  statutes  of  1875  and  1877, 
ran  thus : 

Now,  in  pursuance  of  the  powers  by  the  said  statute 
conferred,  his  Excellency,  by  and  with  the  advice  of  the 
Privy  Council,  has  been  pleased  further  to  order,  and  it  is 
hereby  ordered,  that  the  Lieutenant-Governor  in  Council 
shall  be  and  he  is  hereby  empowered  to  make  ordinances  in 
relation  to  the  following  subjects,  that  is  to  say : 

1.  The  establishment  and  tenure  of  territorial  offices, 
and  the  appointment  and  payment  of  territorial  officera ; 

2.  The  establishment,  maintenance  and  management  of 
prisons  in  and  for  the  North- West  Territories ; 

3.  The  establishment  of  municipal  institutions  in  the 
Territories,  in  accordance  with  the  provisions  of  the 
"North- West  Territories  Acts,  1875  and  1877  "  (i); 

4.  The  issue  of  shop,  auctioneer  and  other  licenses,  in 
order  to  the  raising  of  a  revenue  for  territorial  or  munici- 
pal purposes  (i) ; 

5.  The  solemnization  of  marriage  in  the  Territories ; 

6.  The  administration  of  justice,  including  the  consti- 
tution, organization  and  maintenance  of  territorial  courts 
of  civil  jurisdiction ; 

7.  The  imposition  of  punishment  by  fine,  penalty  or 
imprisonment  for  enforcing  any  territorial  ordinance ; 

8.  Property  and  civil  rights  in  the  Territories,  subject 
to  any  legislation  by  the  parliament  of  Canada  upon  these 
subjects,  and — 

(t)  Somewhat  amended  in  1883 ;  see  pott. 


THE   NOHTH-WEHT  TEIIUITOHIES.  501 

9.  Oenerally  on  matters  of  a  merely  local  or  private 
nature  in  the  Territories. 

These  Acts  were  from  time  to  time  ameniled,  connoli- 
<late(l  an<l  revised,  as  wo  shall  indicate,  but,  substantially, 
the  le^dslative  power  of  the  Lieutenant-Governor  in 
Council  continued  to  Ite  governed  by  the  above  section  an<l 
the  Order  in  Council  we  have  quoted  until  18(S8 — indtjed, 
we  may  say,  until  IHOl,  ff)r,  upon  the  establishment  of  a 
legislative  assendily  in  the  former  year,  its  powers  of  legis- 
lation were  not  increased  beyond  those  exerciseable  before 
its  creation  by  the  Lieutenant-Governor  in  Council. 

Li  18(S0,  by  43  Vic.  c.  25,  previous  Acts  were  amended 
and  consolidated.  The  time  for  disallowing  t'srritorial 
ordinances  was  shortened  to  one  year,  and  the  clauses  of  the 
Act  of  1875  relating  to  municipalities  eliminated,  being- 
deemed,  no  doubt,  to  l)e  covered  by  the  Order  in  Council 
above  quoted  (j).  The  participation  of  Manitoba  judges  in 
the  administration  of  justice  in  the  Territories  wavS 
abolished  except  in  the  matter  of  appeals  in  capital  cases. 

We  may  mention  also  47  Vic.  c.  23,  and  48-49  Vic.  c.  51, 
making  amendments  of  details  not  material  to  be  further 
noted  here. 

On  June  26th,  1883,  a  new  Order  in  Council  was 
promulgated  defining  the  powers  of  the  Lieutenant-Gov- 
ernor, whether  acting  in  Council  or  by  and  with  the  ad- 
vice and  consent  of  the  legislative  assembly  (/.) ;  the  only 
amendment,  however,  of  the  Order  in  Council  of  1877 
above  quoted  being  in  items  3  and  4,  which  were  made  to 
read  as  follows  :  ' 

"  8.  Municipal  Institutions  in  the  Territories,  subject  to  any 
legislation  by  the  Parliament  of  Canada  heretofore  or  hereafter 
enacted  : 

**  4.  The  issue  of  shop,  auctioneer,  and  other  licenses,  except 

{j )  See  45  Vic.  c.  28,  and  47  Vic.  c.  23,  s.  10. 

(k)  No  assembly  was  constituted  until  1888  ;  see  post. 

Can.  Con.— 36  " 


562  THE   CANADIAN   CONSTITUTION. 

licenses  fur  the  sale  of  intoxicating  liquors,  in  order  to  the 
raising  of  a  revenue  for  territorial  or  municipal  purposes." 

In  1886,  important  legislation  was  enacted  (49  Vic.  c.  25), 
but  as  it  was  carried  at  once  into  the  Revised  Statutes  of 
that  year  we  need  not  stay  to  consider  its  provisions  (I). 

At  the  present  time  the  position  of  these  territories  is 
defined  by  "The  North- West  Territories  Act"  (R.  S.  C- 
c.  50),  and  amendments  thereto  as  follows  : 

A.  D.  1886.      ^^  ^Q^  respecting  the  North-West  Ter- 
ritories. 

TTER  Majesty,  by  and  with  the  advice  an<l 
-*~^  consent  of  the  Senate  and  House  of  Com- 
mons of  Canada  enacts  as  follows: — 

SHORT  TITLE. 

Short  title.  |.  This  Act  may  be  cited  as   "The  North- 

West  Territories  Act" 

INTERPRETATION. 

2.  In  this  Act,  unless  the  context  otherwise 
requires, — 
iiiterpretation       u(\  The  expression  "  Territories  "  means  the 

'  Territoried."  ^    '  *■ 

North- West  Territories,  as  defined  in  this  Act; 
'Lieutenant-        (h)  The  expression  "The  Lieutenant-Gover- 

Oovernor."  . 

nor"  means  the  Lieutenant-Governor  of  the 
North-West  Territories ; 

Go!ernor^n*  (^^  ^^^®  expression  "  Lieutcnant-Govemor  in 
Council."  Council  "  means  the  Lieutenant-Governor  of  the 
Territories  in  Council,  or  the  Lieutenant-Gover- 
nor by  and  wi*h  the  advice  and  consent  of  the 
Legislative  Assembly  of  the  Territories,  as  the 
case  may  be; 

(I)  It  was  proclaimed  18th  February,  1887 ;  the  R.  S.  O.  took  effect 
l8t  Mircb,  1887. 


THE   NORTH-WEST  TEUIIITOIUES.  563 

{(l)  The  expression  "  Supreme  Court"  means  court"'"* 
the  Supreme   Court  of  the  Nortli-West  Terri- 
tories. 

[(e)  (ind  (/)  define  "intoxicating  liquor" 
and  "  intoxicant."  It  is  not  thoiujht  necessary 
to  2>rint  the  sections  dejdlmj  with  that  subject. 
Only  those  parts  of  the  Act  which  imiy  be  rea- 
sonably considered  of  constitiUionful  impor- 
tance arc  here  inserted.'] 

GOVERNMENT   AND   LEGISLATION. 
S.  The  Territories  formerly  i^nown  as  "  Ru-  Territories 

r         T  1   ,.  1         1  XT  1      iir  ny  •  deflUOd. 

[)erts  Land  and  the  JNorth-VVest  lerritory 
shall,  with  the  exception  of  such  portions  thereof 
jia  form  the  Province  of  Manitoba  and  the  Dis- 
trict of  Keewatin  (m),  continue  to  he  called  and 
known  as  the  North-West  Territ<jries. 

4.  There  shall  be  for  the  Territories,  an  offi-  Lioutenant- 
cer  called  the  Lieutenant  Governor,  appointed  by 
the  Governor  in  Council,  by  instrument  under 
the  Great  Seal  of  Canada,  who  shall  hold  office     • 
during;  pleasure : 

2.  The  Lieutenant-Governor  shall  administer  Kis  powers 
the  Government,  under  instructions,  from  time  to 
time,  given  him  by  the  Governor  in  Council,  or 
by  the  Secretary  of  State  of  Canada. 

Si.  The  Governor  in  Council  may,  from  time  AdminiBtrator 
to  time,  appoint  an  Administrator  to  execute  the 
offi.ce  and  functions  of  the  Lieutenant-Governor 
during  his  absence,  illness  or  other  inability. 

O.  Every  Lieutenant-Governor  or  Adminis- ^j^*^';^^^" ''^ 
trator  so  appointed  shall,  before  assuming  the 
duties  of  his  office,  take  and  subscribe,  before  the 
Governor-General,  or  before  some  pereon  duly 

(m)  Keewatin  is  in  a  still  more  embryonic  state,  and  it  is  not  thought 
necessary  to  deal  with  it  here.     See  R.  S.  C.  c.  53. 


564 


THE  CANADIAN   CONSTITUTION. 


Legislative 
Assembly. 


Electoral 
districts, 


Duration  of 
the  Assembly. 


Limit  of  time 
for  session. 


Proceedings 
on  bills. 


authorized  to  administer  such  oaths,  an  oath  of 
allegiance  and  an  oath  of  office  similar  to  those 
reijuired  to  be  t  iken  by  a  Lieutenant-Governor 
under  "  The  British  North  America  Act,  1807." 

[Sections  7  and  S  were  repealed  hy  51  Vic, 
c.  19,  s.  1,  and  provision  onade  for  a  Legislative 
Assernhbj  (section  i?).  This  latter  section  was 
itself  repmled  hy  54.-55  Vic.  c.  22,  the  provision 
now  stand  in  fj  : 

3.  There  shall  be  a  Legislative  Asseinl>ly  for 
the  Territories,  which  shall  be  composed  of 
twenty-six  members  elected  to  represent  the 
electoral  districts  set  forth  in  the  schedule  (a)  to 
this  Act. 

2.  The  Assembly  shall  have  power  to  alter 
the  boundaries  of  the  electoral  districts  from 
time  to  time. — 54-55  Vic.  c.  22,  s.  2. 

SJ.  Every  Legislative  Assembly  shall  con- 
tinue for  three  years  from  the  date  of  the 
return  of  the  writs  for  choosing  the  same :  but 
the  Lieutenant-Governor  may,  at  any  time,  dis- 
solve the  Asseml)ly  and  cause  a  new  one  to  l>e 
chosen. — 54-55  Vic.  c.  22,  s.  3. 

4.  There  shall  be  a  session  of  the  Lefjislative 
Assembly  convened  by  the  Lieutenant-Governor 
at  least  once  in  every  year,  so  that  twelve 
months  shall  not  intervene  between  the  last 
sitting  of  the  Assembly  in  one  session  and  its 
first  sitting  in  another  session;  and  such  Assem- 
bly shall  sit  separately  from  the  Lieutenant- 
Governor,  and  shall  present  Bills  passed  by  it  to 
the  Lieutenant-Governor  for  his  assent,  who  may 
approve  or  reserve  the  same  for  the  assent  of 
the  Governor-General. — 54-55  Vic.  c.  22,  s.  4.] 


(n)  Not  printed. 


THE   NORTH-WEST   TERRITORIES.  565 

[With  respect  to  elections  provision  is  m<i(Je 
by  51  Vic.  c.  19,  amended  to  some  extent  by 
54-00  Vic.  c.  22.  We  indicate  after  each  section 
by  what  Act  enacted: 

5.  Until  the  Legialature  of  the  Nortli-West  Proceedings 

o  at  elections. 

Territories  otherwise  provides,  as  it  may  do,  the 

law  in  force  therein  at  the  time  of  the  passing  of 
this  Act  relating  to  the  election  of  membei's  of 
the  Council  of  the  North-West  Territories  shall, 
subject  to  the  provisions  of  this  Act,  apply  to 
the  election  of  membei's  of  the  Legislative  As- 
sembly.— 51  Vic.  c.  19,  s.  5. 

O.  Whenever  it  is  necessary  to  call  a  new  issue  of  writs 

X       .  1    ..  »  11  1  for  elections- 

Legislative  Assembly,  or  whenever   a  vacancy 

occurs  by  reason  of  death,  resignation,  or  other- 
wise, of  an  elected  member,  the  Lieutenant-Gov- 
ernor shall  cause  a  writ  or  writs  of  election,  as 
the  case  may  be,  to  be  issued  by  the  Clerk  of  the 
Legislative  Assembly,  in  such  form  and  ad- 
dressed to  such  returning  officer  or  officers  as  he 
approves  of  until  otherwise  provided  by  the 
Assembly : 

2.  Until  the  Legislative  Assembly  otherwise  Euies  for 
provides,  the  Lieutenant-Governor  shall,  by  pro- 
clamation, prescribe  and  declare,  for  use  at  all  or 
any  elections,  niles  for — 

(a)  The  mode  of  providing  voters'  lists; 

(b)  The  oaths  to  be  taken  by  votei-s ; 

(c)  The  appointment,  powers  and  duties  of 
returning  and  deputy  returning  officers,  election 
and  poll  clerks  and  their  oaths  of  office  ; 

(d)  The  proceedings  to  .be  observed  at  elec- 
tions ; 

(e)  The  periods  during  which  such  elections 
may  be  continued  ;  =,  -    ■ 


566 


THE   CANADIAN   CONSTITUTION. 


(f)  Such  other   provisions 
such  elections  as  he  thinks  fit.- 
8.  5. 


Who  may 
vote. 


Who  eligible 
for  election. 


Deposit  at 
nomination. 


How  applied. 


M'ith    respect   to 
-54-55  Vic.  c.  22, 


T.  The  persons  qualified  to  vote  at  an  elec- 
tion for  the  Legislative  Assembly  shall  be  the 
male  British  subjects  by  birth  or  naturalization 
(other  than  unenfranchised  Indians),  who  have 
attained  the  full  age  of  twenty-one  years,  who 
have  resided  in  the  North-West  Territories  for 
at  least  the  twelve  months,  and  in  the  electoral 
district  for 'at  least  the  three  months  respec- 
tively, immediately  preceding  the  time  of  voting. 
—51  Vic.  c.  19,  s.  7. 


H.  Any  British  subject  by  birth  or  natural- 
ization shall  be  eligible  for  nomination  and 
election. 

2.  No  nomination  at  any  election  shall  be 
valid  and  acted  upon  unless  at  or  before  the 
time  of  nomination  a  sum  of  one  hundred  dollars 
is  deposited  in  the  hands  of  the  returning 
officer ;  and  the  receipt  of  the  returning  officer 
shall  in  every  case  be  sufficient  evidence  of  the 
payment  herein  mentioned : 

3.  The  sum  so  deposited  shall  be  returned  to 
the  person  by  whom  the  deposit  was  made  in 
the  event  of  the  candidate,  by  or  on  whose 
behalf  it  was  so  deposited,  being  elected,  or  of 
his  obtaining  a  number  of  votes  at  least  equal  to 
one-half  the  number  of  votes  polled  in  favor  of 
the  candidate  elected,  otherwise  it  shall  belong  to 
Her  Majesty  for  the  public  uses  of  the  Terri- 
tories ;  and  the  sum  so  paid  and  not  returned  as 
herein  provided  shall  be  applied  by  the  return- 
ing officer  towards  the  payment  of  the  election 
expenses,  and  an  account  thereof  shall  be  ren- 


THE    NORTH-WEST  TERRITORIES.  5G7 

•tiered   by   him   to   the  Lieutenant-Governor. — 
51  Vic.  c.  19,  8.  8. 

tt.  Elected  membera  of  the  Legislative  As-^athtobe 
senibly    shall   take   and  subscribe    before   the  members. 
Lieutenant-Governor  or  before  such  person  as  is 
designated  by  the  Governor  in  Council,  the  fol- 
lowing oath  of  allegiance : — 

"  I,  A.  B.,  do  swear  that  I  will  be  faithful  and 
bear  true  allegiance  to  Her  Majesty,  her  heii-s 
and  successors." — 51  Vic.  c.  19,  s.  9. 

10.  A  majority  of  the  members  of  the  Legis-  Quorum 
lative   Assembly,   including    the    members   ap- 
pointed by  the  Governor  in  Council,  shall  form 

a  quorum  for  the  transaction  of  business. — 51 
Vic.  c.  19,  s.  10. 

11.  The  Legislative   A.ssembly,  on    its  tii-st  Election  of 
jxssembling  after  a  general  election,  shall  proceed 

with  all  practicable   speed   to  elect  one  of   its 
elected  members  to  be  Speaker: 

2.  In  case  of   a  vacancy  happening  in   the  vacancy  in 
office  of  Speaker  by  death,  resignation  or  other-  speaker, 
wise,   the   Legislative   Assembly   shall   proceed 

with  all  practicable  speed  to  elect  another  of  its 
elected  members  to  be  Speaker : 

3.  The  Speaker  shall  preside  at  all  meetings  speaker  to 

,  .  preside. 

of  the  Legislative  Assembly : 

4.  Until  the  Legislative  Assembly  otherwise  case  of  ab- 

.  1         .  p  ii  1  n  sence  pro- 

provides,  in  case  or  the  absence  tor  any  reason  vided  for. 
of  the  Speaker  from  the  chair  of  the  Assembly 
for  forty-eight  consecutive  hours,  the  Assembly 
may  elect  another  of  its  membei's  to  act  as 
Speaker,  and  the  member  so  elected  shall,  during 
the  continuance  of  such  absence  of  the  Speaker, 
have  and  execute  all  the  powei-s,  privileges  and 
duties  of  Speaker. — 51  Vic.  c.  19,  s.  11. 


568 


THE   CANADIAN   CONSTITUTION. 


Advisory 
Council  to  be 
appointed. 


decide!*^*"  12.  Questions  arising  in  the  Legislative  As- 

sembly 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. — 51  Vic.  c.  19,  s.  12. 

13.  The  Lieutenant-Governor  shall  select 
from  amonof  the  elected  members  of  the  Lejjisla- 
tive  Assembly  four  pei'sons  to  act  as  an  advisory 
council  on  m.itters  of  finance,  who  shall  severally 
hold  office  during  pleasure;  and  the  Lieutenant- 
Governor  shall  preside  at  all  sittings  of  such 
advisory  council  and  have  a  right  to  vote  as  a 
member  thereof,  and  shall  also  have  a  casting 
vote  in  case  of  a  tie. — 51  Vic.  c.  19,  s.  13. 

t^'be^flr^f^'  14.  The  Legislative  Assembly  shall  not  adopt 
recommended  ^^  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  fii'st  recommended  to  the 
Assembly  by  message  of  the  Lieutenant-Gover- 
nor in  the  session  in  which  such  vote,  resolution^ 
address  or  bill  is  proposed. — 51  Vic.  c.  19,  s.  14. 

15.  The  Speaker  of  the  Legislative  Assembl}'' 
shall  receive  a  salary  of  five  hundred  dollars  per 
annum,  payable  out  of  the  Consolidated  Revenue 
Fund  of  Canada. — 51  Vic.  c.  19,  s.  15. 

Clerk  of  As-         1  c  The  GoveiTior-in-Council  may  appoint  a 

sembly,  ins  •'      ^  ^ 

saiar  *"^  clerk  of  the  Legislative  Assembly,  who  shall  act 
as,  and  perform  tl  ^  duties  of  secretary  to  the 
Lieutenant-Governor,  and  who  shall  take  before 
the  Lieutenant-Governor  the  oath  of  allegiance? 
and  such  oath  of  office  as  the  Govemor-in-Coun- 
cil  prescribes,  and  who  shall  receive  a  salary  of 
two  thousand  dollars  per  annum,  and  such  salary 
shall  be  paid  out  of  the  Consolidated  Revenue 
Fund  of  Canada.— 51  Vic.  c.  19,  s.  16.] 


Salary  of 
Speaker. 


THE   NORTH-WEST  TEUIirrOUIES.  569 

».  The  seat  of  Government  of  the  Territories  ^^^^^  °i!t.*^°''" 
shall  be  fixed,  and  may,  from  time  to  time,  be 
changed  by  the  Governor  in  Council. 

[Section  10  made  iwovwion  for  the  Lieut. - 
Governor  presiding  over  o/nd  voting  at  meetings 
of  the  Council.  See  now  51  Vic.  c.  19,  s.  IJ ; 
and  5^-55  Vic.  e.  23,  s.  4,  sihirra.'] 

11.  Subject  to  the  provisions  of  this  Act,  the  J^nYoSVuiy^' 
laws  of  England  relating  to  civil  and  criminal  Jorce'h'/" 
matters,  as  the  same  existed  on  the  fifteenth  day  ^fth  certafn 
of  July,  in  the  year  of  our  Lord  one  thousand  ^^'^^^^^ons.w 
eight  hundred  and  seventy,  shall  be  in  force  in 

the  Territories,  in  so  far  as  the  same  are  appli- 
cable t/O  the  Territories,  and  in  so  far  as  the  same 
have  not  been,  or  are  not  hereafter  repealed, 
altered,  varied,  modified,  or  afiected  by  any  Act 
of  the  Parliament  of  the  United  Kingdom  appli- 
cable to  the  Territories,  or  of  the  Parliament  of 
Canada,  or  by  any  ordinance  of  the  Lieutenant- 
Governor  in  Council. 

12.  All  laws  and  ordinances  in  force  in  the  J^nTfnSid^'of 
Territories,  and  not  repealed  by  or  inconsistent 

with  this  Act,  shall  remain  in  force  until  it  is 
otherwise  ordered  by  the  Parliament  of  Canada, 
by  the  Governor  in  Council,  or  by  the  Lieuten- 
ant-Governor in  Council,  under  the  authority  of 
this  Act. 

[Section  13,  defining  the  powers  of  the  Lieut.- 
Governor  in  Council  was  repealed  by  54--5o  Vic. 

(o)  For  convenience  we  have  collected  the  authorities  upon  the  mat- 
ters referred  to  in  sections  11  and  12,  and  they  will  be  found,  post.  In  the 
Revised  Statutes  of  Canada  are  a  number  of  Acts  specially  dealing  with 
different  subjects  of  legislation  as  to  the  North-West  Territories, — e.  g., 
"  The  N.  W.  T.  Representation  Act,"  "  The  Territories  Real  Property 
Act,"  "  The  Homestead  Exemption  Act,"  "The  Dominion  Lands  Act," 
etc.,  etc. 


570  THE   CANADIAN   CONSTITUTION. 

c.  22,  s.G,  which  avMstitutes  there fm'  the  folio w- 
mg : 

aSw?  ■*•  The  Lejrislative  Assembly  shall,  subject 

to  the  provisions  of  this  Act,  or  of  any  other  Act 
of  the  Parliament  of  Canada,  at  any  time  in  force 
in  the  Territories,  have  power  to  make  ordi- 
nances for  the  government  of  the  Territories  in 
relation  to  the  classes  of  subjects  next  herein- 
after mentioned,  that  is  to  say : — 

(1)  The  mode  of  providing  voters'  lists,  the 
oaths  to  be  ttiken  by  voters,  the  appointment, 
powers  and  duties  of  returning  officers  and 
deputy  returning  officers,  election  and  poll  clerks, 
and  their  oaths  of  office,  the  proceedings  to  be 
observed  at  elections,  the  periods  during  which 
such  elections  may  be  continued,  and  such  other 
provisions  with  respect  to  such  elections  as  may 
be  thought  fit ; 

(2)  Direct  taxation  within  the  Territories  in 
order  to  raise  a  revenue  for  territorial  or  muni- 
cipal or  local  purposes ; 

(3)  The  establishment  and  tenure  of  terri- 
torial offices,  and  the  appointment  and  payment 
of  territorial  officers  out  of  territorial  revenues ; 

(4)  The  establishment,  maintenance,  and 
management  of  prisons  in  and  for  the  Terri- 
tories,— the  expense  thereof  being  payable  out 
of  territorial  revenues ; 

(5)  Municipal  institutions  in  the  Territories ; 

(6)  Shop,  saloon,  tavern,  auctioneer  and 
other  licenses,  in  order  to  raise  a  revenue  for 
territorial  or  municipal  purposes ; 

(7)  Tlie  incorporation  of  companies  with  ter- 
ritorial objects,  with  the  following  exceptions: — 


THE    NORTH-WEST  TERRITORIES.  671 

(a)  Such  companies  aa  cannot  be  incorpor- 
ated by  a  provincial  legislature ; 

(b)  Railway,  Hteanil)oat,  canal,  transportation, 
telegraph  and  irrigation  companies ; 

(c)  Insurance  companies ; 

(8)  The  solenniization  of  marriage  in  the 
Territories ; 

(9)  Property  and  civil  rights  in  the  Terri- 
tories ; 

(10)  The  administration  of  justice  in  the 
Territories,  including  the  constitution,  organi- 
zation, and  maintenance  of  territorial  courts  of 
civil  jurisdiction,  including  procedure  therein ; 
but  not  including  the  power  of  appointing  anj' 
judicial  officers; 

(11)  The  imposition  of  punishment  by  fine, 
penalty,  or  imprisonment,  for  enforcing  any  ter- 
ritorial ordinances; 

(12)  The  expenditure  of  territorial  funds  and 
such  portion  of  any  moneys  appropriated  by 
Parliament  foi'  the  Territories  as  the  Lieutenant- 
Governor  is  authorized  to  expend  by  and  with 
the  advice  of  the  Legislative  Assembly  or  of  any 
Committee  thereof ; 

(13)  Generally,  all  matters  of  a  merely  local 
or  private  nature  in  the  Territories  : 

2.  Nothing  in  this  section  contained  gives,  or  Limitation. 
shall  be  construed  to  give  to  the  Legislative 
Assembly  any  greater  powers  with  respect  to 
the  subjects  therein  mentioned  than  are  given  to 
Provincial  Legislatures  under  the  provisions  of 
section  92  of  "  The  British  North  America  Act, 
1867,"  with  respect  to  the  similar  objects  therein 
mentioned.] 


572 


THE   CANADIAN   TONS!    I CTTON. 


Onlinancea 
rcapoccing 
education. 
Majority 
Bchoolu. '  p) 


Minority 
scboola, 


Declaratory 
as  to  ordiuan- 


Ordinances 
respecting 
admin  .stra- 
tiou  of  justice 


14  The  Lieutenant-Governor  in  Council 
shall  pjiHH  nil  neceHHary  ortlinances  in  respect  to 
education ;  but  it  shall  therein  always  be  pro- 
vided, that  a  majority  of  the  ratepayei's  of  any 
district  or  portion  of  the  Territories,  or  of  any 
less  poi'tion  or  subdivision  thereof,  by  whatever 
name  the  same  is  known,  may  establish  such 
schools  therein  as  they  think  tit,  and  make  the 
necessary  assessment  and  collection  of  rates 
therefor ;  and  also  that  the  minoiity  of  the  rate- 
paj'ors  therein,  whether  Protestant  or  Roman 
Catholic,  may  establish  separate  schools  therein, 
— and  in  such  case,  the  ratepayers  estaljlishin^ 
such  Protestant  or  Roman  Catholic  separate 
schools  shall  be  liable  only  to  assessments  of  such 
rates  as  they  impose  upon  themselves  in  respect 
thereof : 

2.  The  power  to  pass  ordinances,  conferretl 
upon  the  Lieutenant-Governor  by  this  section  is 
hereby  declared  to  have  been  vested  in  him  from 
the  seventh  day  of  May,  one  thousand  eight 
hundred  and  eighty. 

1S%.  The  Lieutenant-Governor  in  Council 
may,  from  time  to  time,  but  subject  to  the  pro- 
visions of  this  Act,  make  ordinances  in  relation 
to  the  administration  of  justice  in  the  Territories, 
and  to  the  constitution,  maintenance  and  organ- 
ization of  the  Suprenie  Court,  including  proce- 
dure therein  in  civil  mattei*s,  in  as  full  and  ample 
a  manner  as  the  Legislature  of  any  Province  of 


(p)  See  ante,  p.  489  and  p.  510. 

(q)  See,  however,  54-55  Vic.  c.  22,  s.  6,  enacting  a  new  section  13  to  the 
main  Act  and  giving  to  the  Legislative  Assembly  the  powers  defined 
as  above.  By  some  oversight,  probably,  this  section  wAs  not  repealed, 
and  it  would  appear  that  the  Lieutenant-Governor  in  Council  has  con- 
current power,  in  this  connection,  with  the  Assembly. 


THE   NORTH-WEST  TERRITORIES.  57:i 

Canada  couhl,  under  the-  fourteenth  para^a-aph  of 
the  ninety-second  section  of  "  The  British  Xorth 
America  Act,  1867,"  or  otherwise,  make  laws  in 
reUition  to  the  administration  of  justice  in  the 
Province,  and  to  the  constitution  maintenance 
and  organization  of  a  provincial  court,  l)oth  of 
civil  and  criminal  jui'isdiction,  including  proce- 
dure in  civil  matters  in  such  court. 

16.    The    Lieutenant-Goveinor   in    Council  ordinances 

renpectinu 

may,  from  time  to  time,  make  ordmances  in  ju"«s. 
respect  tc  the  mode  of  calling  jutiei,  other  than 
grand  jur*.es,  in  criminal  as  well  as  civil  cases, 
and  when  and  by  whom  and  the  n^anner  in 
which  they  may  be  sum<Kioned  or  taken,  and  in 
respect  to  all  matters  relating  to  the  same. 

IT.  An  authentic  copy  of  every  ordinance  Disallowance 

•■  "^  ^  "^  of  ordiuaueos. 

shall  be  transmitted  by  mail  to  the  Secretary  of 
State  within  thirty  days  after  its  passing;  and 
if  the  Govei'nor  in  Council,  at  any  time  within 
one  year  after  its  receipt  by  the  Secretary  of 
State,  thinks  fit  to  disallow  the  ordinance,  such 
disallowance,  w^hen  signified  by  the  Secretary  of 
State  to  the  Lieutenant-Governor,  shall  annul  parhame°u.'° 
the  ordinance  from  and  after  the  date  of  such 
signification ;  and  all  ordinances  so  made,  and  all 
Orders  in  Council  disallowing  any  ordinances  so 
made,  shall  be  laid  before  both  Houses  of  Parlia- 
ment as  soon  as  conveniently  may  be  after 
the  making  and  enactment  thereof  respectively. 

[Sect  10718  18  to  25,  both  inclusive,  ivere  rc- 
pealecl  by  51  Vic.  c.  19.  Sections  36  to  Jfi,  both, 
inclusive,  relate  to  "wills"  and  "married  wo- 
men," and  by  54-55  Vic.  c.  22,  the  Assembly  of 
the  Territories  is  empowered  to  repeal  them  and 
make  other  jyrovision.] 


574  THE  CANADIAN   CONSTITUTION. 


ADMINIHTHATION   OF  JUSTICE. 

Supreme  4 1 .  The  Supreme  Court  of  record  of  oriirinal 

court  oontinu-  ....  . 

