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The Canadian Constitution 

- BY — 

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


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


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. 


Pbeface V 

Table of Cases Cited vii 

Index to Statotes xT 



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

" II. The Pre-Confederation Constitutions 25 

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


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 



Chap. X. The Division of the Field 199 

XI. Our Judicial System 223 

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


Chap. XIII. The North-West Territories 549 

" XIV. Manitoba 586 

XV. British Columbia COi 

" XVI. Prince Edward Island 617 


r»i --i' 


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 


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. 



. 2Gth Sept., 1S92. 

tavAjK of cases cited. 


Abraham v. Ret^.,Hri 

Adam, lie, 400 

Aclamson, Can. Bank of Comni. v., 

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, 

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, 
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., 

Ont. V. Inter Bridge Co. 
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, 

V. Rftdloff, 410 
Auchterurder Case, 56 


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, 

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 



Berry v. lJ<;rry, i>0 

Bertrand, He^. v., 142 

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

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

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, 

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

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, 

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, 

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 


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 



De Vebor. lie, 398 

Dibleo, Whittior v., 476 

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

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 


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 


Fabrigas v. Mostyn, 152, 168, 155, 

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., 

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 


Gabriel v. Derbyshire, 65 

Galdy, Blankard v., 84 

Gamble & Boulton, Reg. v., 113, 

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, 

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 


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

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 


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 . 


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. 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 



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, 
O. &0. Ry., Bourgoinv., 

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, 

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.. 

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


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 


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

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

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

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

Niagara Falls Inter. Bridge Co., 

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

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

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





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., 

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, 

Picton, The, 230, 384 

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

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 


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 


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, 
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, 

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, 



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 


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 



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 


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., 

Thompson v. Bennett, 73 

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

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, 



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

Union Bank v. Neville, 396 

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


Valin V. Langlois, 217, 231, 232, 

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


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., 
Windsor & Ann. Ry., Murdoch v., 

Co., Re, 400 
West. Coun- 
ties v., 531 
v. Com. Bank. 387 
Wing Chong, Reg. v., 616 
Winnipeg v. Banrett, 493, 495, 501, 
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 



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 


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 


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 


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 


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 


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 


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 


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 


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 


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 


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 



26 Vic. c. 15 (Assembly), 328 

37 c. 21 (Controverted Elections), 2U0 


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 


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 

Rev. Ord. (1888) c. 5 (Controverted Elections), 290 


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. 




Law of the Canadian Constitution. 



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 


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 


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- 

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. 


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. 


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. 


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. 


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. 


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. 


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 : 


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 

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. 


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. , 


^'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. 


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 


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 

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. 


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 


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. 


•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 


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. 


('(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. 


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 

"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 


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 

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- 

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^ 


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. 


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-- 

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 


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- 



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. 


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 

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.). 


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 

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. 


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> 


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. 


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. 


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 


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. 


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 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 


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. 


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. 


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 
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 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. 


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 


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

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. 


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. 


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.) 


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. 



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- 

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. 


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. 


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. 


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 

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, 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 



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 

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. 


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 


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. 


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. 


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. " 


(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 

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. 


(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 & 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. 





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. 


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. • 


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

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 

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 

{/) 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. 


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. 


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. 


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. 


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 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. 


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 


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 

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


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 


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 


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 


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. 


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. 


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, 
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- 

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. 


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 


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 


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. 


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. 


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. 



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.). 


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 

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, 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 

" 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 

" 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. 


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

"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 


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 


" 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 


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 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. 


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 

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. 

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 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. 


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. 


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

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 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 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 


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 


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). 


•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 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 

100 IIIK CAN'ADI.W cnXSTITriloN-. 

tore incapal)Io of being ciirriod, subHtantiiilly and as a whole, into 

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^^, 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 

(«) 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. 


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 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. 


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. 


(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. * 


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. ♦ 


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. 


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 

" 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 

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 


" 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 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. 


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. 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. 


