'xr^,.
^
THE LAW-
or
The Canadian Constitution
- BY —
W. H. P. CLEMENT, B. A., LL.B. (Tw)k.
OP OSGOODE HALL, BARB18TEM-AT-LAWr
TORONTO :
The cars well Co. Ltd., LAW PUBLISHERS, Etc.
1892.
SS 99579
J 5.
/ jC
Eir\ E NT, UJ H
'* :
Entered aCcordiiiR to Act of the Parliament of Canada, in the year 1802, by
WilmAm }Iknuy Popk Clkment, at the Departrment of Agriculture.
CONTENTS.
Page,
Pbeface V
Table of Cases Cited vii
Index to Statotes xT
ADDKNnA ET CoRItlOEKDA , XXii
PART T.— INTRODUCTORY.
Chap. I. Our Political System — A Comparative Examination .... 1
" II. The Pre-Confederation Constitutions 25
" III. What became of the Pre-Confederation Constitutions ? . . 43
PART II.— THE RESULTS OF OUR COLONIAL STATUS.
Chap. IV. What Imperial Acts affect Us ? 56
" V. The Sources of Our Law 75
VI. The Prerogatives of the Crown 129
" VII. Executive Checks on Colonial Legislation 145
" VIII. The Governor-General 150
" IX. Colonial Legislative Power 176
»
PART III.— THE ORIGINAL GROUP.
Chap. X. The Division of the Field 199
XI. Our Judicial System 223
" XII. The B. N. A. Act, 1867 241
PART IV.— SUBSEQUENT GROWTH.
Chap. XIII. The North-West Territories 549
" XIV. Manitoba 586
XV. British Columbia COi
" XVI. Prince Edward Island 617
APPENDICES 628
r»i --i'
PREFACE.
In this work, I liave emlcavorel to exhibit, in as com-
pact a fonn as tlie wide scope of the subject permits, the
Law of the Canadian Constitution in reference as well to
our position as a Colony of the Empire, as to our self-
government under the federal scheme of the B. N. A. Act.
No work upon the first branch of the subject is in
existence. The works of Clark and Merivale upon the
Colonies pre very antiijuated, and since their pul)lication
the colonial system of the British Empire has to a very
great extent been i-ecast. In collecting the authorities,
therefore, upon this branch of English jurisprudence into
one book, I shall, at least, luive done something to lighten
the labor of those who have occasi(m to deal with questions
relating to our connection with the Mother Country.
Upon the second branch — our internal self-government
under the B. N. A. Act — the need of such a book as this
has been felt for some time. Mr. Doutre's work was pre-
pared at a time when judicial leaning was very largely
toward minimizing the sphere of provincial aut(momy, and
the decisions since that date have not only been numerous,
but those of the Judicial Counnittee of the Privy Council,
particularly, have given a very different aspect to the law
governing the relations of the i)rovinces to the federal
government.
VI PREFACE.
I have also endeavored to exhil)it clearly the position of
the provinces and territories accjuired since LSfiT, and luive
referred as freely to the decisions of the Courts in those
more recent additions to the Dominion as to the authorities
in the older provinces.
A glance at ohe Table of Contents will suffice to dis-
close the general mode of treatment I have adopted, and
further remarks here would serve no good purpose. While,
fully sensible of many defects in the executitm of this work,
I have strong hop^^s that it may prove useful, not merely to
the profession, but to all those who desire information in
reference to our rather unique form of government.
W. H. P. CLEMENT.
Toronto,
. 2Gth Sept., 1S92.
tavAjK of cases cited.
A.
Abraham v. Ret^.,Hri
Adam, lie, 400
Aclamson, Can. Bank of Comni. v.,
(iOO
Aitcheson v. Mann, 23(5, 402
Allen V. Hanson, 73, Hi)4
V. Murray, 94
Eedpath v , 179, 195, 227
Amer, Reg. v., 143, 254, 259, 303,
310
Anderson v. Uougall, 112
V. Dunn, 204
V. Kilbourn, 112
Reg. v., 1«5, 187
V. Todd, 90, 102, 112, 114,
120, 248
Andrew v. White, 39
Angers v. Montreal, 351, 373
Anglo Can. Mus. Pub. Co. v. Suck-
ling, 403
Apollo Candle Co., Powell v., 183
Appleby v. Keg., 93
Arbitration between Ontario and
Quebec, In re, 543
Armstrong v. McCutchin, 397
Arnold v. Arnold, 185
Arthur, Trustees R. C. Sep. Schools
v., 494
Atty.-Gcnl. 1*.. Col. v. Atty.-Genl.
Can., 307, 530, 610
. , Can. V. Atty.-Genl. Ont.
49, 129, 144, 173, 219,
223,306,319,321,342,
424, 4'31, 482, 489
V. Flint, 231
V. Montreal, 531
V. Toronto, 532
Hong Kong, v. Kwok-a-
Sing, 180, 189
N. S. Wales, McLeod v.,
218
Ont. V. Inter Bridge Co.
311
V. Mercer, 40, 219, 307,
525, 528, 529
V. Niagara Falls Inter.
Bridge Co., 311
Atty.-Genl. Quebec v. Col. 81dg.
Ass., 352, 449, 450,
455, 404
V. Queen's Ins. Co.,
214, 432, 440
V. Reid. 213, 816. 428,
433, 438
V. Richard, 001
V.Stewart, 92, 103, 113,
114
V. Rftdloff, 410
Auchterurder Case, 56
B.
Baldwin v. Roddy, 100
Bank N.S., Reg. v., 136, 151
Toronto v. Lambe, 22, 142,
201, 210, 213, 222, 250, 201,
H28, 343, 348, 351, 304, 375,
370, 380, 401, 425, 430, 433,
43.-), 454
of Upper Can. v. Bethu'ie,
09, 124
Barnes v. Reg., 126
Barrett, Winnipeg v., 493, 495, 501,
508
Barton v. Taylor, 203, 320
Bate, Mousseau v., 311, 402
Bayley, Ganong v., 238, 315, 471
Beacon Ass. Co. Penley v., 57
Beard v. Steele, 374, 387
Bea^ley, q.t., v. Cahill, 124
Beique, Tarte v., 481
Belford, Smiles v., 07, 403
Bclisle, L'Union St. Jacques v.,
202, 207, 211, 216, 350. 384, 392,
401, 419, 485
Bell, Graham v., 91
Keighley v., 161, 187
Doyle v., 290, 465
Reg. v., 117
Teleph. Co., In re, 230, 236,
312, 403
Bennett v. Pharma. Ass. (Quebec),
348, 373, 482, 487
Reg. v., 471
Thompeon v., 73
Bentinck, Oliver v., 150, 155, 160
Bermuda, The, 68
vni
TAULK MK CASKS ('ITEI».
Berry v. lJ<;rry, i>0
Bertrand, He^. v., 142
Bintie, Hill v., 150, 1")5, Md, l')!)
Birketl, lleM-, <';«;. ''t'/., v. McGuite,
445
Bittle, Ren,, v., 415, 474 '
Black, Dow v., 213, 420, 425, 433,
452, 486
Blain, Kx parte, 185
Blake, Church v., 52!)
Blankard v. Gakly, 84
Bleeker v. Meyers, 122
Blouin V. Quebec, 3<)2, 482
Boardnian, Reg. v., 408, 412, 4Hl
Booaey, Jeffreys v., 185, 18(5
Boucher, Ite, 228
Bourgoin v. M. O. & O. Ily., 454
Bowman v. Middleton, 51)
Stuurtv., 131
Bradshaw, Reg. v., 416, 409
Brierly, Reg. v., 191
Briton, Med. &. Genl. Life Abs.,
lie, 346, 401
Brome, Cooey v., 361, 441
Brook V. Brook, 18()
Brunean v. Massue, 231
Brush, lie Ridsdale and, 492
Bullock, Foote v., 124
Burah. Reg. v., 177, 182. 441, 481
Burdel!, Reg. v., 89
Burslem, Lopez v., 185
Bustin, Ex parte, 94
Bush, Reg. v., 238
Butland V. Gillespie. 116
Cahill, Beasley, ./.(., v., 124
Calder, Re, 581
Caldwell v. Kinsman, 91
Cameron v. Kyte, 150, 157, 159, 195
Campbell v. Hall, 12, 30, 104, 131,
140
Jackson v., 89
Can. Bank of Comm. v. Adamson,
600
Canada Cent., Jones v., 459, 462
Can. N. W. Land Co., Lynch v.,
386, 389, 425
C. P. R., Re, 602
V. N. P. & Man, Ry., 454
C. S. Ry., Inter. Bridge Co. v., 184
V. Jackson, 376, 458
V.Phelps, 121
Cape Breton, In re, 27
Carson, Kielley v., 263, 326
Carr v. Fire Ass Co., 121
Carr, Reg. v., 185
Cent. Vornioul liy. Co. v. St. Johns,
351, :{H4
Chamberlain, Lawless v., 117
Chandler, Reg. v., 342, 39(), 398,
47(i
Chapleau, Molson v., 312
Chaveau, Coto v., 473
Chisholm, Shey v., 90
Choat, Shea v., 99
Church V. Blake, 529
V. Fenton, 404, 531
Citizens v. Parsons, 96, 105, 206,
207, 210, 213, 345, 351, 353, 356,
381, 407. 420, 455, 460, 464, 467,
511
Clark, Slioolbied v., 394, 459
V. Union Fire Ins. Co., 451
Clarkson v. Ont. Bank, 395, 397
V. Ryan, 51(5
Re Claxton, 582
Cleveland v. Melbourne, 489
Coll. of Phys., Reg v., 67
Col. Bklg. Asa. V. Atty.-Genl. (Que-
bec), 353, 450, 455, 464
Commercial Bank, Moulson v., 108
Windsor v., 387
Comyn v. Sabine, 152, 159
Connolly v. Woolrich, 581
Cooey v. Brome, 361, 441
Coote, Reg. v., 238, 470
Cooper, Smith v., 104
Cope v. Doherty, 185, 186
Corby v. McDaniel, 125
Cote V. Chaveau, 473
v. Watson, 401
Cowan v. Wright, 536
Craw v, Ramsay, 56, 184, 192, 24 5
Crawford v. Dufiield, 434
C. V. Ry. Co. v. G. W. Ry. Co., 455
Crombie v. -Jackson, .393
Cronyn v. Widder, 125
Curtis V. Hutton, 111
Gushing v. Dupuy, 216, 237. 253,
349, 391, .^^99, 402,465
I>.
Danaher v. Peters, 360, 364, 366
Dansereau, Ex parte, 327
Dart, The, 90
Davidson v. Boomer, 112
Queddy Riv. Driv. Boom
Co. v., 383, 489, 535
De Coste, Reg. v., 416
De Grosbois, Willard v. 285
Derbyshire, Gabriel v., 65
Despard, Wilkins v., 155
De St. Aubyn v. Lafrance, 362
TABLE OF CASES CITED.
IX
De Vebor. lie, 398
Dibleo, Whittior v., 476
Dickson, Uniacke v., 77, 88, 90, 94,
127
Dillinfjham v. Wilson, 98
Doane v. McKenaey, 90
Dol)ie V. Tompocnlities Board, 50,
200, 258, ;;i9, 159, 535
Dolierty, Copo v., 185, 18(>
Donegani v. Done^ani, 106
IJoiit^all, Anderson v., 112
Dow V. IJlack, 213, 420, 425, 433,
452, 48(i
Doyle V. Bell, 290, 465
Fish v., 98
Diidman, Kinnev v., 390
Duffield, Crawfonl v., 434
Duhnaf^e v. Douglas, 434
Duncan, Kx parte, 472
Dunn, Anderson v., 264
V. O'Rielly, 122
Diipuy, dishing' v., 210, 237, 253,
H 19, 391, 399, 402, 465
E.
ilden, Le Caux v., 83
Eldorado Union Store Co., Re, 394
Eli, Reg. V. 415
EWi^, Kx pa lie, 4l1Q
Enropean & N. A. Ky. Co. v.
Thoraas, 452.
Evans v. Hudon, 380
Eyre, Phillips v., 59, 140, 178, 195
Re;,', v.. 07, 159
Exchange Bank v. Eeg., 136, 138,
141, 234, 245
F.
Fabrigas v. Mostyn, 152, 168, 155,
159
Fama, The, 69
Fanning, Meisner v., 87
Farewell, The, 231, 250, 384
Fenton, Church v., 404, 531
Ferguson v. Gibson. 113
Fire Ass., Carr v., 121
Fish V. Doyle, 98
Fisher, Georgian B. Trans. Co. v.,
73
Flanagan, Gregory v., 100
Flint, Atty.-Geul. v., 231
Footo V. Bullock, 124
Ford, Stark v., 116
Fraser v. Morrow, 69
Fredricton v. Reg., 206, 349, 303,
370, 407, 016
Can. Con.— b
Free v. McHngh, 492
Freeman v. Harrington, 91
V. Morton, 91
Friends Adventure, The, 69
Frontenac v. License Com., 436
Fuller, Gordon v., 50, 00
Hambly v., 112
Fulton V. James, 126
G.
Gabriel v. Derbyshire, 65
Galdy, Blankard v., 84
Gamble & Boulton, Reg. v., 113,
327
Ganong v. Bayley, 238, 315, 471
Gardiner v. Gardiner, 61
Garrett v. Roberta, 122
Gaston v. Wald, 121
Georgian B, Trans. Co. v. Fisher, 73
Gibson, Ferguson v., 113
V. McDonald, 232, 315
Gilbert v. Sayre, 93
Gillespie, Butland v., 116
Mer. Bank v., 395
Glynn v. Houston, 155
Gold Commrs, Reg. v., 616
Goodall, Hall v., 09
Goodhue, In re, 59. 181, 189, 193,
402
Gordon v. Fuller, 50, 00
Gore, Wyatt v., 155
G. T. R., Monkhouse v., 375, 457
Graham v. Bell, 91
Grainger v. School Trustees, 494
Grant v. Protection Ins. Co., 91
G. W. Ry. Co., C. V. Ry. v., 455
Green, Holman v., 5.30
Gregory v. Flanagan, 100
(jriffith v. Rioux, 370
Page v., 473
Paige v., 482
Pope v., 472
H.
Haldimand, McBeth v., 159
Hall, Campbell v., 12, 30, 104, 131,
140
V. Goodall, 69
Hallook V. Wilson, 112
Ilambly v. Fuller, 112
Hanson, Allen v., 73, 394
Haningtoii v. McFadden, 90, 92
Harding v. Mayville, 493
Harrison v. Spencer, 58
Harris and HGmilton, Re, 372
Hart v. Missisqnoi, 361
V. Meyers, 122
TABLE OF CASES CITED.
Harrington, Freeman v., 91
Harvey v. Lord Aylmer, 155
Hasen v. Rector St. James, 93
Hearle v. Ross, 122
Htartly v. Hearns, 100
Henderson, Scott v., 88, 91
Hesketh v. Ward, 93, 120
Hewston, Mercer v., 112
Hill V. Bigge, 150, 155, 156, 159
Hodge V. Reg.. 182, 202, 213, 261,
324, 358, 363, 364, 370, 425, 474,
480, 481, 486
Hodgins v. McNeil, 73, 118
Holman v. Green, 530
Holmes v. Temple, 350, 379
Horner, Reg. i-., 470, 538
Houston, Glynn v., 155
Hudon, Evans v., 380
Hughes, McDiarmid v., 456
Hume, "Whicker v., 114
Hutton, Curtis v.. Ill
Illidge, Santos v., 57
Inglis, Reid v., 125
Int. Bridge Co. v. C. S. Ry., 184
Atty.-Genl. v., 311
Jackson, C. S. Ry. v., 375, 458
Crombie v., 393
V. Campbell, 89
James, i'ulton v., 126
v. McLean, 58, 94
Jeffreys v. Boosey, 185, 186
Johnson v. Poyntz, 398, 476
Johnstone v. Parker, 117
Jones V. C. Cent. Ry., 459, 462
Kelly v.. 93
"Wilson, v. 94 .
K.
Eavanagh v. Phelon, 93
Keefe v. McLennan, 360, 361, 443
Keefe, Reg. v., 582
Kelly V. Jones, 93
Keighley v. Bell, 161, 187
Kennedy, O'Connor v., 119
V. Toronto, 631
Keyn, Reg. v., 57, 186, 187
Kielley v. Carson, 263, 326
Kilbourne v. Thompson, 264
Anderson v., 112
King's, Justices of, Reg. v., 360, 443
Kinney v. Dudman, 396
Kinsman, Caldwell v., 91
Kwok-a-Sing, Atty.-Genl. Hong
Kong v., 186, 189.
Kyte, Cameron v., 150, 157, 159, 195
Lafrance, De St Aubyn v., 362
Lake, Reg. v., 415
Lambe, Bank Toronto v., 22, 142,
201, 210. 213, 222, 250,
261, 328, 313, 372, 383,
386, 401, 425, 433, 454
Molson v., 364
Landers, Woodworth v., 264
Landry, Theberge v., 171, 253, 28o,
325, 336, 341, 404
Langlois, Valin v., 217, 231, 280,
287, 445
Lanty, Miller v., 87
Lawless v. Cliambex'Iain, 117
Lawrence, Reg. v., 411
Law, Sheldon v., 126
Le Caux v. Eden, 83
Leith V. Willis, 100
Lenoir v. Ritchie, 129, 317
Lepvohon v. Ottawa, 220, 342, 380,
414, 433, 434, 442
License Com. v. Frontenac, 436
V. Prince Ed., 436
Lindo V. Lord Rodney. 83
Liquor License Act, 1883, Re, 359
Liscombe, Whitby v., 113, 120
Local Option Act, Re, 361, 369, 370,
414, 440, 442, 446
Logan, Winnipeg v., 501
Longueuil Navi. Co. v. Montreal,
383, 431
Lopez V. Burslera, 185
Low, Routledge v., 67, 73, 186
Lucas & McGlashan, Re, 409
L'Union St. Jacques v. B61isle, 202,
207, 211, 213, 216, 350, 352, 384,
392, 401, 419, 485
Lynch v. Can. N. W. Land Co.,
386, 389, 425
Lyons, In re, 73
M.
M. falsely called S. v. S., 615
Machar, McKilligan v., 474
Maguire, Tai Sing v., 616
Maher v. Portland, 500
Mallette v. Montreal, 373
Mann, Aitcheson v., 236, 402
Marbury v. Madison, 193
Maritime Bank v. Reg., 136, 138, 142f
TABLE OF CASES CITED.
XI
Maritime Bank v. Receiver- Genl.
of N. B„ 144,
241, 245, 252,
255, 261, 301,
307, 318, 324,
325, 342, 419,
443, 529
Maryland, McCulloch v., 178, 194
Massey Manf. Co., Re, 312
Massue, Bruneau v,, 231
May villa, Harding v., 493
Mayor and Aid. of Norwich, Reg.
v., 84
Meisner v. Fanning, 87
Melbourne, Cleveland v., 489
Mercer v. Atty.-Genl. Ont., 40, 219,
307, 5'25, 528
V. Hewston, 112
Reg. V. 124
Merchants B. v. Smith, 387
V. Gillespie, 395
Meth. Church, Smith v., 116
JJeyers, Bleeker v., 122
Hart v., 122
Middleton, Bowman v., 59
Milford, Reg. v., 126
Miller v. Lanty, 87
Mississquoi, Hart v., 361
Mohr, Reg. v., 351, 449
Molson V. Chapleau, 312
V. Lambe, 364, 430
Monkhouse v. G. T. R., 375, 457
Montreal, Longueuil N. Co. v., 383,
431
O. &0. Ry., Bourgoinv.,
454
Atty.-Genl. Can. v., 531
Angers v., 351, 373
Ware. Co., Royal Can.
Ins. Co. v., 389
Moodie, Reg. v., 124
Moore v. Moore, 91
Morrow, Fraser v., 69
Morrison, Wheelock v., 91
Morton, Freeman v., 91
Mostyn, Fabrigas v., 161, 153, 155,
159
Moulson V. Coram. Bank, 108
Mount & Morris, Reg. v., 72
Mosseau v. Bate, 311, 402
Mowat v. MoPhee, 73
Mulligan Sinclair v., 581, 598
Murdoch v. Windsor & Ann. Ry..
390
Murray, Allen v., 94
Musgrave v. Pulido, 150, 158
Muskoka Mill Co. v. Reg., 312
' Munn v. McCannell, 399, 537
Mc.
Macdonell v. Macdonald, 335
Macmillan v. S. W. Boom Co., 382
Macnamara, Wall v., 155
McAlmon v. Pine, 397
McArthur v. N. & P. June. Ry., 458
McBeth V. Haldimand, 1,59
McCannell, Munn v., 399, 537
McClanagan v. St. Ann's Mut. Bldg.
Soc, 401
McCormick, Reg. v., 122
McCulloch v. Maryland, 178, 194
McDaniel, Corby v., 125
McDiarmid v. Hughes, 456
McDonald, Gibson v., 232, 315
I V. McDougall, 109
I V. Ronan, 89
i Smyth v., 88
McDonell v. Smith, 335
McDougall, Reg, v., 365
V. Union Navi. Co., 382
McFadden, Hanington v., 90
Reg v., 89
McGowan, Smith v., 65
McGuire v. Reg., ex rel. Birkett, 445
Wilson v., 232
McHugh,rree v., 499
McKenny, Doane v., 90
McKeow'n, Wheelock v., 87
McKilligan v. Machar, 474
McLaughlin, Rex v., 79, 92
McLean, James v., 58, 94
McLennan, Keefe v., 360, 361, 443
McLeod V. Atty.-Genl. N. S. W..
192, 218
McNeil, Hodgins v., 73, 118
N.
Nan-e-quls-a Ka, Reg. v., 580
Natal, In t-. Lord Bishop of, 30, 135.
141
Neville, Union Bank v., 396
New B. Receiver Genl., Maritime
Bank v., 144, 241, 252, 255, 261,
301, 307, 318, 324, 342, 419, 443,
529
Niagara Falls Inter. Bridge Co.,
Atty.-Genl. v., 311
Niboyet v. Niboyet, 57, 186
Noel V. Richmond, 362
Normand v. St. Lawrence Navi. Co.,
382
North Perth, In re, 240, 286, 463,
465
North. & Man. Ry., C. P. R. v., 454
N. & P. June. By , McArthur v.,
458
Xll
TABLE OF CASES CITED.
0.
O'Brien v. Reg., 312
O'Connor v. Kennedy, 119
Oliver v. Bentinck, 150, 155, 160
Ont. Bank, Clarkson v., 395, 397
Ordnance H. M. Officers, TuUy v.,
184
O'Regan v. Peters, 806
O'Rielly, Dunn v., 122
Orillia, Slavin v. 359, 439, 443. 487
O'Rourke, Reg. v., 202, 417
Ottawa, Leprolion v., 220, 342, 380,
414, 433, 442
Page y. Griffiuli, 473
Paige V. Griffith, 482
Papin, Ex parte, 482
Parker, Johnstone v., 117
Parsons, Citizens v., 96, 105, 200,
207, 210, 213, 349, 353, 407, 420,
455, 400, 464, 407, 511
Pattee, Reg. v., 402
Peake v. Shields, 189. 235, 394
Penley v. Beacon Ass. Co., 57
Pennock, Stinson v., 121
Perkins, Ex parte, 471
Peters, Danahers v., 300. 304, 306
O'Regan v,, 366
Pharma. Ass. Quebec, Bennett v.,
348, 373, 482, 487
Phelon, Kavanagh v., 93
Phelps, C. S. Ry v., 121
Phillips V. Eyre, 59, 140, 155, 178,
195
Picton, The, 230, 384
Reg. v., 139
Pigeon V. Recorder's Court, 373,
447
Pillow, Ex parte, 373, 487
Plante, Reg. v., 417
Plummer Wagon Co. v. Wilson, 433
Pope V. Griffith, 472
Porter, Reg. v., 89
Portland, Maher v., 500
Poulin V. Qneheo, 302
Powell V. Appollo Candle Co., 183
Foyntz, Johnson.v., 398, 470
Prince Ed., License Com. v., 436
Protection Ins. Co., Grant v., 91
Providence, The, 68
Pulido, Musgrave v., 150, 158
Pnrdy, q t„ v. Ryder, 124
Q.
Quebec, Blouin v., 362, 482
Queddy Riv. Driving Boom Co. v.
Davidson, 383, 459, 535
Queen's Ins. Co., A.tty.-Genl. Que-
bec v., 214,432,446'
Quirt v. Reg., 354, 392, 464, 531
R.
Radloff, Atty.-Genl. v., 410
Ramsay, Craw v., 56, 184. 192, 245
Ransom, Richardson v., 471
Raphael v. Verelst, loO
Recorder's Court, Pigeon v., 373, 447
Rector St. James. Hasen v., 93
Receiver G. of N, B., Maritime B.
v„ 141, 241, 245, 25ii, 255, 261, 301,
307, 318, 324, 325, 342, 419, 443,
529
Redfield v. Wickham Corp., 459
Redpath v. Allen, 179, 195, 227
Reed v. Atty.-Genl. Quebec, 213,
316, 428, 433, 438
Reg. v. Araer, 143, 254, 259. 303,
316
V. Anderson, 57, 185, 187
V. Appleby, 93
V. Bank N. S., 136, 151, 303
V. Barnes, 126
V. Bell, 117
V. Bennett, 471
V. Bertrand, 142
V. Bittle, 415, 474
V, Boardman, 408, 410, 412, 481
V. Bradshaw, 416, 469
V. Brierly, 191, 193, 195
V, Burah, 177,182,441,481
V. Bush, 238
V. Carr, 185
V. Chandler, 342, 396, 398, 470
V. Coll. of Phys., 67
V. Coote, 238, 470
V. De Coste, 416
V. EH, 415
V. Eyre. 07, 159
V. Foley, 418
V. Gamble & Boulton, 113, 327
V. Gold Coramrs., 016
V. Horner, 470, 538
V. Justices of Kings, 300. 44'<
V. Keefe, 582
V. Keyn, 57, 180, 187
V. Lake, 415
V. Lawrence, 411
V. Mayor and Aid. of Norwich,
84
TABLE OF CASES CITED.
Xlll
Re^. V. McCormick, 122
V. McDouKall, 365
V. McFadden, 89
V. Mercer, 124, 125
V. Milford, 12(1
V. Mohr, 351, 449
V. Moodie, 124
V. Mount & Morris, 72
V. Nan-e-quis-a Ka, 580
V. O'Rourke, 202, 417
V. Pattee, 402
V, Picton, 139
V. Plante, 417
V. Porter, 89
V. QuJrt, 354, 392, 464, 631
V. Reno, 471, 537
V. Robertson, 351, 385, 414,
474, 480, 488, 531
V. Roblin, 117
V. Roddy, 408, 409, 415
V. Row, 122
V. Schram & Anderson, 65, 379
V. Seeker, 117
V. Severn, 194, 364, 430, 448
V. Shaw, 161, 412
V. Sherman, 60
V. Slavin, 60
V. Taylor, 67, 214, 229, 374, 432
V. Toland, 228, 236, 469
V. Wason, 217, 410, 413, 415,
474, 478, 487
V. Wellington, 354, 388, 531
V. Wing Chong, 616
Abraham v., 312
Exchange B. v., 136, 138, 141
Fredricton v., 206, 349, 363,
370, 407, 616
Hodge v., 182, 202, 213, 216,
324, 358, 363, 364, 370, 425,
474, 480, 481, 486
Maritime B. v., 136, 138, 142
Muskoka Mill Co. v., 312
O'Brien v., 312
Riel v., 183, 347, 555
Sproule v., 615
St. Cath. Milling Co. v., 307,
404, 438, 524, 526
Reid V. Inglis, 125
Renand, Kx parte, 350, 496, 509
Rex. V. McLauglin, 79,J)2
V. Vanghan, 58
Reynolds v. Vaughan, 615
Richard, Atty.-Genl. v., 601
Richmond, Noel v., 362
Richardson v. Ransom, 471
Ridsdale & Brush, lie, 492
Ritchie, Ex parte, 94
Lenoir v.. 129, 317
Roberts, Garrett v., 122
Roddy, Baldwin v., 100
Rodney Ld., Lindo v., 83
Ronan, McDonald v., 89
Ross, Hearle v., 122
V. Torrance, 388
Routledge v. Low, 57, 73. 186
R. C. Sep. Schools, In re, 223, 494
Trustees of, v.
Arthur, 494
Royal Can. Ins. Co. v. Mont. Ware.
Co., 389
Russell V. Reg., 202, 210, 213, 216,
345, 348, 358, 363, 414, 431, 445,
465, 486
Ryan, Clarkson v., 516
Ryder, Purdy, q.t., v., 124
s.
Sabine, Comyn v., 151, 159
Santos V. lUidge, 57
Sawyer, Tarratt v., 91
Sayre, Gilbert v., 93
Schram & Anderson, Reg. v., 65, 379
Bchultz V. Winnipeg, 388
School Trustees, lioard of, v. Grain-
ger 494
Scott V. Henderson, 89, 91
Seeker, Reg. v., 117
Sep. Schools, In re R. C, 223, 494
Severn v. Reg., 194, 364, 430, 448
Shaw, Reg. v., 161, 412
Shea, V. Choate, 99
Sheldon v. Law, 126
Sherman, Reg. v., 60
Shey V. Chisholm, 90
I Shields, Peak v., 189. 235, 394
Shoolbred v. Clark, 394, 459
I Simmons & Dalton, In re, 240, 286
Sinclair v. Mulligan, 581, 598
Slavin v. Orillia, 359, 439, 443, 487
Reg. v., 60
Smiles v. Belford, 67, 403
Smith, Ex parte, 232, 346
V. Cooper, 114
McDonell. v. 335
V. McGowan, 65
V. Meth. Church, 116
Merchants B. v , 387
Torrance v., 122
Smyth V. McDonald, 88
S. W. Boom Co., McMillan v., 382
Spencer, Harrison, v., ,58
Sproule V. Reg., 615
Squier, R*-, 73, 514
St. Catherines Mill Co. v. Reg., 307,
404, 438,524,526
Stark V, Ford, 116
XIV
TABLE OF CASES CITED
St. Ann's Mut, Eld. Soc, McClana-
gan v., 401
St. Johns, Cen. Ver. Ry. v., 351, 384
St. Lawr.Nav. Co., Normand v., 382
Steele, Beard v., 374, 387
Stewart, Atty.-Genl. v., 94, 103,111,
113, 114
StinRon v. Pennock, 121
Stuart V. Bowman, 131
Suckling, Anglo Can. Mus. Pub. Co.
V. 403
Suite, Three Rivers v., 362, 364, 439,
443, 445
Sussex Peerage Case, 57, 136
T.
Tai Sing v. Maguire, 61G
Tarratt v. Sawyer, 91
Tarte v. B^ique, 481
Taylor, Barton v., 263, 326
Reg. v., 67, 214, 229, 374, 432
Temple, Holmes v., 350, 379
Temporalities Board, Dobie v., 50,
200, 258, 319, 459, 535
Theberge v. Landry, 171, 253, 286,
289, 325, 336, 341, 464
Thomas, European & N. A. Ry. v.,
452
Thompson v. Bennett, 73
Kilbourn v., 264
Thrasher Case, 616
Three Rivers v. Suite, 362, 364, 439,
443
Todd, Anderson v., 96, 102, 112, 114,
120, 248
Toland, Reg. v., 228, 236, 469
Toronto, Atty.-Genl. Can. v., 532
Kennedy v., 531
Torrance, Ross v., 388
V. Smith, 122
Tully V. Officers H. M. S. Ordnance,
184
u.
Uniacke v. Dickson, 77, 88, 90, 94,
127
Union Bank v. Neville, 396
Fire Ins. Co., Clarke v., 451
Nav. Co., McDougall v., 382
V.
Valin V. Langlois, 217, 231, 232,
280, 287, 288, 445
Vaughan, Rex v.. 58
Vaughan, Reynolds v., 615
Verelst, Raphael v., 150
w.
Wald, Gaston v., 121
Wall V. MacNamara, 155
Reg. v., 161
Wallace- Huestis Grey Stone Co.,
Re, 400
Ward, Hesketh v., 93, 120
V. Reid, 416
Wason, Reg. v., 217, 410, 474, 478,
487, 582
Watson, Cot6 t., 401
Way V. Yally, 152
Wellington, Reg. v., 354, 388, 531
Western Counties Ry. Co. v. Wind-
sor & Ann. Ry,, 531
Wetherell & Jones, In re, 282, 346
Wheelock v. Morrison, 91
V. McKeown, 87
Whicker v. Hnme, 114
Whitby V. Liscombe, 113, 120
White, Andrew v., 39
Whittier v. Diblee, 476
Wickham Corp., Redfield v., 459
Widder, Cronyn v., 125
Wilcox V. Wilcox, 131
Wilkins v. l^^spard, 155
Willett V. De Grosbois, 285
Williams, In re, 5S8
Williamson, Ex parte, 471
Willis, Leith v., 100
Wilson, Dillingham v., 98
Hallockv.. U2
V. Jones, 94
v. McGuire, 232
Plummer Wagon Co. v.,
433
Windsor & Ann. Ry., Murdoch v.,
399
Co., Re, 400
West. Coun-
ties v., 531
v. Com. Bank. 387
Wing Chong, Reg. v., 616
Winnipeg v. Banrett, 493, 495, 501,
508
v. Logan, 501
Schultz v., 388
Woodworth v. Landers, 264
Woolrich, Connolly v., 581
Worms, Ex parte, 538
Wright, Cowan v., 536
Wyatt v. Gore, 155
Yally, Way v., 152
INDEX TO STATUTES.
(«) IMPEMIAL STATUTES.
Magna Charta, 87, 90
Hen. III. (Charters of), 87
13 Ed. I. c. IS (Elegit), 91
27 Ed. HI. c. 17 (Stat, of Staples), 90
28 c. 3; 89
1 Rich. II. c. 12 (Escape), 94
2 Hen. IV. c. 7 (Nonsuit), 91
8 Hen. VI. c. 29 ; 89
7 Hen. VIII. c. 4 (Damages in Replevin), 91
8 c. 16 ; 87, 88
18 c. 6 ; 87, 88
25 o. 22 (Marriage), 118
27 c. 10.(Statute of Uses), PO, 92
28 c. 7 " 118
28 c. 16 " 118
31 c. 1 (Partition), 90
32 c. 9 ; 91, 124
32 c. 82 (Partition), 90
32 c. 38 (Marriage), 118
?2 c. 39 ; 93
33 c. 23 ; 161
33 c. 39 ; (Crown Debts), 78
5-6 Ed. VI. c. 16 (Sale of Offices), 124
5 Eliz. c 4 (Apprenticeship), 98
13 c. 4 (Crown Debts), 78
13 c. 5 (Fraudulent Conveyances), 91, 97
18 c. 5 (Actions by Informers), 122
29 c. 4 (Sheriffs' Fees), 93
43 c. 6 (Costs), 93, 121
21 Jac. I. c. 14 ; 88
16 Car. I. c. 10 (Star Chamber), 116
12 Car. II. c. 18 (Navigation Act), 68
13 c. 2 (Costs), 93, 121
25 c. 7; 35
XVI INDEX TO STATUTES.
1 Wm. & Mary, c. 18 ; 125
1 St. 2, c. 2 (Bill of Rights), 133, 244
11-12 Wm. III. c. 12 (Governors), 152, 160
12-13 c. 2 (Act of Settlement), 244
1 Anne, st. 2, c. 6 (Escape), 120
4 c. 16 (Bail BondsJ, 93
6 . ■ c. 9 (Escape), 120
6 c. 7 (Succession Act), 134, 244
6 c. 11 (Union Act, Scot.), 212, 357
2 Geo. IT. c. 23; 58
.'•. c. 7; 60-5
9 c. 5 (Fortune Telling), 126
9 c. 36 (Mortmain), 93, 101-116
13 c. 18 (Certiorari), 89, 94
14 c. 17 (Nonsuit), 93
14 c. 37 (Bubble Act), 69-72
20 c. 19 (Apprenticeship), 99
22 c. 40 ; 100
22 c. 46 (Attorneys), 122
26 c. 33 (Marriage), 116-9, 680
9 Geo. III. c. 16 ; 122
14 c. 78; 121
14 c. 83 (Quebec Act, 1774), 34. 65, 69, 70, 95, 96, 104, 105,
106, 122, 123. 212, 408, 4()1
14 c. 88 (Duty on Hum, etc.). 34, 36, 39
18 c. 12 (Renunciation Act), 36, 67
19 c. 70 (Certiorari), 100
21 c. 49 (Lord's Day Act), 126
22 c. 75 (Removal of Colonial Officers), 73, 614
26 c. 86; 122
28 c. 49; 122
31 c. 31 (Constitutional Act, 1791), 28, 34, 39, 60, 61, 66, 94,
105, 123, 257
39-40 c. 9 (Thelluseon Act), 58
42 c. 85 (Colonial Officers), 160
49 " c. 123 ; 68
49 c. 126 (Sale of Offices), 124
69 c. 69; (15
59 c. 96 (Apprenticeship) 98
C. Geo. IV. c. 91 ; 69
G c. 114 (Repugnancy), 63, 64, 65
11 Geo. IV. & 1 Wm. IV. c. 60 ; 73 \
1-2 Wm. IV. c. 23 ; .39, 40 . .
6-6 c. 64; 73
3-4 Vic. c. 35 (Union Act, 1840) 28, 40, 41, 54, CO, 247, 257, 298, 525
5 c. 11; 81
INDEX TO STATUTES. xvii
5-6 Vic. c. 45 (Copyright), 73
5-6 c. 76 (New South Wales), 54
5-6 c. 120 (Newfoundland), 54
6-7 c. 29; 40
7-8 c. 74 (New S. Wales), 54
y-10 c. 94; 40, 56
10-11 c. 44 (Newfoundland), 54
10-11 c. 71 (Civil List), 40, 526
12-13 c. 29; 40
12-13 c. 96; 72
12-13 c. 106 ; 69
13-14 c. 59 (New South Wales), 54
15-16 c. 39; 40
17-18 c. 104 (Merchants Shipping), 73, 187
17-18 c. 118 ; 40, 356, 421, 526
18-19 c. 55 (Victoria), 54
lS-19 c. 67 (Bills of Exchange), 600
18-19 c. 90; 601
24-25 c. 44 (Queensland), 54
26-27 c. 84 (Colonial Constitutio.ia), 421
28-29 c. 63 (Colonial Laws Validity Act, 1865), 7, 57, 59, 65, 67, 75
148, 176, 179, 186, 192, 264, 280, 327, 350, 379, 422, 627
30-31 c. 3 (B. N. A. Act, 1867), 241-546
31-32 c. 105 (Rupert's Land Act, 186«), 651
33-34 c. 52 (Lixtradition), 538
34-35 c. 28 (B. N. A. Act, 1871), 183, 271, 272, 347, 5.55, 585
34-35 c. 83; 262
38-39 c. 38 (Parliament of Canada Act, 1875), 244, 262
49-50 c. 35 (B. N. A. Act, 1886), 244, 272, 282, 582
(b) DOMINION OF CANADA.
31 Vic. c. 17 (Bank of U. C), 354
0. 40 (Militia), 379
c. 58 ; 382
c. 76 (Evidence on Commission), 232, 346
31-32 c. 24 ; 262
32-33 _ c. 3 (Rupert's Land Act), 552, 555, 580, 597
c. 23 (Perjury), 189
c. 31 (Actions against Justices), 416
c. 39 ^Costs in Actions against Justices), 47»j
33 c. 3 (Manitoba Act), 500, 508, 553, 555, 588, et scq.
c. 26 (Perjury], 189
c. 40 (Bank of U. C), 354
34 c. 5 (Banking), 387
xvill INDEX TO STATUTES.
34 Vic. c. 16 (N. W. T.), 554
35 c. 2d (Patent Act), 230, 402
36 c. 37 (British Columbia), 609
.36 c. 1 ; 262 .
c. 5 (N. W. T.), 555
36 c. 28 (Controverted Elections), 232, 289, 290
c. 34 (N. W. T.), 556
c. 35 " 557
c. 41 ; 531
37 c. 9 (Elections), 286
c. 10 (Controverted Elections), 2i7, 232, 289
38 c. 11 (Supreme Court Act), 229
c. 16 (Intolvent Act, 1875), 190, 394
c. 49 (N. W. T.), 557, 562
40 c. 7 (N. W. T.j, 558, 559
40 c. 6 (Manitoba), 587
41 c. 16 (Canada Temp. Act), 363, 369, 415, 436, 444, 445, 465, 4 6
43 c. 25 (N. W. T.), 561
43 c. 67 ; 450
44 c. 14 (Manitoba), 587, 602
46 c. 28 (N. W. T.), 561
46 c. 30 (Dom. Liquor License Act, 1883), 359, 366
4.7 c. ' (Evidence), 474
47 c. (N. W. T.) 561
48-49 c. 1 (Deputy Speaker), 293.
48-49 c. 51 (N. W. T.), 51
R. S. C. (1886) c. 5 (Electoral Franchise), 230, 240, 285, 286
c. 8 (Dominion Elections), 170, 285
c. 9 (Controverted Elections), 285
c. 10 (Election Enquiry), 285
c. 11 (Parliament), 264-7, 279, 285, 292
c. 12 (Manitoba), 589
cc. 21-41 (Ministers), 167
cc. 28-29 (Finance), 377
c. 30 (Currency), 386
cc. 32-34 (Customs, etc.), 377
c. 41; 260
c. 47 (Manitoba), 589, 602
c. 50 (N. W. T.), 510, 562, et seq.
c. 53 (Keewatin), 563
c. 70; 355
c. 109 (Railway Act), 458
c. 120 (Banking), 387 '
c. 127 (Interest), 389
c. 129 (Winding-up), 394
c. 135 (Supreme Court), 223, 229
INDEX TO STATUTES. xix
R. S. C. (1886) c. 139 (Evidence), 474
c. 144 (English Criminal Law), 97, 128, 616
c. 158 ; 413
c. 161 (Bigamy), 191
c. 174 (Crim. Procedure), 417, 473
51 c. 19 (N. W. T.), 564, et snq.
51 c. 33 (Manitoba), 600-1
53 c. 33 (Bills and Notes) 388
54-55 c. 22 (N. W. T.), 564, et seq.
55-56 c. 11 (Redistribution, 1892), 283, 285, 297, 590
(c) UPPER CANADA (1791-1840).
32 Geo. III. c. 1 (Introduction of English Law), 61, 62, 63, 69, 96,
100, 101, 102, 105, 106, 108, 109, 111, 113, 114, 117.
118, 119, 121, 125
33 c. 5 (Marriage), 118
38 c. 4 " 118
40 c. 1 (English Criminal Law), 69, 70, VI, 96, 106, 118,
123, 125, 126
2 Geo. IV. c. 11 (Marriage), 118
11 c. 30; 118
3 Wm. IV. c. 1; 101
3-4 Vic. c. 78 (Church Temporalities Act), 110
{d) PROVINCE OF CANADA (1840-1867).
6 Vic. 0. 31 ; 40
9 c. 114 ; 40
23 c. 17 (Elections), 285
26 c. 5 (R. C. Separate Schools), 491
27-28 c. 18 (Dunkin Act, 1864). 361, 369, 436
(e) ONTARIO.
C. S. U. C. c. 14 (Court of Impeachment), 514
34 Vic. c. C ^Controverted Elections), 290
R. S. 0. (1877) c. 42 (Grouping Act), 232-3
c. 181 (Liquor License Act), 358
49 Vic. c. 28 (Workmen's Compensation for Injuries), 458
R. S. 0. (1887) c. 7 (Representation), 329
c. 11 (Assembly), 328, 334
c. 44; 223
0. 61 (Evidence in Prosecutions), 474
XX INDEX TO STATUTES.
R. S. O. (1887) c. 67 (Arrest for Debt), 190
c. 93 (English Law), 97, 127
c. 124 ; 395
c. 12« ; 225
53 Vic. c. 13 ; 309
c. 18 (Trial of Forj^ery Cases), 23G, 4f)9
0. 56 (Local Option), 361, 369, 370, 414, 442
54 c. 46 " " 369
(J) QUEBEC.
C. S. L. C. (1859) c. 109 ; 316
34 Vic. c. 2 ; 472
86 c. 5 (Controverted Elections), 253, 288, 290
88 c. 64 (Temporalities Fund), 536
c. 74 ; 362
89 0. (Pharmacy Act), 373, 483, 487
c. (Controverted Elections), 253, 288
c. 7 (Insurance Licenses), 429, 446
43-44 c. 9 (Stamps), 316
R. S. Q. (1888) Art. 124 (Assembly). .H28
Art. 136-144 ; 334
53 Vic. c. 3 (Representation), 332
(i/) NOVA SCOTIA.
33 Geo, II. c. 3 ; 26, 77
1 Geo. III. c. 8; 68
12-13 Vic. c. ; 40
38 c. 25 (Controverted Elections), 290
R. S. N. S. c. 139; 90
(1884) c. 3 (Assembly), 328
(/() NEW BRUNSWICK.
8 Wm. IV. c. 1 ; 40
21 Vic. c. 9 (Parish Schools), 497
32 c. 32 (Controverted Elections), 290
88 c. 33 (Assembly), 328.
84 c. 21 (Common Schools), 496
36 c. 10; 360
87 c. 107 ; 382
50 c. 4 (Liquor License Act), 366
INDEX TO STATUTES. XXi
(J) PIUNCH EDWARD ISLAND.
26 Vic. c. 15 (Assembly), 328
37 c. 21 (Controverted Elections), 2U0
(j) BRITISH COLUMBIA.
34 Vic. No. 70 (English Law), 015
34 No. 147 ; (514
Con. Stat. B. C. c. 40 (Controverted Elections), 290
R. S. B. C. (1888) c. 22 (Provincial Constitution), ;,Ci5
fk) MANITOBA.
34 Vic. c. 2 ; 598-9
35 c. 3 ; 599
35 c. 10 (Controverted Elections), 290
38 c. 12 (Introducing English Law), 599
39 c. 29 (Leg. Council abolished), 326, 591
R. S. M, (1880) c. 5 (Assembly), 328
49 Vic. c. 11 (Mortmain), C02
49 c. 51 (Stamps), 434
53 c. 23 (Mortmain), 002
53 c. 38 (Public Schcols), 505
(0 NORTH-WEST TERRITORIJiS-
Rev. Ord. (1888) c. 5 (Controverted Elections), 290
ERKATA ET CORRIGENDA.
Pa<{e 40, line 19 — for "clearly " read " equally."
" 126, " 12 — " "we have enumerated''^ read "enunciated.^'
" 187, " 32—" "on'' read "no:'
" 194, What is said in the note (c) is subsequently qualified ; see
pp. 348-9.
" 228, The sentence beginning on line 4, is subsequently qualified.
" 289, line 18— for " 1875 " read " 1874,"
" 297, " 5— "" distribution" TQ&dL " re-distribution."
" — " 19— "" 1892 " read " 1891,"
'* 406, Reference should be made to the decisions in British Colum-
bia ; see p, —
" 429, head-line— for " sec. 91 " read " see. 92."
" 444, line 18 — for "majorities " read " majority."
" 469, " 18— " "55 Fic." read "53 F/c."
" 479, line 4— for " milked " read " milk."
" 538, note (/)— supply reference to p. 470.
PART I.
INTRODUCTORY.
THE
Law of the Canadian Constitution.
CHAPTER I.
OUR POLITICAL SYSTEM— A COMPARATIVE EXAM-
m INATION.
By virtue of a certain Act (^'), passed l)y tlie Parliament
of tlie United Kint;doni, and Her Majesty's proclamation
pursuant thereto (h), the Dominion of Canada became "a
new thino- under the sun" of the tiret day of July, 1M(J7.
The Imperial Act provides for its own citation as ''The
British North America Act, 1(S()7," hut we shall not only
save space, but coviform also to usa^e on this side of the
Atlantic, by using thi'oughout the shorter title of "The
B. N. A. Act" (c). For a (piarter of a century our form of
political organization has been, imder that Act, a "general"
govermnent (of which we shall always sp'^ak as the
"Dominion" government), charged with matters of connnon
interest to the wdiole country, and "local" governments
(to be spoken of as "Provincial" governments), charged
with the control of local matters in their respective sections.