•*•  and  appellate  jurisdiction  now  existing  under  the 

name  of  "The  Supreme  Court  of  the  North- West 

Territories"  is  hereby  continued  under  the  name 

aforesaid. 

conBtitution         42.  Tho  Supreme  Court  shall  consist  of  live 

of  court.  .  .  * 

puisnd  judges,  who  shall  be  appointed  by  the 

Governor  in  Council  by  letters  patent  under  the 

Great  Seal. 

Who  may  4SI.  Any  person  may  be  appointed  a  judge 

he  appointed  "^     *  "^  '■  *■  .  J      o 

judge.  of  the  court  who  is  or  has  been  a  judge  of  a 

Superior  Court  of  any  Province  of  Canada,  a 
stipendiary  magistrate  of  the  Territories,  or  a 
barrister  or  advocate  of  at  least  ten  yeai's'  stand- 
ing at  the  bar  of  any  such  Province,  or  of  the 
Territories. 

o°emoium®nt        4^-  ^o  judge  of  the  court  shall  hold  any 
to  be  held,      other  office  of  emolument  under  the  Government 

of  Canada,  or  of  any  Province  the'reof,  or  of  the 

Territories. 

uesidence.  45.  Each  judge  of  the  court  shall  reside  at 

such  place  in  the  Territories  as  the  Governor  in 
Council,  in  the  commission  to  such  judge,  or  by 
Order  in  Council,  directs. 

Ifflce'®  °'  '*®-  "^^^  ju^g^s  of  the  court  shall  hold  office 

during  good  behavior,  but  shall  be  removable  by 
the  Governor-General,  on  address  of  the  Senate 
and  House  of  Commons  of  Canada. 

talt^V*'  ***  '^'^'  ^v^^y  j^^ig®  shall,  previously  to  enter- 

ing upon  the  duties  of  his  office  as  such  judge, 
take  an  oath  in  the  fonn  following : — 


THE    NORTH-WEST   TERRITORIES.  575 

"  I,  ,  do  Holemnly  and  Hinceroly  ^°"''"  '^'  °'''^- 

"  promise  and  Hwetir  that  I  will  duly  and  faith- 
"  fully,  and  to  the  best  of  my  skill  and  know- 
"  ledge,  execute  the  powei-s  and  trusts  reposed  in 
"  me  as  one  of  the  judges  of  the  Supreme  Court 
"  of  the  North- West  Territones.  So  help  me 
"  God." 

2.  Such  oaths  shall  be  administered  by  the  How  adminis- 
Lieutenant-Governor  or  by  a  judge  of  the  court. 

48.  The  court  shall,  within  the  Territories,  ^Ifi^iJ'^J/^" 
and  for  the  administration  of  the  laws  for  the  dv'uudorim- 
time  being  in  force  within  the  Territories,  pos-  '"*'• 
sess  all  such  powei-s  and  authorities  as  by  the 
law  of  England  are  incident  to  a  superior 
court  of  civil  and  criminal  jurisdiction  ;  and  shall 
have,  use  and  exercise  all  the  rigiits,  incidents 
and  privileges  of  a  court  of  record  and  all  other 
rights,  incidents  and  privileges,  as  fully  to  all 
intents  and  purposes  as  the  same  were  on  the 
fifteenth  day  of  July,  one  thousand  eight  hun- 
dred and  seventy,  used,  exercised  and  enjoyed 
by  any  of  Her  Majesty's  superior  courts  of  com- 
mon law,  or  by  the  Court  of  Chancery,  or  by  the 
Court  of  Probate  in  England, — and  shall  hold 
pleas  in  all  and  all  manner  of  actions,  causes  and" 
suits  as  well  criminal  as  civil,  real,  personal 
and  mixed, — and  shall  proceed  in  such  actions, 
causes  and  suits  by  such  process  and  coui-se  as 
are  provided  by  law,  and  as  tend  with  justice 
and  despatch  to  determine  the  same, — and  shall 
hear  and  determine  all  issues  of  law,  and  shall 
also  hear  and  (with  or  without  a  jury  as  pro- 
vided by  law)  determine  all  issues  of  fact  joined 
in  any  such  action,  cause  or  suit,  and  give  judg- 
ment thereon  and  award  execution  thereof  in  as 
full  and  as  ample  a  manner  as  might  at  the  said 


576 


THE   CANADIAN   CONSTITUTION. 


Sittings  in 
banc. 


Quorum. 


Jurisdiction 
in  banc. 


date  be  done  in  Her  Majesty's  Court  of  Queen's 
Bench,  Common  Bench,  or  in  matters  which 
regard  the  Queen's  revenue  (including  the  con- 
demnation of  contraband  or  smuggled  goods)  l)}- 
the  Court  of  Exchequer,  or  by  the  Court  of 
Chancery  or  the  Court  of  Probate  in  England. 

40.  The  court  shall  sit  in  banc  at  the  seat  of 
government  of  the  Territories  at  such  time  as  the 
Lieutenant-Governor  in  Council  appoints :  the 
senior  judge  present  shall  preside  and  any  three 
judges  of  the  court  shall  constitute  a  quorum. 

50.  The  court  sitting  in  banc  shall  hear  and 
determine  all  applications  for  new  trials,  all 
questions  or  issues  of  law,  all  questions  or  points 
in  civil  or  criminal  cases  reserved  for  the  opinion 
of  the  court,  all  appeals  or  motions  in  the  nature 
of  appeals,  all  petitions  and  all  other  motions, 
matters  or  things  whatsoever  which  are  lawfully' 
brought  before  it. 

51.  The  Governor  in  Council  may,  at  any 
time,  by  proclamation  divide  the  Territories  into 
judicial  districts,  and  give  to  each  such  district 
an  appropriate  name,  and  in  like  manner,  from 
time  to  time,  alte.i'  the  limits  and  extent  of  such 
districts. 

[Sectio7i  52  ivas  repealed  by  o^-oo  Vic.  c.  ;?,?, 
.s.  7,  and  the  folloiuiiig  substituted: 

Territorial  52.  Everv  Judge  of  the  Court  shall  have 

jurisdiction  of   .  ^  o 

Judges.  jurisdiction  throughout  the  Territories,  but  shall 

usually  exercise  the  same  within  the  judicial 
district  to  which  he  is  assigned  by  the  Governor 
in  Council,  and  in  all  causes,  matters,  and  pro- 
ceedings, other  than  such  as  are  usually  cogniz- 
able by  a  court  sitting  in  banc,  and  not  by  a 
single  judge  of  the  said  court,  shall  have  and 


Appeals. 


Judicial 
districts. 


THE   NORTH-WEST  TERRITORIES.  577 

«xercise  all  the  powera,  authorities  and  jurisdic- 
tion of  the  court : 

2.  Subject  to  any  statute  prohibitino-  or  re-Writs  of 

''  '^  A  '^       _         certiorari. 

stricting  proceedings  by  way  of  certiorari,  a 
single  judge  shall,  in  addition  to  his  other 
powera,  have  all  the  powers  of  the  court  as  to 
proceedings  by  way  of  certiordrl  over  the  pro- 
ceedings, orders,  convictions,  .and  adjudications 
had,  taken,  and  made  by  justices  of  the  peace) 
and  in  addition  thereto  shall  have  the  power  of 
revising,  amending,  modifying,  or  otherwise 
dealing  with  the  same;  and  writs  of  certiorari 
may,  upon  the  order  of  a  judge,  be  issued  by  the 
clerk  of  the  court  mentioned  in  such  order 
returnable  as  therein  directed. — 54-55  Vic.  c.  22, 
s.  7.] 

53.  Whenever,  under  any  Act  in  force  in  the  Powers  of 

'  "^  _  single  judge. 

Territories,  any  power  or  authority  is  to  be  exer- 
cised, or  anything  is  to  be  done  by  a  judge  of  a 
court,  such  power  or  authority  shall,  in  the  Ter- 
ritories, be  exercised  or  such  thing  shall  be  done 
by  a  judge  of  the  Supreme  Court,  unless  any 
other  provision  is  made  in  that  behalf  by  such 
Act. 

54.  The  judtfes  of  the  Supreme  Court  shall  Judges  to 

o       o  ^  X  ...        replace 

have  all  the  powers,  authority  and  jurisdiction  gti^,^°*^"a^/. 
vested  in  the  stipendiary  magistrates  of  the  Ter-  uiasistrates. 
ritories  on  the  second  day  of  June,  one  thousand 
eight  hundred  and  eighty-six;  and  wherever  in 
any  Act  of  the  Parliament  of  Canada  relating  to 
the  Territories  the  words  "stipendiary  magis- 
trate "  or  "  stipendiary  magistrates  "  are  used,  the 
same  shall  mean  a  judge  or  the  judges  of  the 
Supreme  Court,  as  the  case  may  be. 

55.  Sittings  of  the  Supreme  Court,  which  ^^^^^e^Seid 
«hall  be  presided  over  by  a  judge  of  the  court, 

Can.  Con.— 87 


578  THE  CANADIAN    CONSTITUTION. 

Hhall  be  held  in  each  judicial  district  at  isuch 
times  and  places  as  the  Lieutenant-Governor  of 
the  Territories  appoints. 

[Sections  oG  to  G.i,  hotlt  inclusive,  relote  to 
slicriffH  (111(1  clerkf,  their  (luties,  etc.] 

Disposal  of  OS.  The  Lieutenant-Governor  may,  yubiect 

North-west  .  i     ,     ,,.    n  • 

Mounted         to  auV  ordeix  made  ni  tliat  behali,  rrom  time  to 

Police  Force.       ^  "^  .      ^  .      . 

C)  time,  by  the  Governor  in  Council,  issue  ordei*s  to 

the  North-West  Mounted  Police  force,  in  aid  of 
the  administration  of  civil  and  criminal  justice, 
an<l  for  the  general  peace,  order  and  good  govern- 
ment of  the  Territories. 

Justices  of  the        OJ:.  The  Lieutenant-Governor  may  appoint 

peace.  _  ^  .        . 

justices  of  the  peace  for  the  Territories,  who  shall 
have  jurisdiction  as  such  throughout  the  same. 

[Sectio7i8  Go  to  81,  both  inclitsive,  relate  to 
the  (ulnimistration  of  criminal  justice ;  82  to 
87  to  coroners  and  inquests;  88  to  91  to  the  ad- 
ministration of  civil  justice;  92  to  100  to  in- 
toxicants, and  101  to  108  contain  miscellaneous 
provisions  which  ive  need  not  farther  notice. 
Awendnients  have  been  made  to  some  of  the  sec- 
tions by  51  Vice.  19,  and  5  4^-55  Vic.  c.  22.  By 
section  19  of  the  latter,  power  to  repeal  and 
idter  the  law  as  to  intoxicants  is  given  to  the 
Assembly  so  far  as  relates  to  territory  covered 
by  electa nd  districts.] 

(GENERAL    PROVISIONS. 

Piovisiou  lOO.  Whenever  in  any  Act  of  the  Parlia- 

when  there  •' 

offloera'as' are  "^^"^  ^^  Canada  in  foi'ce  in  the  Territories,  any 
Act'of  Pariia"  o^cer  is  designated  for  carrying  on  any  duty 
™®°*'  therein  mentioned,  and  there  is  no  such  officer  in 

(r)  See  R.  S.  C.  c.  45,  as  to  this  Force. 


THE   NORTH-WEST  TERIUTOIUES.  57 [I 

the  Territories,  the  Lieutenant-Governor  in 
Council  may  order  by  what  other  peraon  or 
officer  such  duty  shall  be  performed, — and  any- 
tliing  done  by  such  person  or  officer,  under  such 
order,  shall  be  valid  and  lawful  in  the  premises ; 
or  if  it  is  in  anv  suci  '\  ct  ordered  that  anv  <locu- 
ment  or  thintj  shall  be  transmitted  to  any  officer, 
court,  territorial  division  or  place,  and  there  is 
then  in  the  Territories  no  such  officer,  court  or 
territorial  division  or  place,  the  Lieutenant-Gov- 
ernor in  Council  may  order  to  what  officer,  court 
or  place  such  transmission  shall  be  made,  or  may 
dispense  with  the  transmission  thereof. 

[Sertion  110  relate)^  to  the  a>^e  of  the  Eufjlish 
or  French  hniffiKiffe  in  the  delxiten  of  the  Asf^em- 
hbj.  By  oJ^-oo  Vic,  c.  '^2,  .s*.  19,  the  Lefjinhitive 
Axsemhlfj  hds  now  fall  control  of  the  question.] 

111-.  Any  copy  of  any  proclamation  or  order  ^®^*fe^co  i  s 
made  by  the  Governor  in  Council,  or  onlinance,  tobe'ev*""' 
proclamaticm  or  order  made  by  the  Lieutenant-  **«"°®- 
Governor  in  Council,  or  by  the  Lieutenant-Gov- 
ernor by  and  with  the  advice  and  consent  of  the 
Legislative  Assembly  of  the  North- West  Terri- 
tories, as  the  case  may  be,  printed  in  the  Canada 
Gazette,   or  purporting   to   be   printed   by    the 
Queen's  Printer  for  Canada,  or  by  the  printer  to 
the  Government  of  Manitoba  at  Winnipeg,  or  by 
the  printer  to  the  Government  of  the  North- West 
Territories,  shall  Ije  prima  facie  evidence  of  such 
proclamati<m  or  order,  and  of  the  fact  that  it  is 
in  force. 

APPLICATION   OF   ACTS  TO  TERRITORIES. 

11».  Every  Act  of  the  Parliament  of  Can-  Jfft^i?" 
ada,  except  in  so  far  as  otherwise  provided  in  any  Canada, 
such  Act,  and  except  in  so  far  as  the  same  is,  by 


580 


THE  CANADIAN   CONSTITUTION. 


Governorlin 
Council  may 
extend  Acts 
to  the  Terri- 
tories. 


its  terms,  applicable  only  to  one  or  more  of  the 
Provinces  of  Canada,  or  in  so  far  as  any  such  Act 
is,  for  any  reason,  inapplicable  to  the  Territories, 
shall,  subject  to  the  provisions  of  this  Act,  apply 
and  be  in  force  in  the  Territories : 

2.  The  Governor  in  Council  may,  l)y  procla- 
mation, from  time  to  time,  direct  that  any  Act  of 
the  Parliament  of  Canada,  or  any  part  or  parts 
thereof,  or  any  one  or  more  of  the  sections  of  any 
one  or  more  of  any  such  Acts  not  then  in  force  in 
the  Territories,  shall  be  in  force  in  the  Terri- 
tories generally,  or  in  any  part  or  parts  thereof 
mentioned  in  such  proclamation. 


Introduction  of  English  Law. 

As  we  have  already  noted  (.s),  the  first  Act  of  the  par- 
liament of  Canada  relating  to  Kupert's  Land  and  the 
North- Western  Territory — 82-33  Vic.  c.  3 — continued  all 
the  laws  then  in  existence  therein,  and  this  provision  runs 
through  all  the  legislation  until  the  passage  of  40  Vic.  c.  25, 
which  came  into  operation  on  the  18th  day  of  February, 
1887  (0-  By  this  Act— see  R.  S.  C.  c.  50,  s.  11— the  Eng- 
lish law,  civil  and  criminal,  in  force  on  the  15th  July,  1870, 
was  introduced  into  the  North-West  Territories,  subject,  of 
course,  to  any  amendment  by  Imperial,  Dominion,  or  terri- 
torial legislation  since  that  date.  We  need  not  elaborate 
this  question  here.  Applicability  is  made  the  test  of  intro- 
duction, and  the  authorities  we  have  collected  and  reviewed 
in  chapter  V.  of  this  work  should  be  of  much  assistance  to 
those  who  have  now,  in  the  North-West  Territories,  to 
decicie  similar  questions. 

The  only  reported  decision  of  the  Supreme  Court  of  the 
Territories  is  Reg.  v.  Nan-e-quis-a  Ka  (u),  in  which  doubt 
was  expressed  as  to  the  applicability  of  the  English  Mar- 


(«)  Ante,  p.  553. 


(t)  Dom.  Stat.,  1887,  p.  clvi. 
lu)  1  N.  W.  T.  Rep.  21. 


THE   NORTH-WEST  TERRITORIES.  581 

riage  Acts  (v)  to  the  Territories.  It  was  hekl  that  at  all 
events  they  are  not  in  force  quoad  Indians.  Reference  is 
made  to  the  decision  of  Mr.  Justice  Monk  in  Connolly  v. 
Wool  rich  (iv),  in  which  a  marriage  according  to  Indian 
custom,  which  had  taken  place  in  the  Athabasca  region, 
was  held  valid. 

But  this  question  remains :  What  was  the  law  in  force 
in  these  Territories  down  to  February,  1887  ?  Upon  this 
(juestion  we  may  refer  to  Re  Calder  (x),  in  which  the  late 
Recorder  Adam  Thom  gave  at  length  his  reasons  for  hold- 
incf  that  the  Court  of  the  Governor  and  Council  of  Assini- 
boia  had  jurisdiction  to  try  a  person  for  homicide  com- 
mitted on  Peace  River  beyond  Great  Slave  Lake.  In  his 
view  the  territory  over  which  the  Hudson  Bay  Co.  had, 
under  its  charter,  powers  of  government  (?/),  and  into  which 
therefore  the  law  of  England  was  carried  by  that  charter, 
comprised  e^'en  more  than  all  the  country  now  known  as 
the  North- West  Territories.  Against  this  view  of  the 
Recorder  may  be  cited  the  judgment,  above  referred  to,  of 
Mr.  Justice  Monk  in  Connolly  v.  Woolrich,  in  which  it  was 
held  that  the  jurisdiction  of  the  Hudson's  Bay  Co.  under 
its  charter  did  not  extend  westward  beyond  the  navig- 
able watera  of  the  streams  flowing  into  Hudson's  Bay ; 
that  in  these  territories  the  law  in  force  was  the  English 
common  law  of  date  1670 ;  and  that  no  alteration  in  this 
respect  had  been  made  since  the  acquisition  of  these  terri- 
tories down  to  1867.  The  view,  however,  of  Recorder 
Thorn  is  the  one  recognized  in  the  Territories.  According 
to  the  construction  put  upon  the  or«linance  of  the  Council 
of  Assiniboia,  of  date  1862,  by  the  Court  of  Queen's  Bench 
of  Manitoba  in  Sinclair  v.  Mulligan  (z),  the  law  in  force  in 
the  Territories  prior  to  Febi'uary,  1887,  wtis  English  law  of - 
date  1670  so  far  as  applicable,  and  so  far  as  unaltered  by 
Dominion  and  territorial  legislation  prior  to  1887. 

(i;)  See  ante,  p.  110.  (ij)  See  ante,  p.  550. 

(»/•)  11  L.  C.  Jur.  197;  see  post.        {z)  5  Man.  L.  li.  17;  see  post. 

(x)  2  Western  Law  Times  1. 


582  THE   CANADIAN   CONSTITUTION. 

We  should  also  note  that  in  Re  Claxton  (r/),  one  of  the 
Revised  Ordinances  (LSHJS) — exeniptino-  1()0  acres  of  land 
from  seizure  under  execution — was  held  invalid  as  repug- 
nant to  the  l)()nuni<>n  "Homestead  Exemption  Act":  and 
this  (juestion  is  one  which,  as  matters  now  stand,  will  fre- 
(juently  arise,  and  what  is  said  in  chapter  V.,  a nte,  may  be 
of  assistance  in  determinin*^  the  general  princi])les  upon 
which  this  (juestion  must  he  solved. 

In  Reg-.  V.  Keefe  (/>)  another  ordinance  was  held  invalid 
as  being  essentially  a  criminal  enactment,  the  view  of  the 
Court  of  Appeal  for  Ontario  in  Reg.  v.  Wason  (r)  being 
avowedly  adopted.  It  is  thus  put  by  the  Supreme  Court 
of  the  Territories  : 

*'  There  is  no  doubt  in  our  minds  that  tlie  real  object  and  the 
true  nature  and  character  of  this  legislation  .  .  was  in  the 
interest  of  public  morals  to  create  an  offence,  and  not  for  the 
protection  of  private  rights." 

Fed  end  Con  vectUni. 

POW'EB   TO   GIVE   THE    TEKRITOHIES   PAUT    IN    THE    DKTEHMISATION    OK 

federal  affairs  18  coxfehued  hy  the  following  : 

49-50  Victoria  (Imp.),  Chapter  35. 

A.D.  1886.  ^n  Act  respecting  the  Representation  in  the 
Parliament  of  Canada  of  Territories  which 
for  the  time  l)eing  form  part  of  the  Dominion 
of  Canada,  but  are  not  included  in  anv 
Province. 

[J5th  Jime,  1.S8G.] 

WHEREAS  it  is  expedient  to  empower  the 
Parliament  of  Canada  to  provide  for  the 
representation  in  the  Senate  and  House  of  Com- 
mons  of   Canada,   or   either   of   them,  of   any 

(a)  1  N.  W.  T.  Eep.  88.  {h)  lb.  86. 

(c)  See  ante,  p.  479. 


THE    XOHTH-WEST  TEKUrnuiIES.  583 

teiTitoiy  whicli  for  the  time  being  fonns  part  of 
tlie  Dominion  of  Cnnada,  l»ut  is  not  inclu«le<l  in 
any  Province : 

Be  it  therefore  enacted  ]iy  the  Queen's  most 
Excellent  IMaie.stv,  Itv  and  with  the  advice  and 
consent  of  the  Lords  Spiritual  and  Temporal, 
and  Conn. ions,  in  this  present  Parliament  assem- 
bled, and  by  the  authority  of  the  same,  as 
follows : — 

1.  The    Parliament   of   Canrnhx    may,  from  j;'ovi«i'>»  by 

•/  '  rarliameiit  of 

time  to  time,  make  provision  for  the  representa-  re*,"^sont?v'- 
tion  in  the  Senate  and  House  of  Conunons  <>f  tcnies!'*"" 
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  iu 
any  pro\ince  tliereof. 

S.  Any  Act   passed  i)y  the   Parliament  of  KftectofActs 

•^  _  '  ...  .  "*  Parliament 

Cana(hi  before  the  passing  of  this  Act  for  the  ^f  Canada, 
purpose  mentioned  in  this  Act  shall,  if  not  dis- 
allowed by  the  Queen,  be,  and  shall  be  deemed 
to  liave  been,  valid  and  ettectual  from  tlie  <hite 
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  liy 
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 
anything  in  the  British  North  America  Act, 
18G7,and  the  number  of  Senators  or  the  numl)er 
of  Members  of  the  House  of  Commons  specified 
in  the  last-mentioned  Act  is  increased  by  the 
number  of  Senators  or  of  Membei's,  as  the  case 
may  be,  provided  by  any  such  Act  of  the  Par- 


584  THE   CANADIAN   CONSTITUTION. 

1  lament  of  Canada  for  the  representation  of  any 
provinces  or  territories  of  Canada  (d). 

Short  title  3.  This  Act  may   be  cited  as  the    British 

and  construe-  ^^        i      »  •         i         ,  r     /i 

tion.  rsorth  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. 

{d)  The  general  effect  of  this  section  is  discussed,  ante,  p.  271  \c.i  to 
the  Senate),  and  ante,  p.  282  (as  to  the  House  of  Commons). 


CHAPTER  XIV. 


MANITOBA. 

The  events  leading  up  to  the  admission  of  Rupert V 
Land  and  the  North- Western  Territory  to  the  Dominion  of 
Canada  have  been  shortly  sketched  in  the  preceding- 
chapter.  Taking  up  the  thread  now  in  reference  to  Mani- 
toba, we  have  to  point  out  that  the  Act  33  Vic.  c.  3,  by 
which  that  province  was  established,  was  validated  by 
Imperial  legislation : 

34-35  Vic,  Cap.  28. 

An  Act  respecting  the  establishment  of  Provinces  in 
the  Dominion  of  Canada. 

[29th  Jane,  187 1\ 

WHEREAS  doubts  have  been  entertained 
respecting  the  powers  of  the  Parliament 
of  Canada  to  establish  Provinces  in  Territories 
admitted,  or  which  may  hereafter  be  admitted 
into  the  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  tlie  said 
Parliament : 

Be  it  enacted  by  the  Queen's  most  excellent 
Majesty,  by  and  with  the  advice  and  consent  of 


5S(i  THK   CANADIAN'   ('(»\STITITI(»N. 

the  Lords  Spiritunl  iind  Temporal,  iin<l  Coin- 
iiioiiH,  ill  this  pivsfiit  Parliiiniont  Hss(!nilik'(l,  and 
Ity  the  authority  of  thu  same,  as  follows: — 

Short  title.  1    '["\uH  Act  may  hu  cito<l  for  all  imrposes  as 

"Th(!  Hritish  North  America  Act,  1H71." 
I'-vriiaiiiont  of        *^.  The    Pai'Iiament   of    Canada    may    from 

Caiinda  may       ... 

ostaijiiHii  now  time   to   time  establish   new    Provinces   in   any 

I'roviiicos  and  i' 

riiocmtstitii-  territories  forming'  for  the  time  heinm'  P'^''^  "'^  t''*' 
ti'i'ei'uof  '  Dominion  of  Canada,  Imt  not  included  in  any 
Pi'ovince  theivof,  and  may,  at  the  time  of  such 
estahlishment,  make  provision  for  the  constitu- 
tion arid  Hflministration  of  any  such  Province, 
and  for  the  passin<;'  of  hiws  for  the  peace,  order, 
and  n()()d  government  of  such  Pi'ovince,  and  for 
its  representation  in  the  said  Parliauient. 

Aitirationnf  ;|.  -"I'l,,.    Pai'liameut    of    ('anada  may   from 

liiiiita  of  Pro-  >' 

viiices.  time  to  time,  with  the  consent  of  the  Leyislature 

of  any  Pi'ovince  of  the  said  Dominion,  increase, 
diminish,  or  otherwise  alter  the  limits  of  such 
l^rovince,  upon  such  t(irms  an<l  conditions  as 
may  he  agreed  to  hy  the  said  Legislature,  and 
may,  with  the  like  consent,  make  provision 
respecting  the  eti'ect  and  operation  of  any  such 
increase  or  diminution  or  alteration  of  territory 
in  relation  to  any  Province  afiected  thereby. 

pariianiont  of        Jt.  The    Parliament   of   Canada   may   from 

Ciiiada  may  '^ 

ioKisir.te  for     tiiuc  to  time  iiwike  provision  for  the  administra- 

aiiy  territory  i 

iira  Prov/nce  t/iou,  pcacc,  order  and  good  government  of  any 
territory  not  for  the  time  being  included  in  any 
Province. 

couflrmation         ii.  The  followiui''  Acts  imssed  by  the  said 

of  ActH  of  Par-  _,      , .  ,.      /-m  i  i     •       •       i     i 

liament  of      Parliament   or    Canada,   and   intituled    respec- 

Caiiada.  82  &        ,  ,  '- 

33  Vict.,  (Can),  tively  :   "An  Act  for  the  temporary  ifovernment 

cap.  3, 33  Vict.  "^  1  J    P> 

€an).  cap.  3.  yf  Rupert's  Land  and  the  Nortli- Western  Terri- 
tory when  united  with  Canada,"  and  "An  Act  to 


MAN'ITOHA.  ')S7 

Hinond  Hiul  contimu'  tlu:  Act  thirty-two  iin<l 
thirty-tliivc  Victoriu,  clinpti'i'  tlirec,  and  t(t 
(•Htultli.sl)  and  ])r()vi<U'  For  tlu-  'jiovcnmicnt  of 
tlio  Provinc*.'  of  Manitoba,'"  .shall  Ik-  and  Ik' 
det'iiu'd  to  have  hooii  valid  and  t'H'cetual  for  all 
|)ur|)()H('K  whatsoi^vor  from  the  dat«'  at  wliich 
tlu'y  respcctivt'ly  jvceiviMl  tlu;  assent,  in  the 
(Queen's  nanii',  of  the  ( Jovornor-Ciunoral  of  the 
said  Dominion  of  Canada. 

€*.   Exc(n)t  as  providcil  hv  tliu  thii-d  section  I'lmitiiiion  -f 
of   this  Act,  it  shall   not  he  competent  foi-  the  |i;[;;;^';{;^\;'/,^„. 
Parliament  of    Canada  to  alter  the   P'''>^'i^'<>'>^  rsuu^'iiHiu"" 
of  the  last  mentioned   Act  of   the  said   Pallia- ''''"^""=^" 
ment,  in  so  far  as  it  relates  to  tin;  Province  of 
Manitoha,  or  of  any  other  Act  hereafter  estah- 
lishinj>'    new   Proxinces   in    the    said    Dominion, 
snhject  always  to  the  I'ij^ht  of  the  Le<^islature  of 
the  Province  of  Manitoba  to  alter  from  time  to 
tinie  the  provisions  of  any  law  respectinn'  the 
(inalification    of    electors   an<l    niemhers   of   the 
Legislative  Assemldy,  and  to  make  laws  respect- 
ing elections  in  the  said  Province. 

Under  tlie  8rd  section  of  this  Act,  the  limits  of  3Iani- 
toba  were  in  1(S77  {<i),  and  again  in  18.S1  (h),  altered  and 
its  territory  considei'al)ly  increased.  The  ()th  section  is 
the  all-important  one,  not  merely  to  ]\^anitol)a  l)ut  to  an}' 
province  to  be  hereafter  created.  It  will  tend  to  retard 
the  creation  of  new  provinces  until  the  Territories  are  so 
well  settled  and  oi'ganized  as  to  be  entitled  to  the  same 
powers  of  self-government  as  are  now  enjoyed  by  the  older 
provinces.  It  would  l)e  unfortunate  to  give  the  name  of  a 
province  to  any  division  of  the  Territories,  unless  at  the 
same  time  full  provincial  autonomy  were  given.     In  fact  it 

(n)  See  40  Vic.  c.  «  (Dom.). 
(b)  See44  Vic.  c.  14  (Dom.). 


588  THE   CANADIAN   CONSTri'lTION. 

iiuiy  1)0  doultted  if,  under  the  above  Act,  a  province  could 
l»e  created  with  leHH  power  than  the  provinces  named  in 
the  B.  N.  A.  Act.  However  this  may  be,  any  Act  of  the 
parliament  of  Canada  creative  of  a  new  province  becomcH 
at  once,  in  effect,  an  Imperial  Act — at  all  events  an  Act 
which  can  be  altered  by  nothing  short  of  Imperial  legisla- 
tion. Such  is  the  position  of  Manitoba  to-day.  Her 
charter  is : 

33  Vic,  Cap.  3. 

An  Act  to  amend  and  contiiuie  the  Act  32  and  83  Victoria,, 
chapter  3 ;  and  to  establish  and  provide  for  the  Govern- 
ment of  the  Province  of  Manitoba. 