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 


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 

" XI. And whereas the ceitainty and lenity of the criminal 
law of England, and the benefits and advantaj'cs resulting from 
the 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 


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 
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. 


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- 

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 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. 


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. 



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. 


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 

((■) 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 


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. 


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, Anne, c. 7, adjudges traitors, 
all who affirm the contrary. 

(<>) Chitty, p. 4. . . 


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 

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. 


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 

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. 


ticnliir ortieial ]»y whom tliey are to he exercised, that — 
althouifh<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 

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. 


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. 


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' 
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 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. 


(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. 


())• 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' 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. 


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 


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. 


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,' ^'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. 


(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' 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." 


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. 


(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. 


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 

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^ 


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 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' 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. 


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 


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 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. 


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. 


In; l)Ut as tlu' ^futlu'i'in;; oF a molt, uml tlu-ir Acts Itiit as 


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. 


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 

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 

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. 


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)'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. 


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 

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. • 



\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 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- 

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. • 


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» 
terms of the H. X. A. Act: 

1. Hv which, aHirmativtd\', the le;;islative powers are 

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. 


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 < the (^rown of Irclaml t > the Kin;; 
of J'!n;ul'HnrM second son, oi* any other lait to tlu' Kin;; of 

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 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. 


;,'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 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). 


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. 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, 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' 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, 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 

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. 


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 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 




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. 


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. 


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. 


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 

(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 


un<U'r our tV'<U'nil syHtt'in, the (.'xeix' 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- 


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 


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 

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 

10. (ienerally all matters of a nu>rely local or private nature in the 



A penisal, the nioHt curHoiy, of the'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. 


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 


" 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. 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. 


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 

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 [ 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; 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. 


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. P. C. '272 ; see notes to sac. 92, s-s. 2. 

■{k) L'Union St. Jacques v. Bolisle, L. R. 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, 


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. 


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 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 


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. 


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 

(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 

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. 


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 

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 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. 


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' 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 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. 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 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. 


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. 



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 < )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 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' for determination hy them, 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-' <»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 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. 


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 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. 


»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- 

([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 

'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 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. 


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, 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. 


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 

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, 

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 

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 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.* •. 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 


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 

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 

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. 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 

(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 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, 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 



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 

»>. 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, 

* * » * * 


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. 


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, 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 
(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, 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 

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 


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 

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 

(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 

(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 

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 

«°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- 


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 

(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. 

" 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»'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 


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 

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 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- 

(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 

"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 

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 

(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 

(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 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- 

(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 

(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- 

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- 

(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 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, 
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 

(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 

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 
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- 

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 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 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 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: — 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'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 

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 

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. 

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 

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). 


^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, 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 {, 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. 


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- 

^fTeSauvo 73. The qualifications of the Legisla- 
tive Councillors of Quebec shall be the 
same as those of the Senators for Quebec 


(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 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 

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." 


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 

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 

(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 

(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. 

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. 



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. 


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 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 

(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- 

(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 

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 

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« 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 

(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 
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 

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. 

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- 

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 

" ' 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 

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 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 

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. 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 sul (-sections alone supports the 
power, or whether the combined force (»f all is reipiired 
to uphold such lej^islation. They speak of lice! 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 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" 

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, 


(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 

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 

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 

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*;' " : 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 

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 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 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, 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 

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- 

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 

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 

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, 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.\ 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 

In Clarkson v. Ontario Bank, Burton and Patterson, 
JJ.A., both expressed some doubt as to section 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 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 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 

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 

22. Patents of invention and dis- 

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'^' 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 

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 

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 

(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. 


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 

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 

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 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, 

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 

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 

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- 

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- 

(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 

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\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 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- 

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- 

" 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 

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 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, 


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- 

7. The Establishment, Maintenance 
and Management of Hospitals, Asylums, 
Charities and Eleemosynary Institutions 
in and for the Province, other than Marine 

(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- 

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 

(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- 

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 

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 

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 

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 

"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 inc