{(() 30 & 31 Vic. c. 3 (Imp). (h) Sec. 3.
(c) Subsequent amendments are similarly entituled, but whenever it
becomes necessary to refer to any one of them, we shall, by way of dis-
tinction, add the year.
Can. Con.— 1
2 THE CANADIAN CONSTITUTION.
The spliere of political activity, assigned to each of these
two sorts of goveruinent, is carefully mapped out in the
B. N. A. Act; taken together, they comprise the most
extensive field of colonial self-government in the British
Empire to-day. The constitution, too, of each of those
governments is provi<led for, either expressly, as in the
case of the Dominion government, or by the incorporation
into the Act of previously existing constitutions, as in the
case of some, at least, of the Provincial governments.
In the preamble to the B. N. A. Act, it is recited that
the provinces of Canada, Nova Scotia and New Brunswick,
had expressed their desire f(»r a federal union into one
Dominion, "with a constitation .siniUdv in principle to
that of the United Kingdom," and the opinion is ventured
that such a union would conduce to the welfare of the
provinces, and promote the interests of the British Empire.
"Be it there/ore enacted," etc.
A clearer indication that the design of the B. N. A. Act
was to establish in Canada such a union with such a con-
stitution as was desired by the petitioning provinces, could
hardly have been given. The expression of desire to which
the Act refers in the lecital above ({Uoted, is to be found in
the third and fourth of the resolutions passed at the Con-
ference, at Quebec, of delegates from the various provinces :
"III. In framing a Constitution for the General Govern-
ment, the Conference, with a view to the perpetua ion of our
connection with the Mother Country, and the promotion of the
best interests of the people of these provinces, desire to follow
the model of the British Constitution so far as our circumstances
will permit.
"IV. The Executive authority or Government shall be
vested in the Sovereign of the United Kingdom of Great Britain
and Ireland, and be administered according to the well-under-
stood principles of the British Constitution, by the Sovereign
personally, or by the representative of the Sovereign, duly
authorized."
OUR POLITICAL SYSTEiM. 3
It slic-ild, perhaps, be noticed that these resolutions
make reference to the constitution of the "general"
government only, and the preamble to the B. N. A. Act is
capable of a similarly limited interpretation. The obser-
vation applies, too, to the additional recital in the
preamble, that "it is expedient not only that the con-
stitution of the legislative authority in the Dominion be
provide*! for, but also that the nature of the executive
government therein be declared." A perusal of the next
chapter, however, and of what is there said in reference to
the survival of the pre-Confederation provinces, — the con-
tinuity (so to speak) of their legislatures and their execu-
tive authority, — will, as we proceed, suffice to show that our
present argument applies a fortiori to the Provincial Con-
stitutions.
Reverting then to the preamble to the B. N. A. Act,
one would naturally expect that the design so clearly
announced, would be effectually carried out in the enacting
clauses of the Act. There have not been wanting, however,
those who have contended that the performance has fallen
far short of the promise ; that the B. N. A. Act is in its pre-
amble a notable instance of "official mendacity" {d)\ and
that the effect of its enactment has been, the establishment
in Canada of a system of government presenting features
jinalagous rather to those of the government of the United
States than to those of the British constitution. This view
of the Canadian constitution is quite erroneous, founded
u'poii a very superficial ol)servation of the structure of
govt-rument in this Dominion, and wanting in a proper
regard for the underlying principle, in conformity to which
((/) Dicey (Prof. A. V.)— "The Law of the Constitution," Srd ed., p. 155.
As the Professor himself would eay, " it is worth noting " that the criti-
cism of this preamble, in which he indu'ges, is inaccurate. The provinces
had expressed their desire for a constitution " similar in principle," etc.,
as a perusal of the Resolutions, above quoted, will show, and the pre-
amble tlierefore is literally true. We waive, however, this verbal criticism
of the Professor's statement, and treat it as indicative merely of his view
of the effect of the B. N. A. Act.
4 THE CANADIAN CONSTITUTION.
the pre-Confederation provinces luul been governed, and
the Dominion and its federated provinces have since been
governed, — the principle, as we shall endeavor to show,
which is the chief distinguishing feature of the British
form of {government, the Empire over, as contrasted with
the constitution of the United States. Because the union
of the B. N. A. provinces is federal, indicating, vx necessl-
tiiie, some sort of a division of the field of governmental
action, an allotment of some part of that field tq^i "centi'al"
government, the conclusion is rashly arrived at, that these
mattei-s of outward and superficial resend)lance between
(mr system of government and tliat of the neighboring
Republic, are sufficient to stamp them as essentially alike.
A closer examination of the B. N. A. Act itself, coupled
with some slight knowledge of the pre-existing provincial
corstitations, and their practical working, \vould have
sufficed to show that, in essentials, we have a constitution
not like the constitution of the United States, but "similar
in principle to that of the United Kingdom." In this
instance, at least, the Imperial parliament has not laid
itself open to the reproach addiessed in Holy Writ to cer-
i;ain unnatural parents. We in Canada lal)or under tlie
impression that we have got what we asked for ; whethei'
it is, or is not, good for us, is not, perhaps, matter for dis-
cussion in a work of this kind.
To arrive at an intelligent conclusion upon this much
discussed (juestion — to which form of government, tlu'
British or the American, does our government in principle
conform I — one must necessarily first formulate in his own
mind some definite notion of the difference in principle
between these two systems, wdth which in turn we desire
to compare or contrast ours. It may, perhaps, turn out
that a candid compari.son will <lisclose that the difference
between them should hardly be characterized as a differ-
ence in principle, — that in each the same motive power is
applied to the same end, with only some difference in tlie
mode of application.
OUR POLITICAL SYSTEM. 6
The Britisli Empire and the American Union consist,
each of a central or " national " government, with suljor-
ilinate " local " governments. The central j(ovei"nment in
eacli is the only or<>^anization entitled to internati(jnal
rt'e()(:;nition as the embodiment of the national will; l>ut it
is, at the- same time, the compi'ehensive organism which
overlies and binds to^'ether the various "local" ^overn-
ments existin*;' within the borders of the Empire or Union.
In tlu' case of the United States, the central or Federal
government has always I'eceived treatment as a tangible
"national" o;overnment over one compact territoiy ; Imt
the British Constitution has, as a rule, l)een looked at
as the constitution rathei- of Great Britain, than as an
Imperial constitution. The reason is partly geof^rapliical,
])artly historical. The Imperial constitution, as it to-day
exists, is the result of the gradual application to the
government of an expanding empire, of those principles
of local self-government which were adopted, at the start,
as the basis of the fedei'al union of the American colonies
liut this Iraperial phase of the British constitution has
been rather overlooked. If we can, in imagination, place
ourselves in the world of (say) ]77(), and try to appreciate
just to what stage the British constituti<m had arrived, it
will be found that the struou-le in Great Britain to that
date, had been a struii'ii'le between "the individual" and "the
State.' That (|uestion ha<l been finally settled, and the
individual was protected by, and subject only to, the law
of the land, and the despotism of discretionary govern-
ment was forever abolished. Next in order came the
(jUestion of "local" self-government (f). In compact Eng-
It') The federal idea is I'eally nothing more than the logical outcome
of tlie " individualistic " idea, which lies at the bottom of self-govern-
ment ; and it would bj an interesting task to trace the growth of tha
idea from it8 root in the belief that man has certain *' natural rights," and
that society controls his exercise of those rights, only to the extent neces-
sary to give proper play to the like rights of his fellow-men, up through
the growth of municipal self-government to tiie establishment of a federal
svstem of government, logical from root to topmost branch.
6 THE CANADIAN CONSTITUTION.
land, the question had not become one of practical politics
(the Irish (|uestion was not then on the carpet), hut as to
the government of the cok)nies, it loomed up larg'er and
larjrer as the colonies increased in population ; and the loss
of the Southern half of this continent is standing proof of
the failure of English statesmen of those days, to grapple
with the problem. The thirteen colonies, mutually inde-
pendent, having joined to destroy the connnon tie of sub-
jection to Great Brittiin, but desiring still to perpetuate
their union of race and connnon interest, had to face the
task of forming a central or union government, in such
fashion as to reconcile national unity with those ideas of
the right of local self-government which had been the
cause of their separation from the Empire. Schooled by
the failure of the " Articles of Confederation " to work this
result, they formulated the " Constitution of the United
States," under which they have lived and thrived for over
one hundred years (/'). That which, by revolution and a
formal written convention, they accomplished, is now
working its way out in the colonial system of the British
Empire. To-day, the right of local self-government in
the British colonies depends on the " conventions, usages
and undei-standings," recognized anil acted upon by the
statesmen who, throughout the Empire, are at the head of
public affairs. The maintenance of national unity is
legally with the government of the United Kingdom, but
there are not wanting signs of a desire for a system of
true Federal government, in which, as to matters of
Imperial concern, the whole shall govern the parts, and
not one of the parts the whole.
Viewed then as an Imperial system, the British constitu-
tion does not differ in principle from the constitution of the
(/) " I think and believe that it is one of the most skilful works
which human intelligence ever created ; is one of the most perfect organ-
izations that ever governed a free people. To say that it has some
defects is but to say that it is not the work of Omniscience, but of
human intellects." — Sir John A. Macdonald, Confed. Deb. p. 32.
OUR POLITICAL SYSTEM. 7
United States. In tlie one, by tlie written hnv of the consti-
tution, in tlie other by tlie unwritten " covventiom^" of the
constitution, the field of governmental action is divided,
and in each there exists a "national" government, charged
with matters of common concern to the whole nation, and
" local " governments, charged with matters of local concern
to the inhabitants of each of the territorial divisions
of which that nation is composed. The fact that the
" national " goveniment of the British Empire, is also the
" local " government of one of the territorial divisions of
the Empire, is an anomaly which will no doubt disappear,
but which makes no difference in principle. Although the
parliament of the United Kingdom is the supreme power
in go\ernnient under the British constitution, there is a
clear and even legal distinction between the exercise of its
authority as an Imperial parliament, and the exercise of
its authority as the parliament of the United Kingdom.
Prima facie, it acts as the latter, and there must be "express
words or necessary intendment " in order to make its acts
truly imperial — it must, in other words, act deliberately
and with intent, when it would convert itself (so to speak)
into the legislative organ of the Empire (g). So that if
it be said that the parliament of the United Kingdom is
supreme throughout the Empire, it can with equal truth
be said, that in affairs truly Imperial, that parliament
speaks the will, or what it deems to be the will, of the
whole body of the people of the Empire.
The British Empire is scattered over the whole earth,
and in the practical work of government, matters of common
concern are few and far between — much more so in fact
than is commonly imagined. Take, for example, all that
class of mattei's dealt with by the British government
under the head of Foreign A ffairs. The vast majority of these
mattei's cannot be said, in any practical sense, to be Imperial
— of common concera to the Empire — relating largely, as
{g) See post, Chap. IV. ; 28 & 29 Vic. c. 63 (Imp.) ; also Chap. IX., post.
^"^ THE CANADIAN COXSTITUTIOX,
they do, to the intercourse between Great Britain and her
Kuropean neij^hhors (li): and, as to these, the British Govern-
ment can hardly be said to act as an Imperial government.
Their recoo-nition as matters lar^^ely of "local" concern to
Great Britain, is made apparent in the case, for instance,
of many British treaties, by the reservation to the colonies,
in a numl)er of modern instances, of the riyht to share, or
to decline to share, the 1)enetit and burden of these treaties
just as each colony may see fit to determine for itself.
Mcjdern constitutional usaj^e in the British Em})ire is raj)-
idly approaching- the point where, in matters concerning
the colonies in their j^eneral relations between tiiemselves
(i), or the relations of the colonies ^-enerally with forcioii
powers, the will of the colonies concerned is «;iven effect
to, unless the will of the Emjiire as a whole should differ
therefrom, and where in matters concernin<i^ the relations of
the colonies to the ]\Iother Counti'v, those relations arc
settled by agreement as between independent negotiators.
In truth, the constitution of the Empire is as truly
federal as is the constitution of the United States. Owing
to the historical accident that the Empire is but the expan-
sion of the population of the United Kingdom, the "local"
government of the original parent stem has hitherto con-
tinued to be, as we liave said, the "national" government of
the Empire, but by gradual modification, by conventions
and usages, the functions of the British Parliament, so far
as it controls the "national" government of the Empire, are
performed according to the will of the Enjpire. The true
feileral idea is clearly manifest — to recoiucile national unitv
(h) The very fact that different jiarts of the Empire lie contiguous to
different foreign powers will, perhaps, necessitate the enlargement of tlie
sphere of local self-j^overument in the units of the British Confedera-
tion that is to be ; or, from the other view, the matters of common con-
cern will necessarily be fewer, and the sphere of the "central " j^overn-
ment narrower than is the case in a compact territory like that of the
United States.
(j) The B. N. A. Act deals with such matters.
oril POLITICAL SYSTEM. <)
with the n;;ht of local .self-<;oveniment — the very same
idea that is stamped on the w)'itteii constitution an;ree(l
upon l»y the people of the United StJites. The diHorenee
of position historically is (piite sufficient to account for
the difference of position legally. Given the indepen-
dent self-<;overninj; communities, which made up the
Amei'ican Commonwealth, the "national" o()vernment
was super-imposed to secure unity, hut upon conditions
presei'vative of local autonomy. With us, <»n the othei-
hand, the central fj^overnment stands historically first,
hut the various connnunities which j^rew out of it have,
l»v irradual concession, secured at least as full a measuiv
of the I'i'dit of local self-iiovernment as is enioved hv the
individual States, which to(;ether form the neit^'hhoi-in^
Kei)ul)lic. The sum total of conceded power at any <>;iven
period, will he found to he commensurate with the opinion
pi'evalent at such period jis to the proper line of division
between Impei-ial and local concerns.
It may, pei'haps, he contended that the "national"
j;»)verinnent of the British Empire, haviiifi^ the power to
lav down the line, which is to he the le^al line of division
between matters of connnon and matters of local con-
cern, at just such a point as to it seems proper, differs in
this respect from the "national" jrovernment of the United
States. The common description of the Federal *;overn-
ment of the United States, as a ^-ovei-nment possessed of
specially <lele<;ated })owers only, would seem to support
this <listinction. But, in truth, this special delegation is, foi-
all jn-actical purposes of government, a dele<^ation of powei'
sutHcientlv wide to enable the Federal mnei'nment to be
itself the regulator of its own sphere of authority. The
suhjeet matters are themselves comjirehensive in .scope, and
the "implied power" which Cono-ress po.ssesses to choose
sucii means as it may deem necessary and proper for
cari-yin^^ out the designed end of the "national" govern-
ment, leaves the decision as to the line of division Itetween
Federal and State matters very much in Congress' hands :
10 THE CANADIAN CONSTITUTION.
ami tliouf^htt'iil Aiiiericnn writers are not slow in asserting
that CongrusH is as fully the supreme powei in the American
political system as is the British Parliament in our Im})e-
rial system (j). But however this may he, and even if we
must go back to "We, the people of the United States" as
the supreme power in the American system, we shall find,
as mijfht be expected, that the people, as a whole, are
lej^ally the rulers of the people in parts, and that the line
of division which shall, at any moment, separate the fields
of Federal and State action, depends not on the will of the
individual States, but on the will of "the people of the
United States" — the authors of the "Constitution" as it
exists to-day — who can alter it at any time and make it
conform to their will. Cund)ersome we may think the
machinery provided for etfectin*^ any desired amendment ;
but it is there; and no one can say that the next amend-
ment will not be a simplitication of the machinery for
amendment.
Having shown the presence of the Federal principle in
the British constitution, it must be admitted that the con-
stitution of the United States, century-old as it is, carries
that principle into action nmch more logically than does
the British constitution of to-day. Were it not for the
fact to which we have alluded, namely, that the matters of
c -mmon concern, requiring governmental action, are few,
the British Empire would not long hang together in its
present hap-hazard form of federal government. The
want of legal limit to the power of the "national" govern-
ment, does not make itself seriously felt, owing to this
scarcity of matters of common concern, and to this further
fact, that the statesmen at the head of the British govern-
ment have, in the main, carefully observed the "conven-
(j) Prof. Woodrow Wilson, in "Congressional Government " 4th ed.:
" For all practical purposes, the National Government is supreme over
the State Governments, and Congress predominant over its so-called co-
ordinate branches" : p, 52. See, however, a' criticism of this work by Mr.
A. Lawrence Lowell in his " Essays on Government," p. ■16 et seq.
OUR POLITICAL SYSTEM. 11
tional" limitH, and have, in thoso tow niattei-s of connnon
concei-n, endeavoied to carry on tlie Inip»'rial ^(ovei-ninent
in accordance with the wishes of the Empire as a whoU?,
so far as, under our illogical system, those wishes are
capable of Iteing ascertained.
We have spoken of the want of legal limit to the power
of the "national" governu'.ent under the British Imperial
system. The expression is perhaps hardly accurate— the
want which really exists is the want of legal limit to the
l('(/ish(tife jxnver of the Brlfis/i, pnrHament. The result
is that the legal line of division between the fields of
Imperial and colonial government, is a most uncertain
one, although becoming less so. But although one must
ransack both British and colonial statutes to ascertain this
line, it is, when ascertiiined, and at any given moment of
time, a legal line of division, and governmental action will
be kept by the courts within its proper sphere. No judge
within the Empire can legally limit the British Parliament
as a legislative body, or treat its enactments as altra vires ;
but the very same thing may be said of that "amended
Act" of the supreme legislative authority of the Unite<l
States — its present "Constitution" — or of any future amend-
ment thereof. But under both the British and the United
States .systems — systems of government-according-to-law —
the courts charged with the enforcement of law nmst
decline to recognize the validity, the lawfulness, of any
governmental act, done by any peraon or body of peraons,
beyond the limits to which they are legally subject.
The enforcement by the courts, colonial and British, of
the legal limitations upon colonial legislative power, is
matter of legal notoriety (k), apart altogether from the
cases which have arisen relative to the division of the
field of Canadian government between the Dominion and
Provincial legislatures; and no less notorious is, or should
be, the enforcement by the courts, of the legal limits set to
[k See post, Chap. IX. ,
12 THE CANADIAN C()NSTrrrTI(>X.
^'ovcnniiental interference (otlier than })y Imperial law-
niai\in^) on tlu' part of tin; " national " anthoritie.s with
colonial rij^hts of self-j^ovei'innent (/). The "sphere of
authority" of the British })arlianu'nt, </>* </ luiv-rinik'nuilnuhi
for the Kinpire, is legally unlimited, and within that
unlimiteil sphere it may exercise its law-making })owers in
whatever fashion may appear proper to it. 'Die "sphere
of authority" of Congress as a law-makinn" hody is not
unlimited, hut ovur matters within that sphere (he it wide
or narrow), the power of legislation is plenary, and suhject
to no limitations cjipahle (if judicial enforcement.
We have not therefore discovered yet the dift'erence in
])rinciple hetween the British and the American systems of
government. It is not in resju'ct of the federal idea —
that is connnon to Ijoth : nor in respect of the rule of hiir,
the enforcement hy the courts of the law of the constitution
— that, too, is connnon ground. We are driven, therefore,
to examine the rmichlvcn) of ^-overinnent ; and here we
shall tind a difference which runs th.rou{:;h the "national"
and " local " governments alike of these two systems. The
difference in principle is not in those pai'ts of the hody
politic which exercise legislative functions, nor in those
which are executive, l»ut in the connection hetween the two
— the connection between the law-makin<;" and the law-
executing departments of government.
It nmst appear clear, upon considerati(m, that in any
country under the rule of law, the body to which by the
constitution is entrusted the power to make law, must
necessarily be the supreme power in government. The
body to which the executive functions of government are
entrusted must obey the law, and the extent of its power
to exercise its own volition entirely depends on the legisla-
tive body. That body may content itself with enacting
general laws, laying down broad principles, or giving gen-
eral dii-ections in reference to government, and in such case
(0 Campbell v. Hall, Cowp. 209.
OUR POLITICAI. SYSTEM. 13
the choice of incans, manner, and time, left with the execu-
tiv»', con.stitutes that executive a power capaltK' of exhihit-
in<'" the imprint of its own illncrcfion in the actual carrying
on of i)ul»lic afiiiirs. On the other hand, the legislature
may ^o to such length of lei^islative detail, nuiy so specifi-
cally provide the means, manner, and time, for the perform-
ance of any work of government, that the executive may
sink to the level of a purely loutine office, and the power
of any member of the executive staff to exercise discretion,
as to how or when he shall perform his duties, be entirely
taken away. The history of constitutional prt)^ress in
England is the history of the steps by which the Legisla-
ture compelled the Executive to recognise the supremacy
of law — in other words, the supremacy of the Lej^islature :
and so lonj^ as the Executive withheld this full recognition,
legislation continued to be more and more specific in its
provisions, more of a curb and fetter upon executive dis-
cretion. But now that the principle of executive responsi-
bility is recoj;-nized to the full, the tendency of legislation
is, in many matters, rather the other way; an»l many de-
tails of t^overinnental action are left to be provided for by
or^ler in council or departmental regulation, or even left to
the discretion of the ofHcial who has char<;'(> of the particu-
lar work.
It nuist be observed, too, that this supremacy of the
legislative department of government is just as clearly
api)arent under a federal system where the government is
a <4-overnment-according-to-law, as under what has been
called a " unitarian " system, under the like rule of law.
The federal idea has no more necessary relation to the
separation of the spheres of authority of the legislative and
executive departments than has the "unitarian" idea. The
Englisli constitution (view^ed as the constitution of the
United Kingdom merely) and the French constitution are
manifestations of the " unitarian " idea in government ; but,
in the former, the supremacy of the legislature over the
executive is a dominant principle ; while, in the latter, the
14 THE CANADIAN CONSTITUTION.
executive is, in many respects, recognized as above the law,
as having a law peculiar to, and moulded by itself — the
droit mhninistratif — and somewhat the same distinction
may be drawn between the two representative federal con-
stitutions, that of the United States and that of tlie Swiss
Republic.
Reasoning, a priori, therefore, one would say, that, in
both the British and the American systems, the body which
makes the law must necessarily be supreme over the body
which simply carries out the lav; when made ; and it is* not
surprising, therefore, to find that in the British system, not
only is this supremacy recognized, but, by a certain arrange-
ment of the machinery of government, the will of the law-
making body is made to sympathetically affect and control
the will of the executive in the administration of public
affairs: and the administrative knowledge of the executive
is utilized to the full in the work of legislation. The same
supremacy necessarily exists in the United States system ;
that is, the executive department of the Federal govern-
ment, or of any one of the State governments, must
administer public affairs according to law. But, in their
system, there seems apparent a determined effort to prevent
co-operation and sympathy.
What then is this arrangement of machinery to which
we have referred as existing in the British system ?
Of late years it has been found necessary to revise some-
what our ideas concerning the British constitution. The
older authorities dwell upon the division of power between
the legislative and executive departments of government,
and the subdivision, in turn, of the legislative department
into King, Lords, and Commons ; and they (m) dilate with
<|uiet enthusiasm upon the "checks and balances" provided
in and by such a division and subdivision of power.
Gradually, however, this "literary theory," safe-guarding
the ark of the constitution with its supposed division of
(m) c. g. Chitty On the Prerogatives of the Crown, at p. 2.
OUR POLITICAL SYSTEM. 16
soverei^mty into departments, each, as it were, checking
whatever of evil there might be in the uncontrolled action
of the others, and yet each supposed to be in a sense inde-
pendent of the others— gradually, we say, this theory came
to be seen to be an incomplete, and, in truth, wholly errone-
ous explanation of the working of the constitution. The
rising spirit of democracy had silently permeated the
system of government, without any apparent disintegration
of parts, but with a difference in the practical "residence"
of power, which at length challenged recognition at the
hands of those who would expound the constitution and
its law.
Of comparatively recent writers, the late Walter Bage-
hot, in his most valuable essays, attacks with vigor this
"literary theory," with its supposed checks and balances,
and as a result of an interesting study of constitutional
dynamics, arrives at this conclusion :
" The efficient secret of the English constitution may be
described as the close union, the nearly complete fusion of the
executive and legislative powers. No doubt by the traditional
theory, as it exists in all the books, the goodness of our consti-
tution consists in the entire separation of the legislative and
executive authorities, but in truth its merit consists in their
singular approximation. The connecting link is the Cabinet.
By that new word we mean a committee of the legislative body
selected to be the executive body. The legislature has many
committees, but this is its greatest. It chooses for this, its main
committee, the men in whom it has most confidence. It does
not, it is true, choose them directly ; but it is nearly omnipotent
in choosing them indirectly The Cabinet, m a
word, is a Board of Control, chosen by the legislature, out of
persons whom it trusts and knows, to rule the Nation. . . .
A cabinet is a combining committee — a hyphen which joins, a
biiclde which fastens, the legislative part of the State to the
executive part of the State. In its origin, it belongs to the one,
in its functions, it belongs to the other."
and he proceeds further to show how, by this practical
fusion, this result is clearly attained — that the will of the
16 THE CANADIAN CONSTITUTKJN.
people constitutionally expressed through their elected
representatives in the House of Commons, controls both
the law-making and the law-executing power, and is, in
vary fact, the ultimate power in government.
Mr. Dicey, in a work to which reference has already
been made, treats of 'the luiv of the constitution,' and
insists on this as the legal principle discernible throughout,
namely, the supr<nu<i<-i/ of Parllurueiif. Viewed as a legal
((uestion, the solution of the problem stops short at tlie
expression (in Act of Parliament) of the will of Parlia-
ment, and from that standpoint we may summarize the
result thus : The Imperial Parliament is supreme over tlie
Executive. By the legal expression of its will in statutory
form, it controls the exercise of executive authority : may
add to, or take from, the power of that department of go\-
Lniiiient, or may subject the exercise of executive power to
such conditions of time, place, or manner of action, as to
Parliament may seem proper. The law of the constitution
does, however, take this cognizance of the "power behind
the throne," that the method of electing the House of
Connnons is pro\'ided for by Act of Parliament.
Viewed in the liijht of the "conventions of the cimstitu-
tion," the responsibility of the executive to the legislatuiv
for the proper performance of its functions, is guaranteed
by those usages and precepts, that code of "conventions"
which provide tiiat, ui)on losing the contidence of the House
of Commons, the Cabinet must resign, and give place to an
executive whicli will command that confidence (>j).
This responsibility of the executive to the people,
through the House of Connnons — the elective branch of
})arliament — is the principle of the British constitution.
()i) The last chapter in Prof. Dicey's book is a very interesting effort
to show that the " conventions" of the British constitution rest upon a
basis of legal sanction — that the violation of most, if not all, of those
conventions, will speedily place the offender in the position of a Jaw-
breaker. This idea could hardly ba worked out in the matter of the
" conventions" as to colonial self-government.
OUR POLITICAL SVSTEM. 17
•and is worked out in o-overnnient somewhat upon tlie prin-
ciple of the endless chain. Travellin*;' in one direction
alonir the links of this cliain, we tind an executive connnit-
tee, practically app(jinted l>y, and subject to deposition at
the hands of the Coniinons, executing; upon and over the
governed those laws of the land which are made, or allowed
to remain such, l>3' that hranch of riarliament which is elected
by the people through certain ecutive machinery ap-
pointed by pai-liament, and pr.t in motion l)y the executive
committee. A revei-sal of the process leads to the same
result — the discover}^ that the motive po'wer in o-overnment
is the will of the people, and that this power works always
and only fliro(i(/h puii'inmcvf, but that, through the con-
trolling bi'ancli of parliament, the governed make their own
laws, and provide the means, and regulate the manner, l)y
and ai which they are to be governed by those laws.
k Turning now to the syst^-m of government across the
)order, we tin<l the same principle of ultimate responsibility
_ ,0 tiie people : but it is worked out in a very ditt'erent and
much less satisfactory way. We have referred to the
'literarv theorv" of the English constitution. It is not
c'erv far from the truth to sav that the United States
system is an attempt to work out that very theory in actual
practice. We may take as our example the " national "
ifovern.iunt at \\'ashington, for, as we have already said,
the type is persistent throughout both the "national" and
the " local '■ governments of the American Union, just
as the British type is persistent throughout l)()th the
' national " and " local " governments of the British Em-
:)ire. How it came about that the " literary theory " of the
English Constitution was emljodied in the Constitution of
the United States lias been the subject of fre(|uent euipiiry,
and we venture to (|Uote from a recent American work of
great merit : • .
" The Convention of 1787 was composed of very able men
of tl e English-speaking race. They took the system of govern-
ment with which th'^y had been familiar, improved it, adapted it
C.vx. Con.— 2
18 THE CANADIAN CONSTITUTION.
to the circnmstances with which they had to deal, and put it
into successful operation It is needful, however, to
remember in th's connection, what has already been alluded to,
that when that Convention was ^copying the English constitu-
tion, that constitution was in a stage of transition, and had by
no means fully developed the features which are now recogni/cij
as most characteristic of it The English consti-
tution of that day had a great many features which did not invite
republican imitation. It was suspected, if not known, that the
ministers who sat in parliament were little more than the tools
of a ministry of Royal favorites, who were kept out of siglit
behind the strictest confidences of the Court. It was notorioiu
that the subservient parliaments of the day represented the
estates and the money of the peers and the influence of tbe
King, rather than the intelligence and purpose of the Nation.
. . . It was something more than natural that the con-
vention of 1787 should desire to erect a Congress which would
not be sub.servient, and an executive which could not be despotic :
and it was equally to have been expected that they should reganl
an absolute separation of these two great branches of the system
as the only effectual means for the accomplishment of that mucli
desired end " ('<).
Prof. Wilson, indeed, shows very clearly, as one anouM
expect, that Congress is ikjw supreme over the executixe
of the federal <j;overnnient, and " sul)jects even the details
of administration to the constant supervision, and all policy
to the watchful intervention of the Standing Connnittecs
of Congress"; but he laments the lack of executive responsi-
bility to Congress. The President and the heads of tin,'
cliief executive departments of governnierit stand apnii.
isolated from Congress; bound to execute its laws, liut
with no greater influence in securing the passage of laws
ir* aid of eflective administration, or in preventing the
passage of laws which may hamper administration, than is
possessed by any other private citizen. By the terms of
the " Constitution " itself, they are debarred from seats in
(o) Wilson's Congre33ional Government, p. 307.
OUU POLITICAL SYSTEM. 19
('(in^a'oss (p), and so have no initiative in loj^nslation. On
the other liand, Conj^jress ninst <^<) to the full extent of law-
iiiakini^ in order to exercise its supremacy over the execu-
tive: hut the trouhle may he, not in the law, l)ut in the
t'Xt'cution of that law, and no matter to what extent of
di'tail the law may make provision, one may expect that an
executive, perhaps completely (ait of sympathy with tlie law,
will not he a very satisfactory administi'ator of that law.
In short, there is no guarantee of that harmony ])etween
tile le;;'islative and executive departments, that sympatliy
and co-operation, without which there must necessarily
arise constant friction, lack of continuity in policy, and
even a deadlock in the administration of puhlie ati'airs.
C'on<^ress and the executive are responsilde, each directly
to the people: hut the retention of the confidence of Con-
gress is in no way a condition to the retenti')n of office
Con^^ress has no such pt)wer to depose the executive as
has the House of Commons in the En<;-Iish constitutional
system. M(jreovcr, the constant possihility of party diver-
sity between the Executive and Cone-ress, renders it very
difKcult to fasten responsibility upon either. This difficulty
is thus stron^dy put by Prof. Wilson, in the work from
which we have already (pioted:
" Is Congress rated for corrupt, or imperfect, or foolish legis-
lation ? . . . . Does administration blunder and run itself
into all sorts of straits ? The Secretaries hasten to plead the
unreasouahle or unwise connnands of Congress, and Congress
falls to blaming the Secretaries. The Secretaries aver that the
whole mischief might have been avoided, if they had only been
I allowed to suggest the proper measures ; and the men who
: framed the existing measures, in their turn, avow their despair
[ of good government, so long as they must entrust all their plans
to the bmigling incompetence of men who are appointed by, and
responsible to somebody else. How is the school-master, the
nation, to know which boy needs the whipping? " (7).
(p) Art. I., sec. 6. {q) Congressional Government, p. 283.
20 THE CANADIAN CONSTITrTlON.
In tlu' preface to the Hame work, the distinction between
the British and the America)! svstenis of m)Verinnent is
shortlv stated, in. lanmia<;e which we have no liesitation in
adopting'.
"It is our legislative and administrative machinery which
makes our government essentially different from all other great
governmental systems. The most striking contrast in modern
politics is not between Presidential and Monarchial governments,
but between Congressional and Parliamentary governments.
Congressional government is ( 'ommitU'c government ; Parliamen-
tary government is government by a responsible ( 'dhinet ininiHtri/.
" These are the two principal types which present them-
selves for the instruction of the modern student of the practical
in politics : administration by semi-independent executive agents,
who obey the dictation of a legislature to which they are not
responsible; and administration by executive agents, who are the
accredited leaders and accountable servants of a legislature
virtually supreme in all things."
Neither need we hesitate to oive expression to onr
decided preference for the system of cahinet o-overnment
which obtains in En^'land, when we find so tliouyhtfnl a
writer as Prof. Wilson — a citizen of the Republic at that —
doino- the like.
After tliis comparison of the tw(^ leadin<;" types of
Anglo-Saxon self-government, it is easy to decide to which
the Canadian constitution conforms.
Wo sliall liave occasion to again refer to the limits set
to our right of self-goverinnent, l)y reason of our colonial
subjection to the ultimate supremacy of the Imperial
parliament. In this chapter, we have endeavored to show
that this subjection is but that subordination of a "local
to a "national" government, essential in any truly federal
scheme of government. If, indeed, to establish our position,
we must show that some one parliamentary body, elected
by a Canadian electorate, is possessed of the ultimate
sovereignty in Canada • over every conceivable subject
OUR POLITICAL SYSTEM. 21
inattcr of {^^ovenunentnl action, the discussion need f(o no
further; for, achiiittedly, we are a colony of Great Britain,
and in the ultimate le<;al analysis our ^^overnnient is from
without. This, however, is not, we take it, the point of
distinction.
I If we can slunv that so far as the ri^dit of local self-
' irovernment — the riy-ht to make the laws by which we are
to he governed, and to execute those laws as suits ourselve.s
— has heen conceded, our power is exercisable, the law-
makin<r i>ower with the same efficacy, and the law-execut-
iii*.'^ power, un<ler the same principle of responsiljility to
parliament, and, through parliament, to the electorate, as in
the United Kino-dom, we shall have established our propo-
sition.
I To any one who has knowledjj^e of the con.stitutions of
the provinces prior to confederation, it is unnecessary to
point out, that since the conce.ssion of " Respon.sible Govern-
l meiit," and up to bS(j7, those constitutions were "similar in
\ principle to that of the United Kintifdom," and that all that
I has been said in reference to the British constitution
I might be repeated in reference to (old) Canada, Xov^t
I Scotia, and New Brunswick.
Nor will it bo contended that, under the B. N. A. Act,
the sum total of our rights of .self-government has been
lessened ; in fact, as we shall have occasion to show, that
sum total has been largely increased, both legally and by
"conventions." And no one who knows the actual work-
ing of the machinery of government in Canada, will con-
tend that we have, either in the Dominion government, or
the government of the various provinces, other than a
liarliamentary government.
It has been usual to speak of "the division of power"
under a fe<leral system. In truth, this form of expre.ssion
is most inapt, and very inaccurately describes the division
of labor which really exists. Its thoughtless use has l)een
fruitful of nuich misconception of the true line or principb^
22 THE CAXADIAX COXSTITITIOX.
of division. Bearinj^ in njin<l what is involved in the term
jrovernnient — lii\v-niakin<;' and la\v-execntin<;' — and the co-
extensive and coHiplenientaiy splieres ot" action of those
two cliief departments of n()vernnient, we shall find that
there is, in our system, no "division of p(nrct'" in the sense
in which such division was, by the older writers, errone-
ously assumed to exist under the British form of ^ovei'ii-
ment ; and certaiidy none in the sense in which such
division does actually exist in the individual systems of
the United States. Our simile of the endless chain may.
perhaps, serve to impress the true i)rinciple of our form of
government upon the reader, and that principle underlies
the practical working of each and eveiy of our govern-
mental organizations. Dominion and Provincial.
The true line of division is this: The various suhject
matters, with which government can he supposed to have
anything to do, are divided into two gn.'at divisions (rj
— matters of general and matters of local concern — l)ut to
each of such divisions, the full e(]uipment of powei', legisla-
tive and executive, is given. There is no di\'isioi.\ of function
in the sense that as to any given subject matter, legislative
})ower resides in one organization or government, and execu-
tive power in another; as to any given suliject matter, the
full power of government rests in one and the same govern-
mental Ijody. Tlie Dominion government and the Provincial
governments are (each within the sphere of its legitimate
operation) carried on, on the same principle as the govern-
ment of the United Kiug<lom. .]uris<liction as to sul»ject
matter conceded, the will of the legislature. Dominion or
Provincial, is supreme over the executive, in the same sense
as the will of the Imperial parliament is supreme over the
executive in the United Ivingdom. The legal principle, so
strongly insisted upon by Mr. Dicey — the supreniacy ol
parliament — as clearly appears here as in the Unite<l
Kingdom ; while, for the " conventional " aspect of the
()•) See Bank of Toronto v. Lambe, 12 App. Cas. 587, and post, Chap. X.
OIU POLITICAL SYSTEM, 2^^
HK'stion, it iH only nccosHaiy to curry the coinparison ono
xti'p iurtluT, iin«] point out that, us in tiie United Kin^dom^
.s') lioi'L', the ultimate ivsponsihility oF the executive to the
leetorate, thi-ouuh the elective hi'anch of the le<aslature,
is cleai"!^' estahlished, in relation as well to each provincial
as to the Dominion o-ovornment. The elective l»i"anch ol'
;he leu'islatui'e (I),>niinion Parliament or Provincial Leijis-
ative Assemhly) represents, and is directly responsilde to,
;he electorate — as in the United Kin;;<ioni. The Execu-
;ive Couunittee (the cabinet) composed of mend)ei's of the
ej,dslature, holding" their positions by virtue of, and con-
tingently upon, the retention of the confidence of Ihe
elective bi-anch of that Le<;islature, are therefore, practically
lirectly responsibUi to that elective brancli — as in tlie
nited Kingdom. The same chain of connected relation,
he same source of motive power, and the same method of
p[)iyin;i' that power to the work of ^ONernment, exists in
jach of our n'overnmental 1)udies, as in the United Kint--
ioni.
In this \iew of the Canadian constitution, the extent
o which tlie executive department of the Dominion
government may exercise, over Acts of the provincial
eirislative asseml)ly, the power of disallowance, will appear
quite innnatei-ial when it is borne in mind that this powei-
8, in any pven case, exercised under the same responsi-
>ility (<lirectly to the Dominion parliament, and indirectly,
throu«;-h the elective brancli of that parliament, to the elec-
torate) as exists in relation to the exercise of any othei-
executive power lodo-ed in the hands of the Dominion
<;<)vernment. And so as t) au}' other points of contact, or
exenconHict, between the Dominion and Provincial <'(>vei'n-
ments — or, for that matter, between two local jfovernments
— for its conduct with re*rard to such mattei- of contact or
conHict, for its action or inaction, each i(overnnient (execu-
tive and legislative department alike) is responsiltle ulti-
mately to the electorate, who condeuni or approve in the
very same way and Mith like results as in the case, i'or
24 THE CANADIAN CONSTITUTION.
example, of a conflict between Lonls and Connnon.s in tlic
United Kin<,^donj.
Nor would it make the Hli^litest diflerence, it* (as was
held in certain ((uarters, for .some year.s after 18(57,) concur-
rent power over many suliject mattei-H were, by the B. N. A.
Act, allotted to lioth the Dominion and Provincial govern-
ments, and if the true construction of that Act were, tu
subordinate provincial le^jfislaticm upon such matters, to
Dominion lej^islation thereon. Colonial le<^islation is com-
pletely subordinate to Im[)evial, and to the extent of its
" ropuf^jnancy " to such Imperial le^^islation, is utterly void ;
and yet no one, we fancy, would contend that, by reason of
Huch sul)ordination, the constitutions of the pre-Confedera-
tion provinces, for example, were other than constitutions
similar in principle to that of the United Kintjjdom. The
sphere of their power of government was lindted liy reason
of their colonial status, but .so far as they liad power, that
power was exercised through the same medium of respon-
sible parliamentary government. And so now, under the
B. N. A. Act, each govx^rnment, Dominion or Provincial,
has limitations set to its sphere of operation, but each,
Vi/ithin its sphere, is a responsible parliamentary govern-
ment.
CHAPTER II.
THE PRE-CONFEDERATION CONSTITUTIONS.
To ))r()pL'i'Iy a]>])ivc-iute tlio iiR'i'its or accuriitcly noti^
the (k'ft'cts of anv t'onii of mnernnit'iit, it iiuiHt lie studied in
its actunl present working — examined, so to speak, in motion
— and if the B. N. A. Act were the creation of a y;overn-
iiiental or<;anism, new in all its parts, we mij^ht lack justitica-
tion for in(hd(^in(jj in historical retrospect l>ack of liS()7. But,
just because the slate was not cleaned, just l)ecause many
parts of the machinery of government existing in thf
pi'ovinces prior to Confederation were continued in the new
plant set up in the various provinces, it will be necessary
to examine the earlier constitutions of those provinces,
indeed, it will appear that in at least two of them, New
Ihunswick and Nova Scotia (^0, the governmental ma-
chinery was left l)y the B. N. A. Act almost intact, and new
plant was provided only for the Domini(m government and
the provinces of Ontario an<l Queltec {!>). These reasons,
here ur<^Hd in ])rief, will develop themselves more at len<;th
as we prof^ress in our examination of the scheme of j>'overn-
ment contained in the B. N. A. Act. To avoid undue
repetition, the proof must he somewhat delayed. In any
case, a short histoi'ial retrospect would probably not be
considered out of order.
("() The same remark applies to British Columbia and Prince Edward
Island upon their admission to the Dominion.
('/) And aftai'Wiirds for Manitoba and t!ic North West Territories.
20 THE CANADIAN' COXSTHTTIOX.
With tlic view, then, to (k'tuniiine tlio luiturc of tlie coii-
wtitutioii of <;ovt'nmu'iit in the varioUH pi-ovinceH of wliicli
till' J)oiiiinion is coinposLMl, we proei'ed to (Hscuhh hi'ieHy,
and so fur only as is necessary to a pi'oper appreciation of
oui" present .s^'steni, the ct)nstitutional history of those
provinces.
To Nova Scotia helont^s the distinction of Kein'*' the
ol<lest of the B. N. A. colonies now forniin*;- part of the
Dominion. The preanihle to one of the earliest Acts (r) of
tlie Nova Scotia Assenihly (17of)), declares that " tliis pro-
vince of Nova Scotia, or Acadie, and tlie property thereof,
<lid always of ri<;ht l)elon<;' to the Crown of Eno-hind, hoth
1»3' priority of discovery and ancient pos.session." The
correctness of this declaration, France would prohaltly not
a(hnit ; hut tlie contest would he of anticjuarian interest
merely, for by the treaty of Utrecht, in 1 718, "Nova Scotia,
or Acadie, with its ancient houndaries," was ceded l>y
France to the Crown of En^'land in the most ample term-^
of renunciation. Nova Scotia, as thus ceded, included the
present provinces of Nova Scotia (excluding; Cape Breton)
and New Brunswick, and also part of Maine. For many
years after its ac(|uisition, Nova Scotia was practically
under the military rule of a governor and council, whose
autliorit}^ was defined in the governor's connnission. In
I74f), a colonization scheme was set on foot, and anticipating;'
an influx of settlers into the colony, the connnission to
Governor Cornwallis, of date 1749, authorized the sum-
monino" of "jU'eneral assenddys of the free-holders and
plantei's wiu'iin your government, according to the usage
of the rest of our colonies and plantations in America. '
After nmch delay, and the exhibition of much unwilling-
ness on the part of the governor and his council to act
upon this direction, a scheme of representation was settled,
jind the first parliament of Nova Scotia met on the second
t)f October, 1758, at Halifax.
(c) 33 Geo. II. c. 3 (N. S.).
I'KE-C< »X KKDKUATIOX ('( >N'STITrTloNS. 2 i
In 17():i, the rt'inainin;,^ portioiiH of what arc now known
5isth<' Maritime PiovinccH— Cape Breton an<l Piinec Kdward
Jsland — were, l»y the treaty of Paris, ceded to (ireut Britain:
.•and, hy the prochiniation whicli followed, wer«.^ annexed
"to onr trovernnient of Nova Scotia."
Six years hiter, PhiM'E EdwahI) Island was made a
tirparate province, under a o-overnor of its own, wIiosl-
'Cdiamission, also, anthoi'ized the callinj;' to;4ether of "oenei-al
iissemhlvs of the freo-holders and planters, within voni-
_^()vernment, in such manner as you in your discretion
shall jud^e most proper," and according- to further instrne-
Hons. The first parliament of Prince Edward Island mi't
jn 177.S.
In 17(S4, New BurxswifK was made a separate province,
Avith a y-overnor of its (jwn ; and his conmiission, too,
luithoi'i/ed, in somewhat similar phraseology, the summun-
in;;' of a <;vnera) assemhly, which shortly thereafter met.
Of Cai'E 1>|{ET()\'s constitutional vicissitudes it is un-
necessary to make mention {<!). Finally, in 1820, it was
j'e-annexL'd to the o-overnment of Xova Scotia, of which
proN'ince it has evei' since formed, and now forms, ])art.
So far as .the Maritime Provinces {<') are concerned, the
le;4islatures of to-day, in those provinces, are the lineal
descendants of those early "general assemhlys." But, as we
must show, the sphere of their authority in i^'overnnient, in
l.S(j7. when Nova Scotia and New Brunswick (/') became
part of the Dominion of Canada, was very ditferent from
their sphere of authority in 175S, and for many years
thereafter.
Quebec — not tlie present province of that name, hut
:[)ractically the now provinces of Quebec and Ontario — was
(d) They are set out at length in 5 Moo. P. C. 2oi) : In re The Island
■of Cape Breton.
(e) The documentb relating to the early constitutions of the IMaritinie
Provinces are set out in Return No. 70, Can. Sess. Papers, 1883.
(/) And so as to Prince Edward Island in 1873. See iwst.
2S THE CANADIAN CONSTITUTION.
ceded to Great Britain by the same treaty of Paris, which
secured Cape Breton and Prince Edward Island. Tlie
proclamation ([/), to which w^e liave ah-eady referred, which
followed upon tlie cession, simply annexed Cape Breton
and Prince Edward Island to the government of Nova
Scotia, but erected Quebec into a new province, and made
provision for its government. Both by that proclamation,
and by the connnission to Governor Murray, the institution of
a representative assembly was contemplated, but, for reasons
upon w'hich it is unnecessary to enlarge, no such assembly
ever met thereunder ; and it was not until after the Imperial
])arliament intervened (for the second time) in the govern-
ment of the B. N. A. provinces — after the passage of what
is known as "The Constitutional Act, l7dl" (h), dividing
Quebec into the two provinces of Upper and Lower
Canada, and providing for a separate legislature in each
province — that such assend)lies met ; that of Upper Canada,
at Niagara, on the 17th of September, 1792, and that of
Lower Canada, at Quebec, a few months later. In 1840, the
two provinces of Upper and L ower Canada were, by what
is connnonly known as "The Union Act" (/), joined together
in a legislative union, which lasted until the birth of the
Dominion (j).
We nuist now retrace our steps, in order to take a com-
prehensive view of the nature of the government which was
established in the various provinces ; and, in taking such a
N'iew, it will be, to say the least, convenient to treat of the
statutory constitutions of the Upper Provinces separately,
and to confine our attentior, in the first place, to the con-
stitutions established (in the exercise of the prerogatives
of the Crown) by means of the conmiissions and proclama-
(//) See Houston, Constitutional Documents of Canada, ]). 07.