[Ammted  to  IJth  Mny,  JS70.] 

Preamble.  TT7HEREAS  it  is  probable  that  Her  Majesty 
*  *  The  Queen  may,  pui-suant  to  the  British 
North  Amenca  Act,  18G7,  be  pleased  to  admit 
Rupert's  Land  and  the  North-Western  Territory 
into  the  Union  or  Dominion  of  Canada,  before 
the  next  Session  of  the  Parliament  of  Canada : 

And  Whereas  it  is  expedient  to  prepare  for 
the  transfer  of  the  said  Territories  to  the  Gov- 
ernment of  Canada  at  the  time  appointed  by  the 
Queen  for  such  admission : 

And  Whereas  it  is  expedient  also  to  provide 
for  the  organization  of  part  of  the  said  Terri- 
tories as  a  Province,  and  for  the  establishment, 
of  a  Government  therefor,  and  to  make  provision 
for  the  Civil  Government  of  the  remaining  part 
of  the  said  Territories  not  included  within  the 
limits  of  the  Province :     ' 

Therefore  Her  Majesty,  by  and  with  the 
advice  and  consent  of  the  Senate  and  House  of 
Commons  of  Canada,  enacts  as  follows : 


MaNITOHA.  5S!> 

1.  On,  from  and  after  the  day  upon  whicli  Do'Jormoa" 
the  Queen  liy  and  witli  tlie  advice  and  consent  "g'^^.j"^;'^'- ^^■ 
of  Her  Maje.sty'H  MoHt  Hc^norahle  Privy  Council,  Toc^Zu'''^ 
under  the  autliority  of  the  IKith  Hection  of  the 
BvitiHli   North    America    Act,    1<S()7,  hIuiU,    by 

Order  in  Council  in  that  hehalf  (<•),  admit  Ru- 
pertH  Land  and  the  North-We.stern  Territory 
into  the  Union  or  Dominion  of  Cana<hi,  there 
shall  l)e  formed  out  of  the  same  a  Province, 
which  shall  be  one  of  the  Provinces  of  the  Do- 
minion of  Canada,  and  which  shall  l)e  called  the  J,oundaWuT'^ 
Province  of  Manitoba,  and  be  bounded  as 
follows ; 

[The  Jmundaries  as  here  defined  were  ofter- 
wa r<1s  altered,  and  the  area  of  the  Province  en- 
larged.    /S'ee  ante,  j).  537 ;  also  R.  S.  C.  c.  yf.7.] 

2.  On,  from  and  after  the  said  day  on  which  certain  i)io- 
the  Order  of  the  Queen  in  Council  shall  take  b.n.a.  Act, 
effect  as  aforesaid,  the  provisions  of  the  British  to  Manitoba. 
North  Amei'ica  Act,  18G7,  shall,  except   those 

parts  thereof  which  are  in  terms  made,  or  by 
reasonable  intendment,  may  be  held  to  be 
specially  applicable  to,  or  only  to  affect  one  or 
more,  but  not  the  whole  of  the  Provinces  now  . 
composing  the  Dominion,  and  except  so  far  as  the 
same  may  be  varied  by  this  Act,  be  applicable  •  • 
to  the  Province  of  Manitoba,  in  the  same  w^a}^ 
and  to  the  like  extent  as  they  apply  to  the  sev- 
eral Provinces  of  Canada,  and  as  if  the  Pro\  ince 
of  Manitoba  had  been  one  of  the  Provinces 
originally  united  by  the  said  Act. 

8.  The  said  Province  shall  be  represented  in  fio^^n®  he''" 
the  Senate  of  Canada  by  two  Members,  until  senate.  «i). 

(c)  The  Order  in  Council  bears  date  23  June,  1870,  and  provides  for 
admission  on  15  July,  1870. 

(d)  Now  3.     See  B.  S.  C.  c.  12 ;  also  ante,  p.  268,  et  seq. 


590 


THE   CANADIAN   CONSTITUTION. 


Representa- 
tion in  the 
House  of 

Commons  (c). 


it  Hliall  have,  according  to  decennial  cenHUH,  a 
population  of  tif ty '  thousand  souls,  and  from 
thencefoi'th  it  shall  be  represented  therein  l»y 
three  Members,  until  it  shall  have,  according  to 
decennial  census,  a  population  of  seventy-tive 
tiiousand  souls,  and  from  thenceforth  it  shall 
be  represented  therein  by  iV/ar  Membei-s, 

4.  The  said  Province  shall  be  represented,  in 
the  first  instance,  in  the  House  of  Commons  of 
Canada,  by  four  Membei-s,  and  for  that  purpose 
shall  be  divided  by  proclamation  of  the  Gover- 
noi'-General,  into  four  Electoral  Districts,  each 
of  which  shall  be  represented  by  one  Member : 
Provided  that  on  the  completion  of  the  census  in 
the  year  1881,  and  of  each  decennial  census 
afterwards,  the  representation  of  the  said  Prov- 
ince shall  be  re-adjusted  according  to  the  pro- 
visions of  the  lifty-lirst  section  of  the  British 
North  Amercia  Act,  1867. 

Qualification         5.  Until  the  Parliament  of  Canada  otherwise 

ot  voters  and 

members  (/).  provides,  the  qualification  of  votei*s  at  Elections 
of  Members  of  the  House  of  Commons  shall  be 
the  same  as  for  the  Legislative  Assembly  here- 
inafter mentioned :  And  no  person  shall  be 
(j[ualified  to  be  elected,  or  to  sit  and  vote  as  a 
Member  for  any  Electoral  District,  unless  he  is 
a  duly  qualified  voter  within  the  said  Province. 

C  For  the  said  Province  there  shall  be  an 
officer  styled  the  Lieutenant-Governor,  appointed 
by  the  Governor-General  in  Council  by  instru- 
ment under  the  Great  Seal  of  Canada. 


Lieutenant- 
Governor  (.'/). 


(e)  Now  7.     See  55-56  Vic.  c.  11  (Dom.) ;  also  ante,  p.  282,  et  seq. 
{ f)  See  ante,  p.  285,  et  neq.    The  restriction  imposed  by  the  latter  part 
of  the  section  has  been  removed. 

(g)  See  tinte,  p.  300,  et  seq. 


MANITOBA.  591 

7.  The  Executive  Council  of  the  Province  ^^^^^'^|i'[^), 
shall  be  composed  of  such  persons,  and  under 
such  designations,  as  the  Lieutenant-Governor 
shall,  from  time  to  time,  think  fit ;  and,  in  the 
first  instance,  of  not  more  than  five  pei*sons. 

S.  Unless  and  until  the  Executive  Govern-  |o*vern. 
ment  of  the  Province  otherwise  directs,  the  seat  "^*"*  **'• 
of  Government  of  the  same  shall  be  at  Fort 
Garry,  or  Avithin  one  mile  thereof. 

tt.  There  shall  be  a  Legislature  for  the  Prov-  Lf^isiature. 
ince,    consisting    of    the    Lieutenant-Governor, 
and  of  two  Houses  (j),  styled  respectively,  the 
Legislative  Council  of  Manitoba,  and  the  Legis- 
lative Assembly  of  Manitoba. 

[Sections  10- Li  relit te  to  the  defunct  Legisla- 
tive Coancil.] 

14.  The  Legislative  Assembly  shall  be  com-  Legislative 

°  "^  Assembly. 

posed  of  twenty-f5ur  Members,  to  be  elected  to 
represent  the  Electoral  Divisions  into  which  the 
said  Province  may  be  divided  by  the  Lieutenant- 
Governor,  as  hereinafter  mentioned. 

15.  The  presence  of  a  majority  of  the  Mem-  Quorum, 
bei-s  of  the  Legislative  Assembly  shall  be  neces- 
sary 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. 

(/()  The  provisions  of  this  and  the  following  sections,  relating  to  the 
provincial  constitution,  have  all  been  the  subject  of  provincial  legislation* 
See  B.  S.  Man.  (1888) ;  and  see  also  notes  to  B.  N.  A.  Act,  1867,  s.  92,  s-s.  1, 
ante,  p.  420,  et  seq. 

(i)  Now  "  Winnipeg." 

(j)  Now  only  one.  The  Legislative  Council  was  abolished  by  39  Vic. 
c.  29  (Man.) ;  see  ante,  p.  326. 


592 


THE   CANADIAN   CONSTITUTION. 


Durption  of 
LeRislative 
Absembly  (k). 


Sessions  at 
least  once  a 
year  (I). 


Certain  pro- 
visions of 
B.  X.  A.  Act, 
1.S67,  to 
apply  (m). 


Legislation 
touchiuR 
schools  sub- 
ject to  certain 
provisions  (n). 


[Sections  16  to  IS  relate  to  first  elections, 
electoral  districts,  and  qiudifications  of  voters. 
They  are  long  since  efete.^ 

lO.  Every  Legislative  Assembly  shall  con- 
tinue for  four  years  from  the  date  of  the  return 
of  the  writs  for  returning  the  same  (subject 
nevertheless  to  being  sooner  dissolved  by  the 
Lieutenant-Governor),  and  no  longer;  and  the 
first  Session  thereof  shall  be  called  at  such  time 
as  the  Lieutenant-Governor  shall  appoint. 

20.  There  shall  be  a  Session  of  the  Legisla- 
ture once  at  least  in  every  year,  so  that  twelve 
months  shall  not  intervene  between  the  last 
sitting'  of  the  Legislature  in  one  Session  and  its 
first  sitting  in  the  next  Session. 

21.  The  following  provisions  of  the  British 
Noi'th  America  Act,  1867,  re.  pecting  the  House 
of  Commons  of  Canada,  shall  extend  and  apjDl}' 
to  the  Legislati  ve  Assembly,  that  is  to  say : — 
Provisions  relating  to  the  election  of  a  Speaker, 
originally,  and  on  vacancies, — the  duties  of  the 
Speaker,  the  absence  of  the  Speaker  and  the 
mode  of  voting,  as  if  those  provisions  were  here 
re-enacted  and  made  applicable  in  terms  to  the 
Legislative  Assembly. 

22.  In  and  for  the  Province,  the  said  Legis- 
lature may  exclusively  make  Laws  in  relation 
to  Education,  subiect  and  according  to  the  fol- 
lowing  provisions  : — 

(1)  Nothing  in  any  such  law  shall  prejudi- 
cially aff*ect  any  right  or  privilege  with  respect 


(fe)  See  ante,  p.  .336. 

{I)  See  ante,  p.  337. 

(m)  Compare  B.  N.  A.  Act,  1867,  s.  87,  ante,  p.  337.     . 

(n)  This  matter  is  fully  dealt  with ;  ante,  p.  489,  et  seq. 


MANITOBA.  593 

to  Denominational  Scliools  wliich  an}'  class  of 
persons  have  l)y  Law  or  practice  in  the  Province 
at  the  Union  : — 

(2)  An  appeal  shall  lie  to  the  Governor- 
General  in  Council  tVon\  any  Act  or  decision  of 
the  Legislature  of  the  Pnjvince,  or  of  any  Pro- 
vincial Authority  affecting  any  right  or  privilege 
of  the  Protestant  or  Roman  Catholic  nnnoritvoi' 
the  Queen's  suhjects  in  relation  to  Education: 

(8)  Li  case  any  such  Provincial  Law,  as  from  ^'o^^^ev 

^  _  "^  '  lesei'ved  to 

time  to  time  seems  to  the  Governor-General  iu  I'^'ii'^uiei't- 
Council  recjuisite  for  the  due  execution  of  the 
provisions  of  this  section,  is  not  made,  or  in  case 
any  decision  of  the  Governor-General  in  Council 
on  any  apjieal  under  this  section  is  not  duly 
executed  by  the  proper  Provincial  Authority  in 
that  behalf,  then,  an<l  in  every  such  case,  and  as 
far  onlv  as  the  circumstances  of  each  case 
require,  the  Parliament  of  Canada  may  make 
remedial  Laws  f(jr  the  due  execution  of  the  pro- 
visions of  this  section,  and  of  an}'  decision  of  the 
Governor-General  in  Council  under  tliis  section. 

S3.  Either  the   Enolish  or  the  French  Ian- KnsHshaiui 

11  -111  l-'reiifh 

guage  may  l»e  used  by  any  person  m  the  tlebates  lan^^nases  to 
of  the  Houses  of  the  Legislature,  and  both  those 
languages  shall  be  usetl  in  the  respective  Records 
and  Journals  of  those  Houses ;  and  either  of 
those  languages  may  l)e  used  by  any  person,  or 
in  any  Pleading  or  Process,  in  or  issuing  from 
any  Court  of  Canada  established  under  the 
British  North  America  Act,  18G7,  or  in  or  from 
all  or  any  of  the  Courts  of  the  Province,  The 
Acts  of  the  Legislature  shall  be  printed  and  pub- 
lished in  both  those  languages. 

Can.  Cos.— 38 


594  THE  CANADIAN   CONSTITUTION. 

Interest  g»4.  Ina«:r.uch  as  the  Pi'ovince  is  not  in  debt, 

allowed  to  ' 

m?a^certain*    ^^^  ^^^^  Province  shall  be  entitled  to  be  paid, 

deb°t'of*  °'  ^'^^  *"^^  ^^  receive  from  the  Government  of  Canada, 

Canada.         ^yy  half-yearly  payments  in  advance,  interest  at 

the  rate  of  live  per  centum  per  annum  on  the  sum 

of  four  hundred  and  seventy-two  thousand  and 

ninety  dollara. 

Subsidy  to  25.  The  sum  of  thirty  thousand  dollars  shall 

the  Province  "^ 

for  support  of  \)q  paid  vearlv  by  Canada  to  the  Province,  for 

Government,  tr  *>  >/    ^  *^ 

*ortion''toit8  ^^^  support  of  its  GoveiTiment  and  Legislature, 
population,  ^nd  an  annual  grant,  in  aid  of  the  said  Province, 
shall  be  made,  equal  to  eighty  cents  per  head  of 
the  population,  estimated  at  seventeen  thousand 
souls  ;  and  such  grant  of  eighty  cents  per  head 
shall  be  augmented  in  proportion  to  the  increase 
of  population,  as  may  be  shown  by  the  census 
that  shall  be  taken  thereof  in  the  year  one  thou- 
sand eight  hundred  and  eighty-one,  and  by  each 
subsequent  decennial  census,  until  its  population 
amounts  to  four  hundred  thousand  souls,  at 
which  amount  such  grant  shall  remain  there- 
after, and  such  sum  shall  be  in  full  settlement  of 
all  future  demands  on  Canada,  and  shall  be  paid 
half-yearly,  in  advance,  to  the  said  Province. 

Canada  og    Canada   will    assume   and   defray   the 

assumes  cer-  *' 

tain  expenses,  charges  for  the  following  services  : — 

1.  Salary  of  the  Lieutenant-Governor. 

2.  Salaries  and  allowances  of  the  Judges  of 
the  Superior  and  District  or  County  Courts. 

3.  Charges  in  respect  of  the  Department  of 
the  Customs. 

4.  Postal  Department. 

5.  Protection  of  Fisheries. 
C.  Militia. 

7.  Geological  Survey. 


MANITOBA.  595 

8.  The  Penitentiary. 

9.  And   such   further  charges   as   may   be  pjovutou 
incident  to,  and  connected   with   the   services 
which,  by  the  British  North  America  Act,  1867, 
appertain  to  the  General  Government,  and  as 

are  or  may  be  allowed  to  the  other  Provinces. 

[Sections  27-29  relate  to  customs  and  inland 
revenue  and  are  effete.'] 

80.   All  unffranted  or  waste  lands  in  the  ynpranted 

"  laiidB  vested 

Province    shall   be,   from   and    after    the   date  i"  ^Jl®  crown 

'  for  Dominion 

of  the  said  transfer,  vested  in  the  Crown,  and  P"'Po»e8  (»)• 
administered  by  the  Government  of  Canada  for 
the  purposes  of  the  Dominion,  subject  to,  and 
except  and  so  far  as  the  same  may  be  affected 
by,  the  conditions  and  stipulations  contained  in 
the  agreement  for  the  surrender  of  Rupert's 
Land  by  the  Hudson's  Bay  Company  to  Her 
Majesty. 

31.  And  whereas,  it  is  expedient,  towards  P'o^isions  as 
the  extinguishment  of  the  Indian  Title  to  the  *'*'^- 
lands  in  the  Province,  to  appropriate  a  portion 
of  such  ungranted  lands,  to  the  extent  of  one 
million  four  hundred  thousand  acres  thereof,  for 
the  benefit   of  the   families  of   the  half-breed  oraut  for  half 
residents,  it  is  hereby  enacted,  that,  under  regu-    '°^  ^  *'*'■ 
lations  to  be  from  time  to  time  made  by  the 
Governor-General   in  Council,  the  Lieutenant- 
Governor  shall  select  such  lots  or  tracts  in  such 
parts  of  the  Province  as  he  may  deem  expedient, 
to  the  extent   aforesaid,  and  divide  the  same 
among  the  children  of  the  half-breed  heads  of 

(o)  See  post,  for  some  observations  on  the  position  of  Manitoba  in 
relation  to  lands  within  her  borders. 

(p)  There  has  been  much  legislation  by  the  parliament  of  Canada  in 
reference  to  the  adjustment  of  the  claims  of  half-breeds  and  squatters, 
but  the  subject  is  hardly  within  our  range. 


596 


THE   CANADIAN   CONSTITUTION. 


QuiotiuR 
titles. 


Grants  by 
H.  13.  Com- 
I'any. 


The  same. 


Titles  being 
occupancy 
with  per- 
mission ; 


By  peaceable 
possession. 


families  reHiding'  in  tlio  Province  at  tlie  time  of 
the  Haid  transfer  to  Canada,  and  tlie  same  shall 
be  granted  to  the  said  children  respectively,  in 
such  mode  and  on  .such  conditions  as  to  settle- 
ment and  otlierwise,  as  the  Governor-General  in 
Council  may  from  time  to  time  determine. 

JJ2.  For  the  quieting  of  titles,  and  assuring 
to  the  settlers  in  tlie  Province  the  peaceable 
possession  of  the  lands  now  held  by  them,  it  is 
enacted  as  follows  : — 

1.  All  grants  of  land  in  freelujld  made  by  the 
Hudson's  Bay  Company  up  to  the  eighth  day  of 
March,  in  the  year  18(39,  shall,  if  re<juired  by  the 
owner,  T)e  confirmed  by  grant  from  the  Crown. 

2.  All  grants  of  estates  less  than  freehold  in 
land  made  by  the  Hudson's  Bay  Company  up  to 
the  eighth  day  of  March,  aforesaid,  shall,  if 
required  by  the  owner,  be  converted  into  an 
estate  in  freehold  by  grant  from  the  Crown. 

3.  All  titles  by  occupanc}^  with  the  sanction 
and  under  the  license  and  authority  of  the  Hud- 
son's  Bay  Company  up  to  the  eighth  day  of 
]\iarcli,  aforesaid,  of  land  in  that  part  of  the 
Province  in  which  the  Indian  Title  has  been 
extinguished,  shall,  if  required  by  the  owner,  be 
converted  into  an  estate  in  freehold  by  grant 
from  the  Crown. 

4.  All  persons  in  peaceable  possession  of 
tracts  of  land  at  the  time  of  the  transfer  to 
Canada,  in  those  parts  of  the  Province  in  which 
the  Indian  Title  has  not  been  extinguished,  shall 
have  the  right  of  pre-emption  of  the  same,  on 
such  terms  and  conditions  as  may  be  determined 
by  the  Governor  in  Council. 


MANITOBA.  597 

5.  The  Lieutenant-Governor  is  hereby  author-  Lieutenant- 

i'  Lrovernor  to 

ized,  under  reoulations  to  be  made  from  time  to  "J**'^  •"?,,„, 
time  by  the  Governor-General  in  Council,  to  counoir 
make  all  such  provisions  for  ascertaining  and 
adjusting-,  on  fair  and  equitable  terms,  the  rights 
(){  cutting  Hay  held  and  enjoyed  by  the  settlei-s 
in  the  Province,  and  for  the  connnutation  of  the 
same  by  grants  of  land  from  the  Crown. 

33.  The  Governor-General  in  Council  shall  go°unc?Ho'° 
from  time  to  time  settle  and  appoint  the  mode  &c!!°o?6raut8! 
and  f(n'm  of  Grants  of  Land  fr<^m  the  Crown, 

and  any  Order  in  Council  for  that  purpose  when 
puljlished  in  the  Ca.nada  Gazette,  shall  have  the 
same  force  and  effect  as  if  it  were  a  portion  of 
this  Act. 

34.  Nothing  in  this  Act  shall  in  any  way  Eights  of 
prejudice  or  affect  the  rights  or  properties  of  the  pany  not 
Hudson's  Bay  Company,  as  contained  in  the  con- 
ditions under  which  that  Company  surrendered 
Rupert's  Land  to  Her  Majesty. 

\_Hcctio'as  35  and  36  are  lomj  since  efete.'] 


EiKjlish  Laiv  in  Manitoba,  - 

We  have  already  (q)  had  occasion  to  refer  to  the  pro- 
vision of  the  first  Dominion  Statute  (32-33  Vic.  c.  3),  deal- 
ing with  Rupert's  Land  and  the  North-Western  Territory, 
which  continued  in  force  in  that  country  the  laws  then  in 
force  there.  We  have  also  referred  (r)  to  the  question  as, 
to  what  those  laws  then  in  force  were.  This  question  has 
been  much  discussed  in  Manitoba.     Its  position  in  thia 

{q)  Ante,]).bo3:  (r)  ^H<e,  p.  581. 


598  THE   CANADIAN   CONSTITUTION. 

matter — both  (1)  as  to  the  date  upon  which  such  introduc- 
tion took  place,  (2)  the  extent  of  such  introduction,  (3)  the 
effect  to  be  given  to  that  ordinance  of  the  old  Assiniboia 
Council,  to  which  we  shall  have  to  refer,  as  well  as  (4) 
the  extent  of  the  introduction  subsequently  eftected  ])y 
provincial  Acts — was  considered  by  the  Court  of  Queen's 
Bench  (s)  upon  an  appeal  from  the  judgment  of  Killam,  J. 
(/),  in  Sinclair  v.  Mulligan.  The  first  three  (|uesti()ns  are 
exhaustively  discussed  in  the  latter  judgment,  and  the 
opinions  expressed  therein  were  adopted  by  the  full  Court, 
Mr.  Justice  Dubuc,  however,  expressing  some  doubt  as  to 
the  correctness  of  the  construction  placed  by  the  other 
judges  upon  the  Assiniboia  ordinance.  The  holding  of  the 
Court  may  be  summed  up  in  the  language  of  Taylor,  C.J. : 
"  Until  1870,  the  law  of  England,  at  the  date  of  the  Hudson's 
Bay  Company's  charter,  1670,  was  the  law  in  force  here,  and 
indeed,  except  as  to  matters  which  have  been  dealt  with  by  the 
Dominion  parliament,  or  xvhivh  are  ivithin  the  jiiri.sdietion  of  thr 
Provinciid  h'ffislatnre  and  have  been  dealt  icith  by  it,  that  is  the  law 
of  this  province  at  the  present  day." 

In  his  judgment,  Mr.  Justice  Killam  adopts  the  view, 
upon  which  enough  has  been  said  in  chapter  V.,  ante,  that 
the  question  of  applicability  is  one  proper  for  consideration. 
The  ordinance  of  1862  (u)  he  construed  as  a  law  regulative 
of  practice  and  procedure  merely,  and  not  as  a  law  bringing 
forward  the  date  as  of  which  English  law,  in  the  general 
sense  of  that  term,  was  to  be  deemed  to  be  introduced  into 
those  Territories — a  question  as  to  which  the  doubt  ex- 
pressed by  Mr.  Justice  Dubuc  seems  to  have  much  to  sup- 
port it.  In  the  result,  the  Statute  of  Uses  was  held  to  be  in 
force,  the  Statute  of  Enrolment  was  held  inapplicable,  and 
the  Statute  of  Frauds  not  to  be  in  force  because  of  date 

(s)  5  Man.  L.  R.  17. 
(t)  3  Man.  L.  B.  481. 

(u)  The  language  of  this  ordinance  was  very  much  the  same  as  that 
of  s.  38  of  34  Vic.  c.  2  (Man.),  quoted  post. 


MANITOBA.  51)9 

Hubsequent  to  the  H.  B.  Co.'s  charter;  and  a  verbal  bar*(ain 
as  to  land  was  given  effect  to  under  the  Statute  of  Uses. 

One  of  the  fii-st  Acts  of  the  Manitoba  Legislature 
(34  Vic.  c.  2),  was  to  establiHli  a  Supreme  Court  for  the 
province,  having  the  jurisdiction  distributed  in  England 
between  the  Superior  Courts  of  Law  and  E(|uity  and  of 
Probate.  By  sections  3S,  51  and  52  of  this  Act  it  was 
provided: 

•*  88.  As  far  as  possible  consistently  with  the  circumstances 
of  the  country  the  laws  of  evidence  and  the  principles  which 
govern  the  administration  of  justice  in  England  shall  obtain  in 
the  Supreme  Coui't  of  Manitoba. 

"  51.  So  much  of  the  laws  of  the  Governor  and  Council  of 
Assiniboia  as  may  be  inconsistent  with  tliis  Act,  is  hereby 
repealed. 

"  52.  So  much  of  the  laws  of  the  Governor  and  Council  of 
Assiniboia  as  are  not  repealed  by  the  preceding  section,  or  are 
not  inconsistent  with  this  Act,  or  with  any  other  Act  to  be 
passed  during  this  session,  shall  be  extended  to  the  whole  of  the 
province  of  Manitoba." 

Section  38  would  no  doubt  receive  the  same  construc- 
tion as  the  oidinance  of  1802  afterwards  received  in  Sin- 
clair v.  Mulligan  (see  ante),  and  be  limited  to  the  regulation  ' 
of  practice  and  procedure,  and  this  statute  therefore  is  of 
importance  upon  this  question  only  as  putting  aside  any 
doubt  as  to  the  extent  of  the  territorial  operation  of  the 
laws  of  the  Assiniboia  Council. 

In  1874,  by  38  Vic.  c.  12  (see  Con.  Stat.  Man.,  1880, 
c.  31),  it  was  enacted  : 

"  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.     .     .     ." 

{v)  "The  Supreme  Court  of  Manitoba"  was  given  this  name  by  35 
Vic.  c.  3. 


000  THE   CANADIAN   CnNSTITUTION. 

with  n  clause  a.s  to  evidence,  and  practice  and  procc.'dure,  to 
the  same  ett'ect.  Were  it  not  for  tlie  sharp  distinction 
drawn  between  hiw  and  practice  in  this  enactment,  it 
might  be  contended  that,  so  far  as  the  general  adoption  of 
Enj;lish  law  is  concerne<l,  it  should  receive  tJie  same  con- 
struction as  the  Assiniboia  ordinance  of  1802,  and  be 
limited  to  the  introduction  of  Enj;lish  practice  and 
procedure.  It  has,  however,  been  uniforndy  treated  as 
intnxlucinj^  general  English  lav/  as  it  stood  on  the  15th  of 
July,  1<S70,  and  there  can  be  little  doubt  that  such  is  its 
proper  construction. 

In  reference  to  the  limited  operation  of  any  provincial 
statute  introducing  English  law,  it  seems  impossible  to 
escape  from  the  result  indicated  by  Taylor,  C.J.,  in  the 
passage  of  his  judgment  which  we  have  italicized  (ii^). 
From  time  to  time  the  parliament  of  Canada  has  passed 
statutes  introducing  certain  portions  of  the  statute  law  t)f 
the  Dominion,  passed  prior  to  1870,  into  Manitoba.  Statutes 
since  1870  are  of  courae  in  force  there  unless  expressly 
excepted.  But  there  had  been  no  general  provision  made 
as  to  those  niattei's  which  are  within  the  legislative 
competence  of  the  Dominion  parliament,  so  that  the  law  in 
Manitoba  as  to  all  such  matters  was,  until  1888,  the 
English  law  of  1070.  As  to  matters  within  the  legislative 
competence  of  the  provincial  legislature  there  has  been,  as 
we  have  seen,  such  general  legislation — not,  indeed,  in 
terms  so  confined,  but  judicially  determined  to  be  so 
limited.  In  Canadian  Bank  of  Commerce  v.  Adamson  (.r) 
it  had  been  held  that  the  English  Bill  of  Exchange  Act 
(18  &  19  Vic.  c.  07),  was  in  force  in  Manitoba,  but  this 
decision  was  based  upon  a  construction  of  the  ordinance  of 
1802,  which  was  not  followed  in  Sinclair  v.  Mulligan. 
How^ever,  by  51  Vic.  c.  33  (Dom.) — for  the  removal  of 
doubts — the  difficulty  suggested  in  reference  to  the  intro- 
duction of  English  law  in  relation  to  matters  other  than 

(tv)  Ante,  p.  598.  (x)  1  Man.  L.  K.  3. 


MAN'ITOMA.  001 

those    within  the  le^i.slative   competence  of   a   provincial 
k-jj^ishiture  was  removed,  ami  it  was  enacted  that: 

"  The  laws  of  England  relating  to  matters  within  the  juris- 
diction of  the  parliament  of  Canada,  as  the  same  existed  on  tho 
15th  July,  1870,  were  from  the  said  day  and  are  in  force  in  tho 
province  of  Manitoba,  in'so  far  as  the  same  are  applicable  to  the 
said  province,  and  in  so  far  as  the  same  have  not  been  and  are 
not  hereafter  repealed,  altered,  varied,  modified,  or  aftected  by 
liny  Act  .f  tho  parliament  of  the  United  Kin/^'dom  applicable  to 
the  said  province,  or  of  the  parliament  of  Canada." 
the  lejjfal  rate  of  interest,  however,  beinj,^  placed  at  six  per 
cent.,  as  in  the  other  provinces. 

The  same  principle  in  reference  to  the  intioduction  ot* 
Kn^lish  statntory  law  of  local  ap])lication  in  England  has 
Iteen  invoked  in  ^lanitoha,  as  in  the  oMer  provinces  (//), 
In  AttonKy-Oeneral  v.  Richard  (z),  it  was  held  by  Chief 
Justice  Wallbridge,  that  the  Imperial  statute  LS  <li:  11) 
Vic.  c.  90,  under  which  costs  may  be  ordered  against  the 
Crown  in  England,  was  not  introduced  into  JManitfdta  by 
the  provincial  Act  to  which  we  have  above  referred  : 

"  That  Act  is  local  as  to  England,  and  required  a  special 
Act  to  make  it  applioable  to  the  Isle  of  Man  ;  besides,  the  manner 
of  obtaining  costs  pointed  out  under  it  could  not  apply  here. 
We  have  not  the  officers,  or  the  means  territorially  of  enforcing 
a  demand  for  costs,  and  the  court  will  not  make  a  decree  which 
it  cannot  enforce." 

Pahllc  Lumh  in  Mduitoba. 

Upon  the  i^ormation  -of  the  pro\ince  of  Manitoba  (((), 
provision  was  made  for  the  administration  by  the  Governor 
in  Council  of  the  pultlic  lands  of  that  province  as  a  federal 
asset.  Statutes  have  from  time  to  time  been  passed 
making'  provision  for  the  issue  of  Letters  Patent  granting 
such  lands  to  purchasers  from  the  Hudson's  Bay  Co.,  to- 

(y)  Ante,  p.  120.  (z)  4.  Man.  L.  R.  33G. 

(fl)  See  33  Vic.  c.  3,  s.  30,  mite,  p.  595. 


002  THE  CANADIAN  CONSTITUTION. 

lialf-l»ree(lH,  Htiuatteix,  and  suUsequent  Hettlei'H  (b).  A  \tn'i>;o 
pcn'tion  liHH  been  granted  to  the  Cana<lian  Pacific  Railway 
Co.,  under  the  tenuH  of  its  charter,  and  up  to  the  preHont 
time  the  only  conccHHion  to  the  province  is  that  containetl 
in  R.  S.  C.  c.  47,  under  which  swamp  lands  are  to  be  trans- 
ferred to  the  province,  and  an  endowment  of  150,000  acres 
is  provided  for  the  University  of  Manitoba.  The  addi- 
tional territory  since  annexed  to  the  province  is  in  the 
Hame  position,  l)eing  subject  moreover  to  interests  acquired 
therein,  prior  to  such  annexatior^,  under  Dominion  lejjis- 
lation. 

A  very  interesting  (|uestioii  came  before  the  Court  of 
Queen's  Bench  in  Manitoba,  in  1891,  in  reference  to  the 
]>ower  of  the  Canadian  Pacific  Railway  Co.  to  hohl  land  in 
that  province  without  taking  out  the  license  recpiired  by 
provincial  statutes  (e).  In  delivering  the  judgment  of  the 
Court,  Mr.  Justice  Killam  says : 

"By  the  Act,  49  Vic.  c.  11,  s.  4  (Man.),  'No  company, 
corporation,  or  other  institution  not  incorporated  under  the 
provisions  of  the  statutes  of  this  province,  shall  be  capable  of 
taking,  holding,  or  acquiring  any  real  estate  within  this  province 
unless  under  license  from  the  Lieutenant-Governor  in  Council, 
under  any  statute  of  this  province.*  Several  statutes  have,  from 
time  to  time,  been  passed  by  the  provincial  legislature,  author- 
izing the  issue  of  licenses  to  corporations,  permitting  them  to 
take  and  hold  lands  or  securities  upon  lands  in  Manitoba.  These 
have  been  repealed  and  consolidated  and  to  some  extent 
iimended  by  the  Act,  53  Vic.  c.  23,  s.  15  (Man.).  The  C.  P.  R. 
Co.  has  taken  out  no  license  under  any  of  these  statutes. 
By  the  Act,  44  Vic.  c.  14  (Dom.),  provision  was  made  for  the 
extension  of  Manitoba  by  including  within  it  certain  territory, 
formerly  a  portion  of  the  North-West  Territories.  One  term  of 
this  extension  was,  as  provided  by  section  2,  sub-section  (1) : 
■*  The  said  increased  limit  and  territory  thereby  added  to  the 
province  of  Manitoba  shall  be  subject  to  all  such  provisions  as 

(b)  Seen.  S.  C  c.  48. 

(c)  7  Man.  L.  R.  389.  Ee  C.  P.  R.  Co. 


MAxrroHA.  (jO.S 

may  have  been,  or  shall  hereafter  be  enacted  res^jecting  the 
G.  P«  Bm  and  the  lands  to  be  granted  in  aid  thereof.'  The 
assent  of  the  Legislature  of  Manitoba  to  this  extension  and  its 
terms  was  given  by  the  Acts  44  Vic.  (8rd  session)  c.  1  and  G, 
assented  to  respectively  the  4th  March  and  21st  May,  1881.  The 
extension  took  eifect  the  1st  July,  1881.  .  .  .  Before  the 
territory  in  question  was  included  in  Manitoba,  and  when  the 
Act  44  Vic.  c.  1  (Dom.)  was  passed,  that  territory  was  not  in- 
cluded in  any  pvQvince,  and  was  subject  fully  to  the  legislative 
authority  of  the  parliament  of  Canada  in  all  matters.  ^Vhat- 
ever,  then,  might  be  the  position  in  the  provinces,  that  parlia- 
ment could  authorize  any  corporation  to  take  and  hold  lands  in 
the  North-West  Territories.  It  is  difficult  to  conceive  any  more 
effectual  mode  of  conferring  such  a  power  than  is  exhibited  in 
the  statute  44  Vic.  c.  1  (Dom.),  the  contract  and  the  charter. 
And,  to  wind  up  the  transaction,  the  lands  are  to  be  granted  to 
the  Company  by  the  letters  patent  of  the  Crown." 

Ah  an  indemnity,  however,  for  the  want  of  public  lands, 
the  province  receives,  in  addition  to  other  subsidy,  a  sul)- 
sidy  of  .<i^lOO,000  per  annum  from  the  federal  government. 


CHAPTER  XV. 


BRITISH  COLUMBIA. 

Tlie  proceedings  which  cuhiiinated  in  the  achnission  of 
British  Columbia  to  the  Union  sufficiently  appear  in  the 
following: — 

ORDER  IN  COUNCIL  * 

RESPKCTINO 

THE  PROVINCE  OF  BRITISH  COLUMBIA  {>!). 


\  T  the  Court  at  Wiwhor,  the  IGth  day  of  May,  1871. 


A 


PRESENT. 

The  QUEEN'S  MOST  Excellent  Majesty. 

His  Royal  Highness  Prince  ARTHUR. 

Lord  Privy  Seal.  Lord  Cliand)erlain, 

Earl  Cowper.  Mr.  Secretary  Cardwell. 

Earl  of  Kiniberley.  Mr.  Ayrton. 

WHEREAS  by  the  "British  North  America  Act,  1867," 
provision  was  made  for  the  Union  of  the  Provinces 
of   Canada,  Nova  Scotia   and   New   Brunswick   into  the 

((0  Bee  Dom.  Stat.,  1872,  p.  Ixxxiv.    See  aho  B.  N.  A.  Act,  9.  146. 


BRITISH   COLUMBIA.  605 

Dominion  of  Canada,  and  it  was  (aniongHt  other  things) 
v'tacted  that  it  should  be  hiwful  for  the  Queen,  by  and  with 
the  advice  of  Her  Majesty's  Most  Honourable  Privy  Coun- 
cil, on  Addresses  from  the  Houses  of  Parliament  of  Canada, 
and  of  the  Lc-gislature  of  the  Colony  of  British  Columbia, 
to  admit  that  Colony  into  the;  said  Union,  on  such  terms 
and  conditi(ms  as  should  be  in  the  Addresses  expressed,  and 
as  the  Queen  should  think  fit  to  approve,  sul>ject  to  the 
provisions  of  the  said  Act ;  And  it  was  further  enacted 
that  the  provisions  of  any  Order  in  Council  in  that  l>ehalf 
should  have  effect  as  if  they  had  been  enacted  by  the  Par- 
liament of  the  United  Kingdom  of  Great  Britain  and 
Ireland : 

And  whereas  by  Addresses  from  the  Houses  of  the  Par- 
liament of  Canada,  and  from  the  Legislative  Council  of 
British  Columbia  respectively,  of  which  Addresses  copies 
are  contained  in  the  Schedule  to  this  Order  annexed.  Her 
Majesty  was  prayed,  by  and  with  the  advice  of  Her  Most 
Honourable  Privy  Council,  under  the  one  hundred  and 
forty-sixth  section  of  the  hereinljefore  recited  Act,  to  admit 
British  Columbia  into  the  Dominion  of  Canada,  on  the 
terms  and  conditions  set  forth  in  the  said  Addresses : 

And  whereas  Her  Majesty  has  thought  fit  to  approve  of 
the  said  tei'uis  and  conditions,  it  is  hereby  declared  b}"  Her 
Majesty,  by  and  with  the  advice  of  Her  Privy  Council,  in 
pursuance  and  exercise  of  the  powers  vested  in  Her 
Majesty  by  the  said  Act  of  Parliament,  that  from  und 
ufter  the  tiveniieth  day  of  July,  one  thousavd  eUjld 
hundred  and.  seventy-one,  the  said  Colony  of  British 
Colwmhia  shall  he  admitted  into  and  become  i^ari  of  the 
Dominion  of  Canada,  ipon  the  terms  and  conditions  set 
forth  in  the  hereinbe^  ore  recited  Addresses.  And,  in 
accordance  with  the  te  ms  of  the  said  Addresses  relating 
to  the  Electoral  Distri  ts  of  British  Columbia,  for  which 
the  first  election  of  members  to  serve  in  the  House  of  Com- 
mons of  the  said  Dominion  shall  take  place,  it  is  hereby 


600  THE   CANADIAN   CONSTITUTION. 

further  ordered  and  declared  that  such  electoral  districts 
shall  be  as  follows : — 

[Here  followm  an  enuiiuration  oftheJie  electoral  districts.'] 

And  the  Right  Honorable  Earl  of  Kimberley,  one  of 
Her  Majesty's  Principal  Secretaries  of  State,  is  to  give  the 
necessary  directions  therein  accordingly. 

ARTHUR  HELPS. 


SCHEDULE. 

Address  of  the  Senate  of  Canada  (e ). 

To  the  Queen's  Most  Excellent  Majesty. 

Most  (iraeiouH  Sorerev/n, 

We,  Your  Majesty's  most  dutiful  and  loyal  subjects,  the 
Senate  of  Canada  in  Parliament  assembled,  humbly 
approach  Your  Majesty  for  the  purpose  of  representing : — 

That  by  a  despatch  from  the  Governor  of  British 
Columbia,  dated  23rd  January,  1871,  with  other  papers 
laid  before  this  House,  by  message  from  His  Excellency 
the  Governor-General,  of  the  27th  February  last,  this 
House  learns  that  the  Legislative  Council  of  that  colony, 
in  council  assembled,  adopted,  in  January  last,  an  Address 
representing  to  Your  Majesty  that  British  Columbia  was 
prepared  to  enter  into  Union  with  the  Dominion  of 
Canada,  upon  the  terms  and  conditions  mentioned  in  the 
said  Address,  which  is  as  follows : 

To  the  Queen's  Most  Excellent  Majesty. 

Most  Gmcioiis  Sorereiijn, 

We,  Your  Majesty's  most  dutiful  and  loyal  subjects,  the 
Members  of  the  Legislative  Council  of  British  Columbia, 

(e)  The  address  of  the  House  of  Commons  is  identical  in  its  terms. 


BRITISH   COLUMBIA.  60T 

in  council  assembled,  humbly  approach  Your  Majesty  for 
the  purpose  of  representing : — 

That,  during  the  last  session  of  the  late  Legislative 
Council,  the  subject  of  the  admission  of  the  Colony  of 
British  Columbia  into  the  Union  or  Dominion  of  Canada, 
was  taken  into  consideration,  and  a  resolution  on  the 
subject  was  agreed  to,  embodying  the  terms  upon  which  it 
was  proposed  that  this  colony  should  enter  the  Union  ; 

That  after  the  close  of  the  session,  Delegates  were 
sent  by  the  Government  of  this  Colony  to  Canada  to 
confer  with  the  Government  of  the  Dominion  with  respect 
to  the  admission  of  British  Columbia  into  the  Union  upon 
the  terms  proposed ; 

That  after  considerable  discussion  by  the  Delegates 
with  the  Members  of  the  Government  of  the  Dominion  of 
Canada,  the  terms  and  conditions  hereinafter  specified 
were  adopted  by  a  Committee  of  the  Privy  Council  of 
Canada,  and  were  by  them  reported  to  the  Governor- 
General  for  his  approval ; 

That  such  terms  were  communicated  to  the  Govern- 
ment of  this  Colony  by  the  Governor-General  of  Canada, 
in  a  despatch  dated  July  7th,  1870,  and  are  as  follows : — 

1.  Canada  shall  be  liable  for  the  debts  and  liabilities  of 
British  Columbia  existing  at  the  time  of  the  Union. 

2.  British  Columbia  not  having  incurred  debts  equal  to 
those  of  the  other  Provinces  now  constituting  the  Dominion, 
shall  be  entitled  to  receive,  by  half-yearly  payments  in 
advance,  from  the  General  Government,  interest  at  the  rate 
of  live  per  cent,  per  annum  on  the  difference  between  the 
actual  amount  of  its  indebtedness  at  the  date  of  the 
Union,  and  the  indebtedness  per  head  of  the  population  of 
Nova  Scotia  and  New  Brunswick  (27.77  dollars),  the  popu- 
lation of  British  Columbia  being  taken  at  60,000. 

3.  The  following  sums  shall  be  paid  by  Canada  to 
British  Columbia  for  the  support  of  its  Government  and 


C08  THE  CANADIAN   CONSTITUTION. 

Lygifslature,  to  wit,  an  annual  subsidy  of  35,000  dollars, 
and  an  annual  ^rant  equal  to  80  cents  per  head  f)t*  the  said 
population  of  60,000,  l>oth  half-yearl}'  in  advance,  such 
grant  of  80  cents  per  head  to  be  augmented  in  proportion 
to  the  increase  of  population,  as  may  be  shown  l»y  eacli 
subse(|uent  decennial  census,  until  the  population  amounts 
to  400,000,  at  which  rate  such  grant  shall  thereafter 
remain,  it  being  understood  that  the  lirst  census  be  taken 
in  the  year  1881. 

4.  The  Dominion  will  provide  an  efficient  mail  service, 
fortnightly,  by  steam  comnumication  between  Victoria  and 
San  Francisco,  and  twice  a  week  Itetween  Victm-ia  and 
Olympia;  the  vessels  to  be  adapted  f(jr  the  C(mveyance  of 
freight  and  passengers. 

5.  Canada  will  assume  and  defray  tlie  charu'es  for  the 
following  services  : 

A.  Salary  of  the  Lieutenant-Governor : 

B.  Salaries  and  allowances  of  the  Judges  of  the  Supe- 

rior Courts  and  the  County  or  Disti'ict  C<3urts  : 

C.  The    charges    in    respect    to    the    Department    of 

Customs ; 

D.  The  Postal  and  Telegraph  Services  ; 

E.  Protection  and  encouragement  of  Fisheries ; 

F.  Provision  for  the  Militia  ; 

G.  Lighthouses,  Buoys  and  Beacons,  Shipwrecked  Crews, 

Quarantine   and    Marine   Hospitals,   including   a 
Marine  Hospital  at  Victoria  : 

H.  The  Geological  Survey ; 

I.  The  Penitentiary  ; 

And  such  further  charges  as  may  be  incident  to  and  con- 
nected with  the  services  which  by  the  "British  North 
America  Act,  1867,"  appertain  to  the  General  Govennnent, 
and  as  are  or  may  be  allowed  to  the  other  Provinces. 

6.  Suitable  pensions,  such  as  shall  be  approved  of  by 
Her  Majesty's  Government,  shall  be  provided  by  the  Gov- 


BRITISH   COLUMBIA.  609 

ernment  of  the  Dominion  for  those  of  Her  Majesty's 
servants  in  the  Colony  who.se  position  and  emoluments 
derived  therefrom  would  be  affected  by  political  changes 
on  the  admission  of  British  Columbia  into  the  Dominion  of 
Canada. 

7.  It  is  agreed  that  the  existing  Customs  tariff  and 
Excise  duties  shall  continue  in  force  in  British  Columbia 
until  the  railway  from  the  Pacific  coast  and  the  system  of 
railways  in  Canada  are  connected,  unless  the  Legislature  of 
British  Columbia  should  sooner  decide  to  accept  the  Tariff 
and  Excise  Laws  of  Canada  (/).  When  Customs  and 
Excise  duties  are,  at  the  time  of  the  union  of  British 
Columbia  with  Canada,  leviable  on  any  goods,  wares  or 
merchandise  in  British  Columbia,  or  in  the  other  Provinces 
of  the  Dominion,  those  goods,  wares  and  merchandise  may, 
from  and  after  the  Union,  be  imported  into  British  Colum- 
bia from  the  Provinces  now  composing*  the  Dominion,  or 
into  either  of  those  Provinces  from  British  Columbia  on 
proof  of  payment  of  the  Customs  or  Excise  duties  leviable 
thereon  in  the  Province  of  exportation  and  on  payment  of 
such  further  amount  (if  any)  of  Customs  or  Excise  duties 
as  are  leviable  thereon  in  the  Province  of  importation. 
This  arrangement  to  have  no  force  or  effect  after  the  assim- 
ilation of  the  Tariff  and  Excise  duties  of  British  Columbia 
with  those  of  the  Dominion. 

8.  British  Columbia  shall  be  entitled  to  be  represented 
in  the  Senate  by  threemembers,  and  by  six  members  in  the 
House  of  Commons-  The  representation  to  be  increased 
under  the  provisions  of  "  British  North  America  Act, 
1867." 

9.  The  influence  of  the  Dominion  Government  will  be 
used  to  secure  the  continued  maintenance  of  the  naval 
station  at  Esquimalt. 

(/)  See  36  V.  c.  37.    On  27th  March,  1872,  British  Columbia  decided 
to  accept  the  Canadian  tariff,  hence  the  enactment. 

Cam.  Con.— 39 


610  THE   CANADIAN   CONSTITUTION. 

10.  'The  jy^o visional  of  the  "British  North  America  Act, 
1807,"  shall  (except  those  2'xiTts  thereof  ivhich  ai'e  in  terms 
made,  or  hy  reasonable  intendment  may  he  held  to  he 
specially  applicable  to  and  only  effect  one  and  not  the 
ivhole  of  the  Provinces  comprisinrf  the  Dominion,  and 
except  so  far  as  the  same  may  be  varied  by  this  Minute) 
he  ap>plicable  to  British  Goluinbia  in  the  same  way  and  to 
the  like  extent  as  they  apply  to  the  other  Provinces  of  the 
Dominion,  and  as  if  the  Colony  of  British  Columbia  had 
been  one  of  the  Provinces  originally  united  by  the  said 
Act. 

11.  The  Government  of  the  Dominion  undertake  to 
secure  tlie  commencement  simultaneously,  within  two  years 
from  the  date  of  the  Union,  of  the  construction  of  a  railway 
from  the  Pacific  towards  the  Rocky  Mountains,  and  from 
imch  point  as  may  be  selected  east  of  the  Rocky  Mountains, 
towards  the  Pacific,  to  connect  the  seaboard  of  British 
Columbia  with  the  railway  system  of  Canada ;  and  furtlier, 
to  secure  the  completion  of  such  railway  within  ten  years 
from  the  date  of  the  Union. 

And  the  Government  of  British  Columbia  agree  to 
convey  to  the  Dominion  Government  in  trust,  to  be  appro- 
priated in  such  maimer  as  the  Dominion  Government  may 
deem  advisable  in  furtherance  of  the  construction  of  the 
said  railway,  a  similar  extent  of  public  lands  {y)  along  the 
line  of  railway  throughout  its  entire  length  in  British 
Columbia  (not  to  exceed,  however,  twenty  (20)  miles  on 
each  side  of  said  line,)  as  may  be  appropriated  for  the  same 
purpose  by  the  Dominion  Government  from  the  public 
lands  of  the  North- West  Territories  and  the  Province  of 
Manitoba  :  Provided  that  the  quantity  of  land  which  may 
be  held  under  pre-emption  right  or  by  Crown  grant 
within  the  limits  of  the  tract  of  land  in  British  Columbia 
to  be  so  conveyed  to  the  Dominion  Government  shall  be 

(g)  See  Attorney-General  of   British  Columbia  v.  Attorney -General 
of  Canada,  14  App.  Cas.  295  ;  noted,  ante,  p.  530. 


BRITISH   COLUMBIA.  611 

made  good  to  tlie  Dominion  from  contiguous  public  lands; 
and  provided  further,  tliat  until  the  commencement,  within 
two  years,  as  aforesaid,  from  the  date  of  the  Union,  of  the 
construction  of  the  said  railway,  the  Government  of  British 
Columbia  shall  not  sell  f)r  alienate  any  further  portions  of 
the  public  lands  of  British  Columbia  in  any  other  way  than 
under  right  of  pre-emption  requiring  actual  residence  of  the 
pre-emptor  on  the  land  claimed  by  him.  In  consideration  of 
the  land  to  be  so  conveyed  in  aid  of  the  constrrction  of  the 
said  railway,  the  Dominion  Government  agi-ee  to  pay 
to  British  Columbia  from  the  date  of  the  Union,  the  sum 
of  100,000  dollars  per  annum,  in  half-yearly  payments  in 
advance. 

12.  The  Dominion  Government  shall  guarantee  the 
interest  for  ten  years  from  the  date  of  the  completion  of 
the  works,  at  the  rate  of  five  per  centum  per  annum,  on 
such  sum,  not  exceeding  iJ  100,000  sterling,  as  may  be 
required  for  the  construction  of  a  first-class  graving  dock 
at  Esquimalt. 

13.  The  charge  of  the  Indians,  and  the  trusteeship  and 
management  of  the  lands  reserved  for  their  use  and  benefit, 
shall  be  assumed  by  the  Dominion  Government,  and  a 
policy  as  liberal  as  that  hitherto  pursued  by  the  British 
Columbia  Government  shall  be  continued  by  the  Dominion 
Government  after  the  Union. 

To  carry  out  such  policy,  tracts  of  land  of  such  extent 
as  it  has  hitherto  been  the  practice  of  the  British  Columbia 
Government  to  appropriate  for  that  purpose,  shall  from 
time  to  time  be  conveyed  by  the  Local  Government  to  the 
Dominion  Government  in  trust  for  the  use  and  benefit  of 
the  Indians  on  application  of  the  Dominion  Government ; 
^nd  in  case  of  disagreement  between  the  two  Govern- 
ments respecting  the  quantity  of  such  tracts  of  land  to  be 
so  granted,  the  matter  shall  be  referred  for  the  decision  of 
the  Secretary  of  State  for  the  Colonies. 


012  THE  CANADIAN   CONSTITUTION. 

14.  The  Constitution  of  the  Executive  Authority  aiul 
of  the  Legidature  of  British  Columbia  shall,  .mhject  to  the 
provisions  of  the  "British  North  America  Act,  1807,"  con- 
tinue as  existing  at  the  time  of  the  Union  until  altered 
under  the  authority  of  the  said  Act,  it  being  at  the  same 
time  understood  that  the  Government  of  the  Dominion 
will  readily  consent  to  the  introduction  of  responsible 
government  when  desired  by  the  inhabitants  of  British 
Columbia,  and  it  being  likewise  understood  that  it  is  the 
intention  of  the  Governor  of  British  Columbia,  under  the 
authority  of  the  Secretary  of  State  for  the  Colonies,  to 
amend  the  existing  Constitution  of  the  Legislature  by 
providing  that  a  majority  of  its  Members  shall  be  elective. 

The  Union  shall  take  effect  accordinof  to  the  foregfoins: 
terms  and  conditions  on  such  day  as  Her  Majesty  by  and 
with  the  advice  of  Her  Most  Honorable  Pi-ivy  Council 
may  appoint  (on  addresses  from  the  Legislature  of  the 
Colony  of  British  Columbia  and  of  the  Houses  of  Parlia- 
ment of  Canada  in  the  terms  of  the  146th  section  of  the 
"British  North  America  Act,  1867,")  and  British  Columbia 
may  in  its  address  specify  the  electoral  districts  for  which 
the  first  election  of  Members  to  serve  in  the  House  of 
Commons  shall  take  place. 

That  such  terms  have  proved  generally  acceptable  to 
the  people  of  this  Colony. 

That  this  Council  is,  therefore,  willing  to  enter  into 
Union  with  the  Dominion  of  Canada  upon  such  terms,  and 
humbly  submit  that,  under  the  circumstances,  it  is  expedient 
that  the  admission  of  this  Colony  into  such  Union,  as 
aforesaid,  should  be  effected  at  as  early  a  date  as  may  be 
found  practicable  under  the  provisions  of  the  146th  section 
of  the  "  British  North  America  Act,  1867. 

We,  therefore,  humbly  pray  that  Your  Majesty  will  be 
graciously  pleased,  by  and  with  the  advice  of  Your 
Majesty's  Most  Honorable  Privy  Council,  under  the  pro- 
visions of  the  146th  section  of   "British  North  America 


BRITISH   COLUMBIA.  613 

Act,  1807,"  to  admit  British  Columbia  into  the  Union  or 
Dominion  of  Canada,  on  the  ImHis  of  the  terms  and  condi- 
tions offered  to  this  Colony  by  the  Government  of  the 
Dominion  of  Canada,  hereinbefore  set  forth;  and  inasmuch 
as  by  the  said  terms  British  Columbia  is  empowered  in  its 
address  to  specify  the  electoral  districts  for  which  the  first 
election  of  membei*s  to  serve  in  the  House  of  Connnons 
sliall  take  place,  we  humbly  pray  that  such  electoral 
districts  may  be  declared,  under  the  Order  in  Council,  to  be 
as  follows  :  {Here  follows  an  enumeration  of  such  districts. 
See  mnv  R.  H.  C.  c.  G). 

We  further  humbly  represent,  that  the  proposed  terms 
and  conditions  of  Union  of  British  Columbia  with  Canada, 
as  stated  in  the  said  Address,  are  in  conformity  with  those 
preliminarily  agreed  upon  between  delegates  from  British 
Columbia  and  the  Members  of  the  Government  of  the 
Dominion  of  Canada,  and  endxxlied  in  a  Report  of  a  Com- 
mittee of  the  Privy  Council,  approved  by  His  Excellency 
the  Governor-General  in  Council,  on  the  1st  July,  1870, 
which  approved  Report  is  as  follows  : 

Gi>py  of  a  Report  of  a  Committee  of  the  Honorable  the 
Privy  Council,  appi^oved  by  His  Excellency  the 
Governor-General  in  Council,  on  the  1st  of  July, 
1870. 

The  Committee  of  the  Privy  -Council  have  had  under 
consideration  a  Despatch,  dated  the  7th  May,  1870,  from 
the  Governor  of  British  Columbia,  together  with  certain 
Resolutions  submitted  by  the  Government  of  that  colony 
to  the  Legislative  Council  thereof — both  hereunto  annexed 
— on  the  subject  of  the  proposed  Union  of  British 
Columbia  with  the  Dominion  of  Canada;  and  after  several 
interviews  between  them  and  the  Honorable  Messrs. 
Trutch,  Helmcken  and  Carrall,  the  Delegates  from  British 
Columbia,  and  full  discussion  with  them  of  the  various 
questions  connected  with  that  important  subject,  the  Com- 
mittee  now   respectfully    submit  for  Your   Excellency's 


014  THE   CANADIAN   CONSTITUTION. 

upproval,  the  following  terms  and  conditions  to  form  the 
basis  of  a  political  miion  between  British  Columbia  and 
the  Dominion  of  Canada:  {Setting  oat  such  terms  as 
before). 

(Certified.)  Wm.  H.  Lee, 

Clerk  Privy  Council. 

We  further  humbly  represent  that  we  concur  in  the 
terms  and  conditions  of  Union  set  forth  in  the  said 
Address,  and  approved  Report  of  the  Connnittee  of  the 
Privy  Council  above  mentioned;  and  most  respectfully 
pray  that  your  Majesty  will  be  graciously,  pleased,  by  and 
with  the  advice  of  your  Majesty's  most  Honorable  Privy 
Council,  under  the  14Gth  clause  of  "The  British  North 
America  Act,  18G7,"  to  unite  British  Colmnbia  with  the 
Dominion  of  Canada,  on  the  terms  and  conditions  above 
set  forth. 

The  Senate,  Wednesday,  April  5th,  1871. 

(Signed.)  Joseph  Cauchon,  Speaker. 

Provincia I  Con d  itut ion. 

Before  the  Union  took  effect,  British  Columbia  had 
made  the  intended  alteration  referred  to  in  item  14,  above — 
by  Act  of  the  colonial  legislature  (No.  147  of  34  Vic.)  This 
statute  recites  an  Imperial  Order  in  Council  of  9tli  August, 
1870,  which  established  in  the  colony  a  legislative  council, 
consisting  of  nine  elective  and  six  non-elective  members,, 
and  which  gave  power  to  the  Governor  of  the  colony,  with 
the  advice  and  consent  of  the  legislative  council,  to  make 
laws  for  the  peace,  order,  and  good  government  of  the 
colony ;  it  recites  also  the  Colonial  Laws  Validity  Act, 
1865  (h),  as  sufficient  warrant  for  the  contemplated  change 
in  the  colonial  constitution ;  and  then  proceeds  to  abolish 
the  legislative  council  and  to  establish  in  its  stead  a  legis- 

(/j)  See  ante,  p.  422.     See  the  Act  in  Appendix. 


HIUTISH   COLUMBIA.  G15 

lative  assembly  of  wholly  elective  iiiembei's.  The  pre.senfc 
provincial  constitution  can  he  studied  in  the  Consolidated 
Statutes  of  the  province  (1888)  chapter  22. 

Introduction  of  Ev(/Ush  Lmv. 

In  the  same  session  (by  Act  No.  70  of  34  Vic.)  it  was 
provided  that — 

"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,  are  and  shall  be  in 
force  in  all  parts  of  the  colony  of  British  Columbia." 

This  statute  was  held  {%)  to  introduce  the  English 
"  Matrimonial  Causes  /  "t,  1857,"  Chief  Justice  Begbie, 
however,  dissenting  from  the  judgment  of  the  majority, 
the  local  circumstances  of  the  colony  precluding,  in  his 
opinion,  its  opei'ation  therein. 