(/() ai Geo. III. c. ai (Imp).
(0 3 & i Vic. c. 35 (Imp).
(j) We defer consideration of the constitution of Britisli Columbia,
and of Manitoba and the North West Territories until a later stage. See>
post.
PHE-CONFEDEH. TK )X C( )XSTrrUTIO\S. 20
tions, to wliich we luive refeiiv<l We ina}' suy at once
tliat, alono- Ijoth lines, this survey is undertaken in or<lei'
to show that, prior to the date of Confederation, the
Imperial ^-overnnient had, in a tanoil)le wa}' — evidenced
partly l»y dispatches, partly l)y instructions, partly l»y
statutory enactments, partly, perhaps, l»y lono- disuse of
power alonji' certain lines — put upon record their reco^-
niti(m of the necessary C(mnection which nuist exist
; between the lei^'islative an<l executive departments of
Ijovernment, as well in the case of a colony as in the case
of the United Kinti-dom.
As a preliminar\' to this survey, it is almost indispens-
^able that we should a^ain refer to M'hat was, in the latter
part of the eighteenth and the earlier decades of the nine-
teenth century, the accepted explanation of that scheme of
^•overjunent known as the " Biitish Constitution." In
"those days, the chief connnendati(Mi hestowed on that con-
stitution was on account of the complete separation, as
was supposed, of the legislative and executive powei' —
legislative supremacy in the parlmment, executive supre-
macy in tlie Crown. Opportunity for interference hy })<'ir-
lianient to control and regulate executi\e action, was lai-gely
the result of the financial necessities of the-executive head
[)f the nation : Imt, to the extent to which the revenues of
fch'- Crown rendered that executive head independent of
parliament, the government of the nation was freiiuently
carried on without that hodv beinji- s\nnmone<l toiiethei-.
How the change was gradually brought about, until now
the supremacy of parliament over the executive, is a clearly
estal)lished prhiciple of the Britisli constitution, it is
beyond the scope of this work to trace (/,•): but, shortly
stated, it would appear to have l)een efi'ected by the judici-
ous use of the power over the purse strings, in order to
secure the consent of the Crown to the relin(iuishment to
parliament of the most important, if not the most numer-
(/.) See May's Const. Hist , Vol. ii. p. 39.
so THE CANADIAN CONSTITUTION.
icnlly, of those ' comniqii law ' povvei-s of the executive
known us " the prerooutives of the Crown." But, Jit the
time of wliich we. write, the <;"overnnient of Oreut Britain
was, to an extent very nuich lart^er tlian at present, carried
on }\y the exercise of these prero<^atives — that is to say, was
hir^-ely an executive government — and of no department
was this more true than of tlie colonial, "the Board of
Trade and Plantations." The very facts to wliich we have
alluded — that for very many years after the settlement of
Nova Scotia (practically until the B. X. A. Act), no legis-
hitive interference by the Imperial pai-liament, in the r^overn-
ment of the ^Maritime Provinces, took place — that provinces
were enlar^vd, di\'ided, joined, all without Act of parlia-
ment— and that, without Act of parliament, representative
assemblies were established therein — make manifest the
<'xtent to which the ^'overnment of the early provinces was
ill the nature of executive ^'overnment, l)y prerofj^ative.
xVnd vet not entirely so, for in tlie celebrated case of
Campbell v. Hall (/) involvini^ a consideration of the pro-
clamation of 17G3 (in its relation to Grenada), it was decided
by Lord Manstiehl, that, alth(ni<;'li on the acipiisition of new-
territory by contpiest or cession, the Crown, without par-
liament, may make laws for the government of the con-
quered or. ceded territory {m), nevertheless, on the grant to
the inhabitants of the right to make laws in and b} a
representative assembly, the prerogative right of the Crown
to make laws in respect of the internal government of the
colony is forever gone, and that, thereafter, the Crown
stands in the same relation to the representative assembly
of the colony as in England to the Imperial parliament :
and any withdrawal of the colony's right to make laws can
only be effected by the Imperial parliament {a).
(/) Co.^p. '201.
(ih) This was one of the prerogatives anne.xed to the Crown as com-
mander-in-chief—a rif^ht arising by conquest.
(//) See iHMt, Chap. VI., In re Lord Bishop of Natal, 3 Moo. P. C.
(N.S.) 148.
PRE-COXKEDEkATION CONSTITUTIONS. 81
Sv) far, however, as related to the executive functions
(if (foverniiient — tlie athniuistration of public affairs, the
execution of the laws of the colonies (whether imposed by
imperial or colonial le^-islative authority), the collection and
expenditure of the public revenues, and the appointment
and control of the executive ofiicials necessary to these
en<ls — the thetu'etical independence of the executive, which,
as we have shown, obtained in Enn-hmd, was carried to its
l)i-actical result in the work of government in the colonies.
Theoretically and, indeed, le^'ally, the executive head of
the nation, by virtue of its position as a constituent l)ranch
of parliament, could prevent encroachment by the ieeisla-
Unv u})on the prerogatives of the Crown — that is, upon the
executive dt-partment of government — lait the financial
necessities of the executive in En(;"land (gradually le<l, as
we have before observed, to the surrender to parliament,
or at least to parliamentary control, of the entire executive
I ;;'overnment of the nation. The C^'own occupied, in the
colonies, the same position as a constituent branch of the
leeislature of a colony, l)ut the financial necessities of the
executive p)veriuaent were, in these early days of our
colonial history, su largely met by the revenues arising
from the sale of the Crown lands, fines, tolls, and other
royalties of various soits, and, for the balance, provided
fir in the Imperial I ludget, that the executive of a colony
was to a large degree independent of the coh^nial Jissenddy.
That the early "asseml)lvs" of the provinces were
inten<led to lie confined to purely legislative work, and
that, in the doing of it, they were not to interfere in the
executive government of the colony, is apparent when we'
come to study somewhat more closely the counnissions
of the early governors-7-which were in truth the charters
of government in those provinces.
There is no essential difference in the terms of the com-
missions to Governor Cornwallis (Nova Scotia), Governor
Patterson (Prince Edward Island), Governor Carleton (New
'82 THE CAXADIAX COXSTITUTIOX.
Brunswick), and Governor Murray (Quel tec): and we there-
fore take for connnent the first commission wliicli conveyed
autliority to sunnnon ^m assembly in the provinces now
forminfj^ part of the Dominion — that to Governor Cornwal-
lis (o), of Nova Scotia. " For the Itettei' ailministration of
justice, and the mana^'ement of the pulilic affairs of our
said province," the ^'overnor was authorized to appoint
"such fittino- and discreet persons as you sliall either find
tliere, or airri/ along with, yon, not exceeding- the number
of twelve, to be of our council in our said pj-ovince. As
also to nominate and appoint, by warrant under your han<l
and seal, all such other ofticei-s and ministers as you shall
ju<l<re proper and necessary for our service, and the ^oo(\ of
the people whom we shall settle in our said province until
our further will and pleasure shall be known." Subse-
(juent appointments to till vacancies in the council were t )
be made 1)y the authoi'ities in /'JiH/lmnl. With tlie advic.^
and consent of this council, the o()ve)'nor was empowered
to establish courts of justice, and to appoint all the neces-
sary ministerial and judicial officers in connection there-
with. The public revenue was to be disbursed by the
j^overnor's warrant, issued by and with the advice of the
council, with this limitation, however, that it was to be
disposed of by the o-overnor "for the support of the ^"ov-
ernment, and not othei'wise." It is hardly to be wondered
at, havino- in view the mode of appointment, and of tilling-
vacancies in this council, that the executive <;'overn.nent of
those days came to be designated by the familiar phrase —
" the family compact."
Turnin<4' now, to the part played in ^'overnment by the
assenddies, and referrin(»' a<>'ain to tlie commission to Gover-
nor Cornwallis, we find him connnanded to ^'overn the
colony accordin<)^ to his connnission, the instructions there-
with, or to be thereafter given (from England, of course),
" and according to such reasonable laws and statutes as
(o) Houston, Const. Documents, p. y.
I'J{E-C()XFEI)EUATI()N' COXSTITUTIOXS. 33
liereafter whall bo mude or a^j^reetl up m hy you, witli tlie
advice and consent of our council and the as,senil)]y of our
said provinces."
The let^ishitive power of tlie governor and assend)ly, is
in terms aniple : "To make, constitute, and ordain hiws
. . . . for the puhlick peace, welfare and |^-ood ji'overn-
ment of our said province .... and for the benefit
of us, our heirs, and successors : which said laws are not to
be repu(.,niant but, as near as may be, a^^reeable to the laws
and statutes of this our Kin^'doni of Great Britain." All
such laws, however, wei'e subject to disallowance by the
Jiiipcrial authorities, with no limitation as to the time
within which such disallowance should take place.
We shall have occasion to refer to the position of the
Crown as a constituent branch of the Imperial parliament
and of colonial assemblies, but the clause providing- for this
in the connnission now under examination, is noteworthy
For the frank and undis;4uised fashion in which it discloses
the reason. This clause is as follows:
" AnJ to the end that nothing may be passed or done by our
said council or assend)ly to the prejudice of us, our heirs and
successors, we will and ordain that you, the said Edward Corn-
wallis, shall have and enjoy a negative voice in the making and
passing of all laws, statutes, and ordinances, as aforesaid."
Tlu^ importance of the concession to the early provinces,
of the ri(;ht to frame the laws by which, in local mattei-s,
they were to be governed, must not be under-rated. If it
cannot be considered as in any fair sense a concession of
the ri^dit of self-(,^overnment, it must at least be admitted
that it fell short, onh- l>ecause of the theory which then
obtained, of the independence of the two de[>artments of
{j^overnment, and becau.se of the inabilitv of the leo-islative
liodies m the colonies to withhold supplies until grievances
in the executive department were remedied.
We now procee<] to Quebec, in order to examine the
^chancres in the form of o-overnment, introduceil there by
Can. Con.— 3
34 THE CANADIAN CONSTITUTION.
Imperial statutes. For eleven years after the Treaty of
Paris, the commission to Governor ]\lurray and his succes-
sors (read with the proclamation of l7G'i), was the charter
of government; but, as we have already noticed, no assem-
bly ever met in that province, and any legislation which
was considered necessary was passed by the governor and
his council. Owing to the discontent of the inhabitants,
then largely French, at the introduction (which was claimed
to liave taken place) of English civil law, and owing perhaps
to a doubt of the legality of the ordinances of the governor
and his council, "The Quebec Act, 1774" (/>), was passed l)y
the Imperial parliament. Of this statute, it is necessary
to make here only this note, that it revoked the right
to a representative assembly, and lodged l>oth departments
of govennuent, legislative and executive, in the hands of
the governor and his council : with this provision, how-
ever, that the memljers of the council were to be appointed
from the inha1)itants of the province. A perusal of the
Act discloses much milder checks on tlie legislative power
than in the c<ise of the earlier connnissions ; — no doubt
because of the union of the legislative and executive powers
of government in the same hands ((/).
By "The Constitutional Act, 1791"— the provhice of
Quel>ec having been divided Ijy royal proclamation (or
rather, the king having signified "his Royal intention to
divide his province of Quebec into two separate pi'ovinces")
— provision was made for the establishment, in each of the
two provinces. Upper and Lower Canada, of a legislative
council and assembly. Beyond giving the asseml>ly so
created, the right to legislate as to time, place and manner
(P) U Geo. III. c. 8:}.
{q) By the 13th sec. tho Governor and his conncil were expressly
prohibited from " layinj^ " taxes or duties within the province, with the
exception of local assessments for municipal purposes. By an Act of
the same session (cap. 88) provision was made for raiainj^ a revenue by
means of duties on rum, spirits, and molasses, to be disbursed by imperial
officers. See the Act; Houston, Const, Doc. p. 07.
I'UE-C()\FE1)EHATI()X COXSTITUTIOXH. 35
of l)"lilini;' elections to the fisseiii])ly, and us to the officers
liy wiioui such elections were to he conducted (/•), the Act
would, upon cursory perusal, appear to <;ive to the letrisla-
tui-e no control over the executive, nioi'o than had been
conferred on the assemblies in the Maritime Provinces: hut
there is one most important exception, to which particular
attention nuist be given (.s).
We have not, of course, overlooked the rule of law, that
the consent of the Crown, hy its representative in the
colony, to any Act of the colonial lei;-islature curtailing the
|)o\ver of the Crown in the exercise of any prerogative ri(dit,
is ;is ctlective to that end as is an Act of the Impei'ial par-
liament, in similar case: but by reascm of the refusal to
concede to the colonies the control of the revenues raised
tlierein, the colonial assend)lies were unable to force consent
to Acts in cui'tailment of prerogative. Not being al>le to
starve the executive, they were unable to hoM tlie officers
of that <lepartment to responsi])ility for the due perform-
fuice of their duties; and whether they had the confidence
of the representative branch of the legislature or not, was a
matter of perfect indifference to these executive officers.
Tlie importance, therefore, of this (piestion of revenue and
its expenditure — the power to make provision for a revenue
and to appropriate it when raised, becomes more and more
apparent as we proceed, and the (|uestion nnist now be
dealt with.
The treatment acc(n-ded by Great Britain to her colonies,
in the matter of taxation, was entirelv reu'ulated bv the
\ lew taken ni England of the necessities of Imperial "trade
anil conunerce." At first, of course, the expense of P-overn-
iiig the olonies was borne entirely bv the home t-overn-
HH-nt, but as early as 1()72 (0, the Imperial treasury levied
tribute u})on the colonies, by the impo.sition, by Imperial
('■) A parliament so firm in its claim to exclusive control over elec-
tniiis, as was the British Parliament at that time, could scarcely have
I lone otherwise.
(■>.•) See ij.M-M,. 39. (r) 25 Car. II. c. 7.
3G THE CAXAUIAX CONSTITUTION.
Act, of export (lutit's on certuin articles sliipptMl from tlio
colonieH for consumption elsewhere than in England: the
proceeds of which (luties were, of course, a set-oti' to the
expense of o<,vernment in those colonies. ])urin;.^ the cen-
tury whicli followed, Imperial Acts were from time to time
passed, providing- for the collection of hoth export and
import duties, hut always as part and parcel of the reo-ula-
tion of trade and connnerce (/')• In 1 7 (i:^ permanent pro-
vision was made with i-e^ard to these colonial duties, and
it was provide<l that the net proceeds thereof should hv
reserved for the disposition of the Imperial parliament,
"towards defrayintr the necessary expenses of defendiii;;',
protectin^^ and securin^^the Biitish colonies in America" (').
This, then, was the position of aiiairs at the time wlieii
Tef;-ular forms of civil j^-overnment heo'an to he estahlishcd
in Nova Scotia, Prince Edwar<l Island, New Brunswick
and Quebec. The al)andonment l)y the Imperial parlia-
ment, of the principle that these duties were in the nature
of re<,mlati ons of Imperial trade and commerce only, and
the extension of the Imperial power of taxation to matters
of excise — to layino- trilaite, in other words, on internal
trade — and the conseijuent loss of the southern half u\
this continent, 's a familiar story. During- the pro<>-ress()l
the struu-o-le, but too late to win l)ack the revolting- colonies
the Impei'ial parliament passed the celebrated Renunciation
Act of 177H ('«')- hy which it was declared and enacted that
"the King and parliament of Great Britain will not impi.sr
any duty, tax, or assessment whatever, payable in any et
his ]\Iajesty's colonies, provinces an<l plantations in Nortli
America or the West Indies •. except only such duties as it
may be expedient to impo.se for the regulation of connnerce:
the net produce of such duties to be always paid and applio'l
(u) 14 Geo. Ill, c. 88 (noted above) was a "revenue" Act. See post, p. 3'.'
(v) See Todd " Pari. Gov. in Brit. Col ," p. lGi>, et seq.
(w) 18 Geo. III. c. 12. This Act is, of course, powerless to bind th
Imperial parliament ; but it is a most emphatic expression of a "con
ventional" rule to be thereafter followed.
I'RE-COXFEDEHATK )\ COXSTITUTIOXS. 37
t'> iunl for the usi! of the colony, province or plantation in
which the same hIwiU he respectively levied, in such manner
as other duties collected hy the authority of the respective
;^t'neral courts or ^ejieral assemlilies of such colony, prov-
ince, or plantation, are ordinarily pai<l and applied," and
this princii)le was followed until the free trade campaij^
in Fjni,danil, led to the ahaudonment of the system of tax-
in;;- tra<le for the henetit of trade, and, with it, the re<^ula-
tion of colonial tariffs hy Imperial legislation.
])urinf^ this period, however, the practical result of the
colonial system was this. With the exception of such suni.s
as the colonial as.semhlies were minded to raise (usually ))y
the imposition of ciistoms duties), in order to the carryin*^
on ol" puhlic improvement and promotin*;' settlement, the
ivvcnues which came to the hands of the executive were,
( I ) the proceeds of customs, excise and license duties,
levied under Imperial Acts; and (2) the hereditary,
territorial and casual revenues of the Crown, eonsistinf; of
the proceeds of the sale or lease of the "waste" lands in
the colonies, tines, tolls, etc. Over the revenues ari.sing
under colonial Acts, the colonial legislatures could, of course,
and did insist on retaining power of appropriation, and,
,s() I'ar as these revenues were concerned, could withhold
supplies; hut their action in such case made no difference
to the executive, however it might do harm to the colony.
The cost of the administration of justice, and of civil
(government (including-, as it did, the salaries of the entire
executive staff, administrative and judicial), was paid out
of the other two sources of revenue, and over these the
I (lonial assemhlies had for man\^ years no power of appro-
])riation or control. To secure control of the executise —
to make them fed responsibility — it was indispensably
necessary to get control of these revenues and their appro-
priation ; and the history of the growth of the principle of
' Responsible government " is the history of the gradual
\C(iuisition by the colonial legislatures of tlie right to
appropriate revenue, from whatever source within the
38 THE CAXADiAX CONSTITUTION.
colony arising'. The "tennre-of -office" ((ueHtion prnctically
depended upon this (piestion oi' control over the purse
string's.
In all the provinces, the real issue was soniewliat
ohscured h}' reason of the fact that, under the then ar-
rangement, the lei^islative council, or second chaniher, acted
as a shield to the {governor and his executive council, and
was interposed to l)ear the hrunt of all attacks upon
executive methods. In the earlier stages of colonial his-
tory, the executive council was really a hranch of the
leo-islature, and it always continued potentially so, l>y
reason t)f its members f(>rmin<^ the intiuential i)ortion of
the Crown-appointed le<,dslati\e council. This position ol'
aH'airs, however, gave the disputes hetween the leo-islature
and the executive, the appearance of heino- disputes
between the two branches of the le(;islature : and it is
not surprisinjj;-, therefore, to find that the ettbrts of Howe,
Wilmot, Papineau, and Baldwin, were directly and osten-
sibly bent to secure reform in the constitution of the
le<rislative council (x). The real issue, however, was the
(juestion of executive responsibility, and, as we have
endeavored to point out, that ([uestion largely depended
upon, and was ultimately solved l)y, the solution of the
more sordid one as to control of expenditure. Perhaps,
there was a lack, too, of proper appreciation of the way in
which the principle of responsible government was workinjj
its way into the fibre of the British constitution — through
the medium of cabinet government — and this may have
tended to the adoption of the less direct route to the
establishment of responsible government here. It needed
men like Lord Durham and Charles Buller, who were
able to see through the intricacies of governmental machin-
ery and discern the true principle of the British system,
(x) J. G. Bourinot, "Responsible Government in Canada "—a paper
read before tlie National Club, Toronto, during the winter of ISltO-'Jl,
and published sub. tit. "Maple Leaves," p. 43.
1'1{E-1'(»NFLI)EUAT[(>X Ct (NsnTlTlOXS. .'i!)
to point out how that .saine principU' could hv iiuule efi't'Ct-
tive in tiie colonial niachineiy of ^overnuK'nt.
The tirst concession o^ained, was of the power of appro-
priating the proceeds of Imperial tariffs in force in the
colonies. As far hack as "The Constitutional Act, 17J)1 ," this
power of appropriation was expressly ^iven to the le<(isla-
tures of Upper and Lower Canada, over the proceeds of all
customs duties levied as part of the connuercial polic}' of
the Empire; and this i'^ the point of distinction between
the powei-H of the colonial assend»lies under that Act and
under the earlier commissions, to which reference was made
a few parfi^raphs hack (y). But the only Imperial tariff
Act in force in Cana(hi, was the Act of 1774 — a irvciiw
Act (i); and because that Act was contended not to come
within the terms of "The Constitutional Act, 1 791," express
U'o'islation was necessary to j^ive the Colonial legislature
conti'ol over the revenue arisino; under that Act. This was
obtained in l.SIU {n).
Still, however, in all tlie provinces, the "hereditary,
territorial, and casual revenues" to which we have referi'ed
were amply sufficient to "pay the piper"; and so far as
the salaries of all the executive "family-compact" staff'
were concerned, the legislature had power neither to fix
nor withold them. Secure in the enjoynient of the emolu-
ments of office, the executive were aide to thwart the
wishes of the popular branch of the legislature, an<] to
decline to recog-nize its rio;ht to control or regulate their
mode of conducting public business.
The history of the struggles, which in the Upper Pi-o-
viuces culminated at one time in open rebellion, and in all
ivsulted in the firm establishment of Responsilde Govern-
ment, is beyond the scope of this work ; but it is curious to
ill) Ante, p. 35. (z) See note ante, p. 3t).
(a) 1 & 2 Wm. IV. c. 23. See Houston 'Const. Doc' p. lOG; Andrew
V. White, 18 U. C. Q. B. 170.
40 THE CANADIAN CUNSTITUTJON.
noto tlint tlie conteiiiporary Htatiitoiy record (h) appcni-H in
Acts relating to colonial control of colonial ilnancuH, — the
" tonnrc of ofHci; " ((ncstion appcarintr only in tlio "conven-
tional " aspect of (leHpatcheH, inHtnictions, etc, (<•). Not to
dwell at nndue length upon this point, we may mention
shortly, that first to New Biuns\\ick, and afterwaid to
Canada, (1(S47), and Nova Scotia (I iS4f)), full control over
the revenues from all sources was conceded; and having
that full control, the Legislative Assend)lies slowly, hut
surely, overcame the stuhhorn resistance, or active opposi-
tion of the governors of the early forties, and the principle
of executive responsibility was tinnly and permanently
established in all the pre-Confederation provinces.
We are now, perhaps, in a position to define with some
accuracy, the nature of the constitutions existing in the
provinces innnediately prior to the coming into force of the
B. N. A. Act.
What Lieut.-Gov. Archibald has said ('/) in reference to
the constitution of Nova Scotia is clearly applicable to the
other maritime provinces : " No formal cliarter or constitu-
tion ever was conferred, either on the province of Nova
Scotia or upon Cape Breton while that island was a sepa-
rate province. The constitution of Nova Scotia has always
been considered as derived from the terms of the roval
connnissions to the Governors and Lieutenant-Governors,
and from the " instructions " which accompanied the same,
moulded from time to time by despatches from Secretaries
of State, conveying the will of the Sovereign, and by Acts
of the local legislature, assented to 1 ly the Crown ; the
{h) 1 A 2 Wm. IV. c. 23 (Imp.) ; 8 Wm. IV. c. 1 (N.B.) ; 3 & 4 Vic-
c. 35 (Imp) ; 6 & 7 Vic. c. 29 (Imp ) ; 6 Vic. c. 31 (Can.) ; 9 & 10 Vic.
c. 94 (Imp.) ; 9 Vic. c. 114 (Can.) ; 10 & 11 Vic. c. 71 (Imp.) ; 12 & 13 Vic.
c. (N.S.) ; 12 & 13 Vic. c. 29 (Imp.) ; 15 & IG Vic. c. 39 (Imp.) ; 17 &i IH
Vic. c. 118 (Imp.) See Mercer v. Atty.-Genl. of Ont., 5 S. C. K. at p. 700,
t'( seq.^ for an historical statement by Gwynne, J., on this subject.
(c) Todd, Pari. Govt. Brit. Col., pp. 23-6.
((/) Can. Sess. Papers, 1883, No. 70.
PKE-CONFEDKKATInX COXSTITUTIOXS. 41
whole to soino extent interpreted liy uniform usat^n^ an<l
custoiM in the colony."
In (old) Canada the form of (government wan prescribed
Ity the Act of Union (<). But as to all the provinces, it
can he truly said that their constitutions were modelled on
the j)attern of the parent state, both as to their ^ovei'n-
iiii'utal machinery and as to the principle on which they
were operated. In outward forui, there is a close resem-
Itlance between the British constitution and the constitution
of those provinces — the same single executive, the same
K'<fislative machinery (even to a second cluunber), with
about the same apparent connection l)etween the two de-
partments of government. And up(jn inquiry further into
the motive power and the mode of its application, we may
say that just as in the case of the Imperial parliament, so
ht're in the case of tlie pre-Confederation provinces, one
will look in vain for any statute laying down the rules
which shall govwu in the matter of the formation, the
continuance in office, or the retirement of the Cabinet. The
"conventions of the constitution," whose slow growth had
gradually culminated in tlie full recognition of the principle
of executive responsibility to parliament, was by the simple
method we have shortly described — by instructions to the
governors — introduced as the working principle of the pro-
vincial constitutions.
Of the causes which led to the adoption by the pro-
vinces of the Resolutions t)f Quebec, upon which the
B. X. A. Act is founded, it is for the historian to treat. So
far as those causes affected the terms of the union, as to the
distribution of the field of governmental action, we shall, of
coui"se, have occasion to refer to them hereafter. Here we
need only point out, that in agreeing to the establishment
of a "general" government, charged with mattei-s of com-
(-') 3 & i Vic. c. 3o (Imp.)
42 THE (JAXADIAX CONSTITUTION.
inon concern, the provinces resolved that such ^'eneral
government should l)e modelled on the British constitution,
and that its executive autliority should he administered
accordino- to the well-understood principles of the British
coistitution. We may say, therefore, of both the Dominion
and the provincial jjjovernments : " That great l>ody of
unwritten conventions, usa^^es, and understandin<j^s, which
have in the course of time orown up in the practical
working of the English constitution, form as important a
part of the political system of Canada as the fundamental
law itself which governs tlie federation " (f).
(/) Bourinot, ' Maple Leaves,' p. 37.
CHAPTER 111.
WHAT BECAME OF THE PRE-CON FEDERATION
CONSTITUTIONS ?
Ah justitieation for the last chapter, it was asserted that
in order to estahlisli the Dominion government, and the
federal scheme of the B. N. A. Act, the slate liad not Ijeen
cleaned; and we shall endeavor to make (;'ood that justi-
tieaffon.
In comparing the British and United States systems of
government, the really federal character of the form' r —
viewed as an Imperial constitution — was pointed out ; but
the gradual working out of the federal idea in the Imperial
constitution (through continuous concessions of powers of
self-government to the colonies) was contrasted with the
studied action of the Fathers of the American Union, in
taking this federal idea as the starting p(jint of their
departure {<(). The reason is apparent. Thirteen self-
governing connnunities occupied one compact territory :
their inhabitants were of common orii>in, and had connnon
interests; and they deliberately set to work to estal)lish
a "national" government, charged with the control of tliose
matters which were deemed of common interest, but, just
as deliberately, they insisted upon pres irving their right to
regulate their local concerns in their lo al assenddies. And
so in relation to the enactment t)f tiie J. X. A. Act : — there
(a) See ante, Chap. I., p. 5, cl f!cq.
44 • THE CANADIAN COX.STITUTKJN.
was tlie same fact of pre-existing jrovernnients, the same
desire for united action on matters of connnon concern, and
the same deliberate refusal (based on tlie same desire to
preserve local autonomy) to establish a le(]i;islative union,
or what has been styled a "unitarian " system.
Opinions may very reasonably vary at different periods
as to where the line should be drawn which is to divide
matters of coiinnc^n or " national," from matters of " local '
concern ; and this variation in opinion is manifest in
the assit^nment to our Dominion government of several
s\ibject matters, which, under the scheme of division
adopted by the convention of 1787, were not assigned
to their national government — for example, criminal law,
and the law of " marriage and divorce " (h). When the
idea of a Canadian Confederation l)egan to take prac-
tical shape, the United States was in the throes of its
civil war, and the notion was prevalent that that war
had been caused l)y the weakness of the " natimial "
government, arising from including among "state rights"
the " re^u/aaiii of poiuer," as it has been termed. That the
war was not caused by any such defect in the division of
the field of goverinnental action was then pointed out {(■),
and has been since fully demonstrated ; but the prevalence
here of that notion led the fathers of confederation to
desire a strong central government, and to that end the
"ref^iditum of power" is, under the B. N. A. Act, with the
Dominion government {d). This fact has been much
utilized in argument, to belittle the sphere of authority of
the Provincial governments, and because, as it is put, these
latter are governments possessing only" eimmerated powers,"
(/<) That the assif^nment of these (aa matters of coir, non concern re-
quirinj^ uniformity of treatment) to the " national " government is
more consonant with modern ideas, is apparent from the numerous ex-
pressions of opinion from across the line, in favor of an amendment of
the U. B. constitution in these particulars.
(f) See the speech of Mr. C. Dunkin — Confed. Deb., p. 491.
(</) See sec. 1)1.
PREVIOUS COXSTITUTIOXS. 46
the ar<;uinent is puslied to tliiw leno;th, tliat the constitutions
of the pre-Confetleration provinces were, by the B. N. A.
Act, completely wiped out, and that the powers, both
le'Hslative and executive, of the post-Federation provinces
— and without rei^ard to an}' necessary connection between
these two departments of j>;overnment — are such only as
are to l)e found expressly set out in the B. N. A. Act. If
that is the result of the enactment, never did le<;is1ation
fail more eo;reo;iously in carrying out of the desi<>'n of its
promoters. The Que])ec Resolutions convey no hint that
the net^otiatini,^ provinces desired more than to establish a
"fo(lei-al" union on terms which would be just to the
pi'ovinces, and leave their autonomy, as to matters local,
unimpaired. But these Resolutions, if proper to be referred
to at all, can perhaps l)e cited to aid only in the construc-
tion of doubtful or ambio-uous phraseolooy in the B. N. A.
Act (f), and, therefore, the terms of the Act itself nuist be
looked at carefully on this point. But, first, it is necessary
to advert to the inaccuracy of the phrase, "rrsiilaiim of
■power." As has already l)een pointed out, there is not,
under a federal system, any necessary division of jioircf,
in the proper sense of the term: the essential division
which exists, bein^* a division of the subjects proper for
(governmental rei^ulation, into two classes of matters —
matters of "national," and matters of "local" concern.
Just what matters beloni^ to the one class, an<l wliat to
the other, is a (piestion upon which, as we have sairl,
opinion may vary, but V\'hether the matters of "national"
concern are enumerated, and the residuum left as of "local"
concern (as b}' the U. S. constitution), or the matters of
"local" concern enumerated, and the residuum left as of
"national" concern (as is partially the case with us), is
matter of indifference, so lono- as the enumerated class is
sufficiently comprehensive to satisfy public opinion, at the
time, as to the proper line of division. But what is essen-
(<•) See poxt, Chap. X.
46 THE CANADIAN CONSTITrTION.
tial, is, tlifit t;) tlie full limits of the mutters entrusted to
each government, riational or local, the po\V(;r of ifoveni-
mental action slu. 'd he full and complete. It will he
noticed, of course, tliat the division effected hy the B. N, A.
Act is a division of matters for lefjjislative action, hut this
must involve a division along the same line for executive
action. Any other arrangement would he a clear departure
from that principle of the British constitution, upon which
we have dwelt at some length in earlier pages — the supronn-
acy of the maker of a law over the executor of that law —
a principle which is dominant in every Anglo-Saxon com-
uumitv, unless, indeoil, Canada is now, as is claimed, the
exception.
That principle, as we have pointed out, clearly ohtaiiied
in the pre-Confederation provinces as the result of the
long struggle for " responsible government," and it is im-
portant therefore to ascertain whether, mider the B. N. A,
Act, the provincial constitutions r(^/////M(r' ; for if so, then
the same connection between the legislature and the execu-
tive, which existed before confederation, nnist still continue,
with respect to the sul)jects of provincial cognizance.
Any complication which may exist in connection with
this ([uestion has arisen from what has been termed " the
necessities of the draftsman." One cause of the support
given in the two parts of (ol<l) Canada, to the scheme pro-
pounded by the QuebiiC Resolutions, was that it :nade pro-
visi;)n for the severing of the tie of legislative union
between them ; and the carrying out, in one Act of parlia-
ment, of this design and the larger federal scheme, neces-
sitated first the seNei'ance of that tie, and then the creation
l>y the Act of a federal union between the four provinces.
But, while on the one hand this necessity, and the mode of
meeting it, adopted in the Act, has provided a small peg on
which to hang an argument adverse to tiie provinces (/"),
(/) As a matter of construction, it would appear tliat sees. 5, 0 and 7,
point merely to the territorial limits to hz assif»ned to the different pro-'
vinces of the Confederation.
I'HEViors foxsTrn'Tioxs. 47
it has also ])r()vi(lc<l scvt'ial otluTs, upon which a very
sti'on;;' ai-;;'iii>R'nt may 1m.' ht.'ape(L in support of the full
autonomy of the provinces in relation to the suhjects
allottefl to them. Old Canada heino- thus divided into its
niioinjd divisions, — with new names,— it liecame necessarv
to make pi'ovision for the estahlislniient of new f^overn-
inental machineiy, legislative and executive, in Ontario
and (^ueltec. Eliminate from the Act all clauses inserte<l
to this entl : consider Ontario and Queliec as having- had
^overiniiental machinery such as existed in the ]\Iaritime
Provinces: and the Act would clearly appear as an Act for
the estahlishment of pdrrtil machinerv only, for drawinji'
tile line of di\ ision between matters proper for the con-
siilrration of the " y'eneral " government, and those proper
for the consideration of the "local " ^'overnments, and foi*
the makin<;' over to the federal f^overnment of certain por-
tions of the assets and revenue-producin<;' powers of the
pro\inces. The very use of the tavm fnlciud in connection
with the creation of a central j^'ovei'nment for territory
(leeupied hy previously existing- ^•.)Vernments, mutually
independent, would seem to ini[)ly the continued existence
of the indisidual <;()ve]-nments, parties to the firdti.s ; and
the fact that no provisions were made for Nova Scotia and
^'(■w Brunswick, similar to those ma<le for Ontario ami
<^)ueltee, would appear to i)oint to the conclusion that the
;j,()verinnental machineiy of those provinces was to continue
iis before, employed, of cimrse, upjn a somewhat smallei-
i;ui;;e of matters.
The type of i^'overnuiental or^-anization in the })re-
C 'on federation provinces was one and the same — a single
rxecutive head (assisted by an executive council), and a
len-islature (//) — and the princii)le upon which the whole
worked in the actual t;()vernment of the provinces was the
lirinciple of executive responsibility to the electorate
('/) The existence or non-existence of a second chamber is in no way
iiiiiteriul.
48 THE CANADIAN' CoXSTITUTlOX.
tlmm<;'h the legislature. The B. X. A. Act makes provision,
as to all the provinces, for a single executive head in each,
but judgint.'; from the absence of any provision for the
appointment of the Goveriior-General, it may be doubted if
such provision would have l)een e.rprcxHhj made in regard to
the Lieut.-Governors, had it not Iteen intended to alter the
mode of appointment, so as to make each provincial execu-
tive head, a link in the chain of federal connection (A). As
to the '■ powers, authorities, and functit^ns " of that execu-
tive head, they are particularly mentioned only as to
Ontario and Quel)ec (/*), and as to those two provinces onl}'
so far as they were dependent for their existence v pov
sidfatex, eitlier of the Imperial parliament or the parlia-
ments of (Old) Canada. This latter limitation has been
urged as supporting the view tliat certain of the " powers,
authorities, and functions" — tliose depending for their effi-
cacy iifX)!! the coyainuii hur — exercisable by the Governors
(or Lieutenant-Governors) of tlie pre-Confederation pro-
\inces, are now, even as to matters within the legislative
autliority of Ontario and Quebec, exercisable onl}' by the
Governor-General.
We shall deal Avith this contention in a moment, merely
remarking now tliat such a construction of the Act, would
create diversity in the position of the ditt'erent pro\inces,
and would V)e a departui'e from tlie principle insisted on, as
apparent throughout the British constitution — the co-ex-
tensive and complementary sphere in government, of the
executive and legislative departments. The matter material
to bo' now noted is, that these stafitfori/ powers had been
conferred upon the holder of a p9rticular office which was
now to be divided, and therefore a statutor\' re-allotnient,
so to speak, had to be made. The language of the section
to which we are now referring; (sec. 65), and of what mav
be called its companion section (sec. 12), bears out, too, our
(h) Compare sees. 10 aud 58, B. N. A.. Act, 1807.
(0 B. N. A. Act, sec, 65.
PHEVIors COXSTITUTION'S. 49
C'litifisiii of tliL' [)lirjise, "division of power," iiuisimicli as
hotli sections cuivFully iivoid nsinn- any sucli tenii as
"division." Tivatino- the "powers, authorities, and func-
tions" conferred hy previous legislation as a sum total, they
carefully provide that all these powers, etc., so far as they
are capahle of heing exercised after the union, in relation to
the government of the Dominion and the provinces respec-
tively, shall he vested in the Governor-General, or in the
Lieutenant-Governors, as the case may re([uire.
To revert now to the ar^'ument founded on the limita-
tion of sections 12 and (55 to statutory "powers," etc. We
have already indicated "the necessities of the draftsman,"
as the reason for their insertion in the Act. But for that
necessity, they would not have appeared, and we should
have to look to some other part of the Act in order to
ascertain the position of the executive head of the different
])rovinces, as, indeed, we have to do with reference to Nova
Scotia and New Brunswick. If there were no express
|)rovision, we should still contend that, as executive head
of the province, a Lieutenant-Governor is invested with all
the " powers, authorities, and functions " necessary to carry
on the g'overinnent of the province — that wherever provin-
cial le<i;islation reijuires, in order to its complete and efficient
enforcement, the sanction of executive action, all the "powers,
authorities, and functions" (prerooative and otherwise)
necessary to such enforcement, reside in, and are exercise-
ahle hy, the executive head of the provincial o-overnment
(,/'). But we are not limited to this application of le^-al
piiuciples, incontestable thouoii they l)e. Sec. 12!) of the
B. N. A. Act is clear upon this matter : —
" Except as otherwise provided by this Act, all laws in force
in Canada, Nova Scotia or New Brun wick, at the Union, and
all coiu'ts of civil and criminal jurisdiction, and all legal connnis-
sious, powers and authorities, and all officers, judicial, administra-
(./) See judgment of Burton, J.A., in Atty.Gen'I (Can.) v. Attv.-
Geu'l (Out.), 19 0. A. R. 38.
Can. Cox.— 4
50 THE CANADIAN CONSTITUTION.
tive and ministerial, existing therein at the Union, shall continue
in Ontario, Quebec, Nova Scotia, and New Brunswick respectively,
as if the Union had not been made, subject nevertheless (except
with respect to such as are enacted by, or exist under, Acts of the
Parliament of Great Britain, or of the Parliament of the United
Kingdom of Great Britain and Ireland), to be repealed, abolished
or altered by the Parliament of Canada, or by the legislature of
the respective province, according to the authority of the par-
liament or of that legislature under this Act."
The lan(^UM<^e of this section is very comprehensive. It
continued the whole body of pre-existino- laws and let;'al
institutions, " except as otherwise provided by this Act";
and excepting- Imperial Acts and institutions existino-
un<ler Imperial Acts, it divided the entire tield of hnv (in
its widest sense) between the Dominicm and tlie provinces,
" according- tt) the autliority of the parliament or of that
letj^islature under this Act." This Itody of law would in-
clude every branch of jurisprudence — the lex prerofi<itira as
well as the other branches. Combined with sec. 12, it
carries the whole executive power incident to the legislative
sphere of authority of the Dominion parliament, to the
Dominion ; and, combined with sec. Go, it has precisely the
same result in relation to the government of the provinces (/•).
With regard to the executive council in each province
— in other words, the Gahinet — we have to point out that
no provision is made for such a council in New Brunswick
or Nova Scotia, beyond what may be gathered from the
express enactment that the const it at to >i of the executive
authority in those two provinces, should continue as before
the passing of the B. N. A. Act ; while, in regard to Ontario
and Quebec, the appointment ^f the first officers who are to
constitute the executive council in. those provinces is pro-
vided for. Tliere is this diti'erence, too, to be remarked
between the section of the Act which provides for the
(fc) Dobie V. Temporalities Board, L. K. 7 App. Caa. 136; and see
notes to B. N. A. Act, sees. 12, 6.5 and 129, post.
PHEVIOl'S CONSTITUTIONS. 61
Pi-ivy Council of the Dominion (sec. 11) and the correspond-
iii^^ section as to tlie executive councils ot* Ontario und
<^)uehec (sc" ()8), namely, that the latter seems to take it
For granted (if we may use the expression), that there is to
he an executive council in those two provinces; while the
foj-mer distinctly provides that "there shall he" a Privy
Council for Canada. It may here lie remarked that
iiowliere in any statute hook will he found any Act which
lays down that such executive council shall continue to
hold office only so lon<^ as it commands the contidence of
the let;islature : hut the existence of that "convention of
the cop.stitution," and its raisou d'etre, have been already
dealt with at sufficient leno-th, and no one, we fancy, would
ar;4Ue that any sio-niticance attaelies to its ahsence from the
B. X. A. Act.. As put hy Lord Russell, in his famous dis-
patch (0, of September 7tli, 1(S39, conveyint^ to Lord Syden-
ham his " iustructions " as to tlie '••(♦vernnu'nt of Upper
Canada: "It is evidently impo.ssihle to reduce into tiie
form of a po.sitive enactment, a constitutional principle of
this nature." But not only is the appointment of the first
memhers of the Cabinet provided for in the case of Ontario
and Queliec, but provision is also made as to their " rio-hts,
[)owers, duties, functions, respon.silalities or authorities" —
tlie draftsman was certainly exhaustive in his phraseology
— and what has just l)een said as to the sections dealino'
with the poAvers, authorities and functions of the executive
head, is eijually applicable to sec. 185, which makes this
provision as to the executive officers under hiu). All the
" powers, etc., etc.," which the executive officials named, had
in relation to the government of Canada, are to be vested
m the officers of the provincial governments, in relation to
those governments. There is no division of poiuer, but of
sphere of authority only.
Ecpially significant of the continued existence of the
pre-Confederation constitutions, are the clause.s of the
(0 Can. As9. Jour.. 1841, pp. 390-6, App. BB.
52 THE CANADIAN CONSTI'ITTION.
B. N. A. Aft, (k'lilin;^ with tlir constitution of tlir li';;islu-
tive nutliority in tht- provinci's {m). For Ontario and
Quol»ec, k'^islatni'L'H had to he providtMl. TIm' constitution
of those lt';;islatur(.'s is, of course, entirely the creation of
the B. N. A, Act: l)ut, so far as the ci'eative clauses are
concerned, there is nothin<j' to in<licate anv diH'erence in
principle, between tlie constitution of those lej^islatures,
and tlie constitution of other colonial le'dslatures, hex'ond
the absence in the "constitutional" statutes relatinii' to
those other colonies, of any division of the sphere of
their le^'islative authority. But for Nova Scotia and New
Brunswick no legislatures wei'e crt-ated, it lK'in;j|,' pi'ovided
(just as ha<l been provided with re^-ard to the executi\e) that
the constitution of the legislature of each of those provinci's
should coiiiiinit' as it existed at the Union. The House of
Assendjly of Nova Scotia, as it happened, had been dis-
solved, so that new pro\incial elections were necessary,
an<l, in order to save expense, it was provided {n) that
such new elections should take place at the same time as
the iirst elections for the House of Connnons of the
Dominion. But, as to New Brunswick, its House of
Assend)ly was still alive, and it was expressly provided that
it should contiime (unless sooner dissolved) for the period
for which it had been elected. As to both Nova Scotia
and New Brunswick, the B. N. A. Act contains no provision
for the summoning- of their Assendjlies, for the lenn,th of
time they should live, for yearly sessions, or as tt) the
conduct of their business ; as to all of which matters,
minute provision is made as to the legislatures of Ontario
and Quebec (o).
The group of clauses (ji) of the Act, dealing with tlu'
division of the assets of the provinces, between tliose prov-
inces and the Dominion, Ijears throuii'hout marks of the
{in) Sees. 69-9;). (n) B. N. A. Act, sec. 89
(o) Note, however, sec. 9 ', s-s. 1, j^ont.
(p) Group VIII , sees. 102-126. "
PREVIOUS COXSTITUTIOXS. 63
(IniftsinfinH idea tliat the pro-CanfLMlenition piv^vinces coii-
Inni-'il; — they " sluill retain all their i-espective puhlic
[)ruj)crty not otherwise <lispi)se<l of in this Act "(7): and
certain dnties and revennes are "reserved to the respective
If^fisiatnres of tlie provinces (/•)."
The division of the (jjronp of niiscellaneous provisions
(.s) into "<;eneral," and "Ontario and Quehec" is in itself
si^iiiricant, and the ahsence of pri)visi()ns for New Brnns-
wick and Xova Scotia, similar to those made to n»eet the
iireds of the newly created governments of Ontario and
(^)ueht'C — provisions as t) the execntive stati ; as to the
(Jreat Seals to he nsed ; as to the construction of temporary
Acts of the parliament of old Canada, etc. — would seem to
make it perfectly clear that the constitutions of the pre-
(. Confederation provinces "by the sea," at all events, were not
intended to he destroyed, and at most, it can only be said,
that the constitution of old Canada was re-cast and made
into two, each on the same pattern as the one had previously
e.'hibite<l.
Upon consideration, it would appear that the really
essential point to be determined in connection with this
controversy, is the actual presence in the provincial
machinery of (government (in their conMitutiout^, in other
words,) of the same working principle as was present in
the constitution of the pre-Confederation provinces. As to,
Nova Scotia and New Brunswick, there can be no doubt,
jis the B. N. A. Act is distinct, that the constitution of the
executive and legislative authority in those provinces — and
these two departments comprise the whole round of govern-
ment— shall contl'iuie; and the controvei"sy must therefore
he limited to Ontario and Quebec. And as to these two
provinces, it has already been remarked that the clauses
which create their legislative and executive machinery
iq) Sec. 117.
((■) Sec. 102; and see also sec. 126. (.s) Group IX.; sees. 127-144.
54 THE CAN'ADIAX (OXSTITrTIOX.
(liti'cr in no I'sst'ntial ivspt'cts from the similui' C'luuscs in
other Imperial Acts creative of colonial constitutions, thc^
presence in which of the principle of the co-extensive and
C(»mplementai'y njiture of the executive and le;>islative
powers in (government, cannot he <;ainsaid. No Act,
Imperial or Colonial, has ever expressly so enacted : hut it
is the le^al principle of the British constitution, and of the
colonial constitutions of the Empire as well. And when we
find, as a comparison of the vari(ms "constitutional Acts"
for the colonies will show, that the machineiy of j^overn-
nient provided by those Acts is "all of a ])iece," an argu-
ment is afforded in favor of, rather than a<;ainst, the
existence of the same workin<; principle in each. Compare,
for instance, the clauses of the B. X. A. Act, creatin<^' the
executive and lemslative machinerv of the Dominion u'ov-
ernment, with those creating; the like machinery <jf the
governments of Ontario and Quebec, and l>oth sets of
clauses with the similar provisions of the Acts relating to
(say) the Australasian colonies, and no essential diH'erence
can be found (0 — nothing to indicate that in one the
\ix\y-makhuj power is supreme over the authority which
executen that law, and that in another the two are not
co-terminous. The fact is, that government is one, and
indivisible. The "sanction" of a law is executive action,
and no impossible attempt to create two independent
powers in relation to any given subject matter, is made by
any of these "Constitutional Acts."