In  Reynolds  v.  Vaughan  {j),  it  was  held  that  under  this 
statute  Imperial  Orders  in  Council,  even  though  passed 
pursuant  to  Imperial  statutes  which  were  themselves  in 
force  in  the  colony,  would  not  operate  therein,  unless  made 
specially  applicable  by  subsequent  Imperial  or  colonial 
enactment. 

We  may  note  also  the  case  of  Sproule  v.  Reg.  (/i),  in 
which  is  discussed  the  (|uestion  as  to  the  operation  of  pro- 
vincial jury  laws  in  criminal  cases.  It  includes  in  "  organi- 
zation "  some  matters  in  reference  to  the  procurement  of  a 
jury,  which  in  Ontario  were  deemed  matters  of  "  procedure," 
and  in  this  view  upholds  provincial  legislation  even  apart 
from  the  Dominion  Criminal  Procedure  Act. 

Reference  to  the  decisions  of  the  British  Columbia 
courts — particularly  those  of  date  closely  following  the 
admission  of  the   province — discloses   that  very  extreme 

(t)  M.  falsely  called  S.  v.  S.,  1  B.  C.  Rep.  25. 

( j)  1  B.  C.  Rep.  3. 

[k)  2  B.  C.  Rep.  219  ;  see  ante,  p.  417. 


(Jl(>  TIIK   CAXAIUAN'   CONSTniTlOV. 

views  were  ei/terkained  as  to  tlie  pivdominancy  <»l'  the 
])arliainent  of  Canada  over  tlie  provincial  lej^islatures.  The 
fctnnula  (/)  enunciated  in  Fredericton  v.  Hejjf.  was  adopted, 
and  in  the  "Thrasher  "  Case  (tti)  carried  to  lenj^ths  which 
in  view  of  the  latei*  decisions  cannot  be  maintained.  We 
sliould,  liowever,  note  tliat  in  British  Cohiinhia  have  arisen 
the  only  cases  in  reference  to  the  pcnver  of  a  provincial 
legislature  to  legislate  in  regard  to  aliens.  The  "  Chinese 
Ta.v  Act,  liS7iS,"  was  held  (n)  ultra  rircs  as  an  infrin<(enient 
upon  the  power  of  the  Dominion  parlianu  lit  over  trade  and 
connnerce  and  over  aliens,  and  as  inconsistent  with  the 
provisions  of  section  132  of  the  B.  N.  A.  Act,  vesting  in 
that  parliauient  power  to  pass  laws  in  aid  of  the  treaty 
obligations  of  the  Eanpire  so  far  as  they  affect  Canada. 
In  two  later  cases  (o)  the  same  principle  was  applied,  and  a 
provincial  Act  imposing  a  differential  tax  upon  Chinese 
miners  was  also  held  invalid. 

By  R.  S.  C.  c.  144,  s.  2,  it  is  provided : 

2.  The  criminal  law  of  England  as  it  stood  on  the  19th  day 
of  November,  in  the  year  1858,  and  as  the  same  has  since  been 
repealed,  altered,  varied,  modified  or  affected  by  any  ordinance 
or  Act  (still  having  the  force  of  law)  of  the  colony  of  British 
Columbia,  or  of  the  colony  of  Vancouver  Island  before  the  Union 
of  such  colonies,  or  of  the  colony  of  British  Columbia  passed 
since  such  Union,  or  by  any  Act  of  the  parliament  of  Canada, 
shall  be  the  criminal  law  of  the  province  of  British  Columbia. 

In  view^  of  the  recent  codification  of  our  criminal  law,  it 
is  not  worth  while  to  discuss  the  effect  of  this  enactment 
on  the  Colonial  Act  which  made  "applicability"  the  test{j)), 
of  the  introduction  into  the  colony  of  English  law. 

(I)  See  ante,  p.  206. 

(m)  1  B.  C.  Rep.  153. 

(n)  Tai  Sing  v.  Maguire,  1  B.  C.  Rep.  101  —Mr.  Justice  Gray. 

(o)  Reg.  V.  Wing  Chong,  2  B.  C.  Rep.  150 ;  Reg.  v.  Gold  Commis- 
sioners of  Victoria,  ib.  260— Sup.  Ct.  B.  C.;  see  also  notes  to  s.  91,  s-s.  25. 

(  jd)  See  ante,  p.'  615  ;  see  also  Chapter  V.  upon  the  general  question. 


CHAPTER  X\  I. 


PRINCE  EDWARD  ISLAND. 

Tlie  adniiasion  of  Prince  Edward  Island  to  the  Dominion 
waH  effected  by  the  following  Order  in  Council : 


At  the  Coui*t.  at  Windsor,  the  26th  day  of  June,  1873. 

PRESENT : 

The  QUEEN'S  Most  Excellent  Majesty. 

Lord  President.  Earl  of  Kiniberlev. 

Earl  Granville.  Lord  Chamberlain. 

Mr.  Gladstone. 

WHEREAS  by  the  "British  North  America  Act,  1807," 
provision  was  made  for  the  Union  of  the  Provinces 
of  Canada,  Nova  Scotia  and  New  Brunswick  into  the 
Dominion  of  Canada,  and  it  was  (amongst  other  things) 
enacted  that  it  should  be  lawful  for  the  Queen,  b}''  and 
with  tlie  advice  of  Her  Majesty's  Most  Honorable  Privy 
Council,  on  Addresses  from  the  Houses  of  the  Parliament 
of  Canada,  and  of  the  Legislature  of  the  Colony  of  Prince 
Edward  Island,  to  adnnt  that  Colony  into  the  said  Union 
on  such  terms  and  conditions  as  should  be  in  the  Addresses 
expressed,  and  as  the  Queen  should  think  fit  to  approve, 
subject  to  the  provisions  of  the  said  Act;* and  it  was 
further  enacted  that    the    provisions  of    any   Order  in 


()18  THE  CANADIAN   CONSTITUTION. 

Council  in  that  behalf,  should  liave  effect  as  if  they  had 
been  enacted  by  the  Parliament  of  the  United  Kingdom  of 
Great  Britain  and  Ireland. 

And  whereas  by  Addresses  from  the  Houses  of  the 
Parliament  of  Canada,  and  from  the  Legislative  Council 
and  House  of  Assembly  of  Prince  Edward  Island  respec- 
tively, of  which  Addresses,  copies  are  contained  in  the 
Schedule  to  this  Order  annexed,  Her  Majesty  was  prayed, 
by  and  with  the  advice  of  Her  Most  Honorable  Privy 
Council,  under  the  one  hundred  and  forty-sixth  section  of 
the  hereinbefore  recited  Act,  to  admit  Prince  Edward 
Island  into  the  Dominion  of  Canada,  on  the  terms  and 
conditions  set  forth  in  the  said  Addresses. 

And  whereas  Her  Majesty  has  thought  fit  to  approve  of 
the  said  terms  and  conditions,  it  is  hereby  ordered  and 
declared  by  Her  Majesty,  by  and  with  the  advice  of  Her 
Privy  Council,  in  pursuance  and  exercise  of  the  powers 
vested  in  Her  Majesty,  by  the  said  Act  of  Parliament,  that 
from  and  after  the  first  day  of  July,  one  thousand  eight 
hundred  and  seventy-three,  the  said  Colony  of  Prince 
Edward  Island  shall  be  admitted  into  and  become  part  of 
the  Dominion  of  Canada,  upon  the  terms  and  conditions 
set  forth  in  the  hereinbefore  cited  Addresses. 

And  in  accordance  with  the  terms  of  the  said  Addresses 
relating  to  the  Electoral  Districts  for  which,  the  time 
within  which,  and  the  laws  and  provisions  under  which 
the  first  election  of  members  to  serve  in  the  House  of 
Commons  of  Canada,  for  such  Electoral  Districts  shall  be 
held,  it  is  hereby  further  ordered  and  declared  that 
"  Prince  County  "  shall  constitute  one  district,  to  be 
designated  "  Prince  County  District,"  and  return  two 
members ;  that  "  Queen's  County "  shall  constitute  one 
district,  to  be  designated  "  Queen's  County  District,"  and 
return  two  members ;  that  "  King's  County  "  shall  consti- 
tute one  district,  to  be  designated  "King's  County  District," 
and  return  two  members  ;  that  the  election  of  members  to 


PRINCE   EDWARD   ISLAND.  61 9* 

serve  in  the  House  of  Commons  of  Canada,  for  such  Elec- 
toral Districts  shall  be  held  within  three  calendar  months 
from  the  day  of  the  admission  of  the  said  Island  into  the 
Union  or  Dominion  of  Canada ;  that  all  laws  which  at  the 
date  of  this  Order  in  Council  relating  to  the  qualification 
of  any  person  to  be  elected  or  sit  or  vote  as  a  member  of 
the  House  of  Assembly  of  the  said  Island,  and  relating  ta 
the  qualifications  or  disqualifications  of  voters,  and  to  the 
oaths  to  be  taken  by  voters,  and  to  Returning  Officers  and 
Poll  Clerks,  and  their  powers  and  duties,  and  relating  to 
Polling  Divisions  within  the  said  Island,  and  relating  to 
the  proceedings  at  elections,  and  to  the  period  during 
which  such  elections  may  be  continued,  and  relating  to 
the  trial  of  controverted  elections,  and  the  proceedings 
incidental  thereto,  and  relating  to  the  vacating  of  seats  of 
the  members,  and  to  the  execution  of  new  writs,  in  case  of 
any  seat  being  vacated  otherwise  than  by  a  dissolution, 
and  to  fiU  other  matters  connected  with  or  incidental  to 
elections  of  members  to  serve  in  the  House  of  Assembly  of 
the  said  Island,  shall  apply  to  elections  of  members  to 
serve  in  the  House  of  Commons  for  the  Electoral  Districts 
situate  in  the  said  Island  of  Prince  Edward. 

And  the  Right  Honorable  Earl  of  Kimberle}^  one  of 
Her  Majesty's  Principal  Secretaries  of  State,  is  to  give  the 
necessary  directions  herein,  accordingly. 

ARTHUR  HELPS. 


SCHEDULE. 

To  the  Queen's  Most  Excellent  Majesty. 

Most  GracioKs  Sorereiijn, 

We,  Your  Majesty's  most  dutiful  and  loyal  subjects,, 
the  Commons  of  the  Dominion  of  Canada  in  Parliament 
assembled,  humbly  approach  Your  Majesty  for  the  purpose 
of  representing : — 


620  THE   CANADIAN   CONSTITUTION. 

Tluit  during  the  present  Session  of  Parliament  we  have 
taken  into  consideration  the  subject  of  the  admission  of 
the  Colony  of  Prince  Edward  Island  into  the  Union  or 
])oiuinion  of  Canada,  and  have  resolved  that  it  is  expedient 
that  such  admission  should  be  effected  at  as  early  a  date  as 
may  be  found  practicable,  under  the  one  hundred  and 
forty-sixth  section  of  the  "Britisli  North  America  Act, 
1867,"  on  the  conditions  hereinafter  set  forth,  which 
having  been  agreed  upon  with  the  Delegates  from  the  said 
Colony ;  that  is  to  say  : — 

That  Canada  shall  be  liable  for  the  debts  and  liabilities 
of  Prince  Edward  Island  at  the  time  of  the  Union  ; 

That  in  consideration  of  the  large  expenditure  author- 
ized by  the  Parliament  of  Canada  for  the  construction  of 
railways  and  canals,  and  in  view  of  a  possibility  of  a  re-ad- 
justment of  the  financial  arrangements  between  Canada  and 
the  several  Provinces  now  embraced  in  the  Dominion,  as 
well  as  the  isolated  and  exceptional  condition*  of  Prince 
Edward  Island,  that  Colony  shall,  on  entering  the  Union, 
be  entitled  to  incur  a  debt  equal  to  fifty  dollars  per  head 
of  its  population,  as  shewn  by  the  Census  Returns  of  1871, 
that  is  to  say  :  four  millions  seven  hundred  and  one  thou- 
sand and  fifty  dollars ; 

That  Prince  Edward  Island  not  having  incurred  debts 
eijual  to  the  sum  mentioned  in  the  next  preceding  Resolu- 
tion, shall  be  entitled  to  receive,  by  half-yearly  payments, 
in  advance,  from  the  General  Government,  interest  at  the 
rate  of  five  per  cent,  per  annum  on  the  difference,  from 
time  to  time,  between  the  actual  amount  of  its  indebted- 
ness and  the  amount  of  indebtedness  authorized  as  aforesaid, 
viz.,  four  millions  seven  hundred  and  one  thousand  and 
fifty  dollars ; 

1  hat  Prince  Edward  Island  shall  be  liable  to  C  -nada  for 
the  amount  (if  any)  by  which  its  public  debt  and  liabilities 
at  the  date  of  the  Union,  may  exceed  four  millions  seven 
hundred  and  one  thousand  and  fifty  dollais  and  shall  be 


PRINCE   EDWARD   ISLAND.  621 

chargeable  with  interest  at  the  rate  of  five  per  cent,  per 
annum  on  sucli  excess; 

That  as  the  Government  of  Prince  Edward  Island  holds 
no  land  from  the  Crown,  and  consequently  enjoys  no 
revenue  from  that  source  for  the  construction  and  main- 
tenance of  local  works,  the  Dominion  Government  shall  pay 
by  half-yearly  instalments,  in  advance,  to  the  Government 
of  Prince  Edward  Island,  forty  live  thousand  dollars  per 
annum,  less  interest  at  five  per  cent,  per  annum,  upon  any 
sum  not  exceeding  eight  hundred  thousand  dollars  which 
the  Dominion  Government  may  advance  to  the  Prince 
Edward  Island  Government  for  the  purchase  of  lands  now 
held  by  large  proprietors  ; 

That  in  con. -'deration  of  the  transfer  to  the  Parliament 
of  Canada  of  the  powers  of  taxation,  the  following  sums 
shall  be  paid  yearly  by  Canada  to  Prince  Edward  Island,  for 
the  support  of  its  Government  and  Legislature,  that  is  to 
say,  thirty  thousand  dollars  and  an  annual  grant  ecjual  to 
eighty  cents  per  head  of  the  population,  as  shown  by  the 
Census  returns  of  1871,  viz.,  94,021,  both  by  half-yearly 
payments  in  advance,  such  grant  of  eighty  cents  per  head 
to  be  augmented  in  proportion  to  the  increase  of  population 
of  the  Island  as  may  be  showm  by  each  subsequent  decen- 
nial Census,  until  the  population  amounts  to  four  hundred 
thousand,  at  which  rate  such  grant  shall  thereafter  remain 
it  being  understood  that  the  next  Census  shall  be  taken  in 
the  year  1881 ; 

That  the  Dominion  Government  shall  assume  and  defray 
all  the  charges  for  the  following  services,  viz.: — 

The  salary  of  the  Lieutenant  Governor  ; 

The  salaries  of  the  Judges  of  the  Superior  Court  and 
of  the  District  or  County  Courts  when  established ; 

The  charges  in  respect  of  the  Depai-tment  of  Customs  ; 

The  Postal  Department ; 

The  protection  of  Fisheries ; 


622  THE   CANADIAN   CONSTITUTION. 

The  provision  for  the  Militia ; 

The  Lighthouses,  Shipwrecked  Crews,  Quarantine,  and 
Marine  Hospitals ; 

The  Geological  Survey ; 

The  Penitentiary ; 

Efficient  Steam  Service  for  the  conveyance  of  mails  and 
passengers,  to  be  established  and  maintained  between  the 
Island  and  the  mainland  of  the  Dominion,  Winter  and 
Summer,  thus  placing  the  Island  in  continuous  communi- 
cation with  the  Intercolonial  Railway  and  the  railway 
system  of  the  Dominion  ; 

The  maintenance  of  telegraphic  connnunication  between 
the  Island  and  the  mainland  of  the  Dominion  ; 

And  such  other  charges  as  may  be  incident  to,  and 
connected  with,  the  services  which  by  the  "  British  North 
America  Act,  1867,"  appertain  to  the  General  Government, 
and  as  are  or  may  be  allowed  to  the  other  Provinces  ; 

That  the  railways  under  contract  and  in  course  of  con- 
struction for  the  Government  of  the  Island,  shall  be  the 
property  of  Canada ; 

That  the  new  building  in  which  are  held  the  Law 
Courts,  Registry  Office,  etc.,  shall  be  transferred  to  Canada, 
on  the  payment  of  sixty-nine  thousand  dollars.  The  pur- 
chase to  include  the  land  on  which  the  building  stands,  and 
a  suitable  space  of  ground  in  addition,  for  yard  room,  &c.; 

That  the  Steam  Dredge  Boat  in  course  of  construction, 
shall  be  taken  by  the  Dominion,  at  a  cost  not  exceeding 
twenty-two  thousand  dollars ; 

That  the  Steam  Ferry  Boat  owned  by  the  Goverment 
of  the  Island,  and  used  as  such,  shall  remain  the  property 
of  the  Island  ; 

That  the  population  of  Prince  Edward  Island  having 
been  increased  by  fifteen  thousand  or  upwards  since  the 
year  1861,  the  Island  shall  be  represented  in  the  House  of 
Commons  of  Canada  by  six  Members ;  the  representation 


PRINCE   EDWARD   ISLAND.  623 

to  be  re-adjusted,  from  time  to  time,  under  the  provisions 
oi  the  "  British  North  America  Act,  1867  " ; 

That  the  constifiUion  of  the  Executive  Aufhority  and 
of  the  Leg islat lire  of  Prince  Edward  Island,  shall,  subject 
to  the  provisions  of  the  "  British  North  America  Act,  1807," 
continue,  as  at  the  time  <f  the  Union,  until  altered  undev 
the  authority  of  the  said  Act,  and  the  House  of  Assembly 
of  Prince  Edward  Island  existing  at  the  date  of  the  Union 
shall,  unless  sooner  dissolved,  continue  for  the  period  for 
which  it  was  elected  ; 

That  the  Provisions  in  the  "British  North  America 
Act,  1807"  shall,  except  those  payis  thereof  which  are  iu 
terms  made,  or  hy  reasonable  intendment,  may  be  lield  to 
he  especially  appliccdde  to,  and  only  to  ((feet  one  and  not 
the  whole  of  the  Provinces  noiv  composing  the  Dominion, 
and  except  so  far  as  the  same  may  he  varied  by  these  reso- 
lutions, he  applicable  to  Prince  Edivard  Island,  in  thf 
same  ivay  and  to  the  same  extent  as  they  apply  to  the  other 
Provinces  of  the  Dominion,  and  as  if  the  Colony  of  Prince 
Edward  Island  had  been  one  of  the  Provinces  originally 
united  hy  the  said  Act. 

That  the  Union  shall  take  place  on  .such  day  as  Her 
Majesty  may  direct  by  Order  in  Council,  on  Addresses  to 
that  effect  from  the  Houses  of  Parliament  of  Canada  and 
of  the  Legislature  of  the  Colony  of  Prince  Edward  Island, 
under  the  one  hundred  and  forty-sixth  section  of  the 
"  British  North  America  Act,  1867,"  and  that  the  Electoral 
Districts  for  which,  the  time  within  which,  and  the  laws 
and  provisions  under  which,  the  first  Election  of  Members 
to  serve  in  the  House  of  Commons  of  Canada  for  such 
Electoral  Districts  shall  be  held,  shall  be  such  as  tlie  said 
Houses  of  the  Legislature  of  the  said  Colony  of  Prince 
Edward  Island  may  specify  in  their  said  Addresses. 

We,  therefore,  humbly  pray  that  Your  Majesty  will  be 
graciously  pleased,  by  and  with  the  advice  of  Your  Majesty's 
Most  Honourable  Privy  Council,  under  the  provisions  of  the 


624  THE   CANADIAN   CONSTITUTION. 

one  hundred  and  forty-sixth  section  of  the  "  British  North 
America  Act,  1867,"  to  admit  Prince  Edward  Island  into 
the  Union  or  Dominion  of  Canada,  on  the  terms  and  condi- 
tions hereinbefore  set  forth. 

(Signed)        JAMES  COCKBURN, 

Speaker. 

House  of  Commons, 

20th  May,  1873. 

A  similar  address  was  voted  by  the  Senate  of  the 
Dominion,  and  by  the  two  Houses  of  the  Prince  Edward 
Island  Legislatures  the  latter  specifying  the  electoral  dis- 
tricts as  set  out  in  the  Order  in  Council. 


APPENDICES. 


1    COLONIAL  LAWS  VALIDITY  ACT,  1865. 

2.  LETTERS    PATENT    CONSTITUTING    THE    OFFICE    OF 
GOVERNOR  GENERAL  OF  CANADA. 

;j.  INSTRUCTIONS  TO  ACCOMPANY  SAME 

4.  QUEBEC  RESOLUTIONS. 


Can.  Con.~40 


APPENDIX  I. 

COLONIAL  LAWS  VALIDITY  ACT,  18G5. 
28-29  Vic,  Cap.  63,  (Imp.) 

An  Act  to  remove  Donhts  as  to  the  ValhUtij  of  Colonial  Lairs. 

[29th  June,  18G5. 

Whereas  doubts  have  been  entertained  respecting?  the 
■validity  of  divers  laws  enacted,  or  purporting  to  be  enacted 
by  the  Legislatures  of  certain  of  Her  Majesty's  Colonies, 
and  respecting  the  powers  of  such  Legislatures ;  and  it  is 
expedient  that  such  doubts  should  be  removed  : 

Be  it  hereby  enacted  by  the  Queen's  Most  Excellent 
Majesty,  by  and  with  the  advice  and  consent  of  the  Lords 
Spiritual  and  Temporal,  and  Commons,  in  this  present 
Parliament  assembled,  and  by  the  authority  of  the  same,  as 
follows : — 

I.  The  term  "colony"  shall  in  this  Act  include  all  of  Definitions 
Her  Majesty's  Possessions   abroad,  in  which  there  shall    ^olo">- 
exist  a  legislature  as  hereinafter  defined,  except  the  Channel 
Islaiids,  the  Isle  of  Man,  and  such  territories  as  may  for  the 
time  being  be  vested  in  Her  Majesty,  under  or  by  virtue  of 
•any  Act  of  Parliament  for  the  government  of  India ; 

The  terms  "Legislature"  and  "Colonial  Legislature"  "Legislat- 
shall  severally  signify  the  authority  (other  than  the  Imperial  njai  Legisla- 
Parliament  or  Her  Majesty  in  Council),  competent  to  make  *"*'^  "  '< 
laws  for  any  colony  ; 

The  term  "  Representative    Legislature  "  shall  signify  "  Kepresenta- 
any  Colonial  Legislature  which  shall  comprise  a  legislative  tiue"; 
body  of  which  one-half  are  elected  by  inhabitants  of  the 
colony  ; 

The  term  "  Colonial  Law"  shall  include  laws  made  for  "Colonial 
■any  colony,  either  by  such  Legislature  as  aforesaid  or  by    '''^' 
Her  Majesty  in  Council ;  .. 


G28  APPENDIX. 

Act  of  Parlia.  An  Act  of  Parliament,  or  any  provision  thereof,  shall,  im 
when  to  ex-  construing  this  Act,  be  said  to  extend  to  any  colony  when  it 
tend  to  jf,  made  applicable  to  such  colony  by  the  express  words  or 

necessary  intendment  of  any  Act  of  Parliament ; 
"Governor";        The  term  "Governor"  shall  mean  the  officer  lawfully 

administering  the  Government  of  any  colony  ; 
"Letters  Pa-         The  term  "Letters  Patent"  shall  mean  letters  patent 
tent."  under  the  Great  Seal  of  the  United  Kingdom  of  Great  Britain 

and  Ireland. 
Colonial  Law         9.  Any  colonial  law,  which  is  or  shall  be  repugnant  to 
rL'i?,'J,«o.l«,!°'  the  provisions  of  any  Act  of  Parliament  extending  to  the 
colony  to  which  such  law  may  relate,  or  repugnant  to  any 
order  or  regulation  made  under  authority  of  such  Act  of 
Parliament,  or  having  in  the  colony  the  force  or  effect  of 
such  Act,  shall  be  read   subject   to   such   Act,  order,  or 
regulation,  and  shall,  to  the  extent  of  such  repugnancy, 
but  not  otherw^ise,  be  and  remain  absolutely  void  and  in- 
operative. 
Colonial  Law        -S*  No  colonial  law  shall  be,  or  be  deemed  to  have  been» 
for^repuc-^"''^  ^°^^  °^  inoperative  on  the  ground  of  repugnancy  to  the  law 
uavicy.  of  England,  unless  the  same  shall  be  repugnant  to  the  pro. 

visions  of  some  such  Act  of  Parliament,  order,  or  regula- 
tion, as  aforesaid. 

Colonial  Law  4.  No  colonial  law,  passed  with  the  concurrence  of  or 
liiconBiste'ricy  assented  to  by  the  Governor  of  any  colony,  or  to  be  here- 
with iustruc-    after  so  passed  or  assented  to,  shall  be,  or  be  deemed  to 

t»0"S.  ,  .  T  .  , 

have  been,  void  or  inoperative  by  reason  only  of  any  in- 
structions witli  reference  to  such  law,  or  the  subject  thereof, 
which  may  have  been  given  to  such  Governor,  by  or  on 
behalf  of  Her  Majesty,  by  any  instrument  other  than  the 
letters  patent  or  instrument  authorizing  such  Governor  tO' 
concur  in  passing  or  to  assent  to  laws  for  the  peace,  order, 
and  good  government  of  such  colony,  even  though  such  in- 
structions may  be  referred  to  in  such  letters  patent, or  last- 
mentioned  instrument. 

Colonial  Leg-         3.  Every  colonial  Legislature  shall  have,  and  be  deemed' 
establish,  &c^  **  **^  times  to  have  had,  full  power  within  its  jurisdiction 
Courts  of  law.  to  establish  courts  of  judicature,  and  to  abolish  and  re- 
constitute the  same,  and  to  alter  the  constitution  thereof, 
and  to  make  provision  for  the  administration  of  justice 

Representa-  therein ;  and  every  representative  Legislature  shall,  in  re- 
tiveLegisla-  x  j.     ai.  ,  i        .,..,...         ,  ,   , 

turemayal-     spect  to  the  colony  under  its  jurisdiction,  have,  and  be 

tfou'^"^*^*"     deemed  at  all  times  to  have  had,  full  power  to  make  lavs 

respecting  the  constitution,  powers,  and  procedure  of  such 

Legislature;   provided   that    such  laws  shall  have  been 


APPENDIX.  020 

passed  in  such  manner  end  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  colony. 

O.  The  certificate  of  the  clerk  or  other  proper  officer  of  a  Certiflodco- 

iaj^islative  body  in  any  colony  to  the  efftct  that  the  docu-  Ee^ev^dence '" 

nient  to  which  it  is  attached  is  a  true  copy  of  any  colonial  *''**  '''^>'  "■'"^ 

properly  pas- 
law  assented  to  by  the  Governor  of  such  colony,  or  of  any  sed. 

bill  reserved  for  the  signification  of  Her  Majesty's  pleasure 

by  the  said  Governor,  shall  be  prima  facie  evidence  that  the 

document  so  certified  is  a  true  copy  of  such  law  or  bill,  and, 

as  the  case  may  be,  that  such  law  has  been  duly  and 

properly  passed  and  assented  to,  or  that  such  bill  has  been 

duly  and  properly  passed  and  presented  to  the  Governor ; 

and    any    proclamation,  purporting   to    be    published   by  F(f?,*''evi^^'*^'^ 

authority  of  the  Governor,  in  any  newspaper  in  the  colony  deuce  of  as- 

to  which  such  law  or  bill  shall  relate,  and  signifying  Her  allowance. 

Majesty's  disallowance  of  any  such  colonial  law,  or  Her 

Majesty's   assent  to  any   such   reserved  bill  as  aforesaid, 

shall  be  prima  facie  evidence  of  such  disallowance  or  assent. 

And  whereas  doubts  are  entertained  respecting  the  vali- 
dity of  certain  Acts  enacted,  or  reputed  to  be  enacted,  by 
the  liCgislature  of  South  Australia :  Be  it  further  enacted 
as  follows : 

•y.  All   laws  or  reputed  laws  enacted  or  purporting  to  certain  Acts 
have  been  enacted  by  the  said  Legislature,  or  by  persons  or  °j  south "aus-" 
bodies  of  persons  for  the  time  being  acting  as  such  Legis-  ^^^^'^9-  ^oha 
lature,  which  have  received  the  assent  of  Her  Majesty  in 
Council,  or  which  have  received  the  assent  of  the  Governor 
of   the   said  Colony  in  the  name  and  on  behalf  of   Her 
Majesty,  shall  be  and  be  deemed  to  have  been  valid  and 
eifectual  from  the  date  of  such  assent  for  all  purposes  what- 
ever ;    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. 


APPENDIX  II. 

DRAFT  OF  LETTERS-PATENT! PASSED  UNDER 
THE  GREAT  SEAL  OF  THE  UNITED  KINGDOM, 

Comtitutimj  the  Office  of  Govcrnor-Gemral  of  the   Doiiiinion   of 

Canada. 

Letters-Patent,  ] 

Dated  5th  October,  1878.    ]" 

VicTOKiA,  by  the  Grace  of  God,  of  the  United  Kingdom  of  Great  Britain 
and  Ireland,  Queen,  Defender  of  the  Faith,  Empress  of  India ; 

•  To  all  to  whom  these  Presents  shall  come,  Greeting : 

Wherkas  We  did,  by  certain  Letters-Patent  under  the  Great  Seal  of 
Our  United  Kingdom  of  Great  Britain  and  Ireland,  bearing  date  at 
Westminster  the  Twenty-second  day  of  May,  1872,  in  the  Thirty-fifth 
Year  of  Our  Eeign,  constitute  and  appoint  Our  Right  Trusty  and  Riglit 
Well-beloved  Cousin  and  Councillor,  Frederick  Temple,  Earl  of  DuiYerin, 
Knight  of  Our  Most  Illustrious  Order  of  Saint  Patrick,  Knight  Com- 
mander of  Our  Most  Honorable  Order  of  the  Bath  (now  Knight  Grand 
Cross  of  Our  Most  Distinguished  Order  of  Saint  Michael  and  Saint 
George),  to  be  Our  Governor- General  in  and  over  Our  Dominion  of 
Canada  for  and  during  Our  will  and  pleasure : 

And  whereas  by  the  12th  section  of  "The  British  North  America  Act, 
1867,"  certain  powers,  authorities,  and  functions  were  declared  to  be 
vested  in  the  Governor-General : 

And  whereas  We  are  desirous  of  making  effectual  and  permanent 
provision  for  the  office  of  Governor-General  in  and  over  Our  naid 
Dominion  of  Canada,  without  making  new  Letters-Patent  on  each  demise 
of  the  said  Office  : 

Now  know  ye  that  We  have  revoked  and  determined,  and  by  these 
presents  do  revoke  and  determine,  the  said  recited  Letters-Patent  of 
the  Twenty-seoond  day  of  May,  1872,  and  every  clause,  article  and  thing 
therein  contained : 

And  further  know  ye  that  We,  of  our  special  grace,  certain  know- 
ledge,  and  mere  motion,   have  thought  tit  to  constitute,  order,  and 


APPENDIX.  631 

declare,  and  do  by  these  presents  constitute,  order,  and  declare  that 
there  shall  be  a  Governor- General  (hereinafter  called  Our  said  Gover- 
nor-General) in  and  over  Our  Dominion  of  Canada  (hereinafter  called 
Our  said  Dominion),  and  that  the  person  who  phall  fill  the  said 
Office  of  the  Governor-General  shall  be  from  time  to  time  appointed 
by  Commission  under  our  Sign-Manual  and  Signet.  And  we  do  hereby 
authorize  and  command  Our  said  Governor-General  to  do  and  execute, 
in  due  manner,  all  things  that  shall  belong  to  his  said  command,  and  to 
the  trust  We  have  reposed  in  him.  according  to  the  several  powers  and 
authorities  granted  or  appointed  him  by  virtue  of  "  The  British  North 
America  Act,  18G7,"  and  of  these  present  Letters-Patent,  and  of  such  Com- 
mission as  may  be  issued  to  him  under  Our  Sign-Manual  and  Signet, 
and  according  to  such  Instructions  as  may  from  time  to  time  be  given  to 
him,  under  Our  Sign-Manual  and  Signet,  or  by  Our  Order  in  Our  Privy 
Council,  or  by  us  through  one  of  Our  Principal  Secretaries  of  State,  and 
to  such  Laws  as  are  or  shall  hereafter  be  in  force  in  Our  said  Dominion. 

II.  And  We  do  hereby  authorize  and  empower  Our  said  Governor- 
General  to  keep  and  use  the  Great  Seal  of  Our  said  Dominion  for  sealing 
all  things  whatsoever  that  shall  pass  the  said  Great  Seal. 

III.  And  We  do  further  authorize  and  empower  Our  said  Governor- 
General  to  constitute  and  appoint,  in  Our  name  and  on  Our  behalf,  all 
such  Judges,  Commissioners,  Justices  of  the  Peace,  and  other  necessary 
Officers  and  Ministers  of  Our  said  Dominion,  as  may  be  lawfully  con- 
stituted or  appointed  by  Us. 

IV.  And  We  do  further  authorize  and  empower  Our  taid  Governor- 
General,  so  far  as  we  lawfully  may,  upon  sufficient  cause  to  him  appear- 
ing, to  remove  from  his  office,  or  to  suspend  from  the  exercise  of  the 
same,  any  person  exercising  any  office  within  Oui  said  Dominion,  under 
or  by  virtue  of  any  Commission  or  Warrant  granted,  or  which  may  be 
granted,  by  Us  in  Our  name  or  under  Our  authority. 

V.  And  We  do  further  authorize  and  empower  Our  said  Governor- 
General  to  exercise  all  powers  lawfully  belonging  to  Us  in  respect  of  the 
summoning,  proroguing,  or  dissolving  the  Parliament  of  Our  said  Do- 
minion. 

VI.  And  whereas  by  "The  British  North  America  Act,  18G7,"  it  is 
amongst  other  things  enacted,  that  it  shall  be  lawful  for  Us,  if  We  think 
fit,  to  authorize  the  Governor-General  of  Our  Dominion  of  Canada  to 
appoint  any  person  or  persons,  jointly  or  severally,  to  be  his  Deputy  or 
Deputies  within  any  part  or  parts  of  Our  said  Dominion,  and  in  that 
capacity  to  exercise,  during  the  pleasure  of  Our  said  Governor-General, 
such  of  the  powers,  authorities,  and  functions  of  Our  said  Governor- 
General  as  he  may  deem  it  necessary  or  expedient  to  assign  to  such 
Deputy  or  Deputies,  subject  to  any  limitations  or  directions  from  time  to 
time  expressed  or  given  by  Us :   Now  We  do  hereby  authorize  and  emi. 


632  APPENDIX. 

power  Oar  said  Governor-General,  subject  to  such  limitations  and  direc- 
tions as  aforesaid,  to  appoint  any  person  or  persons,  jointly  or  severally, 
to  be  his  Deputy  or  Deputies  within  any  part  or  parts  of  Our  said 
Dominion  of  Canada,  and  in  that  capacity  to  exercise,  during  his  pleasure, 
such  of  his  powers,  functions,  and  authorities  as  he  may  deem  it  neces- 
sary or  expedient  to  assign  to  him  or  them :  Provided  always,  that  the 
appointment  of  such  a  Deputy  or  Deputies  shall  not  affect  the  exercise 
of  any  such  power,  authority  or  function  by  Our  said  Governor-General 
in  person. 

VII.  And  We  do  hereby  declare  Our  pleasure  to  be  that,  in  the  event 
of  the  death,  incapacity,  removal,  or  absence  of  Our  said  Governor- 
General  out  of  Our  said  Dominion,  all  and  every  the  powers  and 
authorities  herein  granted  to  him  shall,  until  our  further  pleasure  is 
signified  therein,  be  vested  in  such  person  as  may  be  appointed  by  Us 
under  our  Sign-Manual  and  Signet  to  be  Our  Lieutenant-Governor  of 
Our  said  Dominion ;  or  if  there  shall  be  no  such  Lieutenant-Governor  in 
Our  said  Dominion,  then  in  such  person  or  persons  as  may  be  appointed 
by  Us  under  our  Sign-Manual  and  Signet  to  administer  the  Government 
of  the  same ;  and  in  case  there  shall  be  no  person  or  persons  within  Our 
said  Dominion  so  appointed  by  Us,  then  in  the  Senior  Officer  for  the  time 
being  in  command  of  our  regular  troops  in  our  said  Dominion :  Pro- 
vided that  no  such  powers  or  authorities  shall  vest  in  such  Lieutenant- 
Governor,  or  such  other  person  or  persons,  until  he  or  they  shall  have 
taken  the  oaths  appointed  to  be  taken  by  the  Governor-General  of  Our 
said  Dominion,  and  in  the  manner  provided  by  the  Instructions  accom- 
panying these  Our  Letters-Patent. 

VIII.  And  We  do  hereby  require  and  command  all  Our  Officers  and 
Ministers,  Civil  and  Military,  and  all  other  the  inhabitants  of  Our  said 
Dominion,  to  be  obedient,  aiding  and  assisting  unto  our  said  Governor- 
General,  or,  in  the  event  of  his  death,  incapacity,  or  absence,  to  such 
person  or  persons  as  may,  from  time  to  time,  under  the  provisions  of 
these,  Our  Letters-Patent,  administer  the  Government  of  Our  said 
Dominion. 

IX.  And  We  do  hereby  reserve  to  Ourselves,  Our  heirs  and  successors, 
full  power  and  authority  from  time  to  time  to  revoke,  alter  or  amend 
these  Our  Letters- Patent  as  to  Us  or  them  shall  seem  meet. 

X.  And  We  do  further  direct  and  enjoin  that  these  Our  Letters -Patent 
shall  be  read  and  proclaimed  at  such  place  or  places  as  Our  said  Gov- 
ernor-General shall  think  fit  within  Our  said  Dominion  of  Canada. 

In  Witness  whereof  We  have  caused  tliese  our  Letters  to  be  made 
Patent.  Witness  Ourself  at  Westminster,  the  Fifth  day  of  October,  in 
the  Forty-second  Year  of  Our  Reign. 

By  Warrant  under  the  Queen's  Sign-Manual. 

'  C.  EOMILLY. 


APPENDIX  III. 

DRAFT  OF  INSTRUCTIONS 

Po,sse(i  under  the  Ihnjal  Shin-Nanual  and  Siijnet  to  the  Goveniar- 
General  of  the  Dominion  of  Camuhi. 

Dated  5th  October,  1878, 
VICTORIA  R. 

Instructions  to  Our  Governor-General  hi  and  over  Our  Dominion  of 
Canada,  or,  in  his  absence,  to  Our  Lieutenant-Governor  or  the  Officer 
for  the  time  being  administering  the  Government  of  Our  said 
Dominion, 

Given  at  our  Court  at  Balmoral,  this  Fifth  day  of  October,  1878,  in 
the  Forty-second  year  of  Our  Reign. 

Whereas  by  certain  Letters-Patent  bearing  even  date  herewith,  We 
have  constituted,  ordered,  and  declared  that  there  shall  be  a  Governor- 
General  (hereinafter  called  Our  said  Governor-General)  in  and  over  Our 
Dominion  of  Canada  (hereinafter  called  Our  said  Dominion),  and  We 
have  thereby  authorized  and  commanded  Our  said  Governor-Genciral  to 
do  and  execute  in  due  manner  all  things  that  shall  belong  to  his  said 
command,  and  to  the  trust  We  have  reposed  in  him,  according  to  tho 
several  powers  and  authorities  granted  or  appointed  him  by  virtue  of  the 
said  Letters-Patent,  and  of  such  Commission  as  may  be  issued  to  him 
under  Our  Sign  Manual  and  Signet,  and  according  to  such  Instructions 
as  may  from  time  to  time  be  given  to  him,  under  Our  Sign-Manual  and 
Signet,  or  by  Our  Order  in  Our  Privy  Council,  or, by  Us  through  One  of 
Our  Principal  Secretaries  of  State,  and  to  such  Laws  as  are  or  shall 
hereafter  be  in  force  in  Our  said  Dominion  ; 

Now,  therefore.  We  do,  by  these.  Our  Instructions,  under  Our  Sign- 
Manual  and  Signet,  declare  Our  pleasure  to  be  that  Our  said  Governor- 
General  for  the  time  being  shall,  with  all  due  solemnity,  cause  Our 
Commission,  under  Our  Sign-Manual  and  Signet,  appointing  Our  said 
Governor-General  for  the  time  being,  to  be  read  and  published  in  the 
pretance  of  the  Chief  Justice  for  the  time  being,  or  other  Judge  of  the 
Supreme  Court  of  Our  said  Dominion,  and  of  the  members  of  the  Privy 
■Council  in  Our  said  Dominion: 


084  APPENDIX. 

And  We  do  further  declare  Our  pleasure  to  be  that  Our  said  Governor- 
General,  and  every  other  Officer  appointed  to  administer  the  Government 
of  Our  said  Dominion,  shall  tak6  the  Oath  of  Allegiance  in  the  form 
provided  by  an  Act  passed  in  the  Session  holden  in  the  thirty-first  and 
thirty-second  years  of  Our  Keign,  intituled  :  "  An  Act  to  Amend  the  Law 
relating  to  Promissory  Oaths ;"  and  likewise  that  he  or  they  shall  take  the 
usual  Oath  for  the  due  execution  of  the  Office  of  Our  Governor-General  in 
and  over  Our  said  Dominion,  and  for  the  due  and  impartial  administration 
of  justice;  which  Oaths  the  said  Chief  Justice  for  the  time  being,  of  Our 
said  Dominion,  or,  in  his  absence,  or  in  the  event  of  his  being  otherwise 
incapacitated,  any  Judge  of  the  Supreme  Court  of  Our  said  Dominion 
shall,  and  he  is  hereby  required  to  tender  and  administer  unto  him  or 
them. 

II.  And  We  do  authorize  and  require  Our  said  Governor-General 
from  time  to  time,  by  himself  or  by  any  other  person  to  be  authorized  by 
Iiim  in  that  behalf,  to  administer  to  ail  and  to  every  persons  or  person 
as  he  shall  think  fit,  who  shall  hold  any  office  or  place  of  trust  or  profit 
in  Our  said  Dominion,  the  paid  Oath  of  Allegiance,  together  with  such 
other  Oath  or  Oaths  as  may  from  time  to  time,  be  prescribed  by  any 
Laws  or  Statutes  in  that  behalf  made  and  provided. 

III.  And  We  do  require  Our  said  Governor-General  to  communicate 
forthwith  to  the  Privy  Council  for  Our  said  Dominion  these  Our  Instruc- 
tions, and  likewise  all  such  others  from  time  to  time  as  he  shall  find  con 
venient  for  Our  service  to  be  imparted  to  them. 

IV.  Our  said  Governor-General  is  to  take  care  that  all  laws  assented 
to  by  him  in  Our  name,  or  reserved  for  the  signification  of  Our  pleasure 
thereon,  shall,  when  transmitted  by  him,  be  fairly  abstracted  in  the- 
margins,  and  be  accompanied,  in  i^uch  cases  as  may  seem  to  him  neces- 
sary, with  such  explanatory  observations  as  may  be  required  to  exhibit 
the  reasons  and  occasions  for  proposing  such  Laws  ;  and  he  shall  also 
transmit  fair  copies  of  the  Journals  and  Minutes  of  the  proceedini  fi  of 
the  Parliament  of  Our  said  Dominion,  which  he  is  to  require  from  the 
clerks,  or  other  proper  officers  in  that  behalf,  of  the  said  Parliament. 

V.  And  We  do  further  authorize  and  empower  Our  said  Governor- 
General,  as  he  shall  see  occasion,  in  Our  name  and  on  Our  behalf,  when 
any  crime  has  been  committed  for  which  the  offender  may  be  tried 
within  Our  said  Dominion,  to  grant  a  pardon  to  any  accomplice  not  being 
the  actual  perpetrator  of  such  crime,  who  shall  give  such  information  as. 
shall  lead  to  the  conviction  of  the  principal  offender ;  and  further,  to  grant 
to  any  offender  convicted  of  any  crime  in  any  Court,  or  before  any  Judge, 
Justice,  or  Magistrate,  within  Our  said  Dominion,  a  pardon,  either  free 
or  subject  to  lawful  conditions,  or  any  respite  of  the  execution  of  the 
sentence  of  any  such  offender,  for  such  period  as  to  Our  said  Governor- 
General  may  seem  fit,  and  to  remit  any  fines,  penalties,  or  forfeitures- 


APPENDIX.  685 

which  may  become  due  and  jjayable  to  Us.  Provided  always,  that  Our 
said  Governor- General  shall  not  in  any  case,  except  where  the  offence  has 
been  of  a  political  nature,  make  it  a  condition  of  any  pardon  or  re- 
mission of  sentence  that  the  offender  shall  be  banished  from  or  shall 
absent  himself  from  Our  said  Dominion.  And  We  do  hereby  direct  and 
enjoin  that  Our  said  Governor-General  shall  not  pardon  or  reprieve  any 
such  offender  without  first  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  aft'ect  the  interests  of  Our  Empire,  or  of  any- 
country  or  place  beyond  the  jurisdiction  of  the  Government  of  Our  said 
Dominion,  Our  said  Governor- Generai  shall,  before  deciding  as  to  either 
pardon  or  reprieve,  take  those  interests  specially  into  his  own  personal 
consideration  in  conjunction  with  such  advice  as  aforesaid. 

VI.  And  whereas  great  prejudice  may  happen  to  Our  service  and  to- 
the  security  of  Our  said  Dominion  by  the  absence  of  Our  said  Governor- 
General,  he  shall  not,  upon  any  pretence  whatever,  quit  Our  said 
Dominion  without  having  first  obtained  leave  from  Us  for  so  doing  undei' 
Our  Sign-Manual  and  Signet,  or  through  one  of  Our  Principal  Secretariea 
of  State. 

V.R. 


APPENDIX  IV. 

QUEBEC  CONFERENCE  RESOLUTIONS,  1864. 

1.  The  best  interests  and  present  and  future  prosperity  of  British 
North  America  will  be  promoted  by  a  federal  union,  under  the  Crown  of 
Great  Britain,  provided  such  union  can  be  effected  on  principles  just  to 
the  several  Provinces. 

2.  In  the  federation  of  the  British  North  American  Provinces,  the 
system  of  Government  best  adapted  under  existing  circumstances  to  pro- 
tect tlie  diversified  interests  in  the  several  Provinces,  and  secure  efficiency, 
harmony  and  permanency  in  the  working  of  the  union,  would  be  a  general 
Government,  charged  with  matters  of  common  interest  to  the  whole 
country  ;  and  Local  Governments  for  each  of  the  Canadas,  and  for  the 
Provinces  of  Nova  Scotia,  New  Brunswick,  and  Prince  Edward  Island, 
charged  with  the  control  of  local  matters  in  their  respective  sections ; 
provision  being  made  for  the  admission  into  the  union,  on  equitable 
terms,  of  Newfoundland,  the  North- West  Territory,  British  Columbia, 
and  Vancouver. 

3.  In  framing  a  constitution  for  the  general  Government,  the  Confer- 
ence, with  a  view  to  the  perpetuation  of  our  connection  with  the  mother 
country,  and  to  the  promotion  of  the  best  interests  of  the  people  of  these 
Provinces,  desire  to  follow  the  model  of  the  British  constitution  so  far 
as  our  circumstances  will  permit. 

4.  The  Executive  authority  or  government  shall  be  vested  in  the 
Sovereign  of  the  United  Kingdom  of  Great  Britain  and  Ireland,  and  be 
administered  according  to  the  well-understood  principles  of  tlie  British 
constitution,  by  the  Sovereign  personally,  or  by  the  representative  of  the 
Sovereign  duly  authorized. 

5.  The  Sovereign  or  Efepresentative  of  the  Sovereign  shall  be  Com- 
mander in  Chief  of  the  land  and  naval  militia  forces. 

6.  There  shall  be  a  General  Legislature  or  Parliament  for  the 
federated  Provinces,  composed  of  a  Legislative  Council  and  a  House  of 
Commons. 

7.  For  the  purpose  of  forming  Ihe  Legislative  Council,  the  federated 
Provinces  shall  be  considered  as  consisting  of  three  divisions:  Ist,  Upper 


APPENDIX.  687" 

Canada,  2nd,  Lower  Canada,  3rd,  Nova  Scotia,  New  Brunswick,  and 
Prince  Edward  Island ;  each  division  with  an  equal  representation  in 
the  Legislative  Council. 

8.  Upper  Canada  shall  be  represented  in  the  Legislative  Council  by 
24  members,  Lower  Canada  by  24  members,  and  the  three  maritime^ 
Provinces  by  24  members,  of  which  Nova  Scotia  shall  have  10,  New 
Brunswick  10,  and  Prince  Edward  Island  4  members. 

9.  The  Colony  of  Newfoundland  shall  be  entitled  to  enter  the  pro- 
posed union,  with  a  representation  in  the  Legislative  Council  of  4 
members. 

10.  The  North-West  Territory,  British  Columbia  and  Vancouver 
shall  be  admitted  into  the  union  on  such  terms  and  conditions  as  the 
Parliament  of  the  federated  Provinces  shall  deem  equitable,  and  as  shall 
receive  the  assent  of  Her  Majesty ;  and,  in  the  case  of  the  Province  of 
British  Columbia  or  Vancouver,  as  shall  be  agreed  to  by  the  Legislature 
of  such  Province. 

11.  The  members  of  the  Legislative  Council  shall  be  appointed  by  the 
Crown  under  the  great  seal  of  the  general  government,  and  shall  hold 
office  during  life ;  if  any  Legislative  Councillor  shall,  for  two  consecutive 
sessions  of  Parliament,  fail  to  give  his  attendance  in  the  said  Council, 
his  seat  shall  thereby  become  vacant. 

12.  The  members  of  the  Legislative  Council  shall  be  British  subjects 
by  birth  or  naturalization,  of  the  full  age  of  thirty  years,  shall  possess  a 
continuous  real  property  qualification  of  four  thousand  dollars  over  and 
above  all  incumbrances,  and  shall  be  and  continue  worth  that  sum  over 
and  above  their  debts  and  liabilities,  but  in  the  case  of  Newfoundland 
and  Prince  Edward  Island  the  property  may  be  either  real  or  personal. 

13.  If  any  question  shall  arise  as  to  the  qualification  of  a  Legislative 
Councillor,  the  same  shall  be  determined  by  the  Council. 

14.  The  first  selection  of  the  members  of  the  Legislative  Council  shall 
be  made,  except  as  regards  Prince  Edward  Island,  from  the  Legislative 
Councils  of  the  various  Provinces,  so  far  as  a  sufficient  number  be 
found  qualified  and  willing  to  serve  ;  such  members  shall  be  appointed 
by  the  Crown  at  the  recommendation  of  the  general  executive  Govern- 
ment, upon  the  nomination  of  the  respective  local  Governments,  and  in 
such  nomination  due  regard  shall  be  had  to  the  claims  of  the  members  of 
the  Legislative  Council  of  the  opposition  in  each  Province,  so  that  all 
political  parties  may  as  nearly  as  possible  be  fairly  represented. 

15.  The  Speaker  of  the  Legislative  Council  (unless  otherwise  provided 
by  Parliament)  shall  be  appointed  by  the  Crown  from  among  the  mem- 
bers of  the  Legislative  Council,  and  shall  hold  office  during  pleasure,  and 
shall  only  be  entitled  to  a  casting  vote  on  an  equality  of  votes. 


(>38  APPENDIX. 

16.  Each  of  the  twenty-four  Legislative  Councillors  representing 
Lower  Canada  in  the  Legislative  Council  of  the  general  Legislature, 
Ethall  be  appointed  to  represent  one  of  the  twenty-four  electoral  divisions 
mentioned  in  Schedule  A  of  chapter  first  of  the  Consolidated  Statutes  of 
tJanada,  and  such  Councillor  shall  reside  or  possess  his  qualification  in 
the  division  he  is  appointed  to  represent. 

17.  The  basis  of  representation  in  the  House  of  Commons  shall  be 
population,  as  determined  by  the  official  census  every  ten  years  ;  and  the 
number  of  members  at  first  shall  be  194,  distributed  as  follows  : — 

Upper  Canada    82 

Lower  Canada 05 

Nova  Scotia 19 

New  Brunswick 15 

Newfoundland    8 

Prince  Edward  Island 5 

18.  Until  the  official  census  of  1871  has  been  made  up,  there  shall  be 
no  change  in  the  number  of  representatives  from  the  several  sections. 

19.  Immediately  after  the  completion  of  the  census  of  1871,  and  im- 
mediately after  every  decennial  census  thereafter,  the  representation 
from  each  section  in  the  House  of  Commons  shall  be  readjusted  on  the 
basis  of  population. 

20.  For  the  purpose  of  such  re-adjustments,  Lower  Canada  shall 
always  be  assigned  sixty-five  members,  and  each  of  the  other  sections 
shall  at  each  re-adjustment  receive,  for  the  ten  years  then  next  succeed- 
ing, the  number  of  members  to  which  it  will  be  entitled  on  the  same 
ratio  of  representation  to  population  as  Lower  Canada  will  enjoy  accord- 
ing to  the  census  last  taken  by  having  sixty-five  members. 

21.  No  reduction  shall  be  made  in  the  number  of  members  returned 
"by  any  section,  unless  its  population  shall  have  decreased,  relatively  to 
the  population  of  the  whole  Union,  to  the  extent  of  five  per  centum. 

22.  In  computing  at  each  decennial  period  the  number  of  members 
to  which  each  section  is  entitled,  no  fractional  parts  shall  be  considered, 
iinless  when  exceeding  one-half  the  number  entitling  to  a  member,  in 
which  case  a  member  shall  be  given  for  each  such  fractional  part. 

23.  The  Legislature  of  each  Province  shall  divide  such  Province  into 
the  proper  number  of  constituencies,  and  define  the  boundaries  of  each 
of  them. 

24.  The  local  Legislature  of  each  Province  may,  from  time  to  time, 
alter  the  electoral  districts  for  the  purposes  of  representation  in  such 
local  Legislature,  and  distribute' the  representatives  to  which  the  Prov- 
ince is  entitled  in  such  local  Legislature,  in  any  manner  such  Legislature 
may  see  fit. 


APPENDIX.  O.Sf) 

25.  The  number  of  members  may  at  any  time  be  increased  by  tlie 
general  Parliament,— regard  being  had  to  the  proportionate  rights  then 
existing. 

20.  Until  provisions  are  made  by  the  General  Parliament,  all  the  laws 
■which,  at  the  date  of  the  proclamation  constituting  the  Union,  are  in 
force  in  the  I'rovinces  respectively,  relating  to  the  (jualitication  and  dis- 
qualification of  any  person  to  be  elected,  or  to  sit  or  vote  as  a  member 
of  the  Assembly  in  the  said  Provinces  respectively  ;  and  relating  to  the 
qualification  or  disqualification  of  voters  and  to  the  oaths  to  be  taken 
by  voters,  and  to  returning  officers  and  their  powers  and  duties,— and 
relating  to  the  proceedings  at  elections,  and  to  the  period  during  which 
such  elections  may  be  continued, — and  relating  to  the  trial  of  controverted 
elections,  and  the  proceedings  incident  thei'eto, — and  relating  to  the 
vacating  of  scats  of  members,  and  to  the  issuing  and  execution  of  new 
writs,  in  case  of  any  seat  being  vacated  otherwise  than  by  a  dissolution, 
— shall  respectively  apply  to  elections  of  members  to  serve  in  the  House 
of  Commons,  for  places  situate  in  those  Provinces  i*espectively. 

27.  Every  House  of  Commons  shall  continue  for  five  years  from  the 
day  of  the  return  of  the  writs  choosing  the  same,  and  no  longer;  subject, 
nevertheless,  to  be  sooner  prorogued  or  dissolved  by  the  Governor. 

28.  There  shall  be  a  session  of  the  general  Parliament  once,  at  least, 
in  every  year,  so  that  a  period  of  twelve  calendar  months  shall  not  inter- 
vene between  the  last  sitting  of  the  general  Parliament  in  one  <!)ession, 
and  the  first  sitting  thereof  in  the  next  session. 

29.  The  general  Parliament  shall  have  power  to  make  laws  for  the 
peace,  welfare,  and  good  government  of  the  federated  provinces  (saving 
the  sovereignty  of  England),  and  especially  laws  respecting  the  following 
subjects : — 

(1)  The  public  debt  and  property. 

(2)  The  regulation  of  trade  and  commerce. 

(3)  The  imposition  or  regulation  of  duties  of  customs  on  imports  and 

exports,—  except  on  exports  of  timber,  logs,  masts,  spars,  deals 
and  sawn  lumber  from  New  Brunswick,  and  of  coal  and  other 
minerals  from  Nova  Scotia. 

(4)  The  imposition  or  regulation  of  excise  duties. 

(5)  The  raising  of  money  by  all  or  any  other  modes  or  systems  of 

taxation. 

(6)  The  borrowing  of  money  on  the  public  credit.  .  . 

^7)  Postal  service. 

(8)  Lines  of  steam  or  other  ships,  railways,  canals  and  other  works, 
connecting  any  two  or  more  of  the  Provinces  together  or  ex- 
tending beyond  the  limits  of  any  Province. 


OtO  APPENDIX. 

(0)  Lines  of  steamships  between  the  federated  provinces  and  other 
countries. 

(10)  Telegraphic  communication  and  the  incorporation  of  telegraphic 

companies. 

(11)  All  such  works  as  shall,  although  lying  wholly  within  any  Pro- 

vince be  specially  declared  by  the  Acts  authorizing  them  to  be 
for  the  general  advantage. 

(12)  The  census. 

(18)  Militia — military  and  naval  service  and  defence. 

(14)  Beacons,  buoys  and  light  houses. 

(15)  Navigation  and  shipping. 

(16)  Quarantine. 

(17)  Sea-coast  and  island  fisheries. 

(18)  Ferries  between  any  province  and  a  foreign  country,  or  between 

any  two  provinces. 

(19)  Currency  and  coinage. 

(20)  Banking — incorporation  of  banks,  and  the  issue  of  paper  money. 

(21)  Savings  banks. 

(22)  Weights  and  measures. 

(23)  Bills  of  exchange  and  promissory  notes. 

(24)  Interest. 

(25)  Legal  tender. 

(26)  Bankruptcy  and  insolvency. 

(27)  Patents  of  invention  and  discovbry. 

(28)  Copyrights. 

(29)  Indians  and  lands  reserved  for  the  Indians. 

(30)  Naturalization  and  aliens. 

(31)  Marriage  and  divorce. 

(32)  The  criminal  law,  excepting  the  constitution  of  courts  of  criminal 

jurisdiction,  but  including  the  procedure  in  criminal  matters. 

(33)  Rendering  uniform  all  or  any  of  the  laws  relative  to  property  and 

civil  rights  in  Upper  Canada,  Nova  Scotia,  New  Brunswick, 
Newfoundland,  and  Prince  Edward  Island,  and  rendering 
uniform  the  procedure  of  all  or  any  of  the  courts  in  these  Pro- 
vinces ;  but  any  statute  for  this  purpose  shall  have  no  force  or 
authority  in  any  Province  until  sanctioned  by  the  Legislature 
thereof. 

(34)  The  establishment  of  a  general  Court  of  Appeal  for  the  federated 

Provinces. 

(35)  Immigration. 

(36)  Agriculture. 


APPENDIX.  641 

^87)  And  generally  respecting  all  matters  of  a  general  cliaracter,  not 
specially  and  exclusively  reserved  for  the  local  Governments 
and  Legislatures. 

30.  The  general  Government  and  Parliament  shall  have  all  powers 
necessary  or  proper  for  performing  the  obligations  of  the  federated  Pro- 
vinces, as  part  of  tho  British  Empire,  to  foreign  countries  arising  under 
treaties  between  Great  Britain  and  such  countries. 

31.  The  general  Parliament  may  also,  from  time  to  time,  establish 
additional  courts,  and  the  general  Government  may  appoint  judges  and 
officers  thereof,  when  the  same  shall  appear  necessary  or  for  the  public 
advantage,  in  order  to  the  due  execution  of  the  laws  of  Parliament. 

32.  All  courts,  judges  and  officers  of  the  several  Provinces  shall  aid, 
assist  and  obey  the  general  Government  in  the  exercise  of  its  rights  and 
powera,  and  for  such  purposes  shall  be  held  to  be  courts,  judges  and 
officers  of  the  general  Government. 