(<) Compare B. N. A. Act with the Union Act (3 & 4 Vic. c. 35), and
with the Constitutional Acts of New South Wales (5 & C Vic. c. 76; 7 & 8
Vic. c. 74 ; 13 & 14 Vic. c. 59, etc.) ; of Victoria (13 A- 14 Vic. c. 59; 18 &
19 Vic. c. 55, etc.); of Newfoundland (5 & 0 Vic. c. 120; 10 A' 11 Vic.
c. 44), and of Queensland (24 & 25 Vic. c. 44). See Forsyth, Constitu-
tional Iiaw, p. 27, for an enumeration of the various " Constitutional
Acts" for the colonies.
PART II.
THE RESULTS OF OUR COLONIAL STATUS.
CHAPTER IV.
WHAT IMPERIAL ACTS AFFECT US?
While we have, in the preceding chapters, endeavored
to distinguish clearly between the laiu and the " conven-
tUmx" of the constitution, we have necessarily had to deal
with Itoth. In the light of the conventions of the constitu-
tion, the parliament of the United Kingdom has heen
described as a legislature possessed of a dual nature, par-
tiiking of the character both of an " Imperial " parliament
and of a "local" parliam nt for the United Kingdom. It
must be again admitted, nowever, that although, by those
usages and precepts of the constituti.)n, the field of govern-
mental action properly to be occupied by the Imperial
parliament, is practically though not yet perhaps very
definitely limited, the lnw of the constitution recognizes
no limit capable of judicial enforcement.
For the whole British Empire, legislative sovereignt}'
resides in the Imperial parliament, and when that Ixxly
undertakes to legislate for the colonies generally, or for
juiy one of them in particular, its enactments are a law
unto such colony, binding on its inhabitants, and peremp-
torily reijuiring recognition l)y the judges in its courts ('0 '
and no colonial legislature has power, directly or by a side
wind, to alter, in one jot or tittle, an}' such Imperial enact-
' ('i) Letter by Historicus, in London Times, June 1, 187'J ; Dicey, Law
of the Const. ; Ciark, Colonial Law, 10.
5() THE CANADIAN CONSTITUTION.
iiient (h). That, in certain instances, colonial le^islatuves
have heen empowered I>y Imperial let^ishition (<■) to exclude
their particular colony h'inn the operation of some par-
ticular Act — usually upon terms — is the exception which
proves the rule. It nnist he kept clearly in mind, that we
are irat now discussing; the "conventional" limits .set to
this le'dslative s(3verei<>;ntv. For the iud<>'e and the lawyer,
there are no limits ; for them there is, in the performance
of their respective duties, no escape from the " literary
theory." They have t;) do with lenol rij^hts ; and, for
Canada at least, lej^al rights are, in the ultimate analysis,
founded upon Imperial enactment. By Imperial enactment,
we enjoy representative <;overinnent ; by Imperial enact-
ment, that enjoyment could l)e (as once indeed it has l)een)
taken from us: by Imperial enactment, the lec^islative power
conferred upon our parliaments, has Ijeen more or less;
limited ; l»y Imperial enactment only, can a change be
eti'ecteil in those limits. No power, even its own, can tie
the hands of the Imperial parliament ('/); and the boundaries
set to colonial freedom of action in one session of that par-
liament may bo enlarged in the next, and again restricted
in a third. And as in these larger matters, so in any the
smallest (juestion (V^) involving the legal rights of the
individual, if she will, she legally may, and every British
judge, in every part of the British Empire, is 1);)und to give
efi'ect to the expressed will of the Imperial parliament.
So well settled is the parannjunt legislative authority of
the Imperial parliament, that English jutlges have not
hesitated to lay it down that :
"If the legislature of England in express terms applies
its legislation to matters l)eyond its legislatorial capacity,
(h) Craw V. Ramsay, Vaugh., 29'2. See /josf , Chap. IX.
((•) E. //. ii & 10 Vic. c. t)4, empowering the colonies to repeal Imp.
tariff Acts.
(d) Auchterarder case, Mac. & R. (H.L.) 238; Dicey, Law of the
Const., CI,
(e) Such, for instance, as arose in Gordon v. Fuller, infra. •
WHAT IMl'EIUAL ACTS AFFECT US ^ 57"
Mil Kii^'lish court must ()l)t'y the English lef^islature, how-
cNi'i- contrary to interiuitioual comity such k';;-islati(m may
1k'-'(/").
It may perhaps seem that we have ihvelt witli umhie
('ia[)hasis on this point, hut a o-lance at s(ime Canadian
aiitlitrities will make it apparent that, even on the hench,
the ieo'islative omnipotence of the Imperial parliament —
perhaps we should rather say the le^-islative impotence of
our colonial le<;'islatures to alter an Imperial enactment —
lias not li^'en atlmitted in its entirety without much dis-
cussion. Moreover, a clear reco!,niition of this fundanuaital
fact in the structure of the Canadian csjustitution, should
tend to make our statesmen all the more careful that the
limits within which this omnipotence is to have "conven-
tional" scope, are clearly defined. The ultimate le^al
[) )wer — whose mandates must lie judicially enforced —
residiuf^ abroad, our right of self-g>)vernment should not
(lei)eiid on uncertain usages, but on clearly expressed
guarantees.
How are we to know wdien an Imperial Act extends
by its own inherent force to a colony ? It was never con-
tendeil that English statutes were operative beyond the
b )unds of the United King(' mi, unless, upon a reasonable
construction, tliere appeared the intention that they sliould
s ) operate (//). For a long time this (juestion of construc-
tion was unatfecte'l by any statutory enactment, Imt at the
present time the Imperial Act, 2!S (jc 29 Vic. c. 08, pro-
vides the canon of construction — "x\n Act of parliament
or any provision thereof shall . . be said to extend to
any colony, when it is made applicable to such colony by
the express words or necessary int(m(hnent of any Act of
l)arliament."
{/) Niboyet v. Niboyet, L. R. 4 P. D. 20; and see Re^. v. Keyn,
L. R. 2 E.V. D. 1.52, 100, 207 ; Reg. v. Anderson, L. T^. 1 C. C. R at p. 107.
(;/) 1 Blackstone, 107, ct seq. ; Santos v. lUidge, 8 C. B. N. S. 809, 887 ;
Routledga V. Low, L. R. 3, E. & I. App. 11.^; Penley v. Beiicon Assce
Co., 10 Grant 428; 8u3S9X Peerai^e Case, 11 CI. & F. 140. See further
on this point, ]mt, Chap. IX.
5S THE CANADIAN CONSTITUTION.
A very difi'eivnt ([Uestioii this, from the (jiiestioii, how-
far Eno-lish statutory hiw, '<)f no expressed colonial applica-
tion, has been, l)y Imperial o-rant or coloriial adoption,
omhodied in the le^-al system of a colony. We are nt)\v
dealintr with Acts of the Imperial parliament, whicli, when
passed, were, hy "express words or necessary intendment,"
made applicable to our colony. The former (^uestiorx will
1)6 fou.xd treated in sul>se(pient pa^es : hut it may now ho
mentioned that, as a ^^eneral rule, it is Kmited to a considera-
tion of the Eno-lish statutory law as it existed at the time of
the introduction of Eno-lish law into the colony. Imperial
enactments of a o-eneral character, passed suhsecjuently
to such introduction, are not operative within the olony
(A). But it follows from what has already been laid down,
that there can be no time limit with reo-ard to the class of
Imperial enactments now under discussicm. Of course, in
the case of statutes passed pricn- to the acquisition of n
colony, there nnist be the "express words or necessary
intendment " requisite to make such enactment applicable
to colonies to be thereafter acquired; but it is simply ii
question of construction — an encjuiry as to the intention of
the Inq)erial parliament.
It also necessarily follows from what we have said, that
anv colonial enactment inconsistent with an Imperial en-
actment on the same sul)ject— which is the earlier and
which the later, makes no difference — is inoperative ; and
s!) far did the English authorities carry this doctririe of
" repuo-nanc}'," that colonial enactments inconsistent with
the principles of the Enu-lish connnon law, as well as those
inconsistent with Imperial enactments (of the class we are
now discussing), were considered inoperative ; and " repu*;-
nancy," in one portion even, was considered to invalidate
(//) Harrison v. Spencer, 15 O. R. 092 -the " Thellusson Act." 39 A- 40
Geo. III. c. 9 (Imp.) ; Rex v. Vaughan, 4 Burr, 2500 ; and cases cited in
last note; and see Jamas v. McLean. 3 Allen, 101 (Nova Scotia), in which
2 Geo. II. c. 28 (Imp.), was held not to apply to a colonj- settled before
the Act was passed.
I WHAT I.MI'EIUAL ACTS AFFECT US ^ 5f)
tlic whole of a colonial eiinctinent. It caiiiiot 1»l' said that
the authorities were clear to the extent mentioned, lait
thero was a respectalile opinion tendino- in that directi(ni (/).
The Act to which we have already referred (commonly
known as "The Colonial Laws Validity Act, 1<S()5,") was
passed to clear away these uncertainties. It recites that
doubt had been entertained respectin^r the validity of di\ers
laws enacted, or purporting- to be enacted, by colonial legis-
latures, and respecting: the powers of such leoislatures, and
after layin<jj down the canon of construction already (pioted
it enacts :
"II. Any colonial law, which is or shall be repugnant to the
provisions of any Act of parliament extending to the colony to
which such law may relate, or repugnant to any order or regula-
tion made under authority of such Act of parliament, or having
iu the colony the force or effect of such Act, shall be read, sub-
ject to such Act, order, or regulation, and shall, to the extent of
such repugnancy, but not otherwise, be and remain absolutely
void and inoperative.
"III. No colonial law shall be, or be deemed to have been,
void or iuopei-ative on the ground of repugnancy to the law of
Kwihiml, unless the same shall be repugnant to the provisions of
some such Act of parliament, order, or regulation, as afore-
said " (7).
Connnontino- on this Act, Willes, J. (in deliverino' the
unannuous judonient of the seven judges of the Exche(|uer
( 'handler, ii; Phillips v. Eyre, involving a consideration of
a certain "Act of Indenuiity " passed by the legislature of
Jamaica), says (/,•) :
I "It was further argued that the Act in question was contrary
to the principles of English law (/), and, therefore, void. This
(i) Bowman v. Middleton, 1 Bay, 2.52. This limitation has eveu been
: suggested as applying to Imperial legislation-12 Rep. 7(J ; see Dicev,
; Law of tiie Const., 59, note 1.
(j) 28 tt 21) Vie. c. 63 (Imp.).
(A) L. R. 6 Q. B. at p! 20.
(/) Because ex pout facto legislation. See l„ re Goodhue, 19 Grant,
aeO ; and ;;o.vf, Chap. IX.
(iO THE CAXADIAX C JNSTITUTIOX.
is a vague expression, ami must mean, either contrary to some
positive law of England, or to some principle of natural justice,
the violation of which wouUl induce the Court to decline giving
effect even to the law of a foreign sovereign state. In the
former point of view, it is clear that the repugnancy to English
law which avoids a colonial Act means repugnancy to an Im-
perial statute, or order made by authority of such statu.'^,
applicable to the colony by express words or necessary intend-
ment ; and that, so far as such repugnancy extends, and no
further, the colonial Act is void. ... To what Act, order,
or regulation, then, is the .Jamaica Act of Indemnity and oblivion
repugnant '? {m) ... It was further objected that the
colonial law was contrary to natural justice, as being retrospec-
tive in its character, and taking away a right of action once
vested, and tliat for this reason, like a foreign law against
natural justice, it could have no extra-territorial force."
This oltjection, too, was overnile.l ; but, as we shall have
to touch upon this particular class of objection to colonial
k'<,nslation at a later sta(>e, we omit further connnent here.
As we have already intimated, it has l)-en seriously
contended in the courts of this country that, under what is
known as the Constitutional Act, 1791 (ii), the Imperial
parliament had — s:) far, at least, as concerns Imperial statutes
of a date pri<ir to its passa^^e — <,aven to the legislatures of
Upper and Lower Canada power to annul, by direct repeal
or inconsistent enactment. Imperial legislation of express
colonial application.
In 188(3, in the case of Gordon v. Fuller {<>), it was
decided that the first section of the Imperial Act, o Geo II,
c. 7 (to the fourth section of which we trace our fi. fn,
(m) See further, as to what constitutes '' repu^niancy," Reg. v. Sher-
man, 17 U. C. C. P. 1(17. Reg. v. Slavin, ib. 205, seems to lay down bad
law (pp. 210-11), that, because a Canadian Act is later than an Imperiul
Act, "the question as to any contlict between them does not arise."
fleg. V. Sherman seems to foreshadow tliis error.
(»() 31 Geo. TIL c. 31 (Imp.). (o) 5 U. C. Q. B. (0. S.) 174.
WHAT IMPERIAL ACTS AFFECT L'.S ^ (jT.
laiiils) ( /'), respt'ctiii^- affidavits to l>f inadu in Eiiu-lund for
|)r()oF of (lel>ts suetl for in tliis colon}', was not repealed hy
tjie provincial Act, (32 Cieo. III. c. 1, s. 5), lait from the
ju(l;j,HR'nt of the court, Mr. Justice — afterward Chief Justice
— Macauia}- dissented: and, in order to appivciate the force
of the opinion delivered Ity Chief Justice Kohinson in supjiort
of theJud;j;inentof the court, weipiote first from that tlissent-
inii' opinion: and, as these earlier opinions contain a lar!«'e
amount ot" clear aiid instructive historical statement in
ivfei-ence to the early constitutional history of this country,
we venture to jjfive them somewhat at length. Mr. Justice
Macaulay says :
V t.
"In 1791, the 31 Geo. III. c. HI, in contemplation of a
division of the provinces, provided the present constitution, ard
fonns the source from which the powers and authorities of our
piovincial statutes fioAV. It authorized the formation of local
legislatures, and enacted that his ]\hijesty sliould have power,
with the advice and consent of the legislative council and assem-
bly in each province, to make laws for the peace, welfare, and
good government thereof, not being repugnant to that Act. All
which laws are thereby declared to be, by virtue of and under
the authority of that Act, valid and binding to all intents and
purposes whatever, within the provinces respectively ....
The two principle questions are — 1st. Whether the provincial
legislatu.re possessed the power to subject suitors in actions for
money demands, resident in England, to the Icr hid in this
respect — to the same rules of evidence prescribed for the inhabi-
tants of the colony and all others ; in other words, to remove
the operation of 5 Geo. II. c. 7, from this province as a rule
in such cases, or to introduce incompatible regulations on the
same subject. And if so— 2ndly, whether by implication (for
it is not done in express terms) such effect has been accomplished.
Tbe statute 5 Geo. II. does not include all suitors and witnesses
livn)g in England, but extends only to cases of debt or account, and
ip) Seo the very interesting case, Gardiner v. Gardiner, 2 U. C. Q. B.
(0. S.) 55i,, in which the right of a creditor to sue out afi.fa. lamh, is
exhaustively discussed.
02 THE CANADIAN CONSTITUTION.
perhaps conteinplatecl only those contracted in England. First,
as to the power : I consider it imparted by 81 Geo. III. c.
81, which is very comprehensive, and ahnost unhmited in its
terms : . . . . Hubjecfc to the exceptions therein expressed, I do
not see that the powers of the colonial legislatures are otherwise
abridged, so far at least as respects the laws in force at the time
it was first organized, however liable to control by subsequent.
Imperial statutes, naming the province, or including it in a more
general allusion to the North American possessions .... The
King has almost unqualified power to make laws, binding upon
and within the province, with the advice and consent of the
legislative council and assembly ; not as a mere prerogative
right, or under a system of government established by commis-
sion as a royal government emanating from the grace and pre-
rogative powers of the Crown, but by virtue of a British statute,
which says that all laws so made (if not repugnant thereto) shall,
by virtue of that Act, be valid and binding ; and in order not to
abridge the superintending control of his Majesty's government,
a double negative is granted to his Majesty, who may annul and
disallow Acts, although assented too in his name by the governor
or lieutenant-governor representing him in his provincial parlia-
ment here. With these and other such qualifications and safe-
guards as the Imperial parliament deemed expedient, free scops
is given to the action of the colonial legislature in all other
respects ; so much so, that / cnnnot hut m/ard the prorincial statute,
w/icii diiUj paused, of eijiud force within the jirorince with British
statutes, when not repugnant to 81 Geo. III. c. 81. In other
words, I feel constrained to read the fifth section of our first Act
(7) as if it had been incorporated in 31 Geo. III. c. 31, and
formed one of its provisions, and conceive it competent to the
provincial parliament (as a mere question of power) to exclude
the operation of 5 Geo. II. c. 7, in any or in all respects by aa
Act duly assented to by or on behalf of his Majesty ; and, if so,
to produce the same efiect by implication arising from the intro-
duction of incompatible or other contradictory regulations. . .
. . The second inquiry — whether this clause of it has been
excluded. No provincial Act mentions it by name, and, conse-
iq) 32 Geo. III. c. 1 (U. C), introducing English law into Utper
Canada.
WHAT IMI'ERIAL ACTS AKKIX'T T'S ;* (l:?
quLMitlv, if effected, it must be by implication. J. liave already
((uoted the clause of oiu- first Act, which, in furtherance of the
[)revioug clauses adopting the law of England, prescribes the
rule of evidence and the forms thereof. . . . Regarding the
whole scope and spirit of our provincial Act, from the first to
the last, so far as respects the general adoption of the law of
England, it appears to me that 5 Geo. II. c. 7, s. 1, was
not repealed, but excluded from operation here by implication,
especially by the 5th section introducing inconsistent provisions."
And ho proceeds to intimate his opini(ui that tlie Imperial
statute, () Geo. IV. c. 11-I-, which declares void all laws,
li\-laws, usaji;es, or cnstDUis, repu^^iiant to that or other
Ihitish Acts, referred oidy to 'laws, nsa(;es, etc., founded
upon the old systems of colonial o-overnnient by charter
or otherwise,' and not to laws made by colonial assunil)lies
constituted under an Imperial statute.
Chief Justice Robinson, in delivering the judgment of
the co\irt, says :
" As a general principle bearing on our introduction of the
English law, civil and military, I think . . . that this
general adoption (r) of them was not intended to supersede any
particular provision that had before been made in respect to a
certain matter, by a competent legislative authority, applying
itself particularly to the colony. It was an Act to give a general
rule in cases- not specially provided for. On the other hand, I
think this provision of 5 Geo. II. c. 7, does not come within
the -IGth section of 31 Geo. III. c. 31 ; and that if it depended
on the (piestiou whether that clause (and that clause only)
disabled our legislature from repealing it, it would not now be
in force. To receive such an affidavit in proof of debt at the
trial does certainly militate against the rules of evidence as
established in England, and, therefore, after the passing of our
provincial statute, 32 Geo. III. cap. 1, it cannot be admitted,
unless, 1st, it can be held that the repeal of the British statute,
5 Geo. II. c. 7, IS not within the intention of the statute 32
Geo. III. cap. 1 ; or, 2nd, iras not within the power of the colonial
legislature."
('•) i.e. by 32 Geo. III. c. 1, (U. C.)
ti4 THE CAXAIHAN' (( tXSTITrTK >\.
Then, upDii ii consi(lt«riitioii oi' tlic pi-ovincial Act, 82
Oeo. III. c. 1, lit' CdiK'hKk's tliut there is no cvideiice ol'
intent to repeul : ami ])r.-L'e>Mls :
" Secondly. — If the legislatiu'e intended the repeal, had they
the power ?
"1st. The direct effect of such repeal would be to take from
persons resident in Great IJritain, conveniences secured by an
express British Act of parliament to them, and them only; and
I cannot conceive that 81 Geo. III. c. 81, j^'ives to this le«j:is-
lature such a power, . . . Nothing can be more repugnant
to any Act than an attempted rei)eal of it, and the consequence
of being illegal and void must follow, unless the eft'ect of 81 Geo.
III. c. 81, is to make our legislature independent of the pro-
visions of the imperial statutes respecting 'repugnancy.' It
may be contended that it has that effect— 1st, because parliament
delegated the power to make laws for the colony to our legislature,
having the concurrence of the King ; and that all that is done
by ihis delegated authority (within their scope) is to be regarded
as if done by the British parliament on the principle of execution
of powers. 2nd. By specifying . . . certain exceptions to
this power, which do not embrace such a sul.'jeet as that in
question, we must take it there are to be no other exceptions,
and that all laws passed iu this province not coming within tlie
exceptions . . . -ud not repugnant to the constitutional
Act which creates the power, must he within the competence of
our colonial legislature. But to this, I answer— 1st. That the
power is to make laws to operate directly only on the peace,
welfare, and good government of this province (though indirectly
they may affect— which is inevitable— persons resident out of
it), and that it does not reasonably extend to the repeal of an
Act of the British parliament expressly passed to afford facilities
to British subjects resident in England. . . . 8rd. That
the British parliament did not mean to give to this colonial
legislature, authority to repeal Acts of parliament prior to ni
Geo. III. expressly binding in the colony (and especially such
as did not concern the colony merely), is evidenced in the
strongest manner by G Geo. IV. c. 114, s. 49
for it provides expressly that all laws in force or practice in any
WHAT IMPEHIAL ACTS AFFECT FS i '65
of the British possessions of America, which are in any wise
repugnant to any Act of parliament made, or to be made, in the
I'uited Kin<(dom, so far as such Act shall relate to and mention
the said possessions, are, and shall be null and void to all intents
and purposes whatever (s).
" It is said that 32 Geo. III. c. 1, repeals the British statute
;') Geo. II. c. 7, in this particular. If it does, it must be re-
pugnant to it. If it be repugnant to it, then it is an Act in
force, or attempted to be put in force, in this British possession,
repugnant to an Act of parliament made in the United Kingdom
relating to and mentioning the British possessions in America ;
and, therefore, as to such Act, so far as it does relate to and
mention such possessions, it is null and void under the Imiierial
statute G Geo. IV. c. 114. . . . We have ascertained that
in Lower Canada the Courts have uniformly held 5 Geo. II.
c. 7, to be in force as respects the provisions now in question,
notwithstanding that the ancient Canadian law, as the general
rule of decision, is given by the British statute 14 Geo. III.
e. K3 {t), which would make the argument stronger in favor
of the supposed virtual repeal " (»).
Another Canadian case, illustrative of the Avant of full
appreciation of our sul«jeetion to the supremacy of the
Imperial parliament, arose in 1S()4,— the ease of Re((. v.
Schram k Anderson (v). These men were eliar^-ed, under
the Foreit^ni Enlistment Act, 59 Geo. III. c. 00 (Imp.), with
h;ivinu- tried to procure inhabitants of tliis province to
'iiHst in the American army. Strange as it may seem, it
was seriously arjirued, that in spite of express words
making the Act applicable to all parts of the Empire, it.
was not in force here, because we had, at the time it was
passed, a local legislature. And, although the judgment of
the Court was that the Imperial Act in question was in
force here, the reasons advanced, indicate no clear distinc-
(s) See now 28 & 29 Vic. c. 03, supra. (t) The Quebec Act, 1774.
(") See also Smith v. McGowan, 11 U. C. Q. B. 399, and Gabriel v
Derb.vHbire, 1 U. C. C. P 422, as showing the judicial dislike of this sec-
tion of 5 Geo. II. c. 7, and its extension by an Act of Wm. IV.
(i') 14 U. C. C. P. 318.
Can-. Con.— 5
66" THE CANADIAN CONSTITUTION.
tioii between the ley'al limits (or want of lethal limits) to
the leo;islative power of the Imperial parliament, and the
" conventional " limits jnoper to be observed in the exercise
of that i)()wer. We (juote from the judo-vuent of Chief
Justice Richards :
" The only ground on which we can hold that the statute,
59 Geo. III. is not in force in this country is because we have,
and then had, a local parhament, and that enactments of this
kind ought to be made by the authority of that parliament, and
if not so made, they ought to be held not to be in force here.
" By the Constitutional Act, 1791 (31 Geo. III. c. 81), a
separate legislature was established in each section of the prov-
ince, to make laws for the peace, welfare, and good government
thereof, such laws not being repugnant to that Act. By the
Union Act (3 & 4 Vic. cap. 35), these provinces were again
united, and power given to the local legislature to pass laws for
the peace, welfare, and good government of the province of
Canada, such laws not being repugnant to that Act, or to such
parts of the Constitutional Act, 1791, as were not repealed, or to
any Act of the Imperial parliament made, or to be made, and
not thereby repealed, which did, or should, by express enactment,
or by necessary intendment, extend to the provinces of Upper
or Lower Canada, or either of them. The very words of the
statute seem to imply that the power to legislate on some
matters, was, and is reserved to the Imperial parliament, though
this province may be affected by such legislation.
" As long as it is admitted ihat the Home government, by
whom the supreme power of the Empire is exercised, is the
proper channel through which all our relations and intercourse
with foreign governments are to be carried on, the power to pass
laws to bind the whole nation, so far as regards those relations
and, as necessarily arising out of them, the peace of the Empu-e,
must rest with the Imperial parliaruent.
" Independently of the doctrine that our local legislature
can only exercise such powers as are specially conferred upon it
under the statutes passed by the Imperial parliament, there are
other points of view in which the question may be considered.
Though possessing a domestic legislature, we form part of a
WHAT IMPERIAL ACTS AFFECT US ? 67
vast Empire, having other colonies exercising similar legislative
powers to our own. If any one colony, by passing laws, or re-
fusing to pass laws, produced a state of things which created
difficulty with a foreign state, the whole nation might be in-
volved in a calamitous war from the imprudence or recklessness
of a very unimportant colony. Considered in this light, it
appears to me that the statute which we are discussing relates
to the conduct of citizens of the Empire towards foreign states
and people, and is on a subject which must be disposed of and
legislated upon by the Imperial parliament, as representing the
supreme legislative power of the nation, and as to which it is
necessary that all the subjects of the Crown should alike be
bound. The very preamble of the Act states that the proceed-
ings which the statute prohibits may be prejudicial to, and
endanger the peace and welfare of the Kingdom."
And attain, in Reg. v. Taylor (w), Chief Justice Draper,
in considering the term " exclusive," in the 91st section
of the B. N. A. Act, construed it as " intended as a more
( letinite or extended renunciation, on the part of the parlia-
ment of Great Britain, of its powers over the internal atlairs
of the new Dominion than was contained in the Imperial
statutes, 18 Geo. III. c. 12 (x), and 28 k 29 Vic. c. 63 (/y),"
overlooking apparently the fact that such a renunciation
would be of no legal ettect whatev^er in restraining future
parliaments from legislative interference in the internal
nti'airs of Canada, if so ill-advised as to take such an "uncon-
ventional " step. This interpretation of that term " exclu-
sive" has, in subsequent cases, and by other judges, been
very emphatically dissented from, and the general principle
of the legislative supremacy of the Imperial parliament
clearly laid down (z).
(ic) 36 U. C. Q. B. at p. 220.
Ix) The celebrated Eenunciation Act; see ante, p. 36. As to the
legal effect of this renunciation, see charge of Blackburn, J., in Reg. v.
Eyre, reported by Finlayson.
((/) The Colonial Laws Validity Act, 1865.
{z) Smiles v. Belford, 1 O. A. R. 436 ; Reg. v. Coll. of Phys. 41 U. C.
Q. B. 564.
US THE CANADIAN CONSTITUTION.
In the Maritime provinces, where Imperial Act.s relating
to navigation were frecjuently invoked in the Vice-A(hiiir-
alty Courts existint^ in those provinces, a clearer view
seems to have prevailed as to the operation, within the
colonies, of such Acts ; and numerous cases are to be found
in which, without (luestion, ett'ect was given to their pro-
visions. It would appear, however, that the view was
pressed in argument there, just as it was in the courts of
the upper province, that a provincial Act, assented to by
the Crown, was of equal validity with an Imperial Act.
and if later in point of time than an Imperial Act with
which it might appear to clash, it should be given etl'ect to,
hi preference to such Imperial Act. In the case of " The
13ernuida " (a), an attempt was made to attach prize money
in the hands of a prize agent, under the provisions of the
Nova Scotia statute, 1 Geo. III. c. 8; but it was held by
Dr. Croke that this could not be permitted ; that the Nova
Scotia statute was in this particular "repugnant" to the
Imperial "Prize Act," 49 Geo. III. c. 123, and therefore, to
that extent, void. He, however, notices the contention we
have referred to, in favor of the validity of the Provincial
Act, and thus disposes of it:
" Considering it in another point of view, and giving it every
possible validity, still the British Act must be allowed to be of
equal authority, and then the provincial Act must be taken to
be substantially repealed, so far as it is repugnant to the British
Act, which is of a later date."
W«i may also refer to "The Providence," in which the
provisions of the English Navigation Act (12 Car. II. c. 18)
— the second section of which was directed against
alien traders — was enforced in Nova Scotia against an
American trader, in 1820 (h). That section, being of
express colonial application, and not repealed by an}'
subse([uent Imperial Act, was held by Dr. Croke to be still
in force in Nova Scotia, "though not often acted upon."
(a) Stewart, 245. ' (b) Stewart, 186.
WHAT IMPERIAL ACTS AFFECT US ? G!)
And ill like imuiiier the English Bankruptcy Act (12 &
18 Vic. c. lOG) was held to apply to Nova Scotia — so fai-
ns to discharge the V)ankrupt from debts there incurred —
and an attachment of debts due to him, issued after the Jiaf,
was set aside {(•).
When an Imperial Act, made applicable by express
words or necessary intendment to any colony, is (even after
the estaldishment of a legislature in such colony) repealed
by an Imperial Act, such repeal is operative in the colony.
Tliis was one of the points for decision in the old case of
Bank of Upper Canada v. Bethune (r/), in which it was
endeavored to subject the Bank to the disabilities imposed
1 )y the English Bubble Acts. The earlier one of these Acts
liad been repealed by an Act of tlie Imperial parliament,
0 Geo. IV. c. 91, and in pronouncing the judgment of the
court, that by reason of such repeal the Bubble Acts were
no longer in force in Upper Canada, Rabinson, C.J., brings
out clearly :
1st. That the Queliec Act, 1774, and tlie Provincial Act,
40 Geo. III. c. 1 (upon which two Acts our enjoyment of
the criminal law (e) of England rests), were not intended
to refer to Acts expressly, or by necessary intendment, made
applicable to the colonies in general, or to Canada in par-
ticular.
2nd. That such Acts continued to be, as they had
always l)een, in force liere by their own inherent vigor
alone ; and
3rd. That a repeal liy Imperial Act would M'ipe them
out of the list of colonial laws. It ii'oes without saviui"-
(c) Hall V. Goodall, 3 Murd. Epit. 149; Fraser v. Morrow, 2 Thomp.
'232, and see also " The Friends Adventure,'' Stewart, 200; " The Fama,"
Stewart, 112; and Congdon's N. S. Dig. 133(5, ct seq. , and Steven's Dig.
N. B. siih. tit., " British Statutes."
(</) 4 U. C. Q. B. (O. S.) IGo.
((') The argument is equally applicable in reference to the Act 32
Oeo. III. c. 1 (U. C), introducing English civil law.
70 THE CANADIAN CONSTITUTION.
that liis viewH are very clearly expressed, and we venture
therefore to quote somewhat at leii<^th from his opinion :
" My opinion is, that the fii'st Bubble Act has not been in
force in this province since the repeal of that statute by the
Imperial parliament in their Act of G Geo. IV. c. 91. While
it was in force, I think it derived its obligations in the colonies,
first and principally, from the very words of the statute itself.
It was passed in order that its provisions might extend, not inerely
to London and other parts of the Kingdom, but also to Ireland
and ' other his Majesty's dominions.' It was in force in the
colonies by the same act of legislative authority, and its obliga-
tion rested on the same foundation in the colonies as in Eng-
land When, therefore, the legislature determined
it to be expedient that the first Bubble Act, or rather those
clauses of it which are now in question, should be repealed, and
that the several undertakings, attempts, etc., therein prohibited
should be left to be dealt with according to the common law,
they did, in my opinion, absolve the application of that statute as
plainly and as fully in the colonies as in other parts of the
Empire where it had been in force. Of course, that must be
the efl:ect, unless some statute passed in England or in this
colony since the first Bubble Act prevents it. The second
Bubble Act, 14 Geo. II. c. 37, cannot, as I think, have that
effect. It was never anything but a mere supplement to the
first Bubble Act. (hnne accessorhun ii('(jHitHr suum princijxili'.
The latter statute has nothing to stand upon if the former has
been withdrawn. Then we must next consider the effect of
"The Quebec Act, 1774," introducing the criminal law of
England into the province of Quebec, and of our provincial
statute, 40 Geo. III. c. 1, declaring that the criminal law of
England, as it stood on 17th September, 1792, shall be the
criminal law of this province. Neither of those enactments, in
my opinion, were intended to affect, or can properly be construed
to affect, the question whether the Bubble Acts are now in force
in this province.
" By the Quebec Act, 1774, the British parliament clearly
designed to give to Canada the criminal law of England, as to
those objects and in those matters for which no special provision
WHAT IMI'EllIAL ACTS AFFECT I'S i' 71
liatl before been made by parliament. That statute had no
intended reference to Acts of parliament which, from their very
terms, already were as much in force in the colonies as in
Enj^dand, and which consequently required no introduction at
tliat period. It left those special laws as they stood. Upon any
other principle, if there had been particular penal statutes then
in force applying solely and exclusively to the colonies, and form-
ing no part of the law of England, we must have held such
statutes to be virtually repealed by the Quebec Act, 1774,
giving us the criminal law of England, though clearly such an
eti'ect never could have been intended. The Bubble Acts were
not peculiarly the law of England— they did not come to us as
introduced by The Quebec Act, ]77-4; they were part of the
criminal law of England, and of the other colonies before, and
they continued to be so upon the same ground, and no other,
after the Quebec Act was passed, as before.
" Then, as to our statute 40 Geo. III. c. 1, the point is
still more clear. Our colonial legislature, when they passed that
Act, must be taken to have been using their discretion and
choice in introducing the criminal law of England, in the whole or
in part, with or without exception, as they judged best. Now,
they had, at that time, no discretion to exercise in regard to these
liubble Acts, because they already formed part of our penal law,
being expressly made to extend to this and other colonies by a
power beyond that of the provincial legislature. If they had
desired to except them they could not have done it, and, there-
fore, it cannot follow that because they did not except them, they
adopted them ; they were not legislating with any view to laws
already in force under a power superior to their own. If they had
excluded them, the exclusion would have been illegal ; if they
had introduced them, their declaration to that effect would have
been idle and inigatory. I understand the provincial legislature
to have left them as they found them, standing upon their own
original foundation, which they had no power to strengthen or
weaken; and when the parliament of the Mother Country
repealed the original and principal Bubble Act, declaring that it
was expedient to have such practices and schemes to be dealt
with according to the common law, they did, in my opinion, undo
all that they had done by that statute, and they neither meant
72 THE CAXADIAX CON'STFTITIOX.
to leave it in force, nor did leave it in force, in anj one part of
the British dominions more than in any other."
The principle we are now UiscuHsiu^', namely, the opera-
tive force in a colony of an Imperial Act repealin;;' a
previous Imperial Act of express application to such colony^
was recognized in a comparatively recent case which came
before the Judicial Committee of the Privy Council, Re;;.
V. Mount & Morris (/'). These men were tried before the
Supreme Criminal Court of the colony of Victoria, upon
the charge of murder, alleged to have been committed on
board a British ship on the hi^h seas, and were convictfd
of manslau^'hter. The jurisdiction to try persons char^t'il
with offences connnitted on the sea, within the jurisdiction
of the admiralty, was for the first time conferred upon
colonial courts, in 1849, bj'- the Imperial Act 12 &; 13 Vic.
c. 96, the second section of which provided that convicted
persons should bo sul)ject to the same punishment "as by
any law now in force " persons convicted of the same
offence would be liable to, had the offence been committed
and the trial had in England.
At the time this Act was passed, the punishment for
manslaughter in England was transportation for life.
Afterwards, by an Imperial Act, punii^hment l)y transpor-
tation was abolished, penal servitude being suV»stituted
therefor. There was nothing in this Act expressly extend-
ing it to the colonies; l>ut, notwithstanding this, the Com-
mittee held that the previous Act, 12 & 13 Vic. c. 9(5,
which had conferred on colonial criminal courts the iuris-
diction to try sucli offences as we have mentioned, must bo
held to be amended (in respect to the sentence to 1 )e
imposed) by the Act which abolished transportation.
Their view is thus expressed :
"When the Imperial legislature substituted penal servitude
for transportation, it is reasonable to suppose that the alteration
(/) L. R. G P.O. 283.
WHAT IMl'KIUA/, ACTS AFFECT US ! 7'.]
Was intended to embrace sentences for oflfences tried in tlie
colonies under the special jurisdiction conferred by 12 t't 18 Vic,
since there is no trace of any intention on the part of the legis-
lature to change the policy of that Act, which orders these sen-
tences to be passed according to the law of England.
"This construction creates no conflict between Imperial and
colonial authority, and in no way affects the rights and privileges
of the colonial legislatures. It simply affirms that the Imperial
statute, which gave the courts of the colonies <jiii>ail offences
conmiitted upon the seivs beyond their territorial limits, a juris-
diction which their own legislatures could not confer, was altered
by a subsequent Imperial Act."
This case, as will be seen, is a pretty strong one, as the
alteration of the previous Act (which alteration was held
to have effect in the colonies) was an alteration by implica-
tion, and not by direct amendment or repeal.
It is beyond the scope of this work to enumerate even
luii'rty the Viirious Imperial Acts ((/) whicli to-day lay
down, on various matters, the law for our «;'uidance and
submi'^sion. Tiie most that can be done is to indicate, with
no pretence of exhaustive treatment, some of the subjects
(a) For other cases involving an enquiry whether or not some par-
ticular Imperial Act extends to Qanada, see: —
Routledge v. Low, L. R. 3 E. and I. App. 100— Copyright Act (5 & (>
Vic. e. 45).
//( i-c Lyons, G U. C. Q. B. (O. S.) 627- -An Act respecting Declarations
in lieu of Oaths.
Hodgins v. McNeil, 9 Grant, 305— Lord Lyndhurst's Marriage Act
(5 A G Wm. IV. c. 5i). " The colonies are not mentioned in the Act, nor
included by any necessary or even strong intendment."
Thompson v. Bennett, 22 U. C. C. P. 393— Orders in Lunacy (11 Geo.
IV. and 1 Wm. IV. c. 60).
Pw Squier, 4G U. C. Q. B. 474— Removal of Colonial Officers, (22 Geo.
III. 0. 75).
Georgian Bay Trans. Co. v. Fisher, 5 O. A. 11. 383— Mer.^hant
Shipping Acts.
Mowat V. McPhee, 5 S. C. R. GG.
Allen V. Hanson, 18 S. C. R. G67, at p. G31— English Joint Stock
Companies Acis.
74 TlIK C'ANAI»I.\N CON'STITI'IION.
on wliich the luipfi-ial piirliuiiM'nt dot's legislate for ns. We
havt> advortod, to some extent, to the general nature of Hueh
HuhjectH in a |)revioUH cliapter, and have indicated that they
are Hnlijeets which arejleeniecl to he of connnon concern to
the whole Empire, l)iic it will he advisahle to defer any fur-
ther remarks upon this hranch until we come to treat of
those sections of the B. N. A. Act which divide the field of
colonial self-<,^)vernment allotted to Canada hefeween the
parliament of Canada on the one; liand, and the Le<fislativo
Assemlilies of the various provinces, on the other (A).
(/() The "Chronological Index," published with the English Law
Reports, affords a convenient method of tracin),; the fate of Imperial Acts.
See xhIj. tit. "Colonies" and the various cross-references.
CHAPTER V.
THE SOURCES OF OUR LAW.
In the last clmptor, we pointed oUt the nece.ssity for a
careful distinction between Imperial Acts which are in
force in any particular colony because "made api)lical»lc
to such colony l»y the express words or necessary intend-
ment" thereof (f() and Acts which (as comint^ within the
term English law, or the law of En<^lan<l) have been, by
Imperial <;'nint or colonial adoption, made the law of the
colony. A constant ^uard must be maintained with refer-
ence to this distinction. In the last chapter, the extent to
which we are subject to the law enacted in and by the
former class of Imperial Acts was discussed. This chapter
will deal with those Imperial Acts, and those only, which
have no expressed reference to the Cijlonies in general, or
to any colcmy in particular, and the encjuiry is to be — To
what extent are sack Acts to be held in force in Canada ?
In entering upon this enquiry, it becomes at once
apparent that there is a marked variety in the position of
the various provinces of which the Dominion of Canada is
composed ; and that the extent to which Englisli statutory
law, of a general character, is in force in the difierent
pro\inces, is by no means the same. The reasons for this
variety are to be sought in the ditt'eiences which mark their
(a) 2S & 23 Vic. c. 63, s. 1 (Imp.).
70 I'm-; CANADIAN COXSTITl TION.
varly liistoiy hs Ht'panit*' colonies of (Jreiit Hritain — diffi r-
t'UCi's as to tlu' niotlo l>y which they attiiiiu'(l that (li.stiiic-
tion — ilift't'ivnccs in tlie nii'thoils ciuployud l>y Inipt'i'lal
autliojity. in <h'tt'rniinin;^ what syHteni of jm'isj)ru<h'nct'
shoulil \)v oiven to hucIi of them as had t!uit (|U»'stiuii
si'ttled for them hy Imperial anthoi'ity — ditt'enMiees in tlic
extent to which En^dish hiw was adopted hy such of them
ns determined tiie (piestion for thems(d\"es — ditt'ei'ences hh
to tile point of time in reference to wiiich the introduction
toulv phice.
"A ([Uestion of this kind," said Chief Justice Uohinsmi,
in 1<S45, " arisin*; in any British colony, must depend upon
the manner in which the law of Eny;land has Itecojne the
law of that particular colony ; wliether it lias been merely
assumed to he in force upon conniion law princii)les, as in
the case of new and imiiihahited lands found and planted
by British suhject.s; or whether it has l>een introduce*! l»y
8onie positive-enactment of the Mother Country, or of the
colony, or (as may be done in the case of a con(|uerLMl
tjountry) imposed l»y the mere act or re<,'ulation of tlu'
Kinj^, in the exercise of his royal prerocrative" {!>).
It may be said that in Canada there are, amon«; the
provinces, representatives of each of the classes of colonies
referred to ))y the euiinent Chief Justice whose words we
have (|Uoted : and an apolof^y, therefore, is liardly in order
for makin*^ our in([uiry, so to speak, % province.^.
The reader should, perhaps, lie M'arned that many of
the English statutes, upon whicli discussions have taken
place and decisions been given to the effect that the}' nnist
be held to l)e in force here, are not, at this date, in
force in Canada, and for the reason that the subject with
which they deal has, since they were under judicial
scrutiny, received attention at the liands of our pai'lia-
ments. It cannot hd too carefully kept in mind that it is
only in the absence of Canadian or provincial le(,dslatiun
(b) See post, Chap. VI.
Tin; SOLUCLS OF iJLll LAW. 77
(MS tilt' cast' may '»»') on tin- Hiilijcct, that any (lui'.stion can
;iiisf as to tln' t'H'i'C't ln'i"»' of an Inipi'iial t-nac^mont, [)a.s.s('<l
lictniv the <hite in rcffivnce to wliich, En^^lish hiw is to he
takt'M as a Hxt'<l "lio<ly" of hiw, a»nl iih .such introluccd
into the <liit('Pent provinces. The cases are colk'ctetl an<l
iv\iewe<l in or<h'r to enHl)le the reader to fully ^I'asj), if
possilde, the principles on which tlu- decision nnist rest,
which admits or denies any Imperial statut«' as opei-ative
hi iv, raiher than as showinj; wliat |)articulHr Impei'ial
tiiactnients are to-day in force in the tlifi'erunt provinces of
Canada.
Si'iiiiH't's i)f'i(n'('x. — Nova Scotia, as the (jjdest o*" the
jdovinces, is entitled to the tii-st consich.'ration. We liuve
al'eady referred to the claim made by tiie Cieneral As.semldy
i»t' that province in 1759, that Nova Scotia "did always of
ri;;ht helon^' to tlie Crown of En{.,'iat\d, lioth hy priority of
ijiscovery a,nd ancient po.ssession " (c). By the Nova Scotia
courts, this claim would appear to have lieen reco<^nized ; to
this extent, at all events, that Nova Scotia has always 1)een
treatei] as a colony hy .settlement as distinguished from a
col(aiy ohtained l)y couipiest or cession. Owini,' to the
ahsL'Uce of reports of the early decisions in that province^
we are unable, hy direct reference to decided ca.ses, to show
the way in which this question — how far English law was
deemed to be introduced — was treated in the earlier years
<>t ius history. There is, however, one decision in that
province which may be considered classic upon this ques-
tion, and su])se(|uent decisions have practically been but tlie
up|ilication of the principles eimnciated in that case. The
decision to which we refer is that of the Supreme Court of
Nova Scotia, in the case of Uniacke v. Dickson ((/). Chief
Justice Halliburton, who then presided over the court, had,
iit the time this decision was given (19th February, 1«4S),
occupied u seat on the bench for over forty yeai-s. Both
on account of the exhaustive treatment of the whol- ques-
{<-) rtH^f, p. 26. (d) James, 287.
7.S TiiK c.WAin.w cox.srrrrTio.v.
tion C()nt!iin('(l in the opinions of the Chief Justice and Mi'.
.Justice Hill, Hud heciiuse the cuse is u tittin<;' introduction
to our whole suliject, we venture to (juote Honiewluit fully
from those (jpinions.
The action was an action on a uiorty'Hi'e, in which tlie
Attorney-Cjreneral for the province into'vened, clainiin;;- a
char<;e in pri(jrity to that of the plaintiff' l»y reason of
certain dehts which were due U) the Crown hy the moi't-
j;a^or. The claim was 1)ased upon Impei'ial statutes, 3H
Hen, VIII. c. 30, and l-S Eliz. c. 4, the {.,^eneral tenor of
which, is sufiiciently indicate*! in the jud_i;inents :
Hallihuutox, C.J. —
" To what extent the laws of the
motlier country prevail in the colonies settled by her descend-
ants, is a question which lias occasioned much discussion without
producing any rule approaching to precision for our guidance.
" The language of elementary writers upon this subject is
couched in such general terms and qualified by such numerous
exceptions, that they perplex rather than enlighten us.
" Our excellent Blackstone, for instance, says, in his commen-
taries (1st vol. 101), 'it hath been held that if an uninhabited
country be discovered and planted by English subjects, all the
English laws then in being (which are the birth-right of every
subject) are immediately there in force.' Had the learned
commentator stopped here, he would indeed have laid down a
rule so broad as to embrace every case and remove all difificulty ;
no distinction is alluded to between the con.mon and statute
law, but all the laws then in force in England are to be at once
transplanted into the infant colony. His own. good sense, how-
ever, at once pointed out to him the absurdity of such a position,
and he immediately adds : 'But this must be understood with
very many and very great restrictions ; they carry with them
only so much of the English law as is applicable to their own
situation and the condition of an infant colony ' ; and among
his exceptions, he particularly mentions the laws of police and
revenue.
" Among the colonists themselves there has generally existed
& strong disposition to draw a distinction between the commou
THF SOl'UCES OF (»ri{ F-AW. 79
and the statute law. As a code, they have heen disposed to
adopt the whole of the foniior, with the exception of such parts
only as were obviously inconsistent with their new situations,
whilst, far from being inclined to adopt the whole body of the
statute law, they thought that such parts of them only were
in force among them as were obviously applicable to, and neces-
sary for, them.
" As it respects the common law, any exclusion formed the
exception ; whereas, in the statute law, the reception formed the
exception.
" Now, although this view of the subject leads us to nothing
very precise, yet, if we adopt it, and I think it wise and safe to
do so, we must hold it to bo quite clear that an English statute
Is applicable and necessary for us before we decide that it is in
force here.
"The language of C.J. Chipman, in the cage of the King v.
McLaughlin {»'), might induce us to suppose that he did not
recognize this distinction, for he says: *As to the distinction
attempted to be drawn by the counsel for the claimants, between
the common law and the statute law extending to the colonies,
other statutes than those mentioned by the Solicitor-General are
daily acted upon'; but when 1 turn to the expression of this
able judge at the commencement of his opinion, I think he
sanctions the distinction. He there says : * Each colony, at ita
settlement, takes with it the common law and all the statute law
applicable to its colonial condition.' indeed, the distinction
exists in the very nature of things, and is derived from the
origin of the two codes. The common law has its foundation in
those general and immutable principles of justice which regu
late the intercourse of men with men, wherever they may
reside. The statute law emanates from the wisdom of the
legislature of the day, varies with varying circumstances, and
consists of enactments which may be beneficial at one time and
{(') There does not seem to be any printed report of this case, beyond
a note of it in Stevens' Dij^. (N. B.). It involved the same Imperial Act
as was in question in Uniacke v. Dickson ; but, in New Brunswick, the
Act was held to be in force. As will be noticed hereafter, the courts of
that province have been more liberal in their recognition of the binding
force in the province of British Acts ; see j^ont.
80 THK CANADIAN COXSTITrTlON.
injurious at another — which might advance the interests of one
community, and prove ruinous to those who were differently
situated.
"My venerable predecessor, C.J. Blowers, who presided so
ably in the Supreme Court for many years, inclined to the
opinion, that those statutes only which were in ameliora-
tion of the common law, and increased the liberty of the subject
were in force here ; and though (as we have no reports of the
decisions) my memory does not enable me to mention any par-
ticular case which he decided upon that principle, I well recollect
that he was invariably influenced by it in all cases to which it
was applicable.
" It has been contended that the 33rd of Henry VIII. is in
amendment of the common law, and I observe that Mr. Justice
Botsford, in the case I have alluded to (Rex. v. McLaughlin)
gave a reluctant assent to the adoption of it in New Brunswick
upon that ground. The 74th section, to which he particularly
alluded, may, perhaps, be deemed to have that tendency^
although conflicting decisions have been given in cases arising
upon it, in Westminster Hall ; but surely, taking the statute
as a whole, it never can be considered in that light. Bub
without excluding either statute upon that ground alone, let us
inquire upon what ground they are now, for the first time, to be
adopted, when we have had a local legislature for nearly a cen-
tury, fully empowered to make such laws as the interests of the
colony has required
" In continuing his observations upon the extension of the
laws of England to the colonies of the Empire, Blackstone says^
in the same page from which I have already quoted, ' What
shall be admitted and what rejected, at what times and undei"
what restrictions, must, in case of dispute, be decided, in the first
instance, by their own provincial judicature, subject to the
revision and control of the King in Council.' It is not con-
tended that either of these statutes has ever received this sanc-
tion in Nova Scotia. The attempt to enforce them here is now,
for the first time, made ; and it appears to me to be incumbent
upon those who preside in the respective courts of judicature in
this province gravely to consider whether the adoption of their
THE SOURCES OF OUH LAW. 81
provisions, if it be jinlicions to adopt them, is not now rather
the province of the lef,'i slatnre than the courts.
" In the early settlement of a colony, when the local legisla-
ture has just been called into existence, and has its attention
tnj,'rossed by the immediate wants of the infant community in
their new situation, the courts of judicature would naturally
look for guidance, in deciding upon the claims of litigants, to
the general laws of the mother country, and would exercise
greater latitude in the adoption of them than they would be
iiititled to do as their local legislature, in the gradual develop-
ment of its powers, assumed its proper position. Kirn/ i/cur
slmiihl irnih'f till' courts uuire aottioun in the oilnjition of hnrs that
lull} neccr hcen iiri'n'niislii intnuhweil Into the ruloui/, for prudent
judges would remember that it is the ]no\ince of the courts to
(Itclare what is the law, and of the legislature to decide what it
sliall be.
"Impressed with this view of the distinct functions of the
legislature and the courts at this per'od of our colonial exist-
ence, it does appear to me that if additional fiscal regulations
are necessary to assure the due collection and payment of our
provincial revenue, it would be more proper to apply to the
legislature to adopt such as they may deem prudent, than to
reijuire from the courts the adoption of English statutes which
were passed centuries ago, under sovereigns who were sufficiently
careful of the preservation of their power, and by parliaments
who, to say the least, paid as much attention to the prerogatives
of the Crown as they did to the privileges of the people —
statutes, the rigours of which have been diminished in the
mother country during the reign of our present gracious Queen^
(5 Victoria, c. 11).
" Should this course be pursued, our legislature can intro-
tlnce similar ameliorations of these statutes, if they think it right
to adopt them. The courts have no such power ; but if they
adopt them at all, must adopt them in all their rigour.
*' The 33rd of Henry VIII., if enforced here as it now stands
in the English statute book, would, to a great extent, be destruc-
tive of that security to purchasers of real estate which our
registry Acts were passed to ensure. . - ' •
Can. Con.— 6
<S2 THE CANAF)IAX CON'STITriKtX.
" The 18th of Ehzabeth would partially have that effect
also, but not so mischievously, because the officers liable to its
provisions would be generally known. But bonds to the Crown,
in security for the payment of duties, are given all over the pro-
vince by persons engaged in the trade and others, and no one
could be sure that he was safe in purchasing real estate if that
statute should be now adopted.
" There is another objection to the adoption of these statutes
which I think has some weight. The Supreme Court has
generally considered that when the local legislature has legis-
lated upon any particular subject, relative to which English
statutes had previously existed, the colonial courts are to be
guided by the provincial and not the English statutes in deciding
questions upon such subjects. Thus, upon a claim of a mother
to succeed to the personal estate of her deceased child, to the
exclusion of her other children, the Supreme Court of this pro-
vince decided that she was entitled to do so, because our legis-
lature had re-enacted the provisions of the statutes of Charles
II. upon that subject, but had not at that time (although they
have since) re-enacted those of 1 James II., which latter statute
had passed before we had a local legislature.
" Now, our legislature have had the subject of the securities
necessary to be given for the safe collection of the revenue,
under their consideration, and have passed laws upon that sub-
ject, which direct that the officers appointed to collect it shall
give bonds, in which they shall be joined by sureties, for the
faithful discharge of their duties ; and that those who import
goods liable to pay duties to the Crown, under the Acts of this
province, shall not only give bonds for the payment of those
duties as they become due, but shall also give warrants of
attorney to confess judgment upon those bonds ; a measure that
would have been unnecessary if the statute of Henry VIII. was
in force here, for that statute would have made the bonds them
selves debts of record. If these sureties are not sufficient, the
legislature, and not the courts, should be applied to, to remedy
the evil.
" For these reasons I am of the opinion that these statutes, on
which the Attorney- General has founded the right of the Crown
THE S(»riUES OF (n'U LAW. ,S.S
to interpose in this case are not in force here, and consequently
that right cannot be sustained by them "
Hill, J.—
" Then, upon the best consideration I have
been able to give to the question, I am of opinion that neither
tlie statute 88 Hen. VIH. c. 8U, nor that of 18 Elizabeth, c. 4,
t'xteiid to, or are operative in, this province. There is confess-
edly no precise rule, nor can we expect to find any direct decision,
as to what Imperial statutes extend to the colonies discovered,
settled, and peopled by British subjects. Tlir i/wstinu seews U)
hi', find inihnl mmt of iwressitij /*/■, left (>i>i'n ^» he ileriU'd in encli
jKirticular cohmij and casr In/ the rmirts eatnldished in tkase ndonies.
A law that would be very fit, advantageous, and applicable to
one colony, might be very inapplicable to, and unfit for another
— one very requisite in one colony, might not be at all required
in another ; nay, might be very unfit for it, and injudicious to be
adopted .
" The general rule on this subject appears to be, that wherever
English subjects discover and possess themselves of an unin-
habited country, they carry with them such of the English laws
then in force as are applicable and necessary to their situation and
the condition of the infant colony ; as, for instance, laws for the
protection of their persons and property. Wherever an English-
man goes, he carries with him as much of the English law and
liberty as the nature of his situation will allow. Lord Mansfield,
in the case of Lindo v. Lord Rodney, reported in note (/) to the case
of Le Caux v. Eden, Doug. 594, says : ' The colonies take all the
common and statute law of England applicable to their situation
and condition.' Blackstone, in his Commentaries, Vol. L 106
thus lays it down: 'Besides these adjacent islands (the islands
of Jersey, Guernsey, and others) our more distant plantations in
America and elsewhere are also, in some respects, subject to the
English law. Plantations or colonies in distant countries are
either such where the lands are claimed by right of occupancy
only, finding them desert and uncultivated, and peopling them for
the mother country ; or, when already cultivated, they have either
been gained by conquest, or ceded to us by treaties ; and both these
rights are founded upon the law of nature, or at least, upon that
of nations. But there is a difference between these two species
84 THE CANADIAN CONSTITUTION.
of colonies with respect to the laws by which they are bound ;
for it hath been held that if an uninhabited country be discov-
ered and planted by Enj^dish subjects, all the English laws then
in being, which are the birth-right of every subject, are immedi-
ately there in force. But this ' (that is the doctrine laid dowii
in Salk. 411 and OOG, whom Blackstone quotes) 'must be under-
stood with very many and very great restrictions. Such
colonists carry with them only so much of the English law
as is applicable to their own situation and the condition of
an infant colony; such, for instance, is the general rules of
inheritance and of protection from personal injuries. The arti-
ficial refinements and distinctions incident lo the property of
a great commercial people, the laws of police and revenue (such
especially as are inforced by penalties) the mode of maintenance
for the established clergy, the jurisdiction of spiritual courts, and
a multitude of other provisions, are neither necessary nor con-
venient for them, and, therefore, are not in force. What shall be
admitted and what rejected, at what times, and under what re-
strictions, must, in case of dispute, be decided, in the first
instance, by their own provincial judicature, subject to the
revision and control of the King in Council.'
" Blackstone, therefore, dissents from the unrestricted posi-
tion in Blankard v. Galdy, Salk. 411.
"Chitty, on Prerogatives of the Crown, p. 30, appears to adopt
the doctrine as modified and restricted by Blackstone. He 9ay?>
' If an uninhabited country be discovered and peopled by Eng-
lish subjects, they are supposed to possess themselves of it
for their sovereign, and such of the English laws then in force
as are applicable and necessary to their situation and the condi-
tion of an infant colony— as, for instance, laws for the protection
of their persons and property — are immediately in force. Wher-
ever an Englishman goes, he carries with him as much of Eng-
lish law and liberty as the nature of his situation will allow.'
" Chitty refers to an anonymous case, in 2 P. Will. 75, and to
the Queen v. Mayor and Aldermen of Norwich, 2 Ld. Raymond,
1245, in which last case Lord Holt refers to Blankard v. Galdy.
" Clarke's Colonial Law, p. 7, is merely a repetition of what
Blackstone has already ::.did on this subject, and from whom I
have quoted.
THE .SOL'UCES Of OL'U LAW. H5
" The whole tenor and spirit of what all the writers on this
suhJL'Ct have said, and of all the eases relating to it, in my mind,
leave the question under conside-ation widely open, and that
irli.ctlier (I jiiirticiiltir statute ilons or ilm's )tnt t.itinil to n coltmij is to
hi' thridi'd in ciicJi iKtrticuUw ciiae hij thf colonini Judicature, subject
to an appeal home.
" When this colony was first settled and possessed by English
subjects, were these two statutes applicable and necessary to the
condition and state of the first occupiers and possessors ? Did
the state of the colony require them to be in force ? I do not
conceive the question to be whether the whole or some small
part of these Acts might not, as it wera, be pressed into the
service, but whether they are necessary to our wants and require-
ments ? Looking then at ti'e matter in this point of view, I
cannot say that these statutes were, or are, necessary to the state
and condition of Nova Scotia — to "ts wants and requirements. In
that great country where these statutes were passed, the rights of
tiie Crown were considered sufficiently protected under the com-
mon law until the time of their enactment ; and in an infant
colony like this, at its first settlement, and even now, the rights
of the Crown will find ample and adequate protection under that
same law, without requiring the aid of these stringent statutes.
There is no danger, I think, of its being prejudiced in the collec-
tions of its revenue, or otherwise.
" Up to this period I have never heard of any complaint or
difficulties upon the subject. In England, where the Crown
revenues were so great, and derivable from so many resources,
and where its dues necessarily pass through so many hands, it
might be very proper to clothe the Crown with greater authority
and security to collect its revenues. But how could that be
necessary here, on the first settlement of the country, when the
Crown may be literally said to have had no revenue from any
source, nor any debts due to it ? But how has the colonial
legislature silently spoken upon this subject ? If it had been
thought that these statutes were wholesome, necessary, and
applicable to us, I cannot but think that our legislature would
have so said by re-enacting them. The legislature, in its very
first session in 1758, did re-enact many provisions of English
statutes which were thought applicable to our situation, and
86 rilK (ANADIAX CON'sTITniON'.
from time to time such re-enactments liavo f'onml tlieir way into
our statute books, but we find notliin;,' of these statutes l)ein{,'
re-enacted. Does not then this fact show in stron<,' colors what
th opinion of our le^'islature was and lias been on the niatter?
for, as I have remarked, if occasion had called for it, there
undoubtedly would have been a re-enactment. As far, there-
fore, as the opinion of the le<,'i3lature may be gathered, these
statutes do not extend to us; and I must add, that, on a refer-
ence to our statute book, it will be found that very particular
attention has been paid to the securing the debts of the Crown
under our various revenue Acts, and particularly under tliose of
a later date. The mode of securing and the manner of collect-
ing are precisely pointed out, so that it is manifest the subject
of the Crown debts has been under the consideration of our own
legislature. I allude to this, not as showing that our legislature
would abrogate the statutes of Henry and Elizabeth, but as an
argument that they did not extend to us.
" Thus far, then, as to the legislature. What, then, has been
the opinion i i practice among the profession ? Cases nuist
have arisen i which these statutes, if extending here, might,
and probably would, be called into operation ; and yet this is
the first occasion on which the attention of any court in the
province has been called to them. The contrary has not been
asserted ; and, no doubt, the fact is, that the writ of extent never
issued in this country. The ordinary process of our courts has
invariably been the mode of collecting the Crown debts. Why,
then, has this been so? I apprehend merely because no incon-
venience has ever been found to flow from following the ordinary
and prevailing practice — no detriment to the rights or interests
of the Crown. This non-user, if I may so speak, of either of
these statutes, this wan* of any reference to them, convinces me
that the profession, at all events, never considered them as
having any efficacy with us.
"Now, the interest in this case is entirely local, it alone con-
cerns the province and the support of its government; no
portion of this money goes into the private cotters of the
sovereign, or into the Imperial treasury; and when circum-
stances shall demand it, doubtless we shall pass our statutes of
Henry and Elizabeth, as was done in England.
THK SOl'UCKS OK inn I,A\V. ,S7
But let ns suppose that our lt'<,'islature in IToH Imd re-enactod
those two statutes, or tliat portion of them whicii reluti'S to the
matter in liand ; could it l)o said that tiiey were necessary, or
rather, coidd it be denied that their enactment would have been
absurd, inasmuch as there was nothing for them to operate on.
" The question, therefore, after all, is a narrow one, and may
lie said to be more addressed to our judgment, ^(,i /innleiit nml
liiilit'JKihiini/ men, than as lawyers and judges. My opinion,
therefore, is based upon this consideration, that neither of these
statutes was api)licable and necessary to our state and condition
when the province was iirst settled, nor at any time since, and
that the rights of the Crown are amply protected and secured by
the common law."
Acts in curtuihiu'iit «>!' pivro^^oitive seem to Inivc lieen
t'.ivonilily looked on l»y Nova Seotiii j'udt^es. ^luti-na Chartn
.ind the Hec<ui(l and third eharterH of Henry III. were held
( /) t) he operative W'thin the province, to prevent the
Crown from n^rantin^' a general ri^ht of fishery; for, as was
said, a tyrant to support that must he as old as the rei^n of
Henry II., and, therefore, heytuid le<^al 'neni<»ry ; for, by
Mai;na Charta and the chartei's of Hev.i/ III., the kiny; is
expressly })recln<le<l from makin<;' fresh ;4TantH. A^ain, it
was held (7) that where huul had Ijeen yrante<l, with a
condition that the <i;i'ant should he void if the land were
n )t settled upon within a certain time, no new tyrant could
he made without impiest taken: the provisions of the
statutes S Henry VIII. c. 1(1, and LS Henry VIII. c. (),
hein;^ held operative within the province, to prevent .such
new g-rant from taki. ^;" ett'ect. The view acte<l upon by the
court is thus expres.sed :
" The very grievances intended to be remedied and redressed
by this statute, are those under which the subjects of this
province might well say they labored, if it were held that land,
if) Meianer v. Fanning, 2 Thorap. 97.
(,'/) Wheelock v. McKeown, 1 Thorap. 41 (2nd ed ); and see also Miller
V. Lanty, ib., IGl.
88 THK CANADIAN (ONSTITl'TIOX.
granted with a condition timt the grant siioiihl he void if the
land were not settled on within a certain time, could i)e siibse-
<iuently granted without infjuest of otlice."
Tlu; .same view was thus expressiMl in a Inter ciise (//)
inv()lvinj( considiTiition of the sunie stutnte :
' '• The court has uniformly decided that when there is /'/«•»//
(Hissessii) lield against the Crown — particularly under color of
title — the Crown must re-invest itself with the possession before
it can grant ; and, if it grant while it is out of possession, that
grant is void under H Henry VIII. c. 1(5, and lb Henry VUI.
c. u.
In u Htill later case (/), invcdvinj^CDnsidcration of 21 Jac.
I. c. 14 — an Act hi jmri iimtct'ln with the statutes of
Ht.'nry.ahove referred to — Youn;;', t'..J.,siH'akin<;()f rniackc
V. Dickson and the statute there in (juestion, says:
"The statute of James is of a different character. The
object of the former was to extend, that of the latter is to limit
and restrain, the prerogative of the Crown, and that for a highly
beneficial purpose, and for the protection and benefit of the
subject. What class of persons is better entitled to the favor of
the legislature and the courts than the men who transform a
rude country into smiling habitations, and hi it for the use and
enjoyment of man? I look upon this statute of James as
peculiarly suited to our condition and circumstances, and to
have the same title to be considered part of ou. law, and on the
same principle on which we have always recognized the Statute
of Uses and the statute <//- Douin until the present enactment
abolishing estates-tail."
The \iew expressed by Hallilnu'ton, C.J., in Uniacke v.
Dickson, that after a legislature has been duly c(jnstitute(l
in a colony, and has, ho to speak, settled down to its work,
courts of law should be very cautious in j^ivino- ert'ect to
Imperial Acts which had never been previously acted upon
(/i) Scott V. Henderson, 2 Thomp. 115.
(.) Smyth V. McDonald, 1 01c\ 274.
THE HOl'Ut'ES OK (»L H LAW. h!)
in the coloijy (./), Iwis I'vitlcntly luul ii must jtowfrful «'rtV'et
in sul)stM|Ut'nt chsim. For iiistiiiu't'. tin- coiii't rt'tust'tl to
viHit U[M)ii the Nlicritr of Hiiliiux |>»'iiiilti»'s to which h»'
Would hiivc Imm'11 Hulilr Uli(h'l' Kli;;liHh stiltutt'S, hfciiusc thr
Xovu Sootiii h';;i.slaturt' " huN*' wisely ic;;ishiti'il for thr
whole nuitter The iiiipenitiN f woi-<|.s of the
Kii;xhHh stiitute throw tlu- reM[)oiisil)ility upon the sheriff
in Kii^^hinti, hut these words are not to he found in our
statute, and therefore neither hiw nor justice throw it upon
liini heiv" (/).
And, in like niaiuier, the Imperial statutes 2H Kdw. III.
V. \'A, antl M Hen. VI. c. 2!), ;;ivin}^^ aliens a ri^dit to n
jnry <l(' iiifil'mfofr l'ni(/ti(i(',M\i\ the other statutes with that
ohject, were held (/) not to he in force in Nova Scotia,
hi'cause :
" In the numerous Jury Actj", cxtendinji,' from 1750 . . .
down to the Uevised Statutes (2nil ser.), not the slightest
allusion nor provision for this privilege of aliens ... is to
III' found. This long course of legislation, coupled with the fact
that it has never before been claimc^ in our courts, though the
idea, and the usage in the mother country, were familiar to every
lawyer, is strong evidence of the opinions held by our judges and
legislators."
In a late ease {in), the Supreme Coui't of Nova Scot in
had to consider the ((uestion whether or not the ini[)erial
statute 18 Geo. II. c. 1<S, re(piirin<;' notice to a convictin;^-
justice, of a motion for a writ of ccrfltti'iii'ljiud limiting- the
time for niovinij; tor such writ, to six months from convic-
tion, was in force in the province. Reference was nuule hy
(J) See the passafje, ante p. HI.
(/i) Jackson v. Campbell, 1 Thonip. 18 (2nd ed).
(/) Reg. V. Bnrdell, 1 Old. TiC.
(m) Reg. V. Porter, 20 N. S. R. Reference i8 made to Ihe fact that in
Tpper Canada it had been always treated as in force there. It appears
to have been acted on in Nova Scotia. See Reg. v. McFadden, (i R, cV &.
■42(1, and McDonald v. Ronan, 7 R. tV G. 2"). As to New Brunswick, see
I'o^t, p. ".t4.
t
00 llli: <ANAI)IA\ cnNSTITiriON'.
Hitc'liif, .J., ill ilrlivt'iiii;^ tlif ju<l;;iii<'Mt ol" tli«' court, t«>
Uniju'kf y. Dickson. AthT <|Uotiii;4' tln' cuutioii ol" Hiilli-
Imiton, ('..I., hIxivc ivt'crrcd to, tlic opinion proceeds:
" If this caution was iit'cessnry forty years a^o, there is nuich
nioro necessity for caution now, in view of the fact that, since
then, very many Acts have heen passed, re<,'ulKtin<< the practice
aiitl proceihire of this court, and tiio removal of causes from
iulV'rior courts. . . . Now, our lej,'ishiture has passed several
statutes on the suhject. ... I cannot see that 19 (leo. II.
c. 18, is obviously applicai)lt! and necessary to our condition
in this province; and as our le^'islature l^is undertaken to legis-
late in the matter of rrrtinrtiri, and has enacted many of the
provisions of the English statutes on that subject, omitting those
contained in the Act in ipiestion, I have been unable to come to
the conclusion that that Act is at present in force here."
Anuniherof Inip»'riiil Acts, pjiHsed pi'ior to the scttle-
nit'iit of Xovii Scotia, have lu'en acted upon without (pU's-
tioii, a.s having h'/eii introduced into the colony u^ion its
.settlement. The Statute of L^se.s was, without fpiestion,
treated as bein;;' in force within the province (n), while its
companion — the Statute of Knrolment — would appear to
have been thought inapi)lical)le, by reason of the lack of
facilities foi- enrolment (o). The Imperial Acts, 81 Hen.
VIII. c. 1, and 82 Hen. VIII. c. 82, allowiii";- partition
between joint tenants and tenants in connnon, were held
to have been introduced into Nova Scotia as part of the
Eno-li.sh law ; and the Nova Scotia lei^dslature, in passing
K. S. N. S. c. 18f), s. 1, was held to have intended to
make the remedy thereby provided, concurrent with the
remedy under those statutes of Henry VIII. (y>). In the
case of "The Dart " (7), the provisicms of 3Ia<^ia Charta,
an<l of the Statute of Staples, 27 Edward III. c. 17,
which provided that, " In case of war, merchant strangers
(n) Shey v. Chisholm, James, 52.
(o) Berry v. Berry, i R. & G. (>() ; see the contrary holding in New
Brunswick, Doe d. Hanington v. McFadden, Berton, 153, jJOxt, p. 92.
ip) Doane v. McKenny, James, 328. (7) Stewart.
THK smUCtM nF n( H LAW. !)1
sliiill luivi' fn'f lili«'ity to <lt'|iiirt the r«'iiliii with their ^^ood.s
IVt'i'ly," were ent'iuved in favor <»t' iin Aiiieiiniii vcmh*-!, H»'i/f<|
hrl'ore tlie conmH'iicfment of the American wai" of liSpJ.
The Act HJ Kli/. c. 5, ivHjM'otin^' fianthilent convryanccs,
seeiMH to luive hccn acted npon without i|ne.stion (/•), as also
the Act 'i2 Ih'ury \'III. c. !), against the hnyin;; of ])ie-
tendetl tith'H {x).
Tpoji a review of these Nova Scotia (h'oi.sionH, it wouM
certainly appear that the aihnisHion of Imperial HtatiiteH, as
(iperative within the pro\ince, has Keen the exception:
those which have heen held to he in foi'ce, iieine', in the
main, statutes in amelioration of the ri;;ors of the connnon
law, Acts in curtailment of pi'eron^ative or in enlarecmeiit
of the liherty of the suhject. To a ;;'reater extent than lias
h"en the case in either New IJrunswick or Ontario, the
jiidj^es of Xova Scotia have deemed it the office of le^isla-
tim, I'ather than of judicial <lecision, to brint;' into operation
within the province, the provisions of Im})ei-ial statutes not
ori;;inally capahleof hein^" made operative, hut which mi^ht
he thought suitable to the chan^^ed circumstances of the
colony. And in the same spirit, it was laid down (0, that
where an Ent^lish Act is held to Ik; in f(n'ce,the courts "will
not 'ffWe it a further extension than it receivetl in the land
of its oriein. The operation of an En;;lish statute may he
contined, T take it, within narrower hounds hy the circum-
stances and situation of the colony to which it has been
hrou^ht; but it can never, as it appears to me, l)ecome a.
(r) Tarratt v. Sawyer, 1 Thoinp. H\ ('2nd ed.) ; Moore v. Moore, 1 R.
A G. 525 ; and Graham v. Bell, 5 R. * G. 'JO.
{■■<) Wheelock v. Morrison, 1 N. S. D. 837 ; Scott v. Henderson, 2
Thomp. 115. Other Imperial Acts which have been treated as in foice
in Xova Scotia, are: 13 Edw. I. c. 18 (elegit), Caldwell v. Kinsman^
James, 3!)8; 2 Hen. IV. c. 7 (judgment of nonsuit), Grant v. Protectiou
Ins. Co., 1 Thomp. 12 (2nd ed); 7 Hen. VIII. c. 4 (damages in replevin);
Freeman v. Harrington, 1 Old. o58 ; and see Congdon's N. S. Dig., coL
I'l-'lti, et nei],
(t) Freeman v. Morton, 2 Thomp. 852, per Bliss, J.
•92 THE CAXADIAX CONSTITL'TlOX,
statute of oTouter effect or more enlar^'od coiistniction
than was ^-iveii to it in the intention of those hy whom it
was passed. Tliis is the office of le<»'islation alone."
New BurxswicK. — In this province, we have the same
iHfficulty to contend with as was noted in the case of Nova
Scotia, namely, that there are no reports of the earlier
decisions in the province durin«:^ the time when this question
would be most t'recjuently under consideration. The earliest
reported case (u) in which we are furnished with the opin-
ions of the jud<jjes, is Doe dcm Hanin<jton y. McFadden (r),
in which the Supreme Ct)urt of that province had to con-
.sider wliether or not the Statute of Uses and its companion
— the Statute of Enrolment — were in force in the province,
and that case has had a very lar^e controllinj;' influence in
New Brunswick. Chipman, C.J., <piotes with approval the
lan<(uaoe of Sir W. Grant in Attorney-General v. Stewart
(iv), and takes as his jjjuide, the principle enunciated in that
•case — "Whether it l)e a law of local polic}', adapted solely
to the country in which it was made, or a general regu-
lation of propert}', ecpially applicable to any country', in
which it is by the rules of English law that property
is governed." As to the Statute of Uses, no doubt what-
ever was expressed ; the fact that that statute had been
generally, if not universally, considered to be in force in
the old American colonies, was treated as indicative of the
general understanding tliat the statute was carried l)y
emigrating colonists as part of the law of England relating
to real property. As to the Statute of Enrolment, more
hesitation seems to have l>een expressed ; l)ut all the
judges concurred in treating the two statutes as practically
one; and, although the Statute of Enrolment might be
somewhat difficult of application in New Brunswick,
it seems to have l)een considered that the machinery
of the provincial courts could l>e utilized in this respect.
(ii) See note, ante, p. 79, as to Hex. v. McLau<i!hlin.
((•) Berton, 153. («■) 2 Mer. at p. IGO.
THE SorUCES OF nV\{ LAW. \V.^
It was pointed out tliat the extension to tlie province,
of statutes which are in terms continecl to tl\e courts
of the uiotlier country, is not, hy any means, without
precedent, and several of sucli statutes, re<^uhitive of the
])ractice in " Her Majesty's Courts at Westminster," which
had always been treated as operative within the pn)vince
ill relation to the superior courts there, were cited (,/).
No such clear thread of principle can he discerned in
the decisions of the New Brunswick courts as has been
noticed in the case of Nova Scotia, and, for that reason,.
it is somewhat difficult to classify the decisions.
In an early case (/y), it was held that the Imperial
Act, 82 Henry VIII. c. 89, which authorized the Ex-
oheijuer Court in England to ^dve relief to Crown debtors,
was operative to enable the Supreme Court of New Bruns-
wick to relieve from an estreated recomiizance.
Following Attorney-General v. Stewart, it was held (c)
that the Statute of Mortmain, 9 Geo. II. c. 30, is not in
force in New Brunswick.
In Kavanagh v. Phelon (a), involving a consideration of
the fees proper to be pau to a sheriff', it was held that 29
Eliz. c. -i. was not operative in New Brunswick to re<>u-
late the sheriff's fees, in cases not provided for l)y the pio-
vincial ordinance upon the subject. Referring- to Doe dem
Haiiin^ton v. McFadden (1)), Chipman, C.J., says :
"For the same reason it seems to me that the statute o'
Eliz. is entirely inapplicable to this or any oth.^r colony, and,
therefore, is not in force here. It is difficult to conceive of any
(.!•) 4 Anne, o. 16 (assignment of bail-bonds) ; 14 Geo. II. c. 17 (jud;^-
nient of nonsuit) ; and see Kelly v. Jones, 2 Allen, 473 (43 Eliz. c. 6— cer-
titicate as to costs), and Gilbert v. Sayre, (7^ 512 (13 Car. II. c. 2 — double
costs on affirmance in error). See Hesketh v. Ward, 17 U. C. C. P. 667,
referred to po»t.
(ly) Reg. V. Appleby, Berton, 397.
[z] Doe d. Hasen v. Rector of St. James, 2 P. & B, 479 ; see the cases
in Ontario, post.
(n) 1 Kerr, 472. (b) Ante p. 92.
^4 THE CAXADI.W CON'STLTrTloX.
subject that must be cleiilt with upon considerations more entirely
local, than the proper remuneration to be allowed to public
officers."
and he refers to the declaration in the provincial ordin-
ance that " there is no law oi' ordinance now in force re^n-
latinj;' sheriff's' fees," etc., and the rennlution of the matter
1>y that ordinance, as indicative of the view of the le;^isla-
ture ((*).
Although, as we have .said, it is very difficult to classify
the New Brunswick authorities upon this (juestion, this
much dt)es appear: that in every case the jud<>es of the
courts there have endeavored to exercise their best jud;^-
ment as to the (i/iplicaJnliti/ of the Imperial statute to the
circumstances of the colony. If any distinction in pi-inciplc
can he drawn between the decisions in New Brunswick and
tho.se in Nova Scotia, it would appear to he alon^^ the line
indicated in the jud<rment of Halliburton, C.J., in Uniacke
V. Dickson — that i.s to say, Imperial statutes have Vjeen
denied operative force in Nova Scotia unless clearly appli-
cable, while, in New Brunswick, the tendency', at least of
the earlier authorities, seems to have l)een not to reject
them unle.ss clearly inapplicable. At the same time, it must
be confes.sed that this distinction cannot be clearly pointed
out in ever}' case.
Ontario falls within the class of colonies into whose
le^'al system, Enolish law has been introduced by the will
of the colony itself, as expressed in legislative enactment.
In the year 1701, the parliament of Great Britain
passed an Act, 31 Geo. III. c. 31, connuonly known in
(c) For other New Brunswick cases, see Ex parte Ritchie, 2 Kerr, 75,
and Ex parte Bustin, 2 Allen, 211, in which the English statutes as to
certiorari proceedings were held not in force ; Wilson v. Jones, 1 Allen
•658, in which 1 Rich. II. c. 12, giving a creditor an action of debt against
a 8heri£f on an escape, was (following an early unreported decision) held
not in force, although it was acted upon in Nova Scotia and the older
American colonies ; and see James v. McLean, 3 Allen, 164, and Doe d.
Allen V. Murray, 2 Kerr, 359.
THE SOlHCES OK (»ll{ LAW. !>.")
Caimda as tlie Constitiitioiml Act, 17!H, liy wliich prox isi(»ii
Wiis iiiado for tlu' (li\isi()ii of the province of Quebec into
two provinces, Upper and Lower Canada, and for the estali-
lishnient therein of separate <;ovei'niuents. During- the
pr()t;;ress of tlie war of American in»h'])en«U'nce, there had
taken phice, from the disatt'ected colonies into what aftcr-
war<ls hecame Upper Canada, a hir;;e inHux of loyal sulijects,
"horn and eihicated in ctanitries where the English laws
were established, and . . . unaccust(ime<l to the laws
of Canathi." And as, in 1774, the pa)-liament of CJreat
liritain, hy »;ivino; to the inhahitants of Canada, then
almost exclusively French, the law in accordance with
which thev had heen accustomed to rei^ulate their <lail\'
lives, secured their cordial adherence to British connection,
despite the enticinj^ words of Washington and his French
allies (f/), so, in 1791, they estahlished the new inmii^ration
in content in the upper province, hy pvin<; them a distinct
legislature, with the power to adopt sucli system of laws
as they nii<;ht deem l)est calcuhited to secure and advance
their own material and religious welfare. Avoiding- all
appearance of dictation to either province, the Constitu-
tional Act, 1791, simply provided that there slunild he
within each of the provinces respectively, a Le<jfislative
C(juncil and an Assem])ly, and tliat in each of the provinces
His Majesty sliould luive power, hy and with the advice
and consent of the Letjishitive Council and Assendtlv of
such province, to make laws for the peace, welfare, and
^ood government tliereof, sucli hiw^s not l)ein<^ repu^j^nant
to the Act. All laws, ordinances, and statutes in t\)rce
within the provinces, or either of them, at the date of the
Act, were to remain and continue as if the Act had not
heen made, except in .so far as not expressly varied by the
Act — the Act is limited to the making of constitutional
changes — or except in so far as the same mijht be there-
id) See Confed. Deb. p. 606; Eyerson, "The U. E. Loyalists in
America."
9G THK CANADIAN (( )NSTirrTI< »N.
tif'tcr irfU'dlcil "/' ra r'lt'il hi/ f/ic LcijlKliit i re Cuii iiril a mf
Axxcinhl'icx itf the rfsju'cf I re jh'oi'I ix-t's. The inhaltitunts of
Lm'er Cjiujula, l)L'in<^ content with the hiw umler which
they lial lived since 1774, niude no change; Imt, in the
very first parHanient of Upper Canada, l>y tlie first Act
of its first session, "that was done wliich no douht was
anticii)ated and intendeil as a consequence of erectin;^-
Tpper Canada into a separate jirovince. Recitin<; that tiie
provision made hy the Qnehec Act, 1774 (before alhided to>,
luid l»een manifestly intended for the acconnuodation of His
Majesty's Canadian suhjects, and that the territory com-
prisin^i' Upper Canada had become inhabited principally by
British subjects, unaccustoitied to the laws of Canada, it
repealed the provision in the Quebec Act, 1774, so far as.
that Act had the effect of introducini^ the French law into
Upper Cai'.;i<la, and enacted, that ' from antl after the
passinof of this Acl, in all matters of controversy rchdive
to pi'ojK'i'iji <ii)(l clril ri<jhtfi, resort should l)e had to the
laws of Ent^land, as the rule for the decision of the same' " {e).
The criminal law of England had been in force in the
old province, and no lei^islation was deemed necessary by
the let^islature of Upper Canada, beyond naming a day, in
reference to which the Ent^lish criminal law was to be ccni-
sidered fixed (so far as Upper Canaila was concerned),
unless altered by the colonial let^islature. This date was
fixed by 40 Geo. III. c. 1 (U. C), which enacted: "Tlie
criminal law of Enij^land, as it stood on the 17th day of
Septeml)er, 1792, shall be, and the same is hereby declared
to be, the criminal law of this province," subject to any
variations therein, effected by ordinances of the old pro-
vince of Queltec passed after the Quebec Act of 1774.
The difference in the phraseology in the two Acts of 82 and
40 Geo. III. respectively, must be carefully noted, for, as will
(e) Per Robinson, C.J., in Z»oe d. Anderson v. Todd, 2 U. C. Q. B. 82;
note the same expression, " property and civil rights," in the B. N. A.
Act, 8. 92, ss. 13, and s. 94; and see Citizens v. Parsons, L. R. 7 App.
Caa 9«}.
TIIK SontCKS OK on? LAW. !>7
!«' seen lieivnt'ttT, u iimi'ktMl difU'rciicc ii» ctt'cct lias lu-cn
atti'il»nt(Ml to those two t'liactincnts. In tin; various w-
visioiiH ol" the statute law, which have since taken place,
these two Acts havi' Ikm-m simply "lirouirht up to <late."
Thev now stand as c. iV'l oF the Hevised Statutes of
Ontario (lSS7lai\dc. 144. s. I . of the Hevised Statutes of
Canada ( iS.S(i), i-espectively.
In the province of Ontario, therefore, the whoh' (piestion
tiUMis upon the effect wliich should he ;riven to these, oui-
own enactments, and so far as concerns tlie law rchiflrt fi,
liri>iK'rfi/ iiiK/cirll /•////'/>«•. it will he found that, owin;^ ti>
the construction j)lac<'d upon 'V2 (ieo III. c. 1, hy the
courts in Upper Canada, the same method of en<|uiry has
heen foUowt'd in that pro\iuce (n(»w Ontario) as in the
older provinces of Nova Scotia and New Brunswick.
Althout;'h the ([Uestion is, with every session of oui-
[(firiiaments, hecomin;^' less and ii'ss of \ital imjnu'tance,
still cases do even yet, and not infretpiently ai-ise, excn in
these provinces, in which the ri;;hts of suitors depend upon
KnL:;Iish .statutes of cousiduraMe antii|uity, making- pro-
visions as to various mattei's upon wdiich oui' parliaments
li.ive omitted to exercise theii' le^^islative power.
Throujihout tlie hiw reports of Upper C-anada ((Ontario),
muiierous CJises will he found in which laws pa.sse<| Ity the
pailiament of England, and in force there in 17!t2. were
without ([Uestion acted upon hy owv courts as hein^' the
law in Upper Canada. In the veiy first volume of reported
oases, hy Taylor, several of "such instances a])i)ear (/ ). and so
oil throU(;h the rei)orts to the present tinu'. For ijistance,
no ((Uestion seems to have ever heen i^aised as to the
Enoiish Statute of Frauds, tlu' Acts of Elizaheth's time
as to fraudident and voluntary conveyances, and a casual
;;;lance at (jur Diji^ests will reveal many others, as to which
no douht lias ever found a reporter. As beiui;- in afKi'm-
ance of the connnon law, or in amendment of .some defect
{/) Taylor, 54G.
Can. Con.— 7
08 THE CAXADIAN ( OXSTITI'TK >N.
in tlmt law. working' ^ciu'ial (Ictriincnt, their ]i(»sitioii, as
})rat'tically part ainl jtaiTi-l ol' ^^cncral En;^lisli law, was too
t'ullv i-cc");>iii/(Ml t) 1>.' (iiiestioiu'il. lUit — not to iiR'ution
many Knylisli Acts, whose non-applicaliility (if that he
s )un<l ;;rounil for rejection) is dehatenhle — many old enact-
ments, some i-ejiuhitive of me«lieval men h\- me(lieval
methods, some hut parHanientaiy tomhstones, marking' the
irraveK of local (Knulish) e\ils of a temi)()rarv character,
have heen invoked in Canatlian liti;iation — put forward
HH havino' Itcen introduced jiere hy colonial enactment, 'i2
(Jeo. 111. c. 1.
Somewhat of this sort, was the statute passed in 5 Eliz.
(c. 4), makint;' void, in tlie interests of the ^'uilds, articles
of appi'enticeship for a less term than seven years. It was
the first statute upon which ar^^'ument seems to have heen
had, and in three earlv cases it received consideration. In
the tli-8t (</) of these cases, Rol»inson, C.J., said: "The pro-
visions of the statute . . are no longer part of the law
of Ent^dand ; they ha\e l)een repealed (//) as impolitic, e\ en
in the conditit)n of that populous country. In my opinion,
these provisions were never part of the law of this pro-
vince." In the second (i), Sherwood, J. (deliNei'in^' the
jud<i'ment of the court), sa^'s, after referrino- to the tei'uis of
.S2 Geo. III. c. 1 (U. C.) :
" The intention and meaning? of the legislature undoubtecllv
was, that resort should be had to such of the laws of England
as are applicable to the state of society in a Brii.sli colony,
which is very different in many respects from the state of society
in England. Courts of justice are to decide on the applicability
of the law to any particular case, when doubts arise on the sub-
ject ; and upon the same principle, they must decide upon the
adaptability of any particular law of England to this province,
in a general point of view. The statute 5 Eliz. c. 4, is en-
titled, " An Act containing divers orders for artificers, laborers,
(g) Fish V. Doyle, Drap. 328 (1.^31).
(h) By 59 Geo. III. c. W).
(i) Dillingham v. Wilson, G U. C. Q. B. (0. S.) 85 (18il).
THE SorHCES OK OVW LAW. <)f)
•sL'fvants of luishancU'v, and a[)pix'iitices " ; and the Act? itself,
from beginning to end, contains internal evidence that no resort
can be properly had to it, within tiie scope and meaning of our
Provincial Act already mentioned, as a rule for deciding the
manner in which apprentices are to be bound in this province,
iind the legal effect of such binding. That Act was obsolete in
i'lnglund even before the statute which repealed it
We consider the statute of 5 Eliz. c. 4, as a local Act, which
was probably adapted to the state of society in England three
hundred years ago, but is not now, and never was, adapted to
the population of a colony, and was never in force here."
In the third case (j), it was broadly contended : " The
court can not sav, that these .statutes are not in force;
it is ncjt a (juestion of their applicahility that is to bo de-
cided, the ;lecisiou must be on the express words of a
statute. When the law is to Ije j^iven to a colony settled
and planted by British subjects, we can understand that
only such parts of the En<;lish statute law as are applicable
shall be declared to be in force; but when tiie statute law
is introduced by leo-islntivo enactment, there can ])e no
([Uestion abtnit the applicability of statutes, as the le<^isla-
ture have shown that their determination was to introduce
them all, with the exception of tho.se parts which are
expressly excepted." In delivering,' the judgment of the
court, Chief Justice •Rol)inson says :
" It cannot possibly admit of doubt that its
provisions are inapplicable to any state of things that ever
existed here ; a clause here and there might be carried into
effect in this colony, or anywhere, from the general nature of
their provisions ; but that is not sufficient to make such a
statute part of our law, when the main object and tenor of it, is
wholly foreign to the nature of our institutions, and it is there-
(,/) Shea v. Choat, 2 U. C. Q. B. 211 (1845). The head-note is mis-
leading. In speaking of 20 Geo. II. c. 19, Robinson, C.J., says: " My
inclination at present is that that statute in its present scope and bear-
ing is not applicable to this province"; but he decided that, even if in
force, the pleading could not be supported, not showing a case within the
statute.
100 IIIK CAN'ADI.W cnXSTITriloN-.
tore incapal)Io of being ciirriod, subHtantiiilly and as a whole, into
t'xocution."
TlicHc cMsrs distinctly Jitlii-in, that (Icavin;^ ont nf cm-
siih'nition i]\r I'our iiml U.inUrMptt'y hnvs) (/.) n<»t t-Ncry
Kn^i'lish stjitutf ill lort'*' in Kii^^hiin! in I7!>'J, tncii thun;;h
sueh statntr was, in a srnsc. of njcm-ral a)»)»licati<>ii in
Kiij^lainl, is in t'orcr hcrr nndfr the tcniis ol' .'i'J (Jco. III.
c. 1 — that a rceo^iiiition mnst Im- aecunlnl. sn to s|irak, tn
the «liH'('rcnc('s of cnvinainii'iit, and that tlic < itnrts ol" rpiu-r
Canada shnnid j'onsidt'r the (|U('stit)n of the aihiptaliility of
an}' Kiii^lish Act "t<» the natnrc ol" onr institntiuns."' To
sonif extent, this \ icw of thf etil-ct of '^2 (}eo. III. c. I. has
not met with entiif approNal liy indi\idnal Jnd;,;es in suhse-
(|Uent cases: lait, as will lie seen, the decideil tendency >A' the
authorities lias been to support the principle laid down in
these three cases.
Baldwin \. Ivoddy (/) invohi-d tlir (|nesti<.n as to the
linulish Act " I'or the removal oi' causes honi interior
courts" (III (!t'o III. e. 70). That Act "seemed desinned
in England to su[)ply a det'eft Mliich parliament occasi(»ned
when they took away arrest IVoni inleiior courts in cases
under CIO' — the process of those courts c(add he cvadtd
l>y the removal of a dditors cflects frofti the limits of their
Jurisdiction — and it was held hy Rohiuson, C.J., to he intro-
duced here. "It is a reasonalile and ^ood provision, n-eneral
in its naturi' ; not conHned as to locality: not contlne«| to
certain courts, or to any amount of jud;:;nient, nor incum-
l)ere(l with any forms or re(|uisitions inap]>licahle to the
nature of our courts.'"
In l.S8(), the <|UestioM arose (///), whether the British
statute (22 (Jeo. II. c. 40), "for the more eti'cctually
(A) Expressly excepted by H2 Geo. III. c. 1 (U. C.) s. (i.
(/) a IT. C. Q. B. (O. S.) lfi« ; and see Gregory v. Flanagan, 2 IT. C. Q. B.
(O. S.) 552.
(m) In Leith v, Willis, 5 U. C. Q. B. (O. S.) 101 ; followed in Heartly
V. Hearns, 6 IT. C. Q. B. (O. S.) 452.
THE HOrUCKS OK (»ru LAW, 101
rcMtniiniiin; tlic retailing; of distillfd H)iiiitu<»u.s liinioi-x," tlu*
r2tli Ni'ctioM of wliifli (Iciiii'il all v\(^\\t of uctioii to any oim
wlliji^f It'SH tlmii 20 sliilliiiMs woj-th ut om* tiiiir, was t<> Ik*
<'(>nsiil('j»'<l ill fort't' in I'pjM'r ('ana«la or not. TIh' Act coii-
taiiifil M2 clauHCH, as to all of wliicli (otlicr than the 12tli
si'Ctioii) Hol>ins(»n, ('.,)., saifl : "Not one with any reason
can hi' considori'd as apjdicahlL' to this province' "; and as to
that si'ction he said:
" Tpon a view of the whole caso, tliou<,'h 1 fuel it dinicult to
lest a (It'cision upon a perfectly clear ground, I am of opinion
that the IJritish Act docs not prevent the plaintitt' recovering.
It was passed in England to meet a [)articular evil, which was
stated to be increasing tlicn- nj lute (itiionij a iim'thnlat rlnxs of thr
iiilitihitinit.s. ^^'e cannot say judicially that the circumstances so
fur correspond in tliis province, as to make it a reasonable
inti'iidmcnt that a statute passed to meet such exigency in
I'.ngland, is to he treated as a part of the general statute law of
England, intended to be introiluced into this province."
iU)nu the furtluT <n'ound, too, that the i^n>\iiicial Act
•" William I\'. c. I, made jH'ovisioiis inconsistent with the
pioN isiuiis of the P)i'itisli Act — prolta1»ly tlu- safer around
ioi' ilfcision njKiii fixed [»rinei[)le— the latter was luld not
in forcf here.