33.  The  general  Government  shall  appoint  and  pay  the  judges  of  the 
Superior  Courts  in  each  Province,  and  of  the  County  Courts  in  Upper 
-Canada,  and  Parliament  shall  fix  their  salaries. 

34.  Until  the  consolidation  of  the  laws  of  Upper  Canada,  New  Bruns- 
wick, Nova  Scotia,  Newfoundland  and  Prince  Edward  Island,  the 
judges  of  these  Provinces  appointed  by  the  general  Government  shall  be 
selected  from  their  respective  bars. 

35.  The  judges  of  the  courts  of  Lower  Canada  shall  be  selected  from 
the  bar  of  Lower  Canada. 

36.  The  judges  of  the  Court  of  Admiralty  now  receiving  salaries 
bhall  be  paid  by  the  general  Government. 

37.  The  judges  of  the  Superior  Courts  shall  hold  their  offices  during 
good  behaviour,  and  shall  be  removable  only  on  the  address  of  both 
Houses  of  Parliament. 

LOCAL   GOVERNMENT. 

38.  For  each  of  the  Provinces  there  shall  be  an  executive  officer, 
styled  the  Lieutenant-Governor,  who  shall  be  appointed  by  the  Governor- 
General  in  Council,  under  the  Great  Seal  of  the  federated  Provinces, 
during  pleasure ;  such  pleasure  not  to  be  exercised  before  the  expiration 
of  the  first  five  years,  except  for  cause ;  such  cause  to  be  communicated 
in  writing  to  the  Lieutenant-Governor  immediately  after  the  exercise  of 
the  pleasure  as  aforesaid,  and  also  by  message  to  both  Houses  of  Parlia- 
ment, within  the  first  week  of  the  first  session  afterwards. 

39.  The  Lieutenant-Governor  of  each  Province  shaP  be  paid  by  the 
general  Government. 

Can.  Con. — 41 


642  APPENDIX. 

40.  In  undertakinfj  to  pay  the  salaries  of  the  Lieutenant-Governors^ 
the  Conference  does  not  desire  to  prejudice  the  claim  of  Prince  Edward 
Island  upon  the  Imperial  Government  for  the  amount  now  paid  for  the 
salary  of  the  Lieutenant-Governor  thereof. 

4L  The  local  Government  and  Legislature  of  each  Province  shall  be 
constructed  in  such  manner  as  the  existing  Legislature  of  such  Province 
shall  provide. 

42.  The  local  Legislatures  shall  have  power  to  alter  or  amend  their 
constitution  from  time  to  time. 

43.  The  local  Legislatures  shall  have  power  to  make  laws  respecting 
the  following  subjects  : — 

(1)  Direct  taxation,  and  in  New  Brunswick  the  imposition  of  duties 

on  the  export  of  timber,  logs,  masts,  spars,  deals  and  sawn 
lumber ;  and  in  Nova  Scotia,  on  coals  and  other  minerals. 

(2)  Borrowing  money  on  the  credit  of  the  Province. 

(3)  The  establishment  and  tenure  of  local  offices,  and  the  appoint- 

ment and  payment  of  local  officers. 

(4)  Agriculture. 

(5)  Immigration. 

(6)  Education ;  saving  the  rights  and  privileges  which  the  Protestant 

or  Catholic  minority  in  both  Canadas  may  possess  as  to  their 
denominational  schools,  at  the  time  when  the  union  goes  into 
operation. 

(7)  The  sale  and  management  of  public  lands  excepting  lands  belong- 

ing to  the  general  Government. 

(8)  Sea-coast  and  inland  fisheries. 

(9)  The  establishment,  maintenance  and  management  of  peniten- 

tiaries, and  of  public  and  reformatory  prisons. 

(10)  The  establishment,  maintenance  and  management  of  hospitals, 

asylums,  charities  and  eleemosynary  institutions. 

(11)  Municipal  institutions. 

(12)  Shop,  saloon,  tavern,  auctioneer  and  other  licenses. 

(13)  Local  \vorks. 

(14)  The  incorporation  of  private  or  local  companies,  except  such  a» 

relate  to  matters  assigned  to  the  general  Parliament. 

(15)  Property  and  civil    rights,  excepting    those    portions    thereof 

assigned  to  the  general  Parliament. 

(16)  Inflicting  punishment  by  fine,  penalties,  imprisonment  or  other- 

wise, for  the  breach  of  laws  passed  in  relation  to  any  subject 
within  their  jurisdiction. 


APPENDIX.  643 

(17)  Tht  admiiiistration  of  justice,  including  Jtlie  constitution,  main- 

tenance Tand  organization  of  the  courts,— both  of  civil  and 
criminal  jurisdiction,  and  including  also  tlie  procedure  in  civil 
matters. 

(18)  And  generally  all   matters  "of  a  private  or  local  nature,  not 

assigned  to  the  general  Parliament. 

44.  The  power  of  I'espiting,  reprievin'^,  and  pardoning  prisoners  con- 
victed of  crimes,  and  of  commuting  and  remitting  of  sentences  in  whole  or 
in  part  which  belongs  of  right  to  the  Crown,  shall  be  administered  by 
the  Lieutenant-Governor  of  each  Province  in  Council,  subject  to  any  in- 
structions he  may,  from  time  to  time,  receive  from  the  general  Govern- 
ment, and  subject  to  any  provisions  that  may  be  made  in  this  behalf  by 
the  general  Parliament. 

MI8CELLANK0US. 

45.  In  regard  to  all  subjects  over  which  jurisdiction  belongs  to  both 
the  general  and  local  Legislatures,  the  laws  of  the  general  Parliament 
shall  control  and  supersede  those  made  by  the  local  Legislature,  and  the 
latter  shall  be  void  so  far  as  they  are  repugnant  to  or  inconsistent  with, 
the  former, 

46.  Both  the  English  and  French  languages  may  be  employed  in  the 
general  Parliament  and  in  its  proceedings,  and  in  the  local  Legislature  of 
Lower  Canada,  and  also  in  the  Federal  courts,  and  in  the  courts  of 
Lower  Canada. 

47.  No  lands  or  property  belonging  to  the  general  or  local  Govern- 
ments shall  be  liable  to  taxation. 

48.  All  bills  for  appropriating  any  part  of  the  public  revenue,  or  for 
imposing  any  new  tax  or  impost,  shall  originate  in  the  House  of  Com- 
mons or  House  of  Assembly,  as  the  case  may  be. 

49.  The  House  of  Commons  or  House  of  Assembly  shall  not  originate 
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,  not 
first  recommended  by  message  of  the  Governor-General  or  the  Lieuten- 
ant-Governor, as  the  case  may  be,  during  the  session  in  which  such  vote, 
resolution,  address  or  bill  is  passed. 

50.  Any  bill  of  the  general  Parliament  may  be  reserved  in  the  usual 
manner  for  Her  Majesty's  assent,  and  any  bill  of  the  local  Legislatures 
may,  in  like  manner,  be  reserved  for  the  consideration  of  the  Governor- 
General. 

51.  Any  bill  passed  by  the  general  Parliament  shall  be  subject  to  dis- 
allowance by  Her  Majesty  within  two  years,  as  in  the  case  of  bills  passed 
by  the  Legislatures  of  the  said  Provinces  hitherto ;  and,  in  like  manner,. 


()44  APPENDIX. 

any  bill  passed  by  a  local  Legislature  shall  be  subject  to  disallowance  by 
the  Governor-General  within  one  year  after  the  passing  thereof. 

52.  The  seat  of  Government  of  the  federated  Provinces  shall  be 
Ottawa,  subject  to  the  Royal  prerogative. 

53.  Subject  to  any  future  action  of  the  respective  local  Governments, 
the  seat  of  the  local  Government  in  Upper  Canada  shall  be  Toronto ;  of 
Lower  Canada,  Quebec  ;  and  the  seats  of  the  local  Governments  in  the 
■other  Provinces  shall  be  as  at  present. 

PKOPEUTY  AND  LIABILITIES. 

54.  All  stocks,  cash,  bankers'  balances  and  securities  for  money  be- 
longing to  each  Province  at  the  time  of  the  Union,  except  as  hereinafter 
mentioned,  shall  belong  to  the  general  Government. 

55.  The  following  public  works  and  property  of  each  Province  shall 
belong  to  the  general  Government,  to  wit : — 

(1)  Canals. 

(2)  Public  harbours. 

(3)  Light  houses  and  piers. 

(4)  Steamboats,  dredges  and  public  vessels.  ' 

(5)  River  and  lake  improvements. 

(G)  Railway  and  railway  stocks,  mortgages  and  other  debts  due  by 
railway  companies. 

{7)  Military  roads. 

(8)  Custom  houses,  post  offices  and  other  public  buildings,  except 

such  as  may  be  set  aside  by  the  general  Government  for  the  use 
of  the  local  Legislatures  and  Governments. 

(9)  Property  transferred  by  the  Imperial  Government  and  known  as 

ordnance  property. 

(10)  Armories,  drill  sheds,  military  clothing  and  munitions  of  war ; 
and 

(^11)  Lands  set  apart  for  public  purposes. 

56.  All  lands,  mines,  minerals  and  royalties  vested  in  Her  Majesty  in 
the  Provinces  of  Upper  Canada,  Lower  Canada,  Nova  Scotia,  New 
Brunswick  and  Prince  Edward  Island,  for  the  use  of  such  Provinces, 
shall  belong  to  the  local  Government  of  the  territory  in  which  the  same 
•are  so  situate ;  subject  to  any  trusts  that  may  exist  in  respect  to  any 
of  such  lands  or  to  any  interest  of  other  persons  in  respect  of  the  same. 

67.  All  sums  due  from  purchasers  or  lessees  of  such  lands,  mines  or 
minerals  at  the  time  of  the  Union,  shall  also  belong  to  the  local  Govern- 
ments. 


APPENDIX.  645 

58.  All  assets  connected  with  sach  portions  of  the  public  debt  of  any 
Province  as  are  assumed  by  the  local  Gov'>'*nment8  shall  also  belong 
to  those  Governments  respectively. 

59.  The  several  Provinces  shall  retain  all  other  public  property 
therein,  subject  to  the  right  of  the  general  Government  to  assume  any 
lands  or  public  property  required  for  fortifications  or  the  defence  of  the 
country. 

60.  The  general  Government  shall  assume  all  the  debts  and  liabilities 
of  each  Province. 

61.  The  debt  of  Canada,  not  specially  assumed  by  Upper  and  Lower 
Canada  respectively,  shall  not  exceed,  at  the  time  of  tlie  Union,  $62,500,- 
000;  Nova  Scotia  shall  enter  the  Union  with  a  debt  not  exceeding 
$8,000,000  ;  and  New  Brunswick  with  a  debt  not  exceedinj^  $7,000,000. 

62.  In  case  Nova  Scotia  or  New  Brunswick  do  not  incur  liabilities 
beyond  those  for  which  their  Governments  are  now  bound,  and  which 
shall  make  their  debts  at  the  date  of  union  less  than  $8,000,000  and 
$7,000,000  respectively,  they  shall  be  entitled  to  interest  at  five  per  cent, 
on  the  amount  not  so  incurred,  in  like  manner  as  is  hereinafter  pro- 
vided for  Newfoundland  and  Prince  Edward  Island ;  the  foregoing 
resolution  being  in  no  respect  intended  to  limit  the  powers  given  to  th© 
respective  Governments  of  those  Provinces,  by  Legisl  itive  authority,, 
but  only  to  limit  the  maximum  amount  of  charge  to  be  assumed  by  the- 
general  Government ;  provided  always,  that  the  powers  so  conferred  by  the 
respective  Legislatures  shall  be  exercised  within  five  years  from  this 
date,  or  the  same  shall  then  lapse. 

6.S.  Newfoundland  and  Prince  Edward  Island,  not  having  incurred 
debts  equal  to  those  of  the  other  Provinces,  shall  be  entitled  to  receive, 
by  half-yearly  payments,  in  advance,  from  the  general  Government,  the 
interest  at  five  per  cent,  on  the  difference  between  the  actual  amount  of 
their  respective  debts  at  the  time  of  the  Union,  and  the  average  amount 
of  indebtedness  per  head^of  the  population  of  Canada,' Nova  Scotia  and 
New  Brunswick. 

64.  In  consideration  of  the  trasfer  to  the  general  Parliament  of  the 
powers  of  taxation,  an  annual  grant  in  aid  of  each  Province  shall  be 
made,  equal  to  eighty  cents  per  head  of  the  population,  aa  established  by 
the  census  of  1861  ;  the  population  of  Newfoundland  being  estimated  at 
130,000.  Such  aid  shall  be  in  full  settlement  of  all  future  demands  upon 
the  general  Government  for  local  purposes,  and  shall  be  paid  half-yearly 
in  advance  to  each  Province. 

65.  The  position  of  New  Brunswick  being  such  as  to  entail  large  im- 
mediate charges  upon  her  local  revenues,  it  is  agreed  that  for  the  period 
of  ten  years,  from  the  time  when  the  Union  takes  effect,  an  additional 


64«  APPENDIX. 

allowance  of  963,000  per  annum  shall  be  made  to  that  Province.  But 
that  80  long  as  the  liability  of  that  Province  remains  under  17,000,000,  a 
deduction  equal  to  the  interest  of  such  deliciencjf  shall  be  made  from  the 
«Ga,000. 

66.  In  consideration  of  the  surrender  to  the  general  Government,  by 
Newfoundland,  of  all  its  rights  in  mines  and  minerals,  and  of  all  the  un- 
granted  and  unoccupied  lands  of  the  Crown,  it  is  agreed  that  the  sum  of 
$150,000  shall  each  year  be  paid  to  that  Province,  by  semi-annual  pay- 
ments ;  provided  that  that  Colony  shall  retain  the  right  of  opening,  con- 
structing and  controlling  roads  and  bridges  through  any  of  the  said 
lands,  subject  to  any  laws  which  the  general  Parliament  may  pass  i 
respect  of  the  same. 

67.  All  engagements  that  may,  before  the  Union,  be  entered  into  with 
the  Imperial  Government  for  the  defence  of  the  country,  shall  be  assumed 
toy  the  general  Government. 

68.  The  general  Government  shall  secure,  without  delay,  the  com- 
pletion of  the  Intercolonial  Railway  from  Riviere  du  Loup,  through  New 
Brunswick,  to  Truro  in  Nova  Scotia. 

69.  The  communications  with  the  North -Western  Territory,  and  the 
improvements  required  for  the  development  of  the  trade  of  the  great  west 
witli  the  seaboard,  are  regarded  by  this  conference  as  subjects  of  the 
highest  impol'tance  to  the  federated  Provinces,  and  shall  be  prosecuted 
at  the  earliest  possible  period  that  the  state  of  the  finances  will  permit. 

70.  The  sanction  of  the  Imperial  and  local  Parliaments  shall  be 
sought  for  the  union  of  the  Provinces,  on  the  principles  adopted  by  the 
Conference. 

71.  That  Her  Majesty  the  Queen  be  solicited  to  determine  the  rank 
And  name  of  the  federated  Provinces. 

72.  The  proceedings  of  the  Conference  shall  be  authenticated  by  the 
■signatures  of  the  delegates,  and  submitted  by  each  delegation  to  its  own 
Government ;  and  the  Chairman  is  authorized  to  submit  a  copy  to  the 
Governor-General  for  transmission  to  the  Secretary  of  State  for  the 
Colonies. 


INDEX. 


GENERAL  INDEX. 


(Note. — On  pp.  204  and  205,  we  have  placed  side  by  side,  for  con- 
venience of  reference  and  comparison,  sections  91  and  92  of 
.  the  B.  N.  A.  Act,  containing  an  enumeration  of  the  various 
subjects  committed  to  the  parliament  of  Canada  and  the 
provincial  legislatures,  respectively.  By  reference  to  the 
head  lines  adopted  throughout  chapter  XII.  any  given  sub- 
section of  section  91  or  92  can  be  quickly  found.) 


A. 

ADMINISTRATION  OF  JUSTICi:— .Sir- Judicial  System 

ADMINISTRATOR— 

of  Dominion  government,  in  absence,  etc.,  of  Governor-General,  25S' 

(see  Letters  Patent  in  Appendix) 
of  Provincial  government  in  absence,  etc.,  of  Lieut.-Governor,  321 
{See  Deputy.) 

ADMISSION  OF  OTHER  COLONIES  OF  B.  N.  A.,  545-6 
{See  Part  IV.) 

AGRICULTURE.  512 

zVLIENS — See  Naturalization  and  Aliens 

APPOINTMENT  TO  OFFICE— 

powers  of  Governor-General  in  relation  to,  105,  166-8 
federal  officers — See  Offices  and  Officers 
provincial   "    —         '*  •' 

{See  also  the  various  offices.) 

APPROPRIATION  AND  TAX  BILLS— 
must  originate  in  Commons,  298 
on  recommendation  of  Crown,  298 
provincial  legislatures,  3-41 


•650  INDEX. 

APPROPRIATION,  POWER  OF— 

importance  of,  in  securing  responsible  f^ovemment,  35,  37 

results  of  colonial  ,    stem,  37 

concession  of,  to  pre-Confedoration  provinces,  39,  40,  350,  525 

"  tenure-of  office  "  question  thei'eby  solved,  38,  40,  435 

of  parliament  of  Canada  over  Cons.  Rev.  Fund,  517 

of  provincial  legislatures  over  provincial,  524 

ASSEMBLYS,  EARLY— See  Piie-Con federation  PnovixcES 

ASSENT  TO  BILLS— 

of  Parliament  of  Canada,  147,  299 
of  provincial  legislatures,  341 
contrary  to  instructions,  148 

{See  Colonial  Laws  Validity  Act) 

ATTORNEY-GENERAL— 

position  of  provincial,  311,  402 


B. 

B.  N.  A.  ACT,  imi—See  pp.  241-546 

limitation  of  preamble  to  "  general  "  government  only,  3,  242 

Dicey's  criticism  of,  3,  172 

constrnctivs  clauses  compared  with  "  Constitutional  Acts  "  for  other 

colonies— same  tyjie,  52,  54 
scheme  of,  could  not  have  been  effected,  except  by  Act  of  Parlia- 
ment, 242 
truly  federal,  43,  47,  245,  423 
Division  of  the  Field — See  chapter  X. 

for  legislative  purposes,  fixes  division  for  executive,  199 

body  of  pre-existing  laws  divided,  200,  410,  535 

exhaustive,  201,  345 

line  of  division  enforced  by  courts,  11,  193,  202 

principles  enunciated  in  earlier  decisions  of  Supreme  Court,  20fi 

rejected  by  Privy  Council,  207 
certain  general  rules  discussed,  210,  219 

sections  91  and  92  to  be  read  together,  210 

other  Imperial  Acts  in  pari  materia,  212,  357,  461 

true  nature  of  enactment  to  be  considered,  212 

possibility  of  power  being  abused,  no  reason  for  denying  its 

existence,  213,  386,  434 
subjects  in  one  aspect  may  fall  within  section  91,  in  another 

within  section  92  ;  213,  467,  484-5 
concurrent  powers,  214  —See  Concurrent  Powers. 
jjreaumption  for  validity,  21  • 


INDEX.  (Jol 

B.  N.  A.  ACT,  imi— Continued. 

Quebec  Re&olutiona— liow  far  to  be  utilizerl,  219 
United  States  decisions — how  far  useful,  220 
{See   PnK-CoNFKDKiiATioN  PuoviNCEs,  Phovincial  Constitutions, 
Pahliament  of  Canada,  etc.,  etc.) 

BAGEHOT— 

on  the  fusion  of  lej^islative  and  executive  departments  in  England,  1') 
on  the  House  of  Lords,  208 

BICAMERAL  FORM  OF  LEGISLATURE,  326 

(See  Senate) 

BILLS — See  Assent  to  Bills,  Rkseuved  Bills 

BREWERS— .St'<?  Liquor  Traffic 

BRITISH  CONSTITUTION— 

compared  with  that  of  United  States,  5,  et  seij. 
federal  idea,  in  Imperial  aspect  of,  5,  8,  250 
upheld  by  "  Conventions,"  7 
common  to  both  United  States  and,  12 
supremacy  of  law         "  "        "  12,  14 

"  literary  theory  "  of  division  of  power^in,  14,  29 
Bagehot  combats,  15 
embodied  in  United  States  system,  17 
executive  responsibility  to  parliament  the  essential  feature  ff,  1(5 

in  Canada,  22 
difference,  in  this  respect  in  United  States  system,  12,  20 

(.See  Cabinet,  Division  of  Power,  Conventions  of  the  Constitu- 
tion, Federalism,  Rule  of  Law,  etc.) 

BRITISH  COLONY— Sec  Colony 

BRITISH  COLUMBIA— 

order  in  Council  admitting  to  Union,  004 
provincial  constitution,  012,  014, 
English  law  in — See  England,  Law  of 

BRITISH  GOVERNMENT— See  Lmperial  Executive  Authority 

BRITISH  LAW— See  England 

BRITISH  PARLIAMENT— See  Imperial  Parliament 


C. 

CABINET— 

in  England,  15 

connects  legislative  and  executive  departments,  15,  334 

United  States  system,  12,  20 


G52  INDEX. 

CABINET— C'oHNH/u'rf. 

British  syatem  in  CanaJn,  23,  334 

in  the  provinces,  60,  51,  334 
in  the  pre-Confederation  provinces,  41 

{See  Pbivy  Councii.  fou  Canaka,  Executivk  Council) 

CA.NADA- 

constitution  of,  compared  with  British  and  United  States,  2,  20 
general  view,  1 
truly  federal,  43,  47,  245,  423 

similar  in  principle  to  that  of^United  Kingdom,  2,  21 
(See  B.N.  A.  Act) 

CANADA  (Old)— 

severed  by  B.  N.  A.  Act,  247 
argument  founded  on  clauses  relating  to,  46 
legislative  power  of  parliament  of,  GO,  et  seq. 

statutory    powers   of    governors,  etc.,  vested    in    both    Governor- 
General  and  Lieut.-Governors  of  Ontario  and  Quebec,  256,  31& 
(See  Phe-Confedeuation  Pkovinces) 

CAPE  BRETON,  27 

CAPITALS — See  Seats  of  Government 

CENSUS,  248 

CHINESE — See  Natuiialization  and  Aliens 

COLONY— 

federalism  in  colonial  system,  5,  8,  250 

primd  facie  British  statutes  not  operative  in,  7,  57,  185 

(See  Colonial  Laws  Validity  Act) 
comparison  of  Constitutional  Acts  for  the  colonies,  52,  54 
results  of  our  stutns  as  a,  Part  II.,  54,  et  seq. 
legislative  power  in  a — See  Colonial  Legislative  Power 

COLONIAL  LAWS  VALIDITY  ACT,  1865— (28  &  29  Vic.  c.  63— S^e 
Act  in  Appendix) 

canon  as  to  extension  of  Acts  of  British  Parliament  to  colonies,  7, 

57,  186 
"repugnancy"  clauses,  59,  379 
assent  to  Bills  contrary  to  "  instructions,"  148 

power  of  colonial  legislatures  to  alter  constitution  of  legislature* 

280,  327,  422,  014 
legislate  as  to  procedure,  etc.,  ib. 
proof  of  colonial  laws,  195 
earlier  Acts  along  same  line,  63,  64,  421 


INDEX.  '  653 

COLONIAL  LKGI8LATIVE  POWER— 

supreme  within  limits  of  subjects  and  area,  177,  et  »fii.,  194 

principle  applicable  to  both  Dominion  unci  Provincial  le^'ishi- 
tures,  IHI-H,  1J)4,  201-2,  .124 
of  parliament  of  Canada  over  N.  W,  Territories,  IH'A,  347,  554-5 
subject  to  80verei<^nty  of  Eni;Iand,  18;^-5,  1<,)2,  215 
limitations  in  respect  of  subject-matter,  7,  74 

military  matters,  'Al^-S) 

navigation,  381 

copyright,  403 

aliens,  400 
territorial  limits,  185,  et  »eq. 

Canadian  authorities,  188 

a  question  of  jurisdiction,  108 

for  the  determination  of  courts  of  law,  11,  193,  202 
division  of  the  field  in  Canada— .SVe  B.  N.  A.  Act 
in  reference  to  "  prerogatives  " — See  Puerooativeh 

(See  Parliament  of  Canada,  PiioviNciAii  Leoislatciies) 

COLONIAL  SYSTEM— .S>e  Pue-Confedeiiation  Provinces,  Taxation 
COMMONS— Sfe  House  of  Commons 

COMPANY— 

power  of  parliament  of  Canada  in  reference  to  incorporation   of, 
353,  449 

(See  Notes  to  B.  N,  A.  Act,  s.  92,  ss.  10  and  11) 

Dominion,  how  far  subject  to  provincial  law,  353,  453,  et  xeq.,  4(54 

• 

CONCURRENT  POWERS— 

question  discussed,  214-7,  407,  480,  484 

in  relation  to  insolvency  legislation,  216,  392 
liquor  traffic,  216 
banks,  etc.,  215 
bills  of  lading,  875 
agriculture  and  immigration,  512 

CONTINUATION  OF  LAWS,  ETC.,   EXISTING  AT  UNION,  200, 
634,  5bd—See  B.  N.  A.  Act 

CONVENTIONS  OF  THE  CONSTITUTION— 

federalism  in  colonial  system,  upheld  by,  7 

in  relation  to  legislation  by  Imperial  parliament  for  Canada,  66 

executive  responsibility  to  parliament  of  United  Eing- 

•  dom,  16 

same  principle  in  pre-Confederated  provinces,  41 

applies  to  Dominion  executive,  42,  320 

and  to  provincial  executive,  51,  320 

'how  far  based  on  legal  sanction,  16  (n) 


054  1X11EX. 

COURTS  OF  LAW- 

eiiforcetnont  by,  of  legal  limitations    upon    both    leginhitivo  and 

exocutivo  action,  11,  22.H 
legal     limitatioHH     upon    Imperial    executive 

authority,  11 
legal    limitations     upon     colonial     legiHJative 
authority,  11,  HW,  202 
intoriiational  comitj'  as  rocognizud  by,  22  If) 
jurisdiction  of,  territorially  and  otherwise,  225 
(Sec  Judicial  System  of  Canada) 

CRIMINAL  LAW,  407,  418— 

meaning  of  term  in  Canadian  jurisprudonco  limited,  40.S,  478,  .7  xeq 
common  law  crimos  assigned  to  Dominion  parliament,  410 
pre-Confodenition  laws,  how  divided,  410 
•'procedurn,"  2:«r»,  415 

ditlicult  to  distinguish  from  "organization,"'  410-8,  408 
constitution  of  courts,  408 

(See  Penal  Laws  ok  Phovinceh,  Judicial  System) 

CROWN— 

of  England,  succession  to,  244 

power  of  Imperial  parliament  over,  134,  244 
colonial  legislature  no  power  over,  184,  245 

{See  Prerooatives  of  the  Cuown) 


D. 


DENOMINATIONAL  SCHOOLS— SVe  Separate  Schools 

DEPUTY  GOVERNOR-GENERAL,  258 
Lieut.-Governor,  power  to  appoint,  321 
DICEY  (Prof.  A.  V.)— 

his  criticism  of  B.  N.  A.  Act,  3 
on  the  supremacy  of  parliament,  16 
power  of  disallowance,  172 
position  of  Colonial  legislatures,  174  (n) 
on  federalism,  175 

DIRECT  TAXATION— See  B.  N.  A.  Act,  sec.  92,  s-s.  2 
What  is?  425,  et  $eq. 

provincial  powers  of  taxation  limited  to,  431 
{See  Licenses.) 

DISALLOWANCE— 

of  Acts  of  parliament  of  Canada,  146,  et  seq. 
"  conventional  "  limits,  146, 174 
provisions  of  B.  N.  A.  Act,  147-9,  299 


INDEX.  055 

DlHXLUmANCE- Continued. 

of  Acta  of  provincial  letjiHlaturea,  171,  342 

after  liipMo  of  yuar,  nothiuf^  but  Imp.  Act  can  affect,  843 
renponHibility  for,  to  Parliament  23 

powei'  of,  not   intenrled   to  obviate  neoosHity  for   resort   to 
courts,  172.  342.  31(7 
noboarin^j  on  (piestion  of  validity,  //*. 

DIVISION  OF  POWER— 

betweon  lej^iHlative  and  executive  departments,  11,  et  »vq, 

"  litorai-y  theory  "  as  to,  in  Knjiland,  14,  29  .      ' 

Haf{ehoton,  Ih 

embodied  in  United  States  Hystem,  17 
carried  out  in  early  ^'overnment  of  colonies,  31 
(Sec  BuiTisH  CoNHTiTUXioN,  Uni'ied  States  Conhtitijtiox) 
under  a  federal  system 

expression  criticized,  21,  4.'>,  51,  257 

DIVISION  OF  THE  FIELD-(chapter  IX.) 
in  Canada 

(See  B.  N.  A.  Act,  Parliament  of  Canada,  Provinciai-  Leg.sla- 

TUUES. 

DROIT  ADMINISTRATIF  - 
in  France  and  Switzerland,  14 

DOMINION  EXECUTIVE-248,  et  tcq. 

responsibility  to  parliament  for  disallowance  of  provincial  Acts,  23 
appointment  and  removal  c*  Lieut. -Governors—  See  Lieut. -Governor 
relations  to  Lieut.-Governors,  307-8,  .309,  320      '•  " 

(See  Cabinet,  Governor-General,  Privy  Council  for  Canada) 


E. 

EDUCATION— 489,  et  seq.  •     ' 

ELECTIONS— 

pre-Confederation  laws  as  to,  continued,  284,  335,  619 
to  House  of  Commons,  283,  291 

power  of  Dominion  parliament  to  legislate  respecting,  289 
Dominion  and  provincial  systems  dissevered,  286 
voters  at,  286 

Revising  officers,  286 

not  subject  to  supervision  of  provincial  courts,  240,  286 
(See  Judicial  System.) 
right  to  vote,  not  a  civil  right  within  B.  N.  A.  Act,  a.  92  (s-s.. 
13),  286-7 


'656  INDEX. 