The English statute !> (leo. 11. c. 'My — commonly
classt'd as one of the Mortmain Acts — has ln-cn under
iv\i(\v ill a iiumlier of decideil cases; and in the ar^ii-
iiifiit of counsel and the o{)inions of the .pid;;es, will he
found all the considei-atioiis which can l>e ur^^vd in su]ti)ort
of the two dittt'i't'iit views — those who Would n[>hold the
Act MS lieini": introduced here l>v tiie Provincial Act 82
(!ei, III. c. 1, nruiiiii" that hecause the HiiiiHsh laws
lelatiii;^' to the poor and to haiikruptcy, were in terms
excluded, the maxim '' ci-inrssio nuliix r.i'clnsio est til-
ffi'lus" should he a})piied, and all other English Acts of
;;t'iicral apjdication in Ennhmd, held to he in force in
I l>l)er Caiuuhi; while those wdio denied the hinding force
102 TIIK « \NAIH.\N < n.NSTITI'TlON.
ul* tli«' Htntutr In r<' Mi';;\i('<| t'oi" ;i iimif liiiiit<><l iiitriHliictioii
of tli<' l''.ii;,Hisli liiw. Tin- liitiiT \ i('w clciirly pifMiilnl, mihI
tii<' Viii'ioiis ciiiisitlriatioiiM ur;;;<i| in its sii|i|Mirt, will n|)]it'Mi-
IVuni II I'cvit'W <»r llic CMSrN. Ill tlir n'.siilt, till' Miiitlltf \\i\H
(l('('i<l(>*l to Itf ill t'orci' ill ('|i|)cr ( 'iiiitnln, Itiit. only on tlit>
^rouilfl of its iniplini riini/iii/nni III/ nil r infnii ill! fi^/is/il-
Inrr; the view ol" i\ ili-ciilcij nnijoritA' lit'in;;;, tlint it wiis
not, intrtxhicfd liy tin' sole r<»r('t' of 'A2 ( ico. Ill.c I. In
(IcciWin;; in Tuvor ol' tlir |tro|iiit'ty of iimkin;^' (•oiii|iiirison
iM'tNVt'tn tlh' <liir«'r»>nt Hitnittions, nuitt'iinl iin<l socinl, of Mh«
niotlirr ('(uniirv mihI the colony, mm well as in tioitin;;-
coloninl rccof^^nition iis a ;^<io(| n-i-nmnl Tor lioMin;^' ;in
Ijnpt'rinI Act in loi-cc in n colony, tlic courtH of 1')i|h'|-
('iiniKla (Ontai'io) Iuinc in'iicticjilly luloptcd tlic view ol"
Wol.inson. l'..I„ that the tcniis ol" the Act :{2 (Ico. III. c. I
(IJ. I'.). "<lo not place the introilnction ol' the Kn^lish law on
ji I'ootinj; materially (litlerent from the footin^^ on which
the laws of I'ini^Iand staiul in those colonies in which they
art' nn'ivly assiimeij to he in force, on the principles of the
common law, hy i-eason of such colonit's ha\in;4" hecn fii'st
inhal>ite(l and plaiiti'tl hy Hritish suhjects " (/;). This is the
constrnction to which reference was a short time iv^i) made,
as placin;^ Ontario upon the same line in this matter as
tlu' maritime provinces, and (as we shall point t>ut) the
more lat"Iy ac(|uired provinces of the Dominion of Canada.
The leadin^^ ca.se, jus to this .statute of Mortmain, is Dar
(h'ln Anderson v. Todd, decided in ISJ-;"), fi-om which we
have already (pioted, and which has heeii followed in a
number of suhsecpient cases up to 1S7(), wlu'U the Court of
Appeal for Ontario, upon a careful consideration of the
wlu)le subject, estahlished the decision in the earliei- case.
To attempt to .set forth the views of Kohin.son, C.J., in
lan;;;ua|;e other than his own, would so weaken theii' «'tt"ect,
that we feel con.str»iine(l to (juote his opinion somewhat at
len<;th:
(«) Doe (I Anderson v. Todd, 2 U. C, Q. B. at p. H(i.
IMi: SMI Ur|;,H nl' nl it |,\\V. lO.'l
"Tlio <|iicHti()ii is ilii'ii Itfi ti) lie ilctfnuincil wlictlii'i' tli"
ilt'visi! iniitli! Iiy tint will to ii ('lini'itiil)li< iis(> in voitj in tliin
(■(iiititi'V under tlii> pi'oviHifiiis of tlir stiiliitc *.) (leo. II. c. iM ;
til ii it '\H of sncli II niitun> iih to cfiinc witliin tin* terms of tlint
stiitnte, ciuniot III' iloiilitcil, iiiiil tlif only point, tiiorcl'oi-e, to lie
• leterniine(l is, wlictliei' tiie stiitnt'! in in torce in I |)[ii.<i' Caniulii.
If tliiOiiul l)een a colony of that (les('i-i|)tion, mill
not a ('oni|iiere(l or ceilid country, luivin;^' jilremiy luws of its
own, ami if the (|ii)>.sli')ii whether the stntiitt! u (ieo. Ii. e. M(!.
could he ref^'iirded as in lorc(.' or not, had turiit i| wholly on the
point whether, upon the principles of the coninion law, without
the inter|)osition of any letjislativo enactment, that statute
rui'iiied part of the law hindin;^' u|)on nil who settleil in tin*
colony or plantation, I think we shouM without dilliculty have
held that it did not, for the reasons exi^ressed in this passa^'e of
the connnentarie''(«),iind which received the sanction of ajudici'il
decision, in the case of TIk; Attorney. (leneral v. Stuart, 2 Mer.
1 II. from a very eminent judi^'e (Sir W. (Irant), an<l in refer-
ence to the very statute now under consiih ration. liut it is
plain that the <piestion does not rest liere on that footing, and
thou^di the case of Attorney (leneral v. Stuart may appear very
material to its decision, it cannot he so upon the footing that this
is a colony planted originally hy British suhjects, to which all
who have come, have hrought the law of Kngland as their hirth-
right, hut it may he material as ilhistrating the extent and
elfect which should he given to the words of a provincial
statute introducing the law of J']ngland, which statute, after
all considerations are stated, must form the foundation of
our decision. The country in which this question rises
ibrnied part of the comiuered province of Canada, ceded hy
the French government, hy the Treaty of Paris, lOtli July,
17(18. and in which, therefore, after the cession, it was in the
power of the Crown, independently of the legislature (/»), to
have introduced either the laws of England, or any other ;
hut the laws before enjoyed by the compiered people would
(()) Of Bliickstone, from which full extracts have already been taken ;
Hee ante, p. 78 et seq,
(/>) See Chap. VI. poitt, for a reference to the contention to the con-
trary raised in Lower Canada.
104 THK CANADIAN tONsm ITinN.
l)rc>viiil tintil such introduction. TIu'mo prinoipleH iiro clciirly
and pivcisi'ly stated hy tlif MiistiT of tlio Uolls (2 I'. Wins. 75)
to liavf l)ft'n dt>t»;rnii!U'tl l)y tlio Jjords of tlie I'rivy Coiincil,
on an appoal to the kinj^' in council from the fori'ij^n planta-
tions, fiord C'. J. Holt assents to tlioin, in emphatic terms,
in Smith v. Cooper, 1 Salk. (KWI, where ho says, • the laws of
l!ngland do not ext«'nd to Virf,'inia; hcin^' a confjucrod country,
their law is what the kin^' pleases.' I do not, however, uiidci'-
stand in what sen.se his Lordship speaks of Virj^'inia as a
concpicrod country. In 1 Salk. 11, the princii)Ies we are consider-
ing are a<.(ain stated hy Lord C. J. Holt, and were elaborately
set forth in modern times hy Lord Mansfield, in the well-known
case of Campliell v. Hall, 1 Cooper, iiOL The proclamation
of October, 17(58, on the effect of which that judgment pro-
ceeded, was an act of the Sovereign, introdueing tlie law of
Lngland, in general terms, into countries ci-ded by the Treaty of
I'aris ; but, by some inadvertence, the ti'rritory which was then
formed into the Province of ()uebec, was so described in that
proclamation as to exchule the greater part of Canada, in regard
to which no provision was made for its civil government. This
omission is noticed in the i)reamble to the Ih-itish statute 14
(ieo. III. c. 88. If the territory which lately for;>v.'d I'pper
Canada, and in respect to which the question now before us has
arisen, had been included within the limits given by that pro-
dauuition to the Province of Quebec, and if to this moment we
had been left to the effect of that proclamation, which assured
to the inhabitants ' the enjoyment of the benefit of the laws of
England,' and directed that all causes, criminal and civil, should
be determined according to law and ecpiity, and ks near im mttj/
hr, iii/rccdlile to till I mm nf Hinihtiul, then the (juestion would have
been, whether in reason we should hold that any other laws
were intrnduccd by those general words than such laws as
English colonists, planting a newly discovered country, would,
on the principles of the common law, have carried with them ;
and, in considering that point, the observations of Sir William
Grant, in Attorney-General v. Stuart, would have strongly
applied, and might, indeed, have been taken as direct authority.
Then, how does the question stand on the real facts of
the case ? The British statute 14 Geo. III. c. H8, noticing
THK S«irU('KS OK (tlK LAW. lOr)
the tleft'Ct in the proclamation of the 7tli of Ootohi-r, 17(18,
ciiliu-^'od the hinita thor*' assij^ned to tlio Provinci' of QiU'bec,
and made them clearly cmhraco the country now involved in
this qiu'stion (if not the whole of Tpper Ciinaila); and parlia-
ment, liy that Act, for the Hatisfaction of her Maji-sty's
Canadian piuhjects, provided that within the whole of the terri-
tory thus defined, in all matters of controversy relative to /(/»»-
furtif iiitil citil riifhts («/), resort should he had to the laws of
Canadii (that is, the laws which prevailed in Canada before the
con(iuest), for the decision of tlu^ same. This f,'ave a new start-
ing,' point with repird to the i|iiestion, and puts an end to all
doulits which mif^dit have arisen under the prochuuation, whi'-h,
in this respect, was wholly ahroj^^ated. The statute 81 (leo. 111.
c. Ml, which divided the Province of Quebec, and f?ave to Upper
Canada a distinct le<,Mslative body, and did not by anything con-
tained in it affect the terms of this ([uestion, left the French-
Canadiiin law in force, but it created a le<j;islature, with power to
make laws for the peace, welfare, and good government of the
province, and which, under the very general terms of that
authority, might alter or abrogate the existing law, if it thought
proper. In the first statute passed by this legislature, 82 (leo.
III. c. 1, that was done which, no doubt, was anticipated and
intended as the consequence of erecting Upper Canada into a
separate province. Reciting that the provision made by the
11 (reo. III. c. HH, had been ' nninifestly intended for the
accommodation of his Majesty's Canadian subjects,' and that
the territory comprising Upper Canadii had become inhabited
principally by lU'itish subjects, unaccustomed to the law of
Canada, it repealed the provision i;i the 1-4 Geo. III. c. 88, so
far as it had the eftV'ct of introducing the French law into Upper
Canada, and enacted, that ' from and after the passing of that
Act, in all matters of controversy relative to property and
civil rights, resort should be had to the laws of England, as
the rule for the decision for the same. And that all matters
relating to testimony and legal proof in the investigation of
fact, and the forms thereof, in the several courts of law and
equity within this province, shall be regulated by the rules of
evidence established in England ' ; with a proviso that the
(q) See Citizens v. Parsons, L. R. 7 App. Cas. W.
10() THE CANADIAN CONSTriTTK »X.
Act ' shouUl not be construed to intarfere with the subsisting^
provisions respecting ecclesiastical rights or dues within the
province, or with the forms of proceedings in civil actions, or
the jurisdiction of the courts already estal^lished,' or to intro-
duce 'any of the laws of England respecting the maintenance of
the poor, or respecting bankrupts.' On this foundation rests
our right to the enjoyment of the laws of England, except as
regards the criminal law, which, having been introduced by the
royal proclamation into the province of Quebec as there defined,
was afterwards, by the statute 14 Geo. TIL c. 83, extended to
the whole territory (including Upper Canada), which was by that
Act made to constitute the Province of Quebec, and has ever
since been allowed to continue in force there; being expressly
recognized in Upper Canada by 40 Geo. III. c. 1 (r), and modi-
fied by that and many subsequent statutes. Except for the
purpose of tracing the history of the introduction of the laws
which govern this colony, it was unnecessary to the decision of
the point before us, to have gone further back than the statute
32 Geo. III. c. 1 ; whatever was done before cannot affect the
question, though some things which have been done afterwards
may. Then, looking in the first place at the w'ords of this
statute, it is my opinion that they do not place the introduction
of the English law on a footing materially different, as regards
the extent of the introduction, from what would have been, or
rather from what was the effect of the proclamation of 7th
October, 1763, in those territories to which it extended, or from
the footing on which the laws of England stand in those
colonies in which they are merely assumed to be in force on the
principles of the common law, by reason of such colonies having
been first inhabited and planted by British subjects. The
restrictions intimated in the passage which I have cited from the
commentaries and the reasons of Sir Wm. Grant, in the case of
Attorney-General v. Stuart, apply, I think, in the case of an
introduction by express enactment in such general terms, as
well as in the other case. It would have been hardly pos-
sible for the legislature to have excepted, in special terms, all
those British statutes which, being inapplicable to the con-
(r) See post, -p. 12S et seq.
THE SorUCES OF OUU LAW. 107
(lition of tlie colony, they might not wish to inchule as
parts of the law of Englantl. And it is impossible to allow
that they could have intended, by the Avords they used, to
embrace every provision in the British statute book which
they did not specially except. It is true, indeed, that they have
made some special exceptions ; in their enactment they have
been careful to provide that we are not, under the general wox'ds
used by them, to take the English poor laws and bankrupt laws
with the rest ; these were both of theni systems of law framed
wholly by English statutes. It cannot be denied to be a maxim
that '■ inentio unim e.alusio est (dterins.' And it may be said
that the legislature, in making these two exceptions, evinced
their impression, that, if they had not made them, the poor laws
and bankrupt laws would, under the words which they had used
before in the statute, have been introduced into the province.
The argument, consequently, applies (juantum vuletit; but I am
of opinion that we cannot allow it so much force as to admit
that every English statute of a general nature, not excepted,
is in force because it was not excepted. The legislature, look-
ing on the poor laws and bankrupt laws as unsuited to the
condition of the colony, were determined to leave no room for
doubt as to their exclusion; and, therefore, for greater caution,
expressly excepted them ; but if we were, therefore, now to hold
that all statutes which they have not excepted, and which could
by their nature be enforced here, must, therefore, be binding
upon us, we should be making great, and, 1 fear, absurd,
changes in our system of laws, as it has been always hitherto
received and acted upon here. The game laws, for instance, are
not excepted in the statute; nor the statutes which disable
persons from using a trade who have not served seven years
apprenticeship (s), nor any of the multitude of acts relating to
certain trades and manufactures; and, indeed, it would be oasy
to enumerate a long list of statutes, all actually capable of being
acted upon in this country, but which, having been passed upon
grounds and for purposes peculiar to England, and either wholly
or in a great degree foreign to this colony, have never been
attempted to be enforced here, and have never been taken to
apply to us. And, indeed, several occasions have arisen in
(t) See ante, p. 98. *
108 THE CANADIAN CONSTli'l TION.
which this court has determined, with respect to certain British
.statutes passed hefore our provincial statute 32 Geo. III. c. 1,
that they formed no part of the law of this province, not having?
provisions in their nature applicahle, and such as it could he
supposed the legislature intended to introduce under the f,'eneral
words used hy them ; these words, too, it must be remarked,
are not such as expressly introduce the whole civil law of Eng-
land ; they seem rather intended to be more prudently limited
to the purpose of givmg the principles of English law, modified,
of course, as they may have been by statutes, as the rule of
decision {t) for settling questions as they might arise relative to
property and civil rights. Still it must be confessed that a
■wide field is opened for disputes by the term civil rights. Among
a man's civil rights it may be argued is the right of disposing of
his property as he thinks fit. And when he has made a dis-
position of it, the legality of which is questioned, that seems to
present a point which must be solved, since our statute 82 Geo.
III. c. 1, by conceding what a man in the exercise of his civil
rights might in such a case do in England, and taking that as
the rule for deciding the controversy between the persons claim-
ing under the disposition which may be questioned., and the
person who would be entitled to the property as the representa-
tive of the deceased, if he had not the power to dispose of it as
he has donu. To decide these constitutional points, for such
they are, upon principles so manifestly clear and consistent as
to keep free from all appearance of confiicting decisions, is more,
I apprehend, than it can be hoped to attain. That inisiro
sirritus which is said to exist where \ius est rai/uin ' is so justly
dreaded in tliese times, tliat no one can consent to admit that
there exists in any tribunal an arbitrary discretion to say what
British statutes shall be in force here, and what not ; and yet, on
the other hand, in the present state of our jurisprudence, there
eamiot be said to be any other method of settling all these doubts
as they arise, tluni for courts of justice to detenninr tlwin, not
hy (1)11/ (irhitriiri/ e.rercisc of titcir trill, for tlwij C(i)i ihiiiii }io
{t) See Moulson v. Commercial Bank, 2 U. C. Q. B. 'S^S, involving
the question how far the English Bankruptcy Act was introtlucerl by the
first Canadian Bankruptcy Act, which uaeil mucli the same form of
expression. ♦
THE SOURCES OF ol'H [,A\V. TOO
s)icli lii/fit, hut upon the Iwst riciis which thiij nni ttihe of' 'iiiiii-
iiwnts ivhich nninot in their nuturr lead t>) invj ileitr and incnntvstohli'
cimchtsion {u). To repeat what I have ah-eady quoted from ^Ir.
.Justice Blackstone, ' What shall be admitted and what rejected,
at Avhat times and under what restrictions, must, in case of
dispute, be decided, in the livst instance by the provincial judica-
ture, subject to the revision t. i 'control of the King and council,'
and we may add, subject alsio to any express provision which the
legislature of the motlipr country, or of the province, may think
fit to make. With regard to this particular statute, 9 Geo. II.
c. 86, when I consider the English decisions as to what are
charitable uses within the intention of the Act, I cannot persuade
myself that there have not been many dispositions made in this
province of property, both by deed, and by will which would be
held to come within the prohibitions of the statute, but whicli
have nevertheless been acquiesced in and executed without
ipiestion. In the case of Poe drm McDonald and others v.
McDougall in this Court, Trin. Term. 3 »t 4 Will. IV., the
(|uestion whether this statute was in force here was discussed,
and as far as I know, for the first time. The point was not
determined in that case, for the judgment proceeded on other
grounds of objection, which prevailed ; but I recollect that I
formed and expressed an opinion upon it, and that, looking to
the reason of the thing, and fully concurring in the sentiments
which liad been delivered by Sir W. Grant, in the case of
Attorney-General v. Stuart, I was disposed to look upon the
statute as not binding in this province, and that would still be
my opinion, if the point were left to depend wholly on the effect
of our statute 82 Geo. III. c. 1. I think the reasoning of the
Master of the Rolls, as applied to the particular provisions and
exceptions in that statute, is obvious and irresistible, and that
it should lead us to say, that the legislature, if they had given
no other evidence of their intention than is to be found in statute
82 Geo. III. c. 1, did not intend by that Act to introduce the
statutes of Mortmain, among which the 9th Geo. II. ic usually,
though not very accurately, classed. But my opinion is that we
cannot properly hold that opinion now, after the legislative
(«) Compare with this the lainjuage of Mr. Justice Hill, in Nova
Scotia, ante, p. 87.
110 THE CAXADIAN COXSTnTTloN'.
exposition which has boen afforded, and especially in ivcent times,
of the assumed effect of that statute. The legislature, it is
admitted, are the best interpreters of their own laws, and to
say nothing of other evidences they have given of their under-
standing upon this point, by the Church Temporalities Act
passed in 3 it 4 Vic. c. 78, they have provided that lands may
be conveved to such uses, for the benefit of the United Church
-of England and Ireland in this province, as would clearly have
been prohibited by the British statute 9 Geo. II., and they have
shown it to be their understanding that without such express
legislative authority, the English statutes of Mortmain would
have restrained parties from making such a disposition, for they
have added the words • the Acts of parliament commonly called
the statutes of Mortmain, or other Acts, laws, or usages to the
contrary thereof notwithstanding,' 9 Geo. II. c. 36, being
commonly regarded as one of these statutes of Mortmain ; but
the legislature not being really anxious to relieve parties in this
instance entirely from its restrictions, they accompanied the
authority given by the Act with limitations in the same spirit,
though not to the same extent, as those contained in the 9 Geo.
II. c. 30. They only give validity to deeds conveying lands to
the use of the church, provided such deeds shall be made and
executed six months at least before the death of the person
conveying the same, and shall be registered within six months
after his decease. The recognitions by the legislature to which
1 have alluded, are subsequent to the discussion of the question
in Doe <lein McDonell ct al. v. McDougall et al., whether the
statute 9 Geo. II. c. 36, was or was not binding in Upper
Canada. We can hardly suppose a point more especially within
the province of the legislature to decide, than whether a
particular part of the statute law of England is or is not so far
in its nature applicable to the state of things in this province,
that it may in reason be considered to be included within the
operation of the statute which they had themselves passed,
introducing the law of England Relative to property and civil
rights.
" If, after the Church Temporalities Act, which I have
particularly referred to, and which certainly is based on the
assumption of the statutes of Mortmain being in force here, we
THE SOriK'ES OF oriJ \..\\\. Ill
were to hoUl tliat the statute in question, 9 Geo. II. c. 30,. is not
in force, then this incongruity would follow, that while i)eople
would be restricted from conveying lands to religious and
charitable uses connected witli the Church of England, in any
other niuiner than by a deed made six months before the deatli
of the grantor, and registered within six months after, they
might convey their lands to religious and charitable purposes
connected with any other denomination of Christians, without
any restrictions whatever, and might devise all their estates to
such uses, even upon their death-beds. What is said by the
Master of the Rolls, in Curtis v. Hutton (r), very strongly
accords with this view of the case. If the legislature Lad left
the subject of Mortmain untouched, making no reference to
it in any of their Acts, then I think for the reason given by Sir
W. Grant, in Attorney-General v. Stuart, we should have held
that the statutes of Mortmain were not introduced by the pro-
vincial statute 32 Geo. III. c. 1 ; but to treat them as inappli-
cable to this province, and on that ground to keep them wholly
out of view, after what the legislature has done in contemplation
of their being in force, would lead to greater inconveniences and
inconsistencies than those which Sir William Grant has pointed
out as arguments against their being held generally inapplicable
to the colonies. We ought, in my opinion, now to take into our
view all that the legislature has done bearing on this question ;
and doing so, we must hold that the statute 9 Geo. II. c. 8G, is
part of our laws, and that under it the disposition made by the
testator by the will in this case is void, and that the estate has
consequently devolved on the heir-at-law, the lessor of the
plaintiir."
It should l)e remarked, however, that Jones mid McLea'.i,
JJ., appear to have entertained the view that the statute in
C|Uestion was introduced l)y .S2 Geo. III. e. l,as l>eint;' a part
of English law capable of application to Upper Canada,
but both treat the question of applicaliility as one proper
for consideration. McLean, J., puts it thus :
♦* It is evident from the words of the statute, that they '.sA(///
form the rule' for such decisions, that the legislature must have
();) 14 Ves. 541.
112 rilK f.WADIAX COVSTITrriON'.
been well invarc that in very many other niattern, as well as in
reference to the Poor and Bankrupt laws, the laws of England
were wholly inapplicable to the circmnstaiices of this province,
and could not therefore be introduced as a body of laws to be
enforced in all eases. They are therefore only to form the ride
in all matters in which they can properly and reasonably l)e
brougiit into operation here. The statutes of INIortnuiin form .i
part of the law of England introduced as the nde of decision in
all cases coming under their operation, and tlu>re is nothing to
prevent their application to the circumstances of the country."
on the crt'eet of sul»s('i|Ut'nt le^'isbitivc i-(»ci)y,'nitioii they
juTci'd with the Chief .lusticc, find the uiiiininious indiiinent
(d" the court was thut the stututf had the force of law
ill llp])t'r ( 'aiia<la
The ^vneral tenor of the tleeisions in the other cases
iiivolvin;^' a (;ousidei"}ition of this statute down to 1S7(),
will siitficiently appear hy the following- ^^\tract iVoni
the Jir;;unieiit of counsel in the case in appeal about
to l>e note<l : " Hallock v. Wilson (ic) follows Doc Anderson
\'. Todd, and proceeds on the <;'round that re^'i strati on is
substituted for enrolment, and that the statuU' !)C«eo. II.
c. ']{'), is in foi-ce, because certain provincial statutes have
recognized it as beiujn" i" force. Mercer v. Hewston (.c)
expresses a doubt wlvether the statute is in force. That
<lecision follows Ihic Ambn'son v. Todd, as beinj;' the law
until otherwise detenniiied by the C(mrt of Appeal. Ander-
son V. Duu^all (//) and Ander.son n'. Kilbourn (:) do not
discuss tlie ((uestion whether the statute is in force or not;
and Davidson v. Boomer {a) concedes that the statute is in
force in this pi'ovince, followinj;' /Jor Anderson v. Todd: but
in Hambly v. Fuller (//) the judgment orily states that it
nuist be lield that the statute is in force, upon the above
authorities, until otherwise decided by the Court of Appeal.
(id) 7 U. C. C. P. 29. (z) lb. 21$).
(x) 9 U. 0. C. P. 349. (a) 15 Grant, 1, 218.
(ij) 18 Grant, 164. (b) 22 U. C. C. P. 142.
THE SOUUCKS (>F (tVH ].\\\\ 118
Fci'^i'nson V. (iiliHon (r) Fi)lIi)WH tlu- hUovu HuthoriticH
witlinut "liscussint^- wluither the Act is in force or not."
The wlioK' mutter cjiiiie Hnnlly before the Court of
Ainteal foi" Ontario in the disc of W'hithy v. Lisconihe (d).
'I'he oj)inions (IcliN'ei'tMl l»y the t'niint-nt jud^-'es who deciiled
tile case sliow tlie same marl\e«l diHcrence of opinion as was
a])))arent in tlie early case — a (h'cided diHerence in principU'
— althou;;h the Ju<l;^im'nt of the court was unanimous that
the statute is in force in Ontario, because all aijreed in hold-
ing-that tlie le^iislative reco;;nition of its hindin^j^ force here
(particularly .siucr IS4')) was sufficient to incoi'porate it
anionjL;st the laws of Ontario ('). Chief Justice Divipei-
expresses a clear opinion that the ])rovincial statute 82
(leo. III. c. 1, was surticient, per w, to introduce the
Mortmain Acts, and fi-om his lano-uaoe it mi^'ht even he
ar;;ueil that he considered the (piestion of aj)plicahility not
o[)en : "The (luestion before us is whether our legislature
have not made it part of our laws ; and but for the case of
Attorney-( leneral v. Stewai't, I should never have enter-
taine<l a <loubt on this point." And auain, referriiifij to the
En^ilish laws as to the poor and to bankruptcy, and another
statute subseijuently excluded, he says : " The reason ^iven,
that the provisions of those Acts were inapplicalde to this
province, is virtually one of the reasons for Sir W. Grant's
Judjiinent in the Attoi'ney-General v. Stewart; but our
leoislature evidently did not douV)t that their first Act had
introduced both these British statutes into Upper Canada."
On the other hand, Mr. Justice — afterwards Chief Justice —
Moss, agreed fully with the view expressed by Robinson,
C.J., in the early case, that l)y the efi'ect of our provincial
Act 32 Geo. III. c. 1, j^cr se, the Act in question was not in
force. Revievvin^ that case, he said :
(c) 22 Grant, 30.
(rf) 23 Grant 1.
(e) Only on this ground is Reg. v. Gamble and Boulton, 9 U. C. Q. B.
546, supportable. See notes to B. N, A. Act, ss. 18 and 09 post.
Can. Con.— 8
114 IMK CANADIAN CONsTITrilON.
" Thi' (jtiostion of priiicipul interest in this casi.' is wlu'tluT
the stnttite commonly calltMl the Moitmiiin Act is in force in
this province. IMore than thirty yeiirs iii,'0 the Court of (Queen's
iiciich, upon full consiileratu)!!, held that it was in force. Since
that time, in e.xpress <l(?ferenco to that authority, the Courts of
Common Law and the Court of Chancery have decided nuiny cases,
and nuiny devises mid he«]Uests to charitahle usi'S, otherwiso
nnimpeachahle, have hcen udjudfjfed invalid. The point is now for
the lirst time raised in a Court of Ai)peiil. So many instates have
been administered and so nuiny titles have huen ac(piired upon
the assumption of the correctness of a decision which had hetn
followed so often by courts of coordinate jurisdiction, and
remained so lonj,' unchallenged on appeal, that its reversal woidd
be attended with serious con.suquences. Under such circum-
stances, it would deserve co)isideration whether the case was not
a tittini,' one for the application of the rule -start' tlifisi.s.
If the only <piestion was whether I'oe Anderson v. Todd was
well decided, 1 should hesitate long before holding in the atlir-
mative. The points then presented for determination were,
whether the provincuil statute 82 (leo. III. c. 1, should have
been judicially interpreted to have the effect of introducing the
Mortmain Act, and, if not, whether suhseciuent legislation had
effected a change in the law. Ko])inson, C.J., was of oi)inion
that but for subsequent legislative exposition, the true interpre-
tation of the statute of Geo. III. excluded the Mortmain Act,
while the other members of the cotu't seemed to have enter-
tained a different view. The reasoning of the Chief Justice
appears to me to be unanswerable — at least, if the decision of
Sir Wm. Grant, in Attorney-General v. Stewart, is correct,
^nd, apart from its intrinsic force, it would be hopeless to
impugn this, after its approval by the House of Lords, in Whicker
V. Hume fj'). It was attempted in the argument of this appeal
to distinguish Doe Anderson v. Todd, and withdraw it from the
application of the principles enunciated in the two English
cases. I do not think the attempt was attended with success.
It proceeded upon the differences in the terms employed in intro-
ducing the laws of England into this province, and into Grenada
and New South Wales respectively. Our statute enacted that
(f) 16 Jur. .S9.
■|"HK SoriMKS ol' (till LAW. 1 1.*)
' in 11,11 inattt'i's of controvorsy ruliitivo to piopcrty mid civil
ri,i,'lit3, resort slioiiM be had to thu laws ul' Kn;,'l,'ind, as the rult'
tor the doeision of the same.' In (ireuada, justice was to be
administered, as near as mi<,'ht he, according' to the laws of
l'<iii,daiid. In New South Wales, the laws in force in MiiKliiud,
' so far as they can he applied within the said colonies,' were
introduced. Sir Wm. (rrant held that ' the (juestion of whether
the statute was in force m (Jrenada depended upon this eonsid
eration whether it he a law of local policy, adajjted solely to the
country in which it was made, or a •,'eneral re^nilation ol
property, e<|ually applicable to any coaiitry in which it is by
tlie rules of l*lngHsh law that property is governed;' and,
having discussed tlie scope of the statute, he ilecided it to be
local in its character, and not a general regulation of property.
In Whicker v. Hume, Lord Cranworth emphatically says: 'With
regard to this statute of Mortmain, ordinarily so called, I cannot
have the least doubt that that cannot be regarded as applicable
to the colonies.' This being the construction placed upon the
statute by such higli autliorities, the respondents were forced to
the broad construction, that all the laws of I'ingland relative to
pro})erty and civil rights, whatever might he their historical
origin, or however political their character, or however clearly
they grew out of local circnmstiinces, or we^'e meant to have a
local operation, were introduced. The ob.servations of the Chief
Justice, in I hie Anderson v. Todd, seem to me to effectually dis-
pose of this proposition. As he points out, the language of the
statute does not expressly introduce the whole civil law of
England, but seems to be limited to the purpose of giving the
principles of the English law as the rule of decision for settling
questions, as they might arise, relative to property and civil rights.
If this be the correct view, I cannot perceive that any substan-
tial distinction can be founded upon the differences of language
to which I have referred." •
He, liowcver, doubted tho propriety of tin.' decision in that
CfiHu, as founded on too .slight a legislative recognition of
the Imperial Act a.s beiny in force liere, and concluded hi.s
opinion by saying : " It is upon the ground of this hkJj-
scqncut lej^islative recognition that I wish to place my
lli; THE I'ANAIMAN ( oNSTimioX.
ju'l'^UH'iit, that till' Mtatutf must now l>c lirl<l tn In- in Wnv
ill this proviiK't' " (//).
Stiirk V. FonI (A) is tlic rMtlicr miiusiii;^ rccupd nl" mi
misiu'C'tiSsriil attt'iii|it to sulijfct a ('niiatliaii Jiiil;;*' to tlic
IMMUilties providt'd in tin- Act ' loi Mli;>lisliin<; tlu' Court of
Star Clianilit'i', Hi Car. I. c l(> rpon fxaniiiiation of the
statute. Roliin.son, C.»I., jMtints out tliat its whole hcojk' was
to t'oiwiT jmt a stop to the unconstitutional usui'jiation of
jijilieial functions l»y the Court of Star Clianili«r, an<l
riiliculeil the idea of extelldili;;' it to m Jud;:e Mlle;;ed to have
acti'd illenally in the exercise of his assiened duties.
At the date of the passiii;^' of the Provincial Act,
H2 (Jeo. III. ('. 1. the law o|' nuin'ia;4'e — hoth as to the
forms t(» Ite olisei'Nt'd, Mini as to the disahilities which would
prex'ent its solemni/.ation in certain cases — in force in (Jreat
Britain, was re<:ulated li\- the statu'f commonh' kno>vn as
Lortl Hardwicke's Act, 2(5 (!eo. II. c. 'i'-i. Since I7J)2, many
provincial statutes have made |»ro\isions on many, if not
most, of the matters le^-islateil upon l»y Lord Hardwicke's
Act ( ' ) : hut, as late as 1.S.S7, tiie latter statute has l»een
expressly leci )t;ni/ed as introduced — as a wiiole — hy our
first piMvincial Act. The I'easons ni\cn for so considirinj;'
it in foi'ce, constitute tlie material matter for us in this
eiinuirv, ami l»v wav of contrast we ma\' note tlie reasons
oiveii for hojdino- — as has in IfS.Sl) Iteeii finally held — that
sect! )n II of th<> Act w;vs n .'Ver introduced into our law.
"That section rendered such nmrriafire by license" — /.«'.,
of a minor without consent of parent or guardian — " ahsohitely
void, without any sentence of the court ; and length of coliabita-
('/) See Smith v. Methodist Church, Hi O. R. I'J'.I ; Bntland v.
Gilleapie. ib. 4iH\
(h) 11 U. C. Q. B. 3(53.
(j) The whole matter has never been taken up by our letjialatures
because of the differences in reliv-ious view on the question in upper and
Lower Canada respectively ; and note the division of the subject between
the Dominion and the provinces under the B. N. A. Act, s. Ill, ss. 2(i,
and 8 i)2, s-s. 12.
THE .S«HMl<ES or (flit LAW. | |7
tion iiiitl biitli i)f childi'i'M iitVorled no ground of exeniptidn (/) ;
and consent snbsiMjufntly m'ivt'H would not avail to validate.
This rij^orourf law was soon afttT repfiik-d in Kiii,'land, and no
jiidk't' Ims regarded witli favor the proposal to hold it applioahie
to this country. .Judicial opinion as reportod is all the other
way."— /V/- Boyd, ('., in Lawless v. Chamlu'rlain (/.•). " Whether
the 11th section of the Act containing tliiit provision was ever
piirt of the law of this province, by virtue of our adoittion of the
law of Knj^lanil, may fairly he ipiuflCioned. If it ever was, it
must he so still, as we have already mentioned, because the
Knt,'lish statute repealinf,' it is of too modern a date to be bindinj;
upon us by virtue of our statute 8'2 (ieo. III. c. 1, and it lias no
relation to the colonies; but it would be dillicult to satisfy our-
selves, we think, that it ever has l)een in force in Upper Ciinada,
on aecotuit of the impossibility of applying' the 12th clause to
the condition of things here. We could not therefore have t)ie
enactment respecting the consent of parents i)i its intei,'rity,
and as it would work great hardship to have the 11th clause in
force without the I'ith or any other provision as a substitute for
it, we shall, perhaps, if we find it necessary in any case to
detennine the point, find it right to determine that neither of
these clauses could be taken to foiin part of our law of marriage
under our own adoption of the law of England by 82 Geo. III.
c. 1." — /'»■;• Rjbinson, C.J., in Reg. v. Roblin (/).
Tlu' reasons jriven on the otliei- hund for hol(lin<; the
Act, otlier than the clauses in (jiiestion, to l>e introduced
here, will appear in the following passages extracted from
the opinions of Robinson, C.J., Esten, V^C., and Armour,
C.J., in three ca.ses in wliich tliose judges had the (juestion
luider consideration :
" When by our statute 82 Geo. III. c. 1, the provincial legis-
lature adopted the law of England as the rule of decision . .
. . they adopted to the extent mentioned, not merely the
common law of England, but also the statute law, with the
U) Johnstone v. Parker, » Phill. 41. (A-) IS O. R. at p. 309.
{I) 21 U. C. Q. B. at p. 8.')i. See Reg. v. Seeker, 14 U. f. Q. H. 604,
and Rep. v. Bell, 15 U. C. Q. B. 287.
IIH THE TAXADIAX rnXsTfTITinV.
cxocptioriH H|)t'cifu<l in tin Act, mid with other cxt'i'ptioiiH, though
not Hpt'C'ifiod, of Hiich Iftws iih arc clearly not appliciihle to the
Rttitc iA things cxiHtinK iti the colony, oC whicli various (>xiunpleH
tnij^ht hi» cited.
" \Vr consider that our adoption of the \n\v of Kn^dand to
the extent mid with the exceptions just nienlioned, inchided the
law ^'eni'rally which related to niairia;,'e. The statute 2(5 (ieo. II.
c. Hi), being in force in England when our statute was passed,
was adopti'(l, as well as other statutes, so far as it consisted with
our civil institutions, heing part of the law of Mnglund at that
time ' relative to civil rights ' ; that is, to the civil rights which
an inhiiltitiint of rpjjcr Canada may claim as a hushand or wife,
or as lawful issue of a marriages alleged to have luen solemnized
in I'pper Canada.
" The legislatiu'e of I'pper Canada have so regarded this
nuitter, as appears hy the statute MBCeo. III. c. T), sees. 1, Hand
(>; 88 Geo. III. c. 1, s. 4 ; and 11 Ceo. IV. c. 9(5, in whieli they
have recognized the English Marriage Act, in etVect. though not
in express teinis, as having the force of law here in a general
sense, and controlling tlu' manner in which marriage is to he
solemnized." -IVr Kohinson. C.-I., in Kegina v. Hohliii (//')
"No doubt the Act of the M'2nd of the late King, introduced
all the law of marriage as it existed in England at that date,
excepting, perhaps, some clauses of the 2(> (Ieo. II. c. HM. It
introduced thy Acts '2r> Hen. VIll. c. 22 ; 28 Hen. VIII. c. 7 ^^
1(5; and H2 Hen. VIII. c. HS.so far as they remained in force,
and so much of the canon law as had heen adopted hy the law
of England.' — I'tr Esten, V.C., in Ilodgins v. McNeil (/;).
" The legislature of this province has repeatedly recognized
that Act as heiiig in force in this province, by from time to
time passing laws modifying and qualifying its provisions. 8ee
88 Geo. III. c. r> ; 88 Geo. HI. c. 4 ; 2 Geo. IV. c. 11 ; 11 Geo.
IV. c. HO.
"Having regard to the ])rovisions of the Acts 82 (Jeo. III.
c. 1, and 40 Geo. HI. c. 1, to the cases above referred to, and to
the recognition thereof by the legislature of this province, as
above mentioned, I am clearly of opinion that the Act 20 Geo.
n. c. 88, was brought into force in this province by the Acts
(m) 21 U. C. Q. B. ftt p. 3.35. (h) 5) Grant, at p. 309.
TIIK snllU'Ks (»K tUU I.WV. ll!>
89 Oto. III. ('■ 1, iiiid to (ieo. III. c. 1, HO fur as itH proviHJons
Wi'Vv uppliniMt' to tlu- circmnstimcis of this pi'ovinco, and were
not incoiisiHtctit with the civil institutions thereof; and that, at
all events (which is all that I am concerned with in this case),
the provision thereof niakini,' all niarria^^'es which should he
Holennii/.ed without puhlii-ation of hanns or license of niarria^'(*
from a person or persons having authority to ^vnut the same,
first had and ohtnmed, mill and void to all intents and purposes
whatsoevt-r, was hrou^'ht into force.
" I'nless this provision was ho hrouj^dit into force in this pro-
vince, there is no provision in this province makinj,' void a
iiiarriaj,'e so solemni/.ed, iuid the fact that the h'j,'islaturiM)f this
province has never deemed it necessary to make any such pro-
vision, is cojjent evidence that it considered it unnecessary to do
so ; hecause this provision of 2(5 (leo. II. c. MM, was treated hy it
as hein^' in force in this province." — I'd- Armour, C.J., in O'Con-
ii'ir V. Kennedy (o).
Kroni the >ll»i)\e CHSes it \\ill lie seen thut ill rct'evi'nco
ti> liorii FlHi-<lwiel<e',s Marriii};e Act the sume |)riiK'i|)les
Well' iiivoUed us in refert'iiee to the Mortniiiin Acts. In
< ju'li eiise the ('(ini't Consiilered :
1st. Is the Ih'itisli statute one wliieh oin lie considercMJ
Hs so »i])])Iic)il>le to the cireninstunoeH of this colony, tlint tin;
li'^^isliitnre must have intended to introduce it l>y tlu' in-
trinsic I'tlect of their Act 'i'2 (Joe*. UI. c. I f 'I'his (|uestion,
in the cnse of the I\lortniuin Acts, does not seem to have
Iteeii uniinimously iinsvveriMl hy C'unadiun jud^n's, but tho
vveiuht of authority would apjiear to he foi" a iu'<;fitive
answer — in coni'onnity, as will have heen noticed, with
t^iii^lish <lecisions. As to tlii^ IMarria^v Act of Lord Hard-
wiclce, tlu'i'e seems to have been no ditt'erence of opinion —
all aiireeintj in the ivsult arrived at, in favor of an aftiniia-
ti\e answer, except as to the 1 1th and 12th clauses.
2nd. Has there been subsecjuent legislative recognition
by the provincial parliament, of the Itindin^ force liere of
the Act in (piestion :' As to lH)th Acts, the answer has b^cn
(o) 15 O. R. at p. 22.
120 THE CANADIAN ("ONsmr lloN.
unaniniouHly in tlu* iiffiniintivc. To tlu'sc consiWcnitioiis
may l)e added :
.Si'(l. Have the decifsions ot" provincial courts proct'e<K'(l
HO clearly upon one line, and for such a len^^th of time, as
to liav»! established a rule of law in regard to dealin^^s with
pro})erty, or in regard to the sfufns of particular classes of
persons;' "In the later cases there can T)e no douht this
consideration operated niost powerfully [n Wliithy v.
Liscomlte (/>), in l.S7(), Mr. .lustice Burton uses this
lan^ua<^e : " Where solemn determinations which estahlish
a rule of property have been ac<piiesced in foi' so loni; a
period, a court even of last resort should re((uire very stron;;
^roumls for interferint; with them ' ; and Mr. Justice
Patterson, speakin;^; of Dor Anderson v. Todd, says : " It
has been acipiiesced in too Ion;:;, and has for too loni^ a
period sjjoverned titles to land in this ])i-ovince to be now
interfered witli by any authority short of legislative enact-
ment " ; and we have ab-i'ad}' <pioted tlie opinion of Mi-,
.histict! (afterwards Chief Justice) ]\Ioss, in which the same
rule of expediency is expressed in tiiose polished periods l)y
which his written opinions are always cliai-acterized.
Tlie case Hesketh v. Ward (7), l)rin^s into prominence
another (piestion proper for consideration, in decidin;jj
whether or not a particuhir Im]>trial Act (we are of course
dealing; with Acts in force in Enj^lantl on 15th October,
1792) is in force in Ontario, namely, tlie (|uestion — Is tlie
Act one of {jjenerai application in Eniijland, or is it local, in
tlie sense of beinjjf confined to some particular locality or
local institution in England i* Upon a review of the casea
already mentioned, this consideration will appear to iiave
been always present to some extent, but in Hesketh v.
Ward it was tlie real point for decision. The Acts in
(juestion there, were 1 Anne (st. 2) c. (>, and 5 Anne, c. 9,
making certain provisions in reference, anioiifj^st other
matters, to escape warrants. Richards, C.J , after a careful
(p) 23 Grant, 1. (7) 17 IT. C. C P. (5()7. See nitte, p. 93.
THE SOUHCES OK ol'K LAW. |21
conHidiTfition of the tirrtt-iuentioiuMl .stntntc, <l('ci<li'il that
it was not part of oui* law, Itecausc " passfd with ivfeivncc
to th<' ]K'cnliar ])osition of thr ottitvrs of the prisons" — tlu*
Marshalst'a an<l the Fk'ct— " to which it rcforrtMl, and tho
evils recited in the preanilile, which state of things has not,
and is not likely to exist in this conntry " : and apiin
becanse " in terms it is only applicahle to the two En^^lish
pi'isons named in it; to ri'medy evils which the preamble
.... refers to as peculiar to persons of the descriptions
theiv referred to, and as to which no apparent necessity
exists in this comitry." Thv dissentini^ opinion of Mr.
Justice Wilson (afterwards Chief Justice Sir Adam Wilson)
is not a dissent in ])rinciple, hut a joiner of issue on the
facts. After a lenj^thy historical discussion, showin«>' his
usual painstaking; research, he points out that, " Altht>uo-Ji
it may have a limited ai)i)lication in En<;land to the two
special and peculiar prisons of the courts, it is nevertheless
a. general law, and a heneticial one, ami an amendment of
the law, and as there are no special prisons of the courts
here, hut all the {jjaols of the province an; eipially the
prisons of the court, the statute, hein^ such general law by
the declaration of the statute itself, has an o))eration
here upon all the prisons of the courts " (/•),
In a series of cases it was held that the provisions of
14 Geo. III. c. 78, relatint; to the liability of persons upon
whose premises a tire accidently starts, for damaijjes result-
m^ from its spreading to the premises of another, are part
of our law, because they were part of the ^enei-al law of
England, introduce<l by 82 Geo. III. c. 1, and were not of
local application there in the sense before referred t > (s).
(r) On this principle, many English statutes referrini" to, c.;/., the
courts "at Westminster" have been held to be part of f/c/icni/ Enjjlisli law,
and as such in force here in relation to our Superior Courts. See 43 Eliz.
c, fi, and 13 Car. II. c. 2, as to costs in certain cases, and note the New-
Brunswick decisions on this point, ante, p. 93.
(.s) Gaston v. Wald, 19 U. C. Q. B. 586; StinsMi v. Pennock, 14
Grant, ()04; Carr v. Fire Ass., 14 O. R. 487; C. S II. v. Phelps, 14
122 TFIE rANADIAN CONSTITrTIOX.
Tlu' CiiHes heretot'ort' considered liave luid relation to
tlu- effect of 82 (Jeo. III. c. 1, und tlie pliraseoloi;}' employed
in that Act, has l)een relied on in suiipoit of the contention
for a limited introduction of the Entdish statutory law
relating to property and civil i-i<^dits. We now tui'n to the
Provincial Acts, l)y which the En^jlish criminal law was
introduced into this province, and the limits of its applica-
hility <lefine(l. As has heen already noticed, the (^)uel)ec
Act, 1774, (14 (Jeo. III. c. N8), while re-introducin<j;' the law
of (^inada— /.r., the Fi'ench law in foi-ce at the comiuest —
into the Pi'ovince of (^uehec, as desci'il)ed hy the Act, pro-
\ide<l foi" a contimiation therein of the criminal law of
En^'land.
" XI. And whereas the ceitainty and lenity of the criminal
law of England, and the benefits and advantaj'cs resulting from
the n.se of it, have been sensibly felt by the inhabitants from an
experience of more than nine years, during which it has been
uniformly administered ; be it, therefore, further enacted by the
authority aforesaid, that tiie same shall continue tc« be adminis-
tered, and shall be observed as law in the province of Quebec, as
well in the description and qtuility of the offence as in the
method of prosecution and trial, and the punishments and forfei-
tures thereby inflicted, to the exclusion of every other rule of
criminal law or mode of proceeding thereon, which did or might
prevail in the said province before the year of our Lord 1704 ;
H. C. R. 132. For other caaes in ITpper Canada (Ontario) on this subject,
see Torrance v. Smith, ;} U. C. C. P. 411, a'xl Hearle v. Hoss, 15 U. C.
Q. B. 25i), in which 2(5 Geo. III. c. 8(1, exempting vessel owners from
liability for loss thronj,'h fire, was held to he part of our law ; Reg. v. Mc-
Cormick, 18 U. C. Q. B. 131— Nullum Tempus Act (9 Geo. III. c. Tfi), in
force here; Dunn v. O'Rielly, 11 U. C. C. P 404, in which the clauses
m 22 Geo. II. c. 4(), relating to attorneys, were held to be in force here,
altliough other parts of the Act inapplicable (a veritable witches' cauldron,
this!); Reg. v. Row, 14 U. C. C. P. 307, ii. vhich 28 Geo. III. c. 49, s. 4
(enabling a magistrate for a county-at-large to sit within a city, itself a
county, within the boundaries of the county-at-large), was held not to be
in force, being lonal in its character; Bleeker v. Myers, fi U. C. Q. B.
134 ; Hart v. Meyers, 7 U. C. Q. B. 416 ; Garrett v. Roberts, 10 O. A. R.
(l.'^O — 18 Eliz. c. "), as to suits by informers, in force here.
THK soi'iU'Es OF oru I-.\\V. 128
everything in this Act to the contrary thereof in any respect
notwithstanding ; siihject, nevertheless, to such alterations and
amendments as the (lovernor, Lieutenant-Ciovernor, or Com-
mander-in-Chief for the time being, by and with the advice and
consent of the legislative council of the sind province, hereafter
to be appointed, shall from time to time cause to he made therein
in manner hereinafter directed."
Tlu' ConstitutiDHul Act of 17f)l, while dividinn- the Pro-
vince of Quebec into Upper and Lowei' Ciinndn, left each
province with the law as it stood undei- tlie Act of 1774
(except of coiii'se as altered 1»}' pro\'incial ordinances), hut
pive each province a le<;islatui'e empowered. to make laws
for the peace, welfare and <;oo(l ^'•overnment thereof. What
Upper Cana<ln would do, was prett}' well undtM'stood. As
was anticipated, she annuled the old Frencli law, .-ind
adopte<l the law of Hn^^land as the rule for decision of all
controversies relative to pr()])ei"ty Jiu<l civil rij^hts; and
she not nuM'elv adhered to the criminal law of l^nu'land,
as introduced hy the pi'oclamation of 17()M, and coutinutMl
by the (,)uel)ec Act, ahove (pioted, hut she went furthei',
aufl liy 40 (Jeo. III. c. 1, enacted that " the criminal law of
Eniiland as it stood on the 17th da^' of September, A.I).
175)2, shall he, and the same is hereby declared to be, the
crin.inal law of this province."
Un(kn' this statute, every Act of the Bi-itish parliament
in force as part of the <;eneral criminal law of En^dand on
the 17th day of September, 1792, was introduced into
Upper Canada. The date in reference to which the
Knii'lish criminal law should be considel'ed in force was
thus brouji>ht forward by bS years, and under it, as well as
under the Quebec Act of 1774, the encjuiry proper under
the common law as to the ajjplicabilit}' of an Imperial Act
to the circumstances of a colony was elimiufited, and the
only enquiry is — Is the Imperial statute local in the sense
we have menticmed ? If not, it is part of the law of Upper
Canada.
»
124 THE CANADIAN CONSTITUTION.
We must, liowever, ai^ain repeat that we are dealiut;' in
this chapter with Eiif^Hsh .statutes of no express ajjplication
to the colonies, and the Provincial Act, 40 Geo. III. c. 1
>
applies only to such statutes (0- Imperial Acts which
jiroprh) vifjore, apply to us, are treated of elsewhere. With
this repeated caution, we proceed to consider some Canadian
authorities upon the (piestion of the introduction of Eni;-lish
criminal law into Upper Canada ('')•
In Bea.sley, (]ui tain, v. Cahill {r), it was held that the
Imperial statute, 82 Hen. VIII. c. J), against huyini,^ disputed
titles, was in fc^rce in Upper Canada. It was contended
that the statute was obsolete, even in England, and
Robinson, C.J., remarked that this seemed to him rather
singular, as the reasons assigned in the preamble of the Act
for its passing, were reasons sufficient in all times: hut
notwithstanding that it seemed to have remained .so lonj^ a
dead-letter in England, he held the Act to be in force jn
Upper Canada, because " it constitutes part of the criminal
law of England, which we have adopte<l by an ex})ress
.statute, intro<lucing it as it stood in England on the 17th
September, 1792" {w).
In Regina v. Mercer (,r), certain English Acts against
the buying and selling of offices were considered (5 iz 0
Edward VI. c. IH, and 49 Geo. III. c. 12(5). The latter Act
it will be noticed, is of a date subse pient to 1792, and does
not therefore fall within our present encjuiry ; it was how-
ever held to be of express colonial application, and thei'e-
(t) Bank of U. C. v. Bethune, 4 U. C. Q. B. (O. S.) Kio ; see ante, p. 69.
(m) Since the above was written, the ' Criminal Law " of Canada has
been codified, and (it is undergtood) all necessity for reference to English
criminal law obviated. As, however, the " criminal law " over which the
Dominion parliament has legislative power, does not cover the whole
field of penal legislation, what we have written may still be applicable in
a few cases even in Ontario.
(r) 2 U. C. Q. B. 320.
{w) And see Purdy q. t. v. Ryder, Tay. 236.
(r) 17 U. C. Q. B. 602 ; S33 also Foot? v. Bullock. 4 U. C. Q. B. 480,
and Reg. v. Mood e, 20 U. C. Q 15. ;;s;i.
THK SnnU'ES (»F (H'R I, AW. 125
t'orr ill force Ir'IV. Tlie Act of Kdwnrd \'I. whh uiiaiii-
niously held to l»e pnrt of our law. Roliiiisoii, C..I., udverts
to tlie distiuctio)! lietweeii tile two provincial Acts, l]'2 (leo.
III. and 4() (jleo. III., in the follo\vin<;' lan^^ua^'e :
" It is denied that tills statute luis any force in Upper
<'anada. If that [mint de])ended merely on the question whetiier
it is included in our adoption of the law of En^daiid, under our
statute 82 (leo. III. c. 1, a good deal might be
urged against the application of the statute It
is more to the purpose, I think, to consider whether 5 (V; (J
Edward VI. c. 10, should not he held to he in force here under
our adoption of the criminal law of l-iiigliind hy 40 freo. III.
c. 1, which enacted that the criminal law of England as it
stood on the 17th of 8eptend)er. 1792, sliall he, and it was
thert hy declared to be, the criminid law of Upper Canada. I
think it must be held that the statute formed part of the criminal
law of England which was thus introduced."
McLean and Burns, .Id., were e{|ually free from doubt.
So likeAvise, in a nuniher of cases, the En;^lish Lottery
Acts were held to be in force in Upper Canada: Cronyn v.
Widder (//) l»ein<i; the leading* case. Both in this case and
Rei^ina v. Mercer, above noted, it was ur^ed that tlie
statutes were not criminal statutes, but with the considera-
tion which led the court in each instance to hold these Acts
to b*^ part of th'i criminal law of England, we have here
nothing- to do. It is more to our purpose to observe that
havinu" held them to be part of the En^'lish criminal law,
the court applied them as part of the criminal law of
Upper Canada, \\ithout entering upon any inquiry as to
their adaptation or want of adaptation to the circumstances
of Upper Canada.
And in Reid v. Int^lis (z), Draper, C.J., speaking of the
Act 1 Wni. & Mary, c. 18, "against disturbers of religious
(y) 16 U. C. Q. B. .35(), and see Corby v. McDaniel, ih. 378. In earlier
casea referred to in these, the Acts were not questioned.
(z) 12 U. C. C. P. 191.
12() THi: CAXAIIIAN CONS'l'ITrriON'.
met'tin^H," said : "I sec no rcfison foi- lioliliiiijf tlw.t tli»' Act
is not in force lici'c:" From which we would infer thut, in
his opinion, all Knnlish criminal statutes in Force in Kn^-
lainl in I7!*2, are iH-nmi fticir in Force here (u).
AikI now- even at the risk oF a char;^'e oF undue repeti-
tion—vv(^ nnist a;,^ain point out, tliat in any case, the (jues-
tion whethei" or not any particular British statute' oF date
anterior to I7f)2, lias the Foice oF law in Ontario, will
de])end, in the first place, upon the ahsence oF colonial
le{,;is|jition -C'anadian or Proxincial, as the case may he —
on the suhject matter involved. IF there is none such, then
the principles we ha\'e enumei'ate»l in the cases we havt^
reviewiMl, will Jiave to he consi(lere<l, and may he suni-
mai'izod shortly hy saying':
^l.s- to the c'l iihiihil hnv, no (piestion cjui arise, save'
the one (|uestion — Is the act one oF general h^n^lish appli-
cation '. If so, it is, in the ahsence always of cohaiial let;'iH-
latiou, as ahove speciHe<l, pnrt of our law under 40 (}eo.
III. c. 1.
zl.s to j)i'o/)erfi/ iiiiil (i)'il ri(/li.ts, t^ie Followin;.i' points
must he considered : (I) Is the Act one of {^[eneral ti]n;4'lish
application in the sense we have mentioned !* (2) If so. is
it an Act i)ro})erly applicable to the circumstances — the
connnercial, relit«;ious, and social enviromiients — of this pi-o-
vince !* (.S) [f not so applicahle, or if the matter is one of
reas()nal)le doubt, has there been a lej^islative reco^niition
of the Injperial Act, as bein>^ in force here f (4) Hfive the
decisiijns of the courts j)rocee<led so clearly upon one line,
as U) have estal)lishe:l a rule of property or .statuf< in the
province ^
It will be seen that, owin<; to the recognition by Upper
Canadian judj^es of the propi'iety of making an inquiry as
(a) See Sheldon v. Law, 8 U. C. Q. B. (O. S.) 85, and Fulton v. James,
5 U. C. C. P. 182 (horse- racing) ; Reg. v. Milford, 20 O. R. 30o (9 Geo.
II. c. 5, against fortune telling), and Reg. v. Barnes, 45 U. C. Q. B. 276
(Lord's Day Act).
TIIK SOl'HCKS OK (>ri{ I.WV. 1 27
ti) the applif.'iihility of aiiv ImpD-ial Act to the ciiruiii-
staiKH's of this ])roviiic't', the piMiiciplcs upon wliicli the
• Iccisioii nmst rest, in thr case of any ^^ivrn Htatiitc, ai'c the
same (e.\ct'j)t as to criiiiinal statutt's) as those hii»l down in
the decisions of the Xo\a Scotia and New Hrnnswick
conrts, and, as we shall iiereaftersee, the statutes l»y which
this (juestion is no\t'nicd in the proNinces more lately
a('(|nii'ed, expressly make " applicaliilily the test of theii-
introduction.
The Kn^lish authoi'ities upon this sul»je(!t aic sutli-
eiently referre(l to in the extracts taken frt)m the (nnailian
authorities. As pointed out l>y Chief Justice Ilalliliurton,
in Tniacke w Dickson (A), those authorities lay down no
\'ery detinite pi'inciple to ;,niide colonial jud;^'es in comin<^
to !i decision in this very impoi'tant matter: and, for this
reason, we liaxc ;j;()ne more elahorately into the authorities
in the older provinces than mi<^ht semi necessary, .so far as
those oldei" provinces alone are concerned: hut, owin*;' to
the comparatively rt'Cent dates which have lieen fixed uj)on
in the lately ac(piii'ed provinces {<■), ;is the date for tlm
introduction of Eni^lish law, the (piestions discusse»l in
this chapter are certain to he of fre'.|Uent occurn^nce in
those [)rovinces, and we, therefore, li-ave this chapter as
oi-i^inally written.
So far as the province of Ontario is concerned, the
matter now stands :
^l.s- to the Imr rcbiflrr to jtro/xi'ti/ oikI rii.il rajhts —
up(jn R. S. O. (1887) c. {)'i in which, after reciting 82 Geo.
III. c. 1, the Legislative Assend)ly of Ontaiio enacts as
follows :
" 1. In all matters of controversy, relative to property and
civil x'ights, resort shall continue to be had to the laws of
England, as they stood on the said loth day of October, 1792,
as the rule for decision of the same, and all matters relative to
testimony and legal proof in the investigation of fact, and the
(6) Ante, p. 78. (c) Pont, Chap. XIII. et neq.
12.S Tllhr^CAXADIAX (.OXSTITl'TION.
forms thereof, in the several courts in Ontario, shall continue to
he ref,'ulate(l by the rules of evidence established in En<,'land. ns
they existed on the day and year last aforesaid, except so far as
the said laws and rules have been since rei>ealed, altered, varied,
modiiied, or attected by any Act of the Imperial parliament still
having the force of law in Ontario ; or by any Act of the late
province of Upper Canada, or of the province of Canada, or of
the province of Ontario, still having the force of law in Ontario,
or by these revised statutes.
" 2. The statutes of Jeofails, of limitations, and for the
amendment of the law, excepting those of mere local exi)ediency,
which, previous to the 17th day of January, 1H22, liad been
enacted respecting the laws of England, and then continued to
be in force, shall be valid and etl'ectual for the same purposes in
Ontario, I'xcepting so far as the same have, since tiie day last
aforesaid, been repealed, altered, varied, modified, or affected in
the manner mentioned in section 1 of this Act.'"
Avtl ti.s ft) tlic n'tDihial loiv — upon H. S. C. (l(SH(i)
c. 144, by section I of wliicli it is enacted as follows :
" The criminal law of England, as it stood on the 17th day
of September, in the year 1792, and as the same has since been
repealed, altered, varied, modified, or aftected by any Act of the
parliament of the United Kingdom, having the force of law in
the province of Ontario, or by any Act of the parliament of the
late province of Upper Canada, or of tb<^ province of Canada,
still having force of law, or by any Act of the parliament of
Canada, shall be the criminal law of the province of Ontario."
Quebec. — The position of this province is so entirely
iini(|ue, that reference tt) its legal system is of no aid in
the other provinces. Its civil law' (founded on the "Code
Civile" of Napoleon) has since been recast into a provincial
code, and no reference to English law is in order in that
province in the sense we are now discussing. As to the
criminal law, its recent codification obviates any further
reference to it.
(ilAITEH VI.
Tin: I'HKHOGATIVKS OF THE CROWN.
Thcrt' lins Ikh'U mo more Fruitful euusc ol* (lis[)Ut(' and
•<K'l»iitt', ill rt'l'i'i'i'iK't' to the ^((vcniiMeiit t)t' the British
i'olonii's, tluiii tlic lack oi* a proper undcrstundinji;' ot" that
i)ran('h of iMi^lish law which relates t() the "prerogatives
of the Crown"; and witiiin a conipaivitively recent period
tlu! Hanie want of appreciation of the essential principles
which underlie that law has oiveii rise to notable disputes
{o) between tlie executive authoritieK of tlie Dominion and
of some of tlu^ pi'ovinces, as to which executive head — the
(iovernoi'-Cieneral or Lieutenant-(»overnor — sliould exercise
the preroi;-ati\es in cei'tain eases. And, in truth, this lack
of a proper orasp of tin; situation is not much to lie won-
<lere<l at: and, for this reason, that the authorities on tiiis
braneli of law {!>) so mix statements of law with hymns of
praise and ascriptions of attributes almost divine to the
wearer for the time )>ein(;' of the Crowni of England, that
it is a difficult task to disentangle the thread of legal prin-
{(t) Atty.-Genl. (Can.) v. Atty.-Genl. (Ont.), 19 O. A. R. 31, affirming
*20 O. R. 2'22 ; see Lenoir v. Ritchie, 3 S. C. R. 575. The question about
the appointment of Queen's (-ounsel is now standing for argument
before the C!ourt of Appeal for Ontario.
(h) " A topic that in some former agea was ranked among the arcana
impiirii : and, like the mysteries of the bona dea, was not suffered to be
pried into by any but such as were initiated in its service; because, per-
haps, the exertion of the one, like the solemnities of the others, would not
bear the inspection of a rational and sober enquiry." — Blackstone.
Can. Con.— 9
ISO ' THi: rANADI.W rnNSTInrioN.
ciplc wlueli niMH tlii<»u;;li it (r). 'I'lic (»!<! juristic snw nhi
jus est roi/iiiiK Hii inisfiui sti'i'iftiH, ]\hh iio iiiorf tMr<"il»N'
illiistnition tliuii in tii** history of the Htr\i;;<;h's of the
Kii^iish people to free theiiiselves from the (h'spotisin of
^<»venimeiit l»y prero;;iitives, uiiejirthe<l liy the imhistry <>f
Hi'i'vile hiwyi'rs, hikI tortuied into ie;^Hl jiistitieuti'in for
executive ,)ppreHHi((li.
It is jilwolutely necesMury to clear up this vmhucucss and
to assign a (h'linite position in Kn;^lish jurisprudence to
that hranch of it which ndates to these " pivi'ot;ati\i's. "
It vvouhl he highly intert'stin^, hut altogether lnxoiid
the scope of this woi'k, to enter upon a i)hil(»sopjiic en<|uiry
into the relative antitpiity of the lej^dsiative and executive
departments of ^ovei-nment- the lavv-makin^f and the hiw-
executin;; power— oi" even upon the more limited en(|uiry
into their relative position, historically considered, in Hi'it-
ish jurisprudence. We can merely .say, that from time
innnemorial there has lieen a clear distinction di'awn hy
jurists hetween these two depjiitments. If any theoiy can
he .said to have lej^al validity, it would appear that the-
lepil theory of Hi'itish juiispindence is, that fuither hack
than any court will l(i'.;k there was a 1>ody of law a funda-
mental law (so to speak) of the constitution {(/) — hy viitue
of which lii)th Kin<; and Parliament had their lej^al l>ein^,
and hy it the relations of Kin^ to Parliament, and of each
to the government of the kinj^<lom, were rej^ulated. Thin
common law of England recoj^nizes only one executive
magistrate as exercising authority without connnission
from any other, within oi' without the realm. That execu- .
tive magistrate is the occupant for the time heinj;' of the
Hi-itish throne. All other mai^istrates act " hv connnission
(f) Haj^arty, C .)., speaks of the " boundless crop of venerable learning
as to pardon and prerogative."— 19 O. A. K. at p. 36.
(d) " The orif^inal right of the kingdom and the very naturul consti-
tution of our state and policy," /jcc Yelverton, «/v/. 2 St. Tr. 483. And see
Hale's Hist, of the Common Law ; Broom's Const. Law, 2nd ed., p. 245,
et seq.
I'KKIUMIATIVKS OK I'HK (RnWV. 181
t'i-t)iii )iii<l ill <lu«; suli()i'<liiiiitioii to liiin"(r'). Hut t)i<- power
atid duty of this cxeciitiv*' htiul is to execute the hiws of
the reiihii. He iw not uhove thoH(5 hiWH, liut uinler them,
heiiij; Iiouiul l»y th»'iii e(|Uiilly with the meanest of his
snltjects. It follows, of course, thiit no commission from
him wouM ciiriy iiuthority to act oth«'rwise than according
to law ( / ). Ill order to the dut' execution of tlie laws, this
"common law of Kn;rland" has invested tlu( ex«'cutive head
with certain attributes and powers, and these an' collect-
ively ivijown as the " prerogatives of tlu! (/rown." The
power to alter the law of the land was no ])ait of these
preroj,nitives('/): that power rested exclusively with parlia-
mi'ut, the h'.r rf cmixiirf iinlm}^ which is ecjually part of the
common law. PailiaiiuMit consisti'd of the Kin<j( and the
three estates of the realm, Lords spirituill. Lords temporal,
and (yomnions ; and its enactments were promulj^ated as
the Acts of the Kiii^' in parliament. In tlufory, it would
seem that defects in the law were supposed to he discoveied
l»y the executive lu-ad in the course of the administration
of pulilic aHairs: whereupon, in the exercise of his pre-
idijfative riirht, vi'sted in him l»v the common law, to sum-
mon the three estates of the realm, he would cause parlia-
ment to assemhle in order that the law mii^ht (if all ao-ree*!)
(«') Chitty, " <.>ii tile I'rero^jativtvs of the Crown," 4.
(./■) Ih. r, : Bracton, L. 1. c. o.
(fl) The power of the Crown, witlioiit parliament, to make audi laws
Hi* mif^lit seem proper, for a connncied territory, was no exception in
reality ; its exercise waH in the nature of executive action. See
("lark Colonial Law, fi, 8; Campbell v. Hall, Cowp. 204 ; and the valu-
able note (a) to Ijeith & Smith's Blackstone, at p. I'J. "It has been said
that, in case of territory ac<|uired by CJreat Britain by comiuest, inas-
much as the t^overnment is i)ot absolutely monarchical, but the authority
to impose laws is vested in the Sovereij^n conjointly with the two Houses
of Parliament, tiie Kin}^ therefore alone can exercise no prerogative ri^^ht
to impose such laws as he pleases, and consecjuently that the mode . .
by which the British laws were introduced into Canada after the Treaty
of Paris was of no effect. See the opinion of C. J. Hey, 2 L. G. Jur.,
appx. in Wilcox v. Wilcox, and L. C. Jur., vol. 1, 2nd part, pp. 38-48. See
also the various judgments in Stuart v. Bowman, 2 L. C. R., and in apnx.
to 2 L. C. Jur." See also Forsyth, 12, ct seq.
\:V2 TIIK <'.\\AI)|.\X ( ' XSTITI TlnV.
Ih' iiltrrnl iiinl the (Ict't'i't r»'!iH'(linl. I'urliuiiii'iit. Iiuwcvcr
KiKT Mssciiildfil, iiii;^lit iiddrcMs itMcH', inti iMcr« ly tit till' (iltcr-
iitioii (U'.siiu'il, liiit to tlif iiltfintioii nl* tlif Inw ii|)()ii (itln-r,
jiinttci'M ; iiikI tlic otlicr Itiaiicln's ol' |»iilimiii'iit, or i'itln'i' t>f
tlicin. iMi;ilit liiir;;iiiii lor tlic liittiT Jis the )tri( t' the
loniHi'. ill iiiiy ciisc, liny ai'<l t-vny iiltcnitioii iii tlic liiw
iioTctMl upon liy tlif Kiiiy;!in<l the tlii'cr I'stjitrs wmh tlifrr-
at"tri" )>Jirt of tilt- \n\\ , to tlif f Xfciitioii of wliicli tlic |»oWfr
iiinl tluty of tlif Kin;;' was liinitftl. As it is soniftiiiifs, Imt
not very intflli^iMy. c spPfssftl, tlif Kind's authority, as
fXfC'Uti\(' lifail of tlif natitm, is sulionliiiatf to liis authority
as rti/ml rl /iiiis jKi I'l HI nil nil (h) lint wliilf parlianifiit
may r nact laws has fiiactfd iiian\- laws f\fn with rfffi-
fnc'f to tlif i»rf ro;;atiNfs of tlif ( 'row n, tlifir cxtfiit, and tlif
niodf of fXfrcisiiin' tlifiii, still, inilfss pai'Iianifnt ;;()fs to
thf full fxtfiit of law iiiakinj^" in any fivfii casf, it cannot
Wfakfii, ill thf sli;>litfst (IcL-rff, thf Iffal fftfct of thf
fXfi'cisi' l)V thf So\fr(>iyn of a iirfroi-atiNc riiilit attrilmtcil
to him l»y the connnon law : and Ihis lf;;al cHfct is what
the older w ritfi's particularh' nolict".
So carfful, indcfd — the old writfis jait it is the coni-
nion law in its jirovisions for thf diu- f xft-ution of tin; laws
of thf land : so careful to |)ro\ i<lf a chfck a;4iiinst any
If^islativt! Iiindrancf to their smooth and fX})editiouH
workin<;", that the executive ma^istratf thf Crown -is liy
thf cortimon law, and for the very ]>ui'i)osf of prott^ctinj^"
the royal executive authoi'ity (/), a constituent laanch of
pai'lianujnt ; and tiie con.seiit of the' C'l'own is absolutely
essential to the \aliditv t)f all Acts. This riu'ht to uivi! or
withhold consent, has been treated as itself one of the pre-
I'o^atives of the (!!rown — the cover and protection to all
the other prero<;ativeH — and ujion its exercise the law recojif-
(/() See Steph. Comm. Vol. II. p. 340, as to the proper meaning of this
phrase.
((■) Chitty, On the Prerog. of the Crown, p. 3 ; see mites p. B3, for an
extract from Gov. Cornwallis' commiHsion, disclosinj^ this reason in frank
termH.
I'UKIUUJAI'IVKS (»K TIIK fHoWV, \:\A
iii/i'M IK) liiiiitutions. Wliili' tVoin titiic to tiii>«> |<iu'liaiiK*nt
luis witlulniwii CM'itiiiii pivru^^ativc lij^lits tVoiii the Cn)\vn :
luiM, in n'l^iU)! tn ntlicrM, iv(|uiit'<l tlir coiKMU'rciicc of sotnr
ofliiT |n>i'Moii !>»• lindy <it" |M'rsuns in unlcr t<» tlicir \r^n\
fXt'icist'; Mini ill immy wtiyn lins t'tttfit'd tlicir cxcrcisi' liy
('(■iiditionH lis to tiiiH', |)Iiu"' mill nmuiici'itt' t-xfrciso ; sucli
ju'tioii liiis mIwhvs Iiii'I tlic coiiMciit of tlir Crown, no iimttt'i'
liow Mnwillin;^ly. <>r iiikIct wlmt Mtr"Ns of ciirniiistMncrs,
•^isi'ii: iiiul tliis su|»rt'iii(' [JrciMMutivc for pit • count ivc it iiuiy
lie cjillcd — of ;;ivinj;' or withlioldin;;' sufli consi'iit, no power
uliort of rt'volutittii niii ever take iiway (,/). TImm is tin-
aspect of the t|Uestion wliicli is pre eminently apjjarent in
tlie law liooks, and it is the utter inad«'(|ua('y of this oiie-
Hide-of-tlie-story mode «>f treatment vvhieh mnk'es this
liranch ot the law so nnintelli;;ilile to the ordinary student.
lie is haunted liy the idea that what he is readiii;^" i>^ lar<^ely
mere anti(|uarianism : and yet, the statemenis made are
statenu'iits of le;;al principles which he cannot ;;ainsay.
The points of importance to a proper understan<linii' of this
branch of jurisj)rudence, are so slurretl over, that it is only
hy patient spellin;^' out of what appear to he treated as
minoi' sulxliNisions that we can reach a satisfactory solu-
tion of the prohlem. As a matter of history, parliament —
perhaps we should sav the HouH^of CVmuu(,)ns -has always
found means to .secure tlie consent of the Crown to tu'
t'uactment of laws on which its heart was lieiit; and.
lea vin_<i aside for a moment the le^^al necessity for such con-
Hent, let us work out the other le^il principles to which we
have alludiMl.
Back of lepil memory, stands the common law of Eu^-
land. " The law makes the Kin^r " (/,•) ; the atti'ilmtes and
powers which attach to his office, as executive head of the
ij) See notes to sec. 2 of the B. N. A. Act, post, for a reference to the
method adopted to get over tliis difficulty, in the case of the Bill of
Rights— 1 Wm. A Mary, at. 2, c 2.
(k) Bracton, L. 1, c. 8; Hale, Hist, of the Common Law; Broom,
Const. Law, 248.
184 THE CANADIAN CONSTFTUTFON.
nation, are part of that conunoji law; are detined (Did
li)))it<'(l hi/ that law, and are in aitl oi" the executive (/).
Over against, or at least distinct from the Kin^, stands
Parliament. It is the creation of that same common
law (?*<), and to parliament alone does that conmion law
entrust the power to alter the law of the land, whether
eonnnon or statutory, upon an}' and every conceivaliK'
subject matter. Parliament, therefore, can alter the Ifj'
prcrof/dtir^f (>/); and it needs no very extensive knowledge
of En<ilish history to appreciate that the House of (yonnnons
never relincjuishes what it ^ains of control over the execu-
tive. The history of Enjjlish le<>islation is the history of
curtailment of prerogatives, and particularly of those pre-
rogatives in the exercise of which any lar^e amount of
discretion was open to the Crown, as to time, place and
manner of exercise.
At this stage, some attempt should perhaps l)e made to
classify tlie " prerogatives of the Crown " as the}' are
enumerated in the works of such writers as Hale, Black-
stone, and Chitty. One large principle of division appears
in the classification of prerogatives into attributes, and
prerogatives proper. The attributes of sovereignty, (oi-
pre-eminence), perfection, and perpetuity, find expression
in the sayings: — " The King is properly the sole executive
magistrate" ((>); — "The King can do no wrong"; and —
'The King never dies." With ti.ese legal principles, and
their position in English Jurisprudence, we need not now
concern ourselves, as they are passive.
(I) Broom, 316.
(m) Steph. Comm. (5th ed.) vol. II. p. 33.5.
(«) So far, indeed, does the power of parliament over the executive
extend, that it can not only deal by legislation, with the lex lyreronativa,
but it can " make laws and statutes of suflScient force and validity to
limit and bind the Crown and the descent, limitation, inheritance, and
government] thereof," at least the statute, 0 Anne, c. 7, adjudges traitors,
all who affirm the contrary.
(<>) Chitty, p. 4. . .
PREROGATIVES OF THE CROWN. 185
Tlif pivroijjatives pi-oper ropi'o.seutcMl, according' to the
<;oiHiii()ii law, powers of action in connection with- every
lej)artnieiit of executive jyovernnient, administrative and
judicial. Even those preroi^ative powers in connection
with tlu' assend)hn<;', proi'oouint; and <lissolvin^ of parlia-
ment were in aid of tiie executive (/>). Chittv divides
these prerogatives proper — the Une of division is not very
exact — into:
1. Preroffatives in refei'ence to fore iyt) sfufes (end affairs,
such as the sending' of andtassadoi's, the makinj.;" of treaties,
making- war and peace, and the various acts of executive
j^overnment necessary in comieetion with these various
matters {(}).
2. Preroy-atives ai'isino- from tlu; reco^^'nized positiori
of the Crown as Head of tlit' ('harrli, with which we in
<yanada need not perhaps trouble oui"selves (?•).
-]. Prerogatives in connection with the assend»linj(, pro-
ron'uino', and dissolving;' of parliament (s).
4. Prerogatives annexed to the ])osition of the Crown
as tlie fitaiifahi of justice (/) ; such as the creation of
courts, the appointment of judj^esand officers in connection
therewith ; the pardoninjj; of offenders, and the issuing of
proclamations.
o. Those prerogatives, which flow from the position of
the Crown as the f(nn}t<im of horumr, such as the bestow-
ing of titles, franchises, etc. (it).
(i. The superintendency of connnerce {v).
{p) See ante, p. 131.
{'/) Chitty, 39. — These are all matters which, for obvious reasons, are
still treated as matters of " Imperial " concern, and over which therefore
colonial legislatures have nc legislative power. See Chap. IX. post.
(r) Chitty, 50.— See in r Lord Bishop of Natal, 3 Moo. P. C. (N. S.)
115 ; Forsyth, 35, et seq.
(s) Chitty, 67.— See Che i. VIII. and notes to sees. 38 and 50, B. N. A.
Act, post.
(t) Chitty, 75. (;/) lb. 107. ■ (r) Ih. 162.
186 THE CANADIAN CONSTITUTION.
7. The prer()<jj{itiveH in connection with the collection of
the revenue (w).
Serjeant Stephen in his new Coninientaries on tlie
LawH of En^-land (fouinle<l on Blackstone), a(.l<)})ts n some-
what different (livision. According to lii.s arran<;eiiient,
prerogatives are either <l lirct, or by way of r.rn'/itidii. Of
the latter he says (./•) :
•' Those by way of exception are such as exempt the Crown
from some general rules estabhshed for the rest of the com-
munity— as in the case of the maxims that no costs shall be
recovered against the Crown ; that the Sovereign can never be a
joint-tenant ; and that his debt shall be preferre,'. before a debt
to any of his subjects" (//).
Direct prerogatives he divides into three classes,
according as they re<;ard, (1) the royal cluiracter: (2) the
royal authority; and {'■]) the royal income (c). Of these
divisions, tlie prerogatives l)y way of exception, and those
regarding the royal authority and the royal income, corres-
pond with Chitty's division treating of " prero(::atives
pn^per."
So far as the j^overnment of the United Kinii'dom is
concerned, we may, for reasons about to be stated, abandon
any further discussion in detail of these prer()i,^atives. It
requires nothing more tlian a cursory j^lance at the last
edition of Stephen's Connnentaries to make cleai- that par-
liament has so taken control of these prerogatives : has so
fettered their exercise by ctmditions as to the manner, time,
and circumstances of putting them into execution: has>
indeed, in such a vast majority of cases, indicated tlie par-
(w) lb. 199.
(x) Steph. Comm. p. 494, vol. II. (5th ed.).
(y) See Exchange Bank v. Reg., II App. Cas. 157, in which it was held
that no such prerogative right exists in Quebec ; Reg. v. Bank of Nova
Scotia, 11 S. C. R. 1, and Maritime Bank v. Reg., 17 S. C. R. (557 (con-
trary holding as to Nova Scotia and New Brunswick). This last case
has just been atRrmed by the Privy Council. See note (y) p. 144 post.
{z) See Chap. II. ante p. 35, et neq.
I'HEIUKiATrVES OF THE CROWN. I .S7
ticnliir ortieial ]»y whom tliey are to he exercised, that —
althouifh exerci.se<l in the Sovereitrn's iiaine — all discretion
in connection with them has vanished. They have very
largely ceased to he " conuiion law " prero<;atives, and are
now statutory powers. But, hefore enterinj^ upon a con-
sideration of the position of the colonies generally, and of
(lunula in particular, in I'eference to " prerogative " we nmst
a^^ain emphasize tlie le}.;al ])rinciple (a) that the h'.r fwrroif-
(liivd WHS part of the law of England, which pai-lianient
was ahle to alter and uiould in such way as, in the opinion
of parliament, wouM hest conduce to the interests of the
})eople, or— to put the same idea into <litlerent lan^uai^e
tlie law-making- power in Eni^land has always Iteen, and
still is, supreme over the law-executinjj^ power, their sphere
of activity heinj^' one an<l the same. We desire, too, to
draw attention to the fact that this control by parliament
over the executive, exists liy law, and apart alto^ethei* fi'om
those conventions of the constitution, the observance of
which secures harmony and co-operation between the two
departments of j^overnment, and that this control by
parliament is, in truth, the necessary result of th.e " I'lde of
aw.
Upon the accpiisition of a colony, what is the position of
its iidiabitants in reference to this lev in'croi/nflni ! I'his
broad (piestion finds very scant consideration in the text
writers on this branch of law. The two followinj;- (piota-
tions exhaust all that Chitty has to say on the subject :
" Though allegiance be due from everyone within the terri-
tories subject to the British Crown, it is far from being a
necessary inference that <dl the prerogatives which are vested in
His Majesty by the English laws are, therefore, exercisable over
individuals within those parts of His Majesty's dominions in
which the English laws do not, as such, prevail. Doubtless
those fundamental rights and principles on which the King's
authority rests, and which are necessary to maintain it, extend
even to such of His Majesty's dominions as are governed by their
[ii) See Steph. Comm. (5th ed.) 332, et seq.
\:\H THE TAXADIAN CONSTITITION.
own local and separate laws. The King would be nominally,
and not sultstantially, a sovereign over such of his dominions if
this were not the case. But the various prerogatives and rights
of the Sovereign, which are merely local to England, and do not
fundamentally sustain the existence of the Crown, or form the
pillars on which it is siipported, are not, it seems, /irinid fnn'r,
extensible to the colonies, or other British dominions which
possess a local jurisprudence distinct from that prevalent in, and
peculiar to England. To illustrate this distinction, the attri-
butes of the King, sovereignty, perfection, and perpetuity, which
are inherent in, and constitute his Majesty's political capacity,
prevail in every part of the territories subject to the English
Crown, by whatever peculiar or internal laws they may be
governed. The King is the head of the Church ; in iiossi'ssol of
II share of U'lihlntion ; and is generalissimo throughout all his
dominions ; in every part of them his Majesty is alone entitled
to make war and peace; but in countries which, though depen-
dent on the British Crown, have different and local laws for their
internal governance, ax, for instance, the plantations or colonies,
the minor prerogatives and interests of the Crown must be regu-
lated and governed by the peculiar and established law of the
place (/»). Though, if such law be silent on the subject, it would
appear that the prerogative, as established by the English law,
prevails in every respect ; subject, perhaps, to exceptions which
the differences between the constitution of this country and that
of the dependent dominion may necessarily create in it. . . •
. . . In every question, therefore, which arises between the
King and his colonies respecting the prerogative, the first con-
sideration is the charter granted to the inhabitants (c). If that
be silent on the subject, it cannot be doubted that the King's
prerogatives in the colonies are precisely those prerogatives
which he may exercise in the mother country. The preroga-
tives in the colonies, unless where it is abridged by grants, etc.
('•), is that power over the subjects, considered either separately
or collectively, which, by the common law of England, ab-
stracted from Acts of parliament and grants of liberties, etc.,
(/)) See Exchange Bank v. Reg., 11 App. Cas. 157, with which com-
pare Maritime Bank v. Rej^., 17 S. C. R. 057.
((•) A fortiori . wliere the charter is an Imperial Act of Parliament.
I'HKKOOATIVKS OF TIIK riJOWN, 139
from the Crown to the suhject. tlie King could rightfully exercise
in l^ngiand " ('/).
The stutenit'iits eontuiiifd in thesi' pjissaf^es, >iiv not very
■<letinito ; l»ut hearing- in mind the two methods of acquiring-
colonies, — hy con(|Uest (or cession) and Ky settlement —
and applying- to each type the rules indicated, it may l>e
laiil <lo\vn : (1) That in a eonijuered or ceded colony which
continues to be ^ovei'ned 1>y a foreit^'n law (f), the Ic.r j»tr-
rot/iiflr,! of En^dish jurisprudence, is to be no more deemed
in force theie, than is any other branch of English law ( /"),
.subject as Chitty puts it, to tlie operation therein, of those
fundamental rijjlits and ])rinciples on which the Kino's
authority rests and which are necessary to nuiintain it;
(2) That in a settled colony the Ir.r itrcroi/afii'd of English
lav is carried with them by tht' settler's, Just to the same
extent and with the same conditions as to a^jplicability (jf),
as is the case with the other branches of the connnon law,
and the prero^-ative rij^hts of the crown are capable of
<i.\ercise in the execution of the law of a colony not havin^;
a le^'islativ(! body, only to the extent indicated in the
connnissions of the executivi; officers who may l)e sent
out (A).
The point of supreme importance to us is not however
brou>i]it out, (except by inference) but it is a clear and
undoubted rule of English law, that upon the establishment,
by charter or Imperial Act, of a local legislature within
a colony, that legislature is, within the sphere of its
authority (be that sphere large or small), possessed of plenary
powers of law-making, and may, with of course the consent
{<l) Chitty, 25-32.
(f) See Forsyth, 12, et seq.: Dicey, Law of the Const., 51, note.
(/) In some instances this rule has increased the powei-s of the e.xecu-
tive — has invested the executive officers with a wide discretionary author-
ity— simply because tlie foreij^n law in force in such colony recognized
the existence of such wide discreiicn in executive government ; see Reg.
V. Picton. 30 St. Tr. 22.5 ; Forsyth, 87.
(/;) See Chap. V., (mte. (h) See Chap. VIII, post.
140 THK CANAIiIAX ('( .N>Tri I'l |( iN.
of the Crown mh a t-onstitiu'iit l»niiic'li of tlic k'i;islfiturt'..
alter ami iiiouM the lev prcfoj/tif I >ti as to the colony, to a.s
full an extent a.s the Biitisli pailianient can alteram! uionid
it as to the United Kinji'doni (/). Thereafter the exei'ci.se
l»y the Crown, oi* any otiicer of the Crown of any })rerof;'a-
tive I'io'ht recognised Ity tlie law of En^daml, would he in
the colony illei;al, unless it were also a prer();;ati\i' rin;ht
/;// f/ie law of thr. <i>ltni 1/ ; and that would, of course, depend
on the will of the colonial lei^islatnre ji.s to all niattei's
confided to its authority. The proclamation which followed
the Treaty of Paris, made provision (j) for the callini^'
t.)<^ether in Canada, (Jrenada, and East an 1 West F^htrida, of
" jreneral as.semblys," empowered " to make, constitute, and
oi'dain laws. . for the })ultlic peace, welfare, and ^ood
^•overnijient of our said colonies and of the people and
inhabitants thereof": and Lord Mansfield heM (/•). that
the effect of this was to prevent the Crown from thereafter
exercisinj; lei^islative authority within the colony. The
act of legislative authority (piestioned in that case, was
the imposition by Imperial Order in Council, of an export
tax on certain connnodities. which strikes one as an act of
executive j^overnmant rather tluin of leoislaticni : but how-
ever that may be viewed, the reason ^iven for the decision
was, that the Crown, (I.e., the executive authority of
England), was irrevocably ple<lned " that the subordinate
(/) legislation over the island should be exercised by an
A.s.sembly, with the consent of the (Jovei-nor in Council, in
like maimer as in the other provinces under the Kin^-,' and
.settlers were (guaranteed a ^'ovennnent by, and accordini^
to the laws made by such subordinate assembly. To the
(/■) Cl)itty,p. 37.
(J) Perhaps we shonld say that it announced that provision had beenr
made, in the commissiions to the gv. .ornors of those provinces, for, etc.
See ante, p. 34.
(k) Campbell v. Hall, Covpp. 204 ; see Phillips v. Eyre, L. R. 6 Q. B.
at p. 19.
(/) i.e., subordinate to the Imperfr.l Parliament.
rHKHOCJATIVES nl' TIIK ('1{(»\V\, Ul
like crti'ct is tlic CM)iiij»iU'ativi'ly recent 'Iccisidii (iii)u\' the
Judicial C'Dimuittee of the l'i-i\y ('i»iiiicil, that "after a
culom' i»r settlement h.is rcceivod Ict^ishitiM- institutions
tile Crown (suhject to the special provision of any Act of
parliament ( n ), stands in the same ri'lation to that colony (»r
,settlem"nt as it does to the United Kin<:'flom. The
decision in this last case was thut the Crown has no j»o\ver
to constitute, hy letters patent, a hishopric oi' ap|)oint a
bishop, (with ecclesiastical jui'isdiction) in a colony pos-
.SL'ssed of an inde])endent le^^islature. And in a still hitei-
case {<)) the Judicial Connnittet* of the Pi-i\y (^)un(•il held
that the Crown is liound hy colonial lei;'islation and in
Queltec isentitlecl to no priority ovei' other ci'editoi-s because
"the subject of priorities is exhaustively dealt with by
them" — I. f. by the Codes passeil l>y the parliament of
(old) Canuda, and continutMl in force in (^)uebec by the
B. N. A. Act, s. 12!), — ".s7t f/nif f/t" ('raini cnn clunu no
pi-'iofif 11 I'.rcc/tt ll'/nif is idUnvcd hy f/if'iii."
The let^'islatures existing- in Canada, l»oth Dominion
and provincial, ai'o statutory — i.e., they exist undei' the
authority of the H. N. A. Act — -with the exception, to a
[)artial extent, of the leo-islatures of Xew Bininswick and
Nova Scotia, whose sphere of local authority is alone statu-
tory; and this fact, of course, makes the ar^'ument <i foi'fitn'i
in th«j case of Canada. (Certainly no act of the executive in
F^n^land can be upheld a^^ninst the pi'ovisions of an Imperial
statute. The powers of our Canadian parliaments have
been ai;ain and aoain declared to be, within their sphere,
plenary })owers of le»4'islation. It is uiniecessary to labor
fui'ther upon this point, foi' a ^'lance throut^'h our statute
books will disclose that our colonial parliaments have
legislated with regard to the exercise of the vast majority
of the prerou-atives of the Crown down to the smallest
(;/() In re Lord Bishop of Natal, 8 Moo. P. C. (N. S.) 115.
(h) /.(.'., of the Imperial Parliament.
,(o) Exchange Bank v. Reg., 11 App. Caa. 157.
142 THK CANADIAN CoNSTITrTlON.
(K'tfiil. Jind tilt' (liscit'tionary powci' of the <'xrcuti\t' \h
iVfhuH'd to a iiiiniiiiiim, as in tlic Uiiitt'<l Kin^rdoni. It may,
howcvt'i", 1)1' jitraiu reiiiai-k«'(I that now that ••xccutivc
responsildh'ty to parliament, an<l thiou^^h parHanicnt to
the ek'ctoiatc, is so thorou^^hly ivc'o<;ni/A((l, and tht;"con-
ventions " of the constitution which ensun? such ivsjxaisi-
hility, HO univoi'sally ohscrved, the tendiMicy of Ic^'isiation
is to incruasr the amount of discretion allowcil to the
executive officers in the various depui'tmentH of thi- i)ulilie
service; hut this is not a matter of [)rei-o<^ative (a eonniion
law ri^ht) hut a statutory (Hscivtion.
A ruh' fi'e(|ui'ntly Uiid down in the authorities tliat a
statute is not to he construt'(l to deprive the (.'rown of any
prm'ojLi'ative rif^ht unh'ss the intention so t(» do is expresst^d
in explicit terms, or aiMses l»y irresistihle inference ( y>)
shouM, perhaps, he here adverted to. It a])[)lies to
colonial Itj^islation (7) >ih well as to Im[)erial, and the cast^
of Exchange Bank v. lle^. (/•) is a ^ood illuHtration of the
" irresistihle inference " which arises in cases where a statute
purports to he exhiiusti\e ieo-islation in riiference to a [)ar-
ticulai- subject matter; in which case the (^rovvn is limited
to the ri^'hts and privile^-es (if any) conferred l)y the
statute. Applying this to the B. N. A. Act, it appeal's that
the executive government of Canada is to he carried on hy
the (}ovi!i-nor-General (s) and the executive j^'overrnnent of
the several pi'ovinces l>y the respective Lieutenant-Oover-
noj-s thereof (/), an<l that the Act taken as a whole " makes
an elahorate distribution of the whole field of legislative
authority" ((()• '^^^^^ it follows irresistibly that tlu; preroga-
tives of the Crt)wn, so far as they are exerciseable in Canada,
(p) Maxwell "On the Interpretation of Statutes," p. 101. And see,
as to appeals from the colonies to her Majesty in her Privy Council,
Reg. V. Bertraud, L. R. 1 P. C. 520.
iq) See Maritime Bank v. Ren., 17 S. C. R. ().57, (affirmed in P. C—
see note (ij) p. 144 poxt) and the " Interpretation Acts " of the Dominion,
and the various provinces, of Canada.
(r) Ante, p. 141. (s) Sec. 10; and see notes to sec. 5). (() Sec. 62.
(«) Bank of Toronto v. Lambe, 12 App. Ca". at p. .587.
I'UEHoriATIVES OF THE CllOWX. 1 4H
())• in uiiy proviiK;*' tlii^roof, must he exorcised — in lici*
Majesty s luiiiie (') — l>y the officer who hy the B. N. A. Act
is enti'usted VMtli "the caiiyiii^j on c'" ^^overniiieiit," jukI
oiiinot he exercised hy tht; <^iieeu — i.e., thi'ou;^h the Iiii-
periMl Huthorities— except in matters over which none of
our K't^dslatures have h'i;islative p(»vver.