ELECTIONS— CoHtiHwerf. 

controverted  elections,  trial  of,  288 
not  part  of  "the  administration  of  justice,"  287 
transferred  to  courts,  288-290 
not  subject  to  review  in  P.  C,  289 
to  provincial  assemblies,  385 
voters,  286 

controverted  elections,  288 
to  municipal  councils,  445 

controverted  elections,  provincial  Jej^islature  may  legislate  as  to, 
445 

EMPLOYERS'  LIABILITY  ACTS— 

power  of  provincial  legislature  to  pass,  375 

ENGLAND,  LAW  OF— 

how  far  introduced  into  provinces,  75-128 

N.  W.  Territories,  580-2 
Manitoba,  597-601 
British  Columbia,  615-6 
operative  only  in  absence  of  Canadian  legislation,  77 
Nova  Scotia  decisions,  77-92 

statutes  creating  charge  in  favor  of  Crown,  78 

in  curtailment  of  prerogative,  87 
how  colonial  legislation  affects  the  question,  88 
certain  statutes  recognized  without  question,  90 
Statute  of  Uses,  but  not  of  Enrolment,  90 
Magna  Charta,  90 
Statute  of  Staples,  90 
Partition  Acts  of  Henry  VIII.,  90 
Fraudulent  Conveyances,  90 
review  of,  91 
New  Brunswick  decisions,  92-94 

Statute  of  Uses  and  Enrolment,  92 

Mortmain,  93 
other  statutes,  93 
review,  94  • 

•Ontario,  94-128 

English  law  introduced  by  Canadian  Enactment,  95,  96, 127, 128 
difference  between  "  civil  "  and  "  criminal "  law,  96-7,  122 
certain  Acts  recognized  without  question,  97 
statutes  as  to  apprentices,  98 

review,  100 
certiorari,  100 

Mortmain  Acts,  101,  et  seq. 
Marriage  Acts,  ]  16 
review,  119 


INDEX.  657 

ENGLAND,  LAW  OF— Continued. 

Acts  of  local  application  in  Eng.  not  intrclnced,  120 
criminal  laws,  122,  et  seq. 

general  review  of  Ontario  cases,  126 
as  to  prerogatives,  139 

(See  Table  of  Imperial  Statutes) 

ESCHEATS,  528 

EVIDENCE— 

taking  of,  for  use  before  foreign  courts,  346 

powers  of  Dominion  and  provincial  legislatures,  471-5 

"  EXCLUSIVE  "— 

term  in  section  91  B.  N.  A.  Act,  not  intended  as  a  renunciation  by 
Imperial  parliament  of  its  legislative  supremacy,  ()7,  37;* 
refers  to  relations  between  Dominion  and  provinces,  67,  350, 379 
{See  Imperial  Parliament) 

EXECUTIVE  AUTHORITY— 

subordinate  to  legislature,  12,  46,  137,  144 
and  legislative,  co-extensive,  ib.,  199,  302,  437 

contention  to  the  contrary  noticed,  45,  301 
limitations  upon,  enforced  by  courts,  11,  202 
in  provinces,  45,  49-51,  301 

{See  Liect.-Governok) 
unity  of,  throughout  the  Empire,  249,  303 
in  Canada  vested  in  the  Queen,  248 
in  reference  to  our  judicial  system,  anomalous  position  of,  470 

(See  Imperial  Executive  Authority,  Dominion  Executive) 

EXECUTIVE  COUNCIL— 
Ontario  and  Quebec,  310 
Nova  Scotia  and  New  Brunswick,  313 
North-West  Territories,  568 
Manitoba,  591 
British  Columbia,  612,  614 
Prince  Edward  Island,  623 
liability  of  members  of,  312 

EXECUTIVE  RESPONSIBILITY— 

to  electorate  through  parliament,  the  British  principle,  16 
"  "  "  Canadian        "      22 

*•  directly,  the  United  States  principle,  17 

lack  of,  to  congress,  of  United  States  executive,  18 
growth  of  principles,  of  in  pre-confederated  provinces,  29-40 
Can.  Con.— 42 


65S  INDEX. 

EXECUTIVE  RESPONSIBILITY -CoH^HMCrf. 

secured  by  concesRion  of  control  of  revenue,  35,  40,  330,  525 
statutes  relating  to,  40 
"  ten ure-of -office,"  clespatcheH,  etc.,  40,  41 

(See  Ai'i'Boi'BUTioN,  Bbii'ish  Constitution,  Cabinet,  Conventions) 


F. 


FACTORY  ACTS— 

power  of  pvovinoial  legislature  to  pass,  375 

FEDERALISM- 

common  to  both  Britisli  and  United  States  systems,  12 
in  British  Imperial  syslein,  5,  et  xeq. 

rests  on  "  conventions,"  7,  10,  250 

growth  of,  8 
in  United  States  system,  the  basis,  8,  43. 

upheld  by  law,  7 
>        in  Cant^'iian  system,  the  basis,  43,  47,  245,  281,  423 

involves  continuation  of  parties  to /«•(/«»",  47,  241,  423 

V.  legislative  union,  44  (st',-  Uxitaiuan) 
opinion  may  vary  as  to  position  of  dividing  line,  44 
full  governmental  power  necessary  for  each  division,  45-6 

(SceB.  N.  A.  Act) 

FEDERAL  OFFICERS— .SVe  Offices  and  Officers 

FEDERAL  COURTS— See  Judicial  System 

FINANCIAL  ARRANGEMENTS,  519,  et  seq.,  530,  594,  C07,  Gt  0 

FRANCE  - 

droit  admitmtratif  in,  14 

FRANCHISE— See  Elections 

FREE  TRADE— 

interprovinoial,  623,  530 

FRENCH  LANGUAGE— 

in  debates,  etc.,  of  parliament  of  Canada,  539 

Quebec  legislature,  539 
in  courts,  539 
in  Manitoba,  593 
in  N.-W.  Territories,  679 


INDEX.  659 

GAME  LAWS— 

power  of  a  provincial  le<»islature  to  puss,  414,  480,  488 

GOVERNOR-GENERAL— chapter  VIII. 

powers  of,  defined  and  limited  by  commission,  150 
no  immunity  from  being  impleaded,  152,  Ki'i 
in  EnKlisli  com-ts,  152-5,  KjO 
in  courts-  of  bis  colony,  155,  1G2 
oivilly,  155-9 
crimiually,  lbO-2 
letters  patent  constitutini^  office,  162,  et  seq,  (see  Appendix) 
powers  in  relation  to  appointments  to  office,  I(i5-G 
parliament,  1(35-108 
pardon,  lOG 

disallowance  of  provincial  Acts,  342 
(See  Disallowance) 
dual  position  of,  250 
Acts  under  advice  of  Dominion  cabinet  in  matters  committed  to 

parliament  of  Canada,  250 
powers  in  relation  to  Lieutenant-Governors,  251,  308,  320 
not  sole  representative  of  the  Queen  in  Canada,  254-5  (see  Lixute- 

NANT-GoVKRNOn) 

invested  with  all  statutory  powers  of  governors,  etc.,  in  precon- 
federated  provinces,  so  far  as  exerciseable  in  federal  govern- 
ment, 48,  25G,  315 
power  of  Dominion  parliament  to  alter,  etc.,  257 
salary  of,  517 

(See  Administuator,  Deputy,  Pbeuogatives) 

GREAT  BRITAIN — See    Buitisu    Constitution,    England,    Imperial 

Parliament 


H. 


HARBOURS,  530 


HOUSE  OF  COMMONS  OF  CANADA— 
constitution  of,  282-300 
membership,  282 

representation  of  provinces  in,  282,  294 
redistribution,  294 
electoral  districts  in  each  province,  297 


660  INDEX. 

HOUSE  OF  COMMONS  OF  CANADA— Continued. 

elections —        See  Elections 

speaker,  291 —        Spkaker 

quorum,  293 —         Quordm 

voting,  29d —  Voting 

duration  of,  293 

cannot  be  altered  by  Dominion  parliament,  293 
money  votes  must  originate  in,  298 — See   Appropriation  am>   Tax 

Bills 
{See  Parliament  of  Canada) 

HOUSE  OF  LORDS— 
functions  of,  258 

compared  with  United  States  senate,  238 
senate  of  Canada,  2<)8-271 
{See  Senate) 


I. 


IMMIGRATION,  512 


IMPERIAL  EXECUTIVE  AUTHORITY— 
in  relation  to  Canada,  limited,  11,  141-3,  253 

disallowance  of  Dominion  legislation,  145-9,  174 
{Gee  Prerogatives) 

IMPERIAL  PARLIAMENT— 
its  dual  nature,  7,  55 

legislates,  primd  facie,  for  United  Kingdom  only,  7,  185 
Acts  of,  do  not  prinui  facie  extend  to  colonies,  7,  185 
no  legal  limits  to  legislative  pdwer  of,  11,  55,  186— See  Exclusive 
"conventional  "  limits  as  to  colonies,  7-9,  66,  74 
{See  Colonial  Legislative  Power) 
colonial  legislature  cannot  a£Fect  Acts  of,  of  express  application  to 
colony,  60,  et  seq. 
repeal  of  Act  by,  repeals  in  colony,  69,  et  seq. 
general  legislation  by,  how  far  introduced  into  Canada— See  Exu- 
LAND,  Law  of 

distinction  between,  and  Acts  of  express  application,  58,  75 
time  limit,  58 
when  do  Acts  of,  extend  to  a  colony— See  Colonial  Laws  Valimty 

Act 
(See  Prerogatives,  Privileges)  • 

IMPERIAL  STATUTES— See  England  (Law  of),  Imperial  Parliament 


INDEX.  661 

IMPLIED  POWERS,  9,  221,  348— 

doctrine  of,  how  far  applicable  iu  Canada,  348-9 

IMPRISONMENT  FOR  DEBT,  394,  476 

INDIGENT   DEBTORS,  39G,   476— See  Bankuuptcy  and   Insolvencv, 
B.N.  A.  Act,  B.  91,  8-8.21 


J. 

JUDGES- 

appointment  of,  etc.,  512,  et  seq.—See  Judicial  System 

JUDICIAL  SYSTEM  OF  CANADA-.SW  also  CounT8 

Canadian  Courts,  at  times,  practically  administer  foreign  law,  224-.') 
courts  enforce  observance  of  dividing  line  between  Dominion  Par- 
liament and  provincial  legislatures,  172,  223,  342 
federal  courts  administer  provincial  law,  and  rice  vers(f,  227,  230 

power  of  Dominion  parliament  to  establish,  229,  230. 

384,  514 
jurisdiction   determined   by  line   of  division   between 
Dominion  parliament  and  provincial  legislatures, 
229,  515 
provincial  courts  no  power  to  supervise,  240 
provincial  courts,  pre-Confederation,  continued,  227-9 

jurisdiction  of,  does  not  depend  on  line  of  division 
between  Dominion  parliament  and  provincial 
legislatures,  230,  238,  470 
power  of  provincial  legislature  to  establish  new, 

238,  470 
power  of  provincial  legislature  to  appoint  judicial 
officers.  238-9,  470-1 
territorial  jurisdiction  of  courts,  225,  ct  x-'q. 
vice  admiralty  courts,  227 

duties  may  be  imposed  on  courts,  etc.,  in  Canada  by  authority  other 
than  that  which  created  the  court,  230 
by  Dominion  parliament  on  vice-admiralty  courts,  231,  384 

on  provincial  courts,  232 
by  provincial  legislature  on  federal  judges,  232-4 
scheme  of  B.  N.  A.  Act  illogical,  234,  468,  515 
procedure — an  essential  part  of  certain  legislation,  235-7 
maritime  law,  236 
patent  law,  402 
insolvency  law,  237 
election  law,  237-8,  200 
different  meanings  of  term,  234-7 
{Sec  Chimixal  Law,  Peval  Laws  of  PnoviNCEi,  Evidence) 
JUSTICES  OF  THE  PEACi:  — SVt-  .Judicial  8ystk:,i 


662  INDEX. 

L. 

LANDS— )§<•<>  Public  Lands 

LAW — See  Bulk  of  Law 

LEGISLATIVE  POWER— 

supreme  over  executive,  12,  137,  144 

through  financial  necessities  of  executive,  21)  —See  AprRoi'HiATioN 
both  in  British  and  United  States  systems,  14 
and  executive  co-extcnsive,  12,  46,  137,  144,  437. 
close  connection  in  England,  15— See  Cabinet. 
lack  of  sympathetic  connection  in  United  States,  14,  17,  334 
limitations  upon,  enforced  by  courts,  11,  202 — See  Codrts  of  Law 
in  colonies,  part  of  fedoral  idea,  20 
(See  B.  K.  A.  Ac      Colonial  Legislative   Power,  Executive) 
Authority,  Parliament  of  Canada,  Provincial  Legislatures 

LEGISLATIVE  UNION— -See  Unitarian,  Federalism 

LEX  ET  CONSUETODO  PARLIAMENTI  -St,;  Privileges 
not  carried  into  colonies,  263 

LIEUT.-GOVERNOR- 

a  link  in  the  chain  of  federal  connection,  48 
appointment  of,  48.  300,  30(i 
tenure  of  office,  251,  308 
removal  of,  251,  30.S-1> 

"  conventional  "  rule  in  Letellier  case,  ib. 

what  constitutes  "cause,"  309 
deputy,  power  to  appoint,  321 — See  Administrator 
invested  with  all  statutory  powers  of  governors,  etc.,  prior  to  Con- 
federation so  far  as  exerciseable  in  provincial  government, 
48,  313-9 
invested  with  all  powers  necessary  to  executive  government  of  pro- 

vime,  49,  303 
represents  the  Queen,  303-6,  325 

for  purposes  of  executive  government,  303-4 
legislation,  306,  325 
how  far  he  may  act  without  "  advice,"  319-20 

subject  to  "  instructions  "  of  Goyernor-General,  304-5, 
relations  of  Dominion  executive  to,  307-8,  309,  320 
Dominion  parliament  no  power  to  legislate  as  to,  309,  419 
his  position  compared  with  that  of  Governor-General,  303-5 

LICENSES,  445— See  Liquor  Traffic 
direct  or  indirect  taxation  ?  430,  447 


INDEX.  cm 

LIQUOR  TRAFFIC— 

cases  reviewed,  359,  et  xeq. 

power  of  provincial  legislature  to  prohibit,  366-72 

"  LITERARY  THEORY  "-S.c  Division  of  Poweb 

LOWER  CANADA-5^e  Quebec.  Pi»e-Confederation  PnoviNCEs 


M. 

MANITOBA—  * 

historical  sketch  as  to  admission,  549-53 

MARRIAGE,  407,  459  {nee  England,  Law  of) 

MILITARY  MATTERS_.St'«  Colonial  Leoislative  Poweu 
supreme  command  of  militia  in  the  Queen,  259 
committed'to  Dominion  parliament,  ;}78-9 

MONEY  VOTES— ,SV'  AiriiontiATioN  and  Tax  Bills 

MORTMAIN  ACTS-Sc'c  Englani.,  Law  of-Companies 

MUNICIPAL  INSTITUTIONS,  439-45 


N. 

NATURALIZATION  AND  ALIENS,  400 
cases  in  British  Columbia,  ()1G 

NEW  BRUNSWICK— 

bgislative  and  executive  authority  in,  continued  by  B.  N.   A    Act 
50,  5-'.  313,  388 

early  constitution  of,  27-.S><.  Puk-Conkei.eiiation  Provinces 
introduction  of  Englisli  law  into,  92-4— Sre  England,  Law  of 

NORTH-WEST  TEBRITORIES- 

admission  of,  to  Canada,  historical  sketch,  549,  ct  geq. 

constitutional  changes,  555 

present  constitution,  5()2,  et  scq. 

representation  in  parliament  of  Canada,  271,  283 

le^'islative  supremacy  of  parliament  of  Canada  ovar.  183,  347,  554-5 

introduction  of  English  law  into,  5^1— See  England,  Law  of 


004  INDEX. 

NOVA  SCOTIA— 

early  consUtution  of,' 26,  40 — See  Pre-Confedebation  Provinces 
introduction  of  English  law  into,  77-92 — See  England,  Law  of 
legislative  and  executive  authority  in,  continued  by  B.  N.  A.  Act, 
50,  52,  313,  338 

NUISANCES— 

power  of  provincial  legislature  to  prohibit,  etc*,  361,  378,  487 


,    o. 

OATHS— 

to  be  taken  by  senators,  etc.,  532 

OFFICES  AND  OFFICERS— 

federal,  power  of  Dominion  parliament  over,  380 

Governor-General  in  relation  to,  165,  166,  et  Kcq. 
provincial  legislature  to  tax,  380,  436 
provincial,  po'^er  of  provincial  legislatures  over,  435 

can  provincial  officers  be  appointed  to  execute  Dominion 
legislation?  436 

ONTARIO— 

1  Jgislature,  324-320 

constitution,  324 

membership,  320 
executive  council,  310 
introduction  of  English  law  into,  04-128 — See  England,  Law  of 

(See  PRE-CoNFEnERAXioN  Provinces) 


P. 

PARLIAMENT- 

no  special  signilicance  attached  to  term,  261 

PARLIAMENT,  SUPREMACY  OF— 
Dicey  on  the,  16 

principle  fully  operative  in  Canada,  22,  174  (h) 
(See  Leoislaiive  Power) 

PARLIAMENT  OF  CANADA— (Se^  note  at  beginning  of  this  Index) 
constitution  of,  260,  et  seq. 

cannot  alter  its  own,  281,  422-3 
summoning  of,  etc.,  165,  168-70 

(.S'ce  HocseHof  Commons,  Senate) 


INDEX.  665 

PARLIAMENT  OF  CANADA— Continued. 

legislative  power  of,  204,  343,  420— {See  note  at  beginnin({  of  Index) 
may   legislate  as  parliamentary  procedure,  280 — See  Colonial 

Laws  Validity  Act 
limited  power  of  legislation  as  to  "privileges,"  264 — See  Privi- 

LEOKS 

limited  to  general  legislation,  21t,  351,  892,  464,  488 
private  bills,  352 — See  Companies 
reiiduum  with,  844-5,  462,  485 
"  peace,  order  and  good  government,"  347,  484 
over  N.  W.  Territories,  183,  347,  554-5 
disallowance  of  Acts  of — See  Disallowance 

PARLIAMENT  OF  UNITED  KINGDOM— See  Impekial  Parliament 

PARLIAMENTARY  PROCEDURE— See  Colonial  Laws  Validity  Act, 
Privileoes 

PENAL  LAWS  OF  PROVINCES,  478,  et  seq.— 
diversity  of  nomenclature,  474 

provincial  legislature  full  power  over  procedure,  471-4 
how  distinguished  from  "  criminal "  law,  470 
power  to  pass  a  general  law,  481 
appropriation  of  fines,  482 
remission  of  penalties,  etc.,  482 

POLICE  MAGISTRATES— 

power  to  appoint,  238 — See  Judicial  System 

"  POLICE  "  POWERS,  487 

POWER  OF  APPROPRIATION— See  Appkopkiation 

POWER,  DIVISION  OF— .See  Division  of  Power 

PRE-CONFEDERATION  PROVINCES- 
Maritime  provinces, 

Nova  Scotia,  26.  40 

Prince  Edward  Island,  27 

New  Brunswick,  27 

Cape  Breton,  27 

general  treatment,  28,  et  setj.,  40 
Quebec,  27 
(Old)  Canada,  28,  34 

general  treatment,  34,  41 
commissions  of  early  governors,  2r-32 
government  by  prerogative  in,  30 — See  PiiEiiooATivES 
assemblies  in,  26,  et  seq. 

their  functions,  legislative,  30 


(iii()  INDEX. 

PUK-CONPEDERATION  PROVINCES-CoHti/iM^i. 
"  responsible  government "  in,  growth  of,  39-40 

(See  Ai'PKoniiATioN,  Powkr  or— Exkcutive  Rkhpomhihii.itt) 
type  of  organization  in,  47 
what  became  of  their  conatitutions,  48,  et  $eq. 

continuation  of  executive  authority,  4H-51,  HIH 
legislative  authority,  132,  8B8 
division  of  assetH,  etc.,  52-H,  510,  et  »eq, 
laws  of  England  in — See  England,  Laws  of 

PRE  H0GATIVE8  OF  THE  CROWN-St-c  chapter  VI. 
in  connection  with  early  government  of  colonies,  80 
extent  of  operation  in  colonies,  187,  et  teq, 

same  rule  applies  to  le.v  prerogativa  as  to  other  branches  of 
En^lis'i  law,  189 
otTect  of  establishment  of  representative  assembly  in  colonies,  80, 

140,  24'i 
power  of  colonial  legislature  over,  35,  189,  253 

no  power  over  certain,  253 
one  executive  magistrate,  the  British  idea,  130 

invested  by  the  common  law  with  "  prerogatives,"  181,  134 

limited  by  the  common  law,  184 

no  power  to  alter  law,  181 

protected  in  exorcise  of,  by  being  a  branch  of  parliament,  81, 
132.  145 
parliament  may  legislate  as  to,  182,  184,  185,  187,  258 

secured  control  of,  through  power  over  finances,  81 
express  words  or  irresistible  inference  required  to  take  away,  142 
classification  of,  184-G 
in  Canada,  under  B.  N.  A.  Act,  142,  258 
disallowance  of  colonial  Aots,  li'i-d  —See  Disallowanck 
commissions  of  Oyer  and  Terminer,  259 
Queen's  Counsel  case,  143  (n),  HI? 
osi'.licats,  528 
royalties,  529-30 

PRESUMPTION— 

in  favor  of  validity,  217 

(See  Legislative  Pcweu,  ExtcuTivr.  Kehponshuhiy)  " 

PRINCE  EDWARD  ISLAND— 

early  constitution,  27 — See  Pue-Confhdeuation  Puovincks 
admission  of,  to  Union,  617 

PRIVATE  BILLS— iec  Parliament  OF  Canai>a 
PRIVILEGES— 

of  parliament  of  Canada,  261,  et  seq. 
B.  N.  A.  Act  amended,  262 


INDEX.  067 

PRIVILEGES -Continued.  - 

legislative  power  in  relation  to,  limited,  2B4 
{See  Parliament  or  Canada) 
of  provincial  legislatures,  826,  et  seq. 

legislative  power  in  relation  to,  plenary,  826-7 
{See  Colonial  Laws^Validity  Act) 

PRIVY  COUNCIL  FOR  CANADA— 
constitution  of,  50-1,  255 
appointment  of  members,  167,  '^5r> 

PROCEDURE— A!fe  Jitdicial  Syhtkm,  Chiminal  Law,  Pknal  Law,  etc. 

PROHIBITION— See  Liqdob  Traffic 

PROVINCIAL  CONSTITUTIONS,  300-343 

executive  power,  .HOO-324 — See  ExEcrTivE  Authority 

Lieutenant-Governors — See  Lieittenant-Governor 

Executive  Council  -Sea  Execittive  Council,  Oauinet 

"executive  power  case"  (Ont.),  305-6 
legislative  power — See  Provincial  Leuihlatures 

range  of,  determines  range  of  executive,  199,  305 — Sec  Leoihla- 
TivB  Power 
provincial  autonomy,  301 

{See  Ontario,  Qitkhec,  etc.) 

PROVINCIAL  LEGISLATURES -.SVvMjote  at  begiiniing  of  tluB  Index 
disallowance  of  Acts  of —See  Disallowance 

powers  of,  205,  420-512 — See  B.  N.  A.   Act,   Colonial  Leuihlativk 
Power 
as  to  prerogatives — See  Prerogatives 
as  to  "privileges,"  etc.— .See  Privileges,  Colonial  Laws  Valimty 

Act 
to  alter  constitution,  420,  et  neq. 
as  to  elections— See  Elections 
duration  of.  336 

speaker,  quorum,  voting— .SVe  these  titles 
(.See  Ontario,  Quehec,  Etc.) 

PROVINCIAL  0FFICES-.SVe  Offices  anu  Ofkickrh 
PUBLIC  HARBOURS,  530 

PUBLIC  LANDS—  - 

Indian  reserves,  404 
provincial  legislative  power,  437 
assigned  to  provinces,  518,  528 

Manitoba,  595,  601 

British  Columbia,  610 

Prince  Edward  Island,  ((21 
exempt  from  taxation,  524,  531 


OHS  INDEX. 

PUBLIC  WORKS  AND  PROPERTY— 
certain,  asBi^fned  to  Dominion,  618,  530-1 
remainder  reserved  to  provinces,  Ml 
exempt  from  taxation,  524,  581 


QUALIFICATION— .STi-rt  the  various  offices 

QUEBEC— 

le^^islature,  B20,  et  nq, 
legislative  council — 
constitution  of,  B29 
qualification,  vacancies,  etc  ,  3,S0-1 
legislative  assembly,  B81 
executive  council,  310 

QUEBEC  RESOLUTIONS,  18G4—SVr  Appendix 
indicate  a  federal  union,  45 
how  far  may  they  be  utilized,  45,  '21J( 
as  to  re-distribution,  295 

QUEEN,  THE— 

executive  head  throughout  the  Empire,  130,  252,  304 

in  Canada,  248,  252,  304 
dual  position  occupied  by,  'J50 
commander-in-chief,  289 
a  branch  of  the  parliament  of  Canada,  261 

provincial  legislatures,  300,  325,  341 

QUEEN'S  COUNSEL--143  (h),  317 

QUORUM— 

Senate  of  Canada,  279 

House  of  Commons,  293 

Quebec  legislative  council,  381 

Ontario  and  Quebec  le;;'slative  assemblies,  337 


RAILWAYS-See  Company 

RE-DISTRIBUTION— 

of  representation  in  parliament  of  Canada,  291 
Quebec  resolutions,  295 


INDEX.  660 

KE-DI8TRIBUTI0N— CoHt/»iMC</. 

different  from  detlniug  electoral  districts,  297 
parliament  of  Canada  full  control  of  both,  2<.)7-8 

RliSERVED  BILLS,  149,  298,  800 

REPUGNANCY— 

of  colonial  Acts  to  Imperial,  &8,  379 

{See  Colonial  Laws  Validity  Act) 
of  ordinances  of  North-West  assembly   to   Dominion   legislation, 

570,  582 

RESIDUUM  OF  POWER— See  also  Division  of  Poweu— 
Canadian  and  United  States  systems  contrasted,  44 
expression  criticized,  45 

{See  Parliament  of  Canada) 

RESPONSIBIE  GOVERNMENT— See  Executive  Responsibility 

REVENUE— 

power  to  appropriate — See  Appbupbiation 
provisions  of  B.  N.  A.  Act,  510,  et  seq. 

ROYALTIES,  518,  529-30 

RULE  OF  LAW— 

common  to  both  British  and  United  States  systems,  12,  14 
{See  Parliament,  Ucpbemacy  of) 


a 


SEATS  OF  GOVERNMENT— 
of  Dominion,  260 
of  provinces,  S23 

SENATE  OF  CANADA,  268-81 

compared  with  House  of  Lords  and  United  States,  208-70 
no  judicial  functions,  270 

except  as  to  status  of  senators,  278  -. 

no  executive  functions,  270 

has  failed  to  answer  the  end  of  its  creation,  270-1 
principle  of  equal  representation  in,  abandoned,  271 

Ontario,  Quebec  and  Maritime  provinces,  272, 

peculiar  provision  as  to  Quebec,  271 
qualification  of  senators,  273 
summons  to  senators,  274 


670     ^  INDEX. 

SENATE  OF  CANADA- t'on<inMed. 

possible  addition  to,  of  six  members,  275 

provision  j^actically  effete,  276 
number  of  senators,  276 

no  maximum,  277 
tenure  of  office,  2:59,  277 
vacating;  of  seat  in,  277 

question  determined  by  senate,  278 
speaker,  quorum,  voting — See  these  titles 
senators  ineligible  for  election  to  Commons,  283 

SEPARATE  SCHOOLS,  489,  et  seq. 

remedial  legislation  by  parliament  of  Canada,  495,  508 

SOVEREIGN — See  Queen,  Crown,  Prerogatives 

SPEAKER— 

of  senate  of  Canada,  279 

of  Quebec  executive  council,  330 

of  House  of  Commons,  291 

position  compared  with  that  of,  in  England  and  United  States. 

292 
deputy  speaker,  293 
of  provincial  assemblies,  337 

STATUTES— .See  Index  to  Statutes,  p.  xv 

SUPREMACY  OF  LAW— .See  Rule  of  Law 

SUPREME  COURT  OF  CANADA,  514,  516 

provincial  legislature  no  power  to  limit  appeals  to,  610 

SWITZERLAND— 

droit  admimstratif  in,  14 


T. 

TAXATION - 

colonial  system,  35,  et  seq. 
result  of,  37 

{See  Appropriation.) 
powers  of  Dominion  and  provincial  legislatures  limited  to  purpo=e» 
of  those  governments  respectively,  377 
parliament  of  Canada,  376 
provincial  legislatures,  424 
public  lands  and  property  exempt  from,  524,  531 
(Sec  Direct  Taxation.)  *  "       " 


INDEX.  (j7  ] 

TENURE  OP  OFFICE-See  Appropriation,  Poweu  of,  Offices 

TERRITORIAL  OPERATION  OF  STATUTES - 
of  Imperial  parliament,  7, 185 
of  colonial  legislatures,  185,  et  teq. 

TERRITORIAL  REVENUES— 
assif^ned  to  provinces,  518,  528 

TREATY  OBLIGATIONS— 

parliament  of  Canada  may  legislate  for  performing,  538 
power  limited  by  reason  of  Imperial  legislation,  538-9 


u. 

UNIFORMITY- 

provision   for  future,    in   laws  of  Ontario,  Nova  Scotia   and  New 
Brunswick,  511 

UNITED  STATES— 

constitution  of,  compared  with  British  and  Canadian,  5,  '20 
distribution  of  legislative  power  in,  as  compared  with  Canada   41  ■• 
220-1 
power  of  con,'res3  to  determine  line  of  division,  9 
how  far  dacisions  in  courts  of,  may  be  utilized,  220-2 
{See  British  Constitution,  Fedkhamsm) 

UNITARIAN  FORM  OF  GOVERNMENT,  13- 
V.  federal,  44,  444 


VALIDITY— 

presumption  in  favor  of,  217 

a  principle  of  interpretation,  217 

VOTERS— .See  Elections 

VOTING— 

in  senate  of  Canada,  281 
in  House  of  Commons,  293 
Quebec  legislative  council,  331 
provincial  assemblies,  337 

VETO — See  Disallowance 


672  INDEX. 


w. 


WORKMEN'S  COMPENSATION  FOR  INJURIES  ]ACT- 
how  far  federal  railway  subject  to  provisions  of,  458 


Y. 


YEARLY  SESSIONS— 

parliament  of  Canada,  267 

Ontario  and  Quabec,  337 

New  Brunswick  and  Nova  Scotia,  337 


O^