We shaU have occasion to I'et'er witli consi(K.'rahIe tVe-
(|uency to the limitations upon colonial h'^^islative power
arisin;^ from the colonial sfuhis, und it is to he ohsei'vcd
that the prero^^atives of the Crown relatin^^ to "Foreign
x\tfiiirs "(<('), including; some as to military mattei-s, have
not been placed within (rolonial le;ri,slative pow*;i", hut are
under tlu' control of the Imperial parliament for the
reasons (whicii indeed are ohviouH) indicated in an earliei"
chaptei' (.»•). But we attain icjjeat - if hapi)ily repetition
may in this instance emphasize the pi'inciple which appeals
to us so impoi'tant — that in every case the power which
makes the law upon any ^iven suhjeet matter, must
(r) B. N. A. Act, seo. !> and noted thereto, ;jm7.
(ic) See note, ante, p. 135.
(.(•) And see notes to sec. !) of the B. N. A. Act, post. The prerof»iitivef*
vested in the Crown as the Foiiiitdin (;i/' //oxoc are looked upon as (so to
speak) prerof^atives at large and not connected with, any particular
department of e.xecutive government. The dispute as to the position of
provincial Q.C.'s would seem to narrow itself down to the (luestion,
whether the appointment is one connected with the administration of
justice, or simply an honorary title. If the former, then both the
Dominion and Provincial e.xecutives would appear to have the power —
each in relation to the courts of Dominion or Provincial creation, as the
case might be. If the latter, tlien neither would appear to have it, any
more than either could make a man a knight. If there were no " bound-
less crop of venerable learning " to prejudice one's judgment, and if
members of the bar are really officers of tiie courts, it would seem
reasonably clear that the prerogative is one relating to the organization
of courts, as to which both governments have powers conferred upon
them by the B. N. A. Act. See poxt, Chap. XI. In Reg. v. Amer^
42 U. C. Q. B. 391, the power to issue commissions of Oyer and Terminer
seems to have been treated as a prerogative at large ; but it is submitted
there arc none such in relation to our self-government ; certainly none
are conferred on the Gorernor-General by his commission.
I U TiiK <AN.\i»i.\\ f'oNs'irnriuN,
Hccordiii^' til l'jn;;lisli luw lie tin- jMtsvcr wliicli coiiti^il.s the
rxtfution t»r tlint liiw in every detail. WC \\n\^• tried to
niuke this cleniHs ti) the ('(dotiicH, and where tho.si' coloiiii's
ha\e w hat han lieen termed a " unitarian " torni nl' o^ovei-ii-
nielit the rule would seem to l)e icconiiized hy judicial
deci.-tion, and the universal practice ot" the legislatures ol"
such " unitarian ' colonies. A cleai* appreciation of the
principle will make it apparent that it apjdies to the
ditlei-eiit ;jovennnents of ( 'ana^la: and that when we tin<l the
ley,islat»n"e of the Dominion (empowered to make laws u))on
nny eiveii suhject matter, an}' preroeutiNt' ri;4ht caj)altle of
exercise in relation to such mutter, nnist, and can only he
exercised hy the executive of the Dominion, and so of tiuch
of the l'ro\incial ^on ci-nments (//). The dixision of the
tield of e()vonnnent hetween the Dominion and tin; pro-
vinces is therefore a tli\ision alony,' the line of sul>je(!t
niattei's, and the wholi' power of eovernment, le;^islative
an<l executi\t', in relation to any ^iven subject matter.
rests in that i'()vernment to which it is assiened for lei>is-
lativo puri)oscs.
(//) See /)(■*• Burton, J. A., in AttorneyGenoral (Can.) v. Attorney-
(ieneral (Ont.), 1!) O. A. U. iit p. 88. Since ihe above was written, the
report of the judjinient of the Judicial Committee of the Privy Cour.jil
in Liquidators of Maritime Bank v. Receiver General of New Brunswick
has appeared. It affirms the text. See Times Lint- luportx, (> July, 1H!)2.
We shall have occasion to refer to it again.
ciiArTi:H VII.
KAKCITIVI-: ClIKCKS ON COLONIAL LEGISLATION.
The position of tlic crown as u lirandi oT tlic Iiii|H'riuI
|)ai"Iiuni('Mt, Hiid the reason therefor, is very dearly ex-
pressed in a work to whidi fre(jiU'nt reference was made in
the last chapter (a):
" Tlie i<ing is, therefore, very properly a constituent part of
pavliamont, in whicli caj)acity he possesses the means of preserv-
inij: inviolate his rij^dits ami prerofi;atives as supreme executive
nia^^'istrate, hy withhoklinj,' his assent at pleasure, and without
stating' any reason, to the enactment of provisions tending to
their prejudice {h). It is however ouh/ Jor tlic /lurpose of firtttevt-
iii'i tlif iiii/dl t'xevutirc nuthoritii, that the constitution has assijjfued
to the knig a share in legislation; this purpose is sufficiently
insured hy placing in the crown, the negative power of rejecting
suggested laws. The royal legislative right is not of the delib-
■erative kind; the crown has no power to propound laws.
Important therefore as this prerogative of rejection is as a shield
against rebellious encroachments, as a preservative of the royal
•executive functions, it is in other points of view of a limited and
negative luiture."
We have nlready (r) (|Uoted from the connnission to
(governor Cornwallis, of Nova Scotiu, the clause which so
fi'ankly states the same reason foi' the ne^-ative voice ^iven
((/) Chitty, " On the Preroijatives of tlie Crown," p. 3.
{l>) Hee Chap. VI. (c) Ante, p. US.
Can. Con.— 10
U(l Till-: CANADIAN < nNSTITITloN.
to tin- t'ui'ly ;;ov«'nioi'M. Tt must !»<• l»onu' in iniinl. Imw-
cviT, that ill tlioMf ilnys tlif " iitcraiv tiu'ury " |»rrvailt'<|.
wliicli asMi;;iitM| totlic It'^^isliitivf ami cM-ciitiNi' <lt'|iartiii<ntH
(»!" ;^n»vcniiiM'iit, not only distinct l>ut iinlf|u'inlt'nt powcrH,
With tln' ;;ro\vtli in Kny^laml an<l tin- colonicH, of tin- |»rin-
ciplf ol' icHpunMiMc ;:o\('rniii('iit tliroii;;li tin* iiit'diiini ol
un i'Xt'cuti\'«' itH|»onsililt', tlnoiiuh parliaiiH'iit, to tlif t'lcc-
torat*' ^tlir iK'i'ativc Noicc allowctl to tlir ifovcrnor of n
C'oKdiy \<'ry lar;;»'ly crascfl toHml nttcraiifc in preservation
of prci'ouativc, and caiiK' to lie cniplitycd us tin- updioldtT,
I'atlu'i-, of tln' supremacy of the Iniprrial parliament. And
HO with ivft'ivnce t(» the mccoihI ne;jative allowed hy the
coiiiiiH)!! law to the occnjonit of the throne, over all acts of
Hul)ordinate let^islati\'e liodies tlironeh(»nt the Kinpire («/);
that seeolid ne^ati\e came to he exercised sllhject to the
"conventions of the constitution" which limit the interfer-
ence of the Home u()\cniiiient with colonial le^^islation, to
interference in i-elation to matters (»f Imperial concern -to
securin;; unity of national purpose and method throii;;'hout
the \arious i)arts of a world-wide Kmpire. In other wor<ls,
the true feileral itlea— the reconciliation of national unity
with local si'lf-;;ovenmient (<')- — <lominates this phase of our
relationship to the mother country, just as it now deter-
iiiinc;-» the extent to which the Uritish parliament shall
le<;;islate, as an /luprrinl j)arliament, for the colonial por-
tions of the iMiipire. This is the conventional as[)ect.
What is the le^al position !
In former chapters the paramount legislative authority
of the Imperial parliament has heen pointed out, and the
necessity for a careful distinction hetween its unlimited
extent, lej^ally speakinj;, and its limited operation, " conven-
tionally " con,sidured, insisted upon. And, just as we may
have laws en»icte<l for uh by an authority entirely external
HO we may have the deliberate utterances of what we
(d) See Chitty, at p. 25 — passage quoted ante, p. 138.
(f) See ante, p. 8.
EXECl'TIVi: cjlKi KS ON' ('(»|,n\ |AI, I.KiilSI.A ||oN. 147
miiy call tlic two coluninl linmolu-N of our ('anuiliiui |)ailiii-
iiM'Ht — IuIIh uhicli liiiNt' pa.sst'tl Im>Mi Coiiimiuiim and Suiuitt'
— (Iniictl |('y;al operation as Acts of |iarliaiiu'nt, l»y the
iH'fuMiiI of lit r Majcsty^^ it'iuTsentativt' to aMsciit thereto in
her name.
Hy expreMs i)i'ovision of the H. X. A. Act (y), the Quttu
is a constituent la-anch of the parliament of (ana<la, an<l
Her assent is necessary hefon^ a hill can heccane law. Her
I'epresentative, the (ion ernor-(ieneral of Canada, may refuse
such assent: or he may reserve the hill for the considn'a-
tion of the (^ueen in Council (that is t«) say, of the
Imjierial e;()vernment), and upon such considerati<ai, assi'Ut
may he withheld; or, the (lovei-nor-CJeneral having as-
sented and the hill having- passed into Act of parliament,
it may, within two years from its receipt hy tlie Secretary
of State in h^nelanil, hi disidlowecl, and "such disallow-
ance . . . heinj;' si^^nitied liy the (iovernor-(ieneral
shall annul the Act from and after tlie day of
such si;^niHcation." Now, it matteis not what may be the
reasons, assi;^qie<| or unassi^ned, for w ithhohlinj^ the
(^uet'u's as.seiit to a hill, oi" for disallowing' an Act of the
Canailian parliament: the effect is, that in the former case,
the liill is as if it never had heen ; in the latter, it is
repealed hy the Impei'ial government.
To deal with the different phases of this subject, more
in detail, we (piote first, section ,5.5 of the H. N. A. Act:
■ " Where a hill passed hy the houses of the parliament is pre-
sented to the Govenior-Cieneral for the Queen's assent, he saall
declare according' to his discretion, hut subject to the provisions
of this Act and to her Majesty's instructions, either that he
assents thereto in the Queen's name, or that he withholds the
Queen's assent, or that he reserves the bill for the signification
of the Queen's pleasure."
C/j Sec. 17 ; and see also sec. 2. The Crown is also a constituent
branch of the provincial lef^ialative assemblies — see notes to sees. .58 and
69, post.
148 'IIIK CANADIAN coNSllTI TinN.
TIm' ('Xfrcisf hy tli<' (lovcriioi'dciKijil n\' t.lii.s <iiHci*('ti')n-
nry |«)\vit nawmi lie Ici.f.illy <|insl.i<)ii(M|. hoiiltt, Ims iii;^f liccii
cxprt'HH''*! us to tiM' \t'<^!\\ fllicMcy " »i' (•( »l( )i I i;i I ciwictmcnts
Nvlicn )iss»'iii('<| to liy ;i ( !(i\fi-(iitr, cfditiiiry tc liis iiiHtruc-
tioiis, til it. <loiil>t wjis si't at r<'st l>y the ('oloniiil lifiws
\'jili<lity Act, ISli;"), tin- roiiftli section <»t' wliicli fiuicts :
"No coloniiil law, piisscd with the cfjiiciirrcricc f-f or iih-
H«;MtC(l to liy l.li(,' ^'OV((rrioi' of iiny (tnlony, or to be iKtrciil'tci' so
imHHcl or iissciitcd to, sliiili he, or lie (li'diicd to liiivc \n-eri, void
or iiioix.'rativo l)y roiiHon only oT iiny instructions with ref'('r('n(M'
to Kiifh law, or the siihject tlicrcr)!', which may hav(! Ix-cn given
to such f,^oVfinor l»y or on hehiilfor Her Majttsty, hy any instrn-
nicnt oth(-r th;ni the lett(!rs patenL or iiiHtiiiinent !i,ulhori/,in<<
such (ioverni/r to concur in passing', or to assent to laws for
the p('!ice, order, and j.{ood ;4r)verniiieiit of such (udony, even
tiiougli sucii instriiclion-; niiiy h<- iwderied to in suidi letters
I ateiit,, ()!■ liist nietilionud inslruuient."
S ), t'; -/iv'-ire, while the ussenf of the < Ji)\ ernoi'-( ieneral
ill the (j)nee|)'s MHine, or in the cuse of ;i reseiNed hill
his si;4iiiJiratioii of the (jJiieen's ussent, is JiKsolntely essi-ii-
tial to till' Nfilidity ..f ull Acts of the )))iili)inient of ('nnada,
that asHCMit once j^iveii to any Act, sindi Act (if within the
le^^jsiati'e co'npeteiice of j)ai'lianient) heconies law, silhjt^ct
<»nly to the power of disallowance liy the (Jfijeen in (Jonncil.
This |.ioU('i" is I'ecoj^ni/ed, and the mode of it,s exerctise
<!elined hy the ."ititli He(;tion of the I"!. X. A. Act:
" Win re i!;e (iovi;rnor-(ien(;riil assents to n hill in th(!
(Queen's iiiiiiie, he shall, hy the first convenient opportunity,
send an authentic copy of tlicf Act to one of Her Muji.-sty's
Principal Sccrctarios of Slate, and if the (^ueen in Council,
within two years aficr rt!C(;ipt thereof hy the Secretary of State,
thinks lit to disallow the A(d,, such disallowance (with ii, cerlifi
cate of the Secretary of State of the day on which the Act was
received hy hiiiij heing si;,'nified hy the (iovernor-Ocfruiral, hy
speech or !nessa;^'e to each of the houses of tin? parliament, or
hy proclaniati(jii, shiill annul the Act from and after the day of
Kuch siyni.'ication."
KXK' TTIVK cilKrKS <)\ r(»i,( »N'| .\f, f j;(;isi„\Tlo\. I |i>
III tliis Hcctioii it> is iiifitcriiil to uoU- tin; liinibitioii of ilif
tiiiK' witliiii vvlii<'li till' <liHallovvaiicr niuHfc tukf plnci-. At-
(•<)iiiiiioii law, MO siH'li tiiiir limit <'xiHt<'<|, ainl this is (tiic ol'
tliosi! instaMCtiH (to wliicli rd'crciicc was inafjc in tin- hst
cliaiitcr) ol" tilt' coiivcM'sioii ol' a coiiiiiioii law prcro^ativ'r
into a statutoiy power. TIk! two y< ars liciii^ allowffj to
pass, witlioiit siKtli flis/illowancM l>y or<l('i' in council Tor
tliat is tlic iii»!tlio<l pr(^s(;ril){!(| — tlic executive, <lepartiiient
of tlie Iiii|)erial ^^overniiient can no lonj^er interfei-e with
tli(^ operation of tlie A(;t; nothing short of " rej)uirnant
linpeiiMl legislation can weaken its vali<lity.
The ( Jovernor-( Jeiieral, however, as has heen noti(M'<l,
may, in the case of ;uiy hill presented to him, exercise lii<
discretion, l»y m^ither ;^iviri^ nor withholding the assent of
the ('I'owii thereto; a third cours*; is ex])ressly allowed
him ; namely, to reserve the hill for the si;^nitication of the
Queen's |)leasure (^j ; and hy section 57 of the H. X. A.
Act, it is (Miacted :
" A hill reHorvt'd for the Hii^'iiification of the Qiicon'H pleaHine
Hliall not have any force unless and until within two years from
the day on which it was presented to iIkj (iovenior-fieii(;ral for
th(' (Queen's ai-tHeiit, the (ioveriior-(ieM(;ral si<,'iiirH'H hy speeidi
or messa^'e to each of the houses of the [)arliament, or hy
proclamation, that it has received the assent of the Queen in
council . . . ,"
As W(! are now dealin;;- with f|UestionH whi(;h iwlsc out
of our colonial relation to (Jreat Hi'itain, it is jiei'haps hetter
to defer consideration of the powei" of the; Lictutenant-
(}ov(!j"nor of a province, to withhold tin; Quisen's asscuit
from hills passed hy tin; l(!;^islative assemhiy of his province,
and of the pow<!r of tlu; (j!ov«!rnor-(j(;neraI (in (Jlouncil) to
disallow Acts of the provincial lej^islativt; assemhlies, until
we (!om<! to<lisciiss tin; (yanadian constitution in its internal
asjiect (/i).
(!)) Bee. r,r,.
(//) Bee next cliapter, wliere will hIbo bo found Home further oV>ncrva-
tions on the "conventiomil " limitH set to the exerciHe of the Imperial
power of rliHiillowiince.
CHAPTER VIIT.
THE C0NN1':CTIN0 LINK—THE (lOVEKXOR-
(iENEHAL 00-
1m j)()|mlHi' ])lii'jisc()|();;'y, the (lovcninr-i jlciid'al is tlu;
"Queen's represt'iittitiNe " in Canndji. and in the populjir
mind tliei'o is un ideji, vji^ue no floubt, but still deeply-
iniii'iuned, that lit; is clothed with laiye and xice-ieoal
attrilmtes, standing' to us in mucli the same position as her
Majesty occupies towards Jiei" subjects within the liordei's
of the United Kin<rdom. But to the constitutional lawyer
learned in the Dryasdust precedents (as Carlyleaii laymen
would doubtless term theia) which define the lei;al j»osition
of a Colonial (lovernor, he a])pears in the lii^ht of an oHietii'
clothed with an authoi-ity strictly limited {!>), whose e\ery
act as governor must he le(,'ally justified ('■) hy tlu.^ tei-ms of
liei" Majest3''s conniiission apj)ointin<;' him to fill the office,
and whose capacity as i-epresentative is not general, hut
(./) See liroom, " Const. Law," y. (122, et kc(i. ; Forsytli, p. S4 ct .sw/. ;
Todd, " Pari. Gov. in Brit. Col." It would appear that Mr. Todd's work
was written in order to inculcate a proper appreciation of the importance
of the oflice ; see p. 584 of his book. See also Art. in Law Maj^. for
Nov., 1M()1 (Vol. 12), at p. 1H2, c^ .svy., (juotin<i with approval the lauj^uaije
of ' a very able colonial lawyer" — A. Stuart, advocate, Montreal— in a
work published in 18S2, "On the functions and duties of the governor of
a British province."
{h) Cameron v. Kyte, 8 Knapp, P. C. .332; Hill v. Bigge, 3 Moo. P. C.
4f)5 ; Mu8>^rave v. Pulido, L. R, 5 App. Cas. 102.
{<•) Oliver v. Bentinck, 3 Taunt. 400 ; Raphael v. Verelst 2 W. Black.
lOSO ; and cases in last note.
Tur: (;ovf:i{\(»|{-(jf:nlhai,. 161
,s|)('ci!il, — ill |)riiK'i])lt' not nioi'c ;4t'nt'r;il, ami not less sjicc'iJil,
tliJiM t'liit of tilt' nio.st uiil('ttt'!'t'(l |)o<<li(^.i-i-\- oil the iii{ii''is-
t«'ri)il licmli of ii liHck towiisliij) (»/), tlic |)o\VL'rs, autlioritics
and functions of cacli ajipcarin^' in, and ht'in^ limited l)y,
Mic terms of their resjiective commissions.
A WMi-d of caution should pei'haps In- Mi-itteii at this
.stai-f of our iiKiuirv. In oi'der that tlu' readei' mav not he
led to underrate the importance, — from a ])olitical stand-
point— of a governor's jiosition, tuiil the \aried and respon-
}-ihle duties which are put upon him hy her !\hijesty's com-
mission {('), it may he a^'ain ohsei'ved that we are now
looUini;' at his position fi'oiii the staiulpoint of the lawyer,
and not that of the statesman. In some respects it may
indeed he ,sai<l that the law )"eco_niiizes as Ic^^ally etfectivt,-,
various acts of a governor, which Constitutional usa;^«!
would emphatically condemn, and the doin^' of which would
att'ord am})le o-round for his recall : wliile on the othei' linnd,
a ;4()\('rnor mny hy one and the same act incur ci\il or even
criminal liahility, and win the approl>ation of his Imperial
superioi-s. We cannot too I'io-orously insist on the distinc-
tion frei|uently pointed out in the foreii'oino' jia^'es, between
the Icjiil and the nnrrrntloiKil, under the British .system of
eoNO'iiiiient. We shall ha\'e occasion to i'ef(,'r more at
lenL;th hereafter, to the limits within wliicli the let>al poM'ers
».»f a Governor should find scope for "conventional" exei'cise;
hut, as was pointed out in reference to the exercise l»y the
Im[)erial |/a)-liament of its le^a) power to enact laws for a
colony, a proper recot;nition of the lethal position will greatly
tend to strentrthen colonial statesmen in their insistence
upon the "conventional" limits l>eing accurately defined
and observed.
('/) Finlayson, " Review of the Authorities a:s to Repression of Riot,"
110. Compare with thi.j the language of Taschereau, J. (in reference to
the jiosition of a Lieut. -Governor)— The Queen v. Bank of Nova Scotia,
11 H. C. R. at p. 24.
(f) That commission refers to the B. N. A. Act, under which (see sec.
iO) he is described as an executive officer "carrying on the government
of Canada."
152 THE CAN'ADrAX COXSTITmoX.
In the early dnys of coloiiiul lustoiy, there .seeiuH to
have been a disposition on the part of ;^overnors ajip»>inte(l
to distant portions of the Knipire, to set thenisehes above
th« hiw (/), and to insist upon the applicability to their
case of tlie maxim, " The Kin^ can do no wron^.' As in
Kn^land, the Soverei«^n cannot J)e arrested by virtue of any
U'pil })rocess, or be impleaded in any court of justice in
reference to any act, public or private ((j) — so these early
colonial governors, claiming' a delen;ated st)verei^nty,.
attributed to themselves a correspondini^ sacredness of
person, and an ecjual innninnty from the jurisdiction of
courts of justice. It is a very interesting study to trace
the course of the decisions by which the attributes with
which they had in fancy clothed themselves, were one by
one stripped from them, until now their position, as let^ally
reco<^nize<l, is as above stated. It would appear frojii the
earlier autiiorities, that the pretentions of the early j^over-
nors to the innnunities of a dele<^ated soverei<;nty, were
not paraded out of the territorial limits of their colonial
government, and when proceede<l a<;ainst In Eii<jU(iul, they
defended themselves by pleas in bar, and not in aV)atement —
by defences on the merits, justifying their acts under their
connnissions, an<l not denying the jurisdiction of the Enji^-
lish courts to entertain suits V)rout(ht against them (A).
And, when, in 1778, (Jovernor Mostyn did allege, as a
plea to the jurisdiction of an English court, that the
acts complained of in the action, were done by him as.
(/) See preamble to 11 & 12 Wm. III. c. 12, cited post.
(g) Steph. Comm. Vol. II. 498; Chitty, " Prerog. of the Crown " 374.
(h) In Fabrigas v. Mostyn, 1 Sni. Ldg. Cas. (8tli. ed.) 652, Lord Mans-
field cites three instances of actions brought in England against governors
in respect of acts done in the Colony, during their term of office, in none
of which, so far as appears, was there any plea to the jurisdiction —
Lord Bellamont's case, 2 Salk. 625 ; Comyn v. Sabine (not elsewhere
reported) ; and a third case mentioned by Powell, J., in Way v. Yally,
6 Mod. 194.
THE (JOVEHXOH-OEXEKAL. ]o'.\
(JoviTiior oF MinoiVfi, Lord .Munstit'ld thus disposes of tin-
plea (/*) :
•' The two grounds which are enforced to-day, are, if I take
them right, first, that the defendant was governor of Minorca,
and therefore for no injury whatsoever that is done hy him,
right or wrong, can any evidence he heard, and that no action
can He against him; secondly, that the injury was done out of
the realm. I think these are the whole amount of the questions
that have heen laid before the court. Now as to the first, there
is nothing so clear as that, in an action of this kind, which is for
an assault and false imprisonment, the defendant, if he has any
justification, must plead it; and there is nothing more clear Jian
that if the court has not a general jurisdiction of the matter, he
must plead to tliat jurisdiction, and he cannot take advantage of
it upon the general issue.
"The point that I shall begin with, is the sacredness of the
person of the Governor. Why, if that was true, and if the law
was so, he must plead it. This is an action of false imprison-
ment ; priimi fiiciv, the court has jurisdiction. If he was guilty
of the fact, he must show a special matter that he did this by a
proper authority. What is his proper authority '? The King's
commission to make him governor. Why, then, he certainly
must plead it ; but, however, 1 will not rest the answer upon
that. It has been singled out that in a colony that is beyond
the seas, but part of the dominions of the Crown of England,
though actions would lie fo/ injuries committed by other persons,
yet it shall not lie against the governor. Now I say for many
reasons, if it did not lie against any other man, it shall most
emphatically lie against the governor. In every plea to tha
jurisdiction, jou must state a jurisdiction; for if there is no
other method of trial, that alone will give the King's Courts
jurisdiction. Now in this case no other jurisdiction is shown,
even by way of argument ; and it is most certain that if the
King's courts cannot hold plea in such a case, there is no other
court upon earth tiiat can do it ; for it is truly said that a gover-
{/) Fabrigas v. Moatyn, Cowp. 1(11. It will be noticed that the C.J.
animadverts upon the indednite n iture of the plea in this case, but
treats it as a plea to the jurmliction.
154 THK CAXAIHAN (ON'STITl'TIOX.
nor is in the nature of a Viceroy (./), and of necessity part of the
privileges of the King are coninuniicated to him during tlie time
of liis government. No criminal prosecution lies against him,
and no civil action will lie against him, because what would the
conserpience be ? Why, if a civil action lies against him, and a
judgment is obtained for damages, he might bo taken up and
put in prison on a vdjiini^. And therefore locally during the
time of his government, the courts in the island cann"t hold
plea against him. If he is out of the government, he leaves it ;
he comes and lives in England, and he has no effects there to
be attached; then there is no remedy whatsoever if it is not in
the King's Courts There may bo some cases arising
abroad, which may not be fit to be tried here, but that cannot
be the case of a governor injuring a man contrary to the duty of
his office, and in violation of the trust rej)osed in him by the
King's commission. And therefore in every light in which 1 see
this matter, it holds emphatically in the case of a governor if it
did not hold with respect to any other man within the colony,
province, or garrison. But to make (juestion upon matters of
settled law, where there have been a number of actions
determined which it never entered into man's head to dispute —
to la) down in an English court of justice such monstrous pro-
])ositions as that a governor acting by virtue of letters patent,
under the Great Seal, can do what he pleases ; that he is account-
able only to God and his own conscience, — and to maintain here
that every governor in every place, can act absolutely ; that he
may spoil, plunder, aftect their bodies and their liberty, and is
accountable to nobody — is a doctrine not to be maintained. . . .
How can the argument be supported that in an Empire so
extended as this, every governor in every colony, and every
province belonging to the Crown of Great Britain, shall be
absolutely despotic, and can no more be called in question than
the King of France ? And this after there have been multitudes
of actions in all our memories against governors, and nobody
ims been ingenious enough to whisper them that they were not
amenable."
From tluit day to the present, no plea to iJie jiirmlldion
has ever aii'ain been raised to an action brouo-lit in Enijland,
(.;■) This proposition is untenable : see pr>s^
TIIK CioVEKNolJ-cJEXKIJAr-. 165
hihI many {jfoveniors luivc Ih'ch iiinlctiMl in danuin^cs liy
Kii;;'lisli juricH, foi' acts done witliin tlic limits uF thcii-
colonial ^ovci'innt'iits (/).
It will 1h' notic»Ml however that in his celehrated Jud;;-
ment in Fahrigas v. Mostyn, Lord Mansfield lent the wei;4ht
of his hiti^li anthoi'ity to certain projjositions, which if
correct, woidil on the one hand lar^'ely increase the ])owers,
and on tlu' other hand lar^^'ely lessen tiie liahility ol' :i
n()vei'noi' — l>oth pro])OHitions however hein;;' ivally de[)en-
dant upon the first. Adoptinn' the proposition that a
( loN'ei'Uor is a '' Viceroy" ivUh u cciialn iHcusnir of (h'lc-
j/iifcd f^'ttrririf/nti/, he draws IVom it the Further pi'oposition
(not necessary For the decision o** the case) (/), that he is
not amenable, civilly or criminally, to the courts oF the
colony oxer which he presides, durino- the term of" his
^•overnment. I'l-actically considered, the position oF parties
havini^' claims upon the ^•overnor, would in this \iew l>e
one oF much hardshij), and in many cases wouhl work n
complete denial of justice. So no doui>t Lord Aylmer'.s
house-keeper thou^'ht, when the Court of Kint^^'s Bench
in Lower Canada, adoptint^- Lord IVIansfield's dictum,
declined to entertain her action For wau'es due From His
Excellency (iii).
It is now however clearly settled that a o-(uei'nor is
liahle to civil action in the courts of the colony over which
he presides, not merely (I) in respect of claims upon con-
tracts entered into, and torts conunitted by him in his
(/,) Wall V. MacNanmra, 1 T. li. 53(5; Wilkins v. Despard, 5 T. K.
112 ; Glynn v. Houston, 2 M. it G. 337; Oliver v. Bentinck, 3 Taunt, 40(5 ;
Wyatt V. Gore, Holt N. P. 'iil'J (defendant was Lieut.-Gov. of Upper
Canada, and had to pay i;300 for libellint,' plaintiff in the colony). It is
to be observed that the commissions of some of these Governors con'
ferred military authority, and the first three cases were in respect of
military excesses, bat the principle of the cases is throughout the same.
See too Phillips v. Eyre, L. H. 4 Q. H. 22.-. ; (1 Q B. 1.
(/) See Hill v. Bigge, 3 Moo. P. C. 4f)j.
(/.'() Harvey v. Lord Aylniev, 1 Stuart 542.
loij rili: CANADIAN' ('•tNSITirilON.
|)iiviiti' cuiHicitv, litit iilsK CJ) in r.-spfcf, (»r ;iii\- clainr
a;fiiinst liiiii lor lU'ts tluiii' in tin- sij|»|i((sr(| fxcrcisc of his
j)i)VV('rH lis ^^ovi'iiHtr. OT tin- Iuiiiht cIhsh, \V(* iniiy iiiHt;un'(?
tlic case (»t* till- ( ION iTimr 1)1' Triiii<lM«l, wlio was inrornifil liy
tli«' .JiKliciul ( 'uMMiiitt«'<' <»l" lit-r Majt-stys I'rivy ("oiiMcil (<»n
a|)|)('Ml from tlu; (•((IomIhI court) tlwit In- nnist siiltinit t> tlif
iiulif^iiity of •l<'f('!i<lin)^ an action l)rou;^Wit in tlicconrt of liis
own colony l»y c<'rtiiin \'in<li('tivf jt-wfllcrH wliost- l»ill li<;
liH<l oniittt'il to pay Itcforc Icavin;; Kn^lan*! (n). Since
tlwit time tlic pi'oposition may !«■ consiilcriMi Hcttlcil, that
for a cauHc of action wholly unconnected with his othcial
cajiacity, tin; governor of a colony may he sued in the
coui'ts of that colony.
" They vvlio niaintuin tiio exemption of any jhtsoii from tlie
law liy which all tin; Kiuf^'s siihjectH are hound, or what is iho
same thin;,', from the jurisdiction of the courts which Hdminister
that law to all h(;sides, are hound to show some reason or author-
ily leaving' nodouht upon th(! (xjiiit. The refen.'iice to aiialo^'i(!S,
or th(! supposition of inconvenient conseipwuces, must he mucli
more pre},'nant than any tint can h?. ur^'(! I in tills case, to sup-
port or even to countenance sucl) a claim. If it i;e said that tlie
f^overnor of a colony is iiiin.si soverei^^Mi, tiie answer is that he
does not even represent the sovereign f,'eueridly, having only
the functions delegated to hiin hy the terms of iii.s commission,
and heing only the oflicer to execute the spe-citic powers with
which that commission clothes him."— /Vr Lord Drougliam in
Hill v. Bigge.
And speaking of Kal»ri;;as v. Mostyn, Loid Jji'ou;.;!iani
Hays :
" It is only a decision that Ik; was lial)le to he sued in
England for [)ersonal wrongs don<j hy liim, while (lovernor of
Minorca. Nor does the decision thus given, rest upon any doc-
trine denying his liability to be sued in the island. There is no
doubt a dictum of Lord Mansfield's in giving the judgment —
' that the governor is in the nature of a viceroy, and that tiiere-
fore locally during his government, no civil or criminal action
(») Hill V. Big«c, H Moo. P. C. 4r,r,.
TIIK (inVi:HNO|{-(;K\KI{,\f,. 157
\vill lie a^jaiiiHt liiin.' And tin- rca.sfjii iiiid tlic only r* uson ^\\eu
lor I Ins |>().sition in, Ih'cmuiso upon pnjccss lie would he .suhjcct to
iinpi'iHonniiiit. With Uk- most profound rcHpcct I'or tlic author
ity of thiit illuHtrious jud^'c, it nnist hcohscrvcd that ;ih Iiiih hcen
shown, the f^'ovcnior hcin;,' hahlc to process during' liis f^'ovcrn
nicnt wouM not of any ncc( ssily follow from his hcin^' liahlc to
action, iind that tlic same aruuinr'nc iui;^'ht he used to show that lUi
action lies not a{,'ainst pC'i'Kons enjo\in<^' undouhled freedom from
arrest hy reason of privile^^'e. I'.ut tlic decision in the case does
not rest ri)i this dictum. . . . The conse<iueiu-es inuijfined
to follow from holding' the ^'overnors liable to net ion like their
ft.'llo w-suhjects, are incorrectly stated, and if true would not
<lecide the i|uestion.''
Sinei- the dfcision in Hill \. liioof. the notion thut the
oi)\ crnor <»f m colony is in the nntiiir of n NietToy, nuiy I"'
<'onsi<|ere(| us rorcvei- exploded. The extt-nt of u o()\(.c-
nor's jiowers hud prcviouHJy Keen iiuHsed u|)on in tlu^ cuHe of
<'!inirron v. Kyte (o), to \vlii(di, it is true, the ;^r()vernor was
not !i party, l>nt the ^fovenior's oiilcr in (•()uneil heinj^ net
nj) us a (jefenee to the action, its \ alidity was pfoj)eriy as
the Judicial ( "ouiinittee of the I'rivy Coiitudl held —
iufiuiicd into lt\' the (•<)intK of the e<)liiii\-. In <dvin<r
jud;.;ine!it, I'arke, !>., ,sa\'H:
" if a /^'overnor had by virtue of that appointment, the whole
sovereif,'nty of the colony d(de^'ated to him as a viceroy, and
represented the king in tht; goviiriunctnt of that colony, there
would be good reason to contend that an act of sovereignty df;ne
by him w(ud<l l)e valid and obligatory upon the sul)ject living
within his govertiment, provided the act woidd be valid if done
by th(! sovereign himself, tiiough such act might not be in con-
fonuity with the instructions which the governoi' had received
for tlu' regulation of his own conduct. Tlu; breach of those
instriuitions might well be contended on this HU))position to be
matter resting between tlu; sovereign and his de])iity, rendering
tilt: latter liable to censui'e or punishnuMit, Ijiit not allecting the
validity of the act done. J>ut if the governcu' be an oilicer
merely with a limited authority from the crown, his assumption
{«) H Kiiii,|)i). ]'. (;. ;w2.
158 TIIK < AN A 1)1 AN n (NSTII ITloN.
of iin act of sovcrcii,'!! power, out of tliu limits of tlif power ho
given to liiiii, would hv liiiully void, iiml flu' roiiits i>i' t/n luluiiif
iinr ir/iii/i lir imsiiliil nntlil imt i/iii' il iniif li'ijul i flirt. We think
tho ortlce of ^'ovcnior is of the latter <lt'seri[)tioii, for no authority
or (lictnin has been cited before iis to show that a governor ean
he considered as having the delegation of the whole royal power
in any colony, as between him and the suhjec^t, when it is not
expressly given him hy his commission. And we are not aware
that any cnnnnission to colonial Ljovernors conveys such iin
extensive aiitlKuity."
Finally so I'ur ns conccnis cis il lial»ilitv the (|Mrsti(m
of a {^oNcrnoi's Hinenaiiility to the eonrts of his ccdony i n
I'cujU'ff iif ticfs tlinit' liji II nil in llic sii iiiidsciI c.m'ri.sr itf Ins
poitu'i's lis ijorrrinir, eajne lieforc the .hiflieial ( 'onimittec of
the I'rivy Council, on an a|»|M'al ( /*) fr«»m the colonial court
in which the action had hern lironnht ; and in the Judg-
ment of the ('onnnittee, the authorities are resiewed ami a
clear decision reacdicfl, that the colonial (rourts ha\'e as
complete juiMsdiction to entertain an action against a
governor as a<^ainst any other iidiahitant of the colony.
After I'evicwin^ the })n'vious authorities, the judgment of
the ('onnnittee pl'oceeds as follows:
" It is apparent from these authorities that the governor of a
colony (in ordinary cases) cannot he regarded as a Viceroy ; nor
can it he assumed that he possesses general sovereign power.
His authority is de'rived from his connnission, and limited to
the powers thereby expressly or impliedly entrusted to him.
Let it be granted that for acts of power done by a governor
under and within the limits of his connnission he is protected,
because in doing them he is the servant of the crown, and is
exercising its sovereign authority ; the like protection cannot be
extended to acts which are wholly beyond the authority confided
to him. Such acts, though the governor may assume to do
them as governor, cannot be considered as done on behalf of the
crown, nor to be in any sense, proper acts of state. When
questions of this kind arise, it nuist necessarily be within the
province of municipal courts to determine the true character of
(p) MuHgrave v. Piilido, L. 11. 5 App. Cas. 102.
TlIK finVKUNoU-fJKXKHAL. 15!)
tln' acts (lone by a ^'ovcrnor, though it may be that wlieii it i;*
('stiil)lislii'(l that the parliciilai' act in (|iicstioii in really tin act of
state policy done imdfr the iiiithority of the crown, the dct'enco
is complete, and the courts van take no further coj^ni/anct; of it."
Krom tliese aiitlioritieH, therefoif, we niiiy <lni\v thf
f(»ll<)\vin;i' conehisions ;
I. The |)»»weis, jiutlioi'ities .'iiiij fnnetioM.s of eoldiiJMl
^f(i\ cniors lire swell, ami such only us are eontaiiied
cxpi'es.sly or impliedly in tlir iom m issimi umlei' which
the other is hi'M liy him (7): lor nwy net done (|Uii
ni»\cnior and within his uiithoi'ity as siudi, In- ineiiis no
lialiility, eithei' r.r mill fiiil II (/•) (»)• in tort (n).
2. — For any act tlonr in his prixnte capucity, oi- done
(piji ;^o\<'inoi', hut Itcyond his [towiji's ms su(di. h colonial
n()\criior is ameiiaMc to the ei\il jurisdiction (tf Her
.Maj»^sty s courts, to tin- same extent as any other indivi-
ihial : and no distinction can he drawn l»etwe«'ii the courts
in KnnJuml and the colonial courts in respect to theii- juris-
diction to entertain an action a^^ainst a ;^'o\'ernor (/).
-S.-To any action hrouj^ht a^^ainst him, he cannot ])lea<l
a ])lea of personal pri\ ile^^c of imnnniity from hein^' im-
pleaded except as pai't of the lar;^'er plea that the acts
complained of were <lone (pia ;4()\«'ruor and as "acts of
State," in which case the only reme(|y of the party
aoMTi'ieved is liy [x'tition of i"i;^ht against the crown {11).
4. —A ;,^o\'('i'uor must plead specially his justification .
in other woi-ds, when a <;ovei"nor justifies any act as Im-Imj^'
within the powei-s vested in him hy his commission, he
(7) ("iiiiieron v. Kyte, ilill v. li'ni^c, MiiH^rave v. Pulido, iihi stipid.
(r) Mncl)eatli v. ILaldimaiul, 1 T. K. l7iJ- unltjsH, imleed, he plud|{eu
hJH personal credit.
(s) lte<,'. V. Eyre, L. R. 8 Q. li. 4H7, and the charge of Blackburn, J.,
in the same case, reported by Finlayson «h/^ tit., "The proceedinj^H in
the .laniaica case'" ; (Joniyu v. Sabine, cited by Lord Mansfield in Fabri-
gas V. Moetyn, Cowp. 1(51.
(0 Hill V. Uigf^e, Musgrave v. Pulido, «6/ gupra.
(n) Musgrave v. Pulido, sitprn.
HiO THE C;AX.\I>I.\\ COXSTnT'TlOX.
imist pU'ud the coimnisHioii, liis powei-s tli«'i'«'Uiul«'i', und
show hy projMT uvt'i'iiH'utH thnt tlu' uctH ('(unplniiu'd of
were (luiic ill the [)r()|u'i' cxiTcisc of tluwc powers (r).
We hnve hitherto considered the position of a ;^overnor
in respect to his liahility to civil action; how stands the
hiw as to his criminal liability for crimes coiiimitte<l hy
him while j;<)vernor :* Lord Mansfield's dictum, it will he
seen, lays down his immunity from criminal prosecution as
well as from civil suit in the courts of the colony, hut the
very same course of reasoninj^' which resulted in the ilecis-
ions in Hill v. Bijjff^e, and Mus»i;rave v. Pulido, would seem
equally to lead to the conclusion that a governor is amen-
ahle criminally to the coui'ts of the colony, for crimes com-
mitted in the colony, whether such crimes are connected
with his official position or entirely aside from it.
Let us consider this (juestion a little more fully. The
])ream])le to the statute li k 12 Will. IIL c. 12— "An
Act to iiunish j^overnoi>i of plantations, in this Kin<j;dom
for crimes hy them committed in the plantations " — charac-
terizes the ^overnoi-s of those days as " not deeniint; tlieni-
selves punishable for tlie same here (*/'), uor accountable
for such their crimes and ott'ences to any pei-son within
their respective governments " : for remedy whereof, prt)-
vision Wfis made by the statute for the tiial of any oti'end-
injjj ^overnoi^s in Eiufhiml. This statute was extende*! so
as to ftppl}' to )ther ])ersons holdinjjf colonial appointments,
by 42 Geo. IIL c. .S5, and both statutes are to-day in force.
How far do they apply ^ And do they, so far as they do
apply, ne*;ative the jurisdiction of the colonial courts f
Apart from these statutes, and adoptinj>" the doctrine of
Hill V. Big*;;e, and Muspave v. Pulido, the juri.sdiction of
the colonial courts would seem beyond (piestion, and it is
submitted tlutt these statutes are, so far as they do apply,
(v) Oliver v. Bentinck, 3 Taunt. 460 ; and cases cited mipra, p. 150.
(h) Crimes being local, and triable and punishable locally. See^Jos/,
Chap. IX.
'INK (;(»VKKN<»l{-(iKNKH.\I,. 161
cuiimlfitivf mihI not exclusive. ()\viii;>' t<» tlir ri<fi<l j-ulcs cF
tin- ('(UMiiinii Inw us to Vfiiuc ill criiiiiiuil prosecutions, it
i'e(|uire<l statutes to I'eiide)- leoal tlie trial in one county of
an oft'ence conniiittetj in another: <i /ortinri, the trial in
Kni;lan<l of otiences connnitte"! (»n or Ueyond seas (,/•). An
eai-ly statute, -V-i Henry VIII. c. 2'i, jtrovided lor tlie
a|»j»ointnient ot" a sjiecial C(»niniission Tor the trial of
pei'soUH charm'ed with murder on or hi'yond the seas, and it
was under this statute that (Jovernor Wall was trit.'d, con-
denuHMJ, and executed (//). A eovernor, ther«'foi'e, oncti
ile[)ai'te«l tVoni his colony woulil lie entii-ely tVet' I'roni
dan^'e)', unless, indeed, he could lu' sent liack to stand his
trial. The nioi'e practical I'eniedy, howexer, would seem to
have heen ad(H)ted, and under the statute ot* William III.,
the olijection in )'espect to \'enue was taken away. The
|)reanilile, nior«'o\-ei', speaks of the y;ovcrn()rs as " deeniinj^'
themselves not accountahle " to the colonial courts, and the
statute is in no sense declai'atory that such is the law. So
we conclude that even in those cases in which, undei" this
statute, a »;()Vei'nor may ))e tried in Knuljin<l for ott'ences
counnitted in the colony, he is •. (|ually amenahle to the
courts of the colony.
Hut thest' statutes have been lield not to apply to
ftdonies, and only to misconduct in office. Ellenboi'ouoh,
(\.J., thus characterizes (c) the latei* statute :
"The ohject of this Act was in the same spirit with the Act
of 11 it 12 William III., to protect His Majesty's subjects
against the criminal and fraudulent acts committed by persons
in public employment abroad, in t/n- e.rerciat' of their nnjiloiiinvnts;
to reach a class of public servants which that statute did not
reach and to place them in imri thiicto with governors. It has
no reference in spirit or letter to the commission of felonies. . .
The ison of the thing, a firiari, would lead us to conclude that
(j) See note to Keighley v. Bell, 4 F. & F. at p. 490, and/joxf, Chap. IX.
(//) Reg. V. Wall, 28 St. Ir. 51 ; see Broom, " Const. Law." ()52.
{z) Reji. V. Shaw, 5 M. * S. 403, the only reported authority on it.
Can. (Jon.— 11
I(j2 ' THE CAXADIAX CnXSTITr IION.
tlio jurisdiction as to trial of felonies sfiaulil lie rt'stniiiwil to t/ir
local roiiitn.''
Although the pi'iHoiH'i' in tluit can*' vva.s not a governor
but a sulK)r«linat«' otficor in tlu' civil snvico, tlic ica.soninjr
would (in the li^ht of the (U'cisiouH as to a j^oNcrnor's civil
liability) Hconi to lead to a clear conclusion that the Juris-
diction of the courts of a colony to try a "i^oveiiior for
felonies conunitted within the colony, or niisdeiiM'anois
unconnected with his office, there conunitted, is beyond
((uestion. And for the reasons before ^iven, it is subjnitted
that there is like jurisdiction in respect of offences fallin;^
within the statute of William III.
It is beyond the province of this woi-k to discuss the
(piestion, what is necessary to affix criminal chaiacter to
acts of a {governor done in the supposed exercise of his
powei's. We are merely interested in showinj;' that the
same criminal and civil liability exists in the case of a
governor as in the case of any other officer of the crown
acting under a limited authority, leaving the student who
desires to pursue this subject further tt) consult wi'iteis
who deal with this larj;er subject (o).
Havinjjf now pointed out that for the powers and duties
of a colonial ^overnoi', we must look to the terms of his
conunission, we must follow the CHmi-se in<licated, and for
the powers an<l duties of the Governor-Cieneral of Canada,
look to the terms of tlu* conunission under which that
office is held. We shall hereafter have to point out certain
changes which have from time to time been made in the
terms of the conunission, but for our present pui'pose — an
incjuiry into the le^al powers, as now existing, of the
Governor-General — it will suffice to say that in bSTS,
Letters Patent under the (Jreat Seal of the United Kin^-
(ti) Broom, "Const. Law," 649, et neq., ()56, et xeq. It may be noted that
the cases in which f^overnors have been prosecuted, have involved the
question of their liability as military officers — in command abroad —
rather than as civil servants. The Letters Patent constituting' the office
of Governor-General of Canada convey no military powers. See ]io!it.
THE (i(»VEHN<)U-(iE\EUAL. 1<).'J
tloiii. NVi'it' JHsui'djind ni'i' still in force, "iiuikin^t'rtectuiil ami
pcnnancnt ])i'()viHi<»n for the office of (Joveriior-Genenil " of
C'aiuuia. pi'ovidiii}^ for the api)ointinent, from time to time,
l.V CommiHsioii under the Si^Mj Manual and Si^rnet, "of
the person who shall till the said office," and enumerating^
the ]M)\vers and duties which sluaild devolve upon such
person (/>). He is authorized and connnanded to <lo and
execute in due manner all thin^^s that belong to his com-
man<l and trust, according:
I. To the several powers and authorities granted or
appointed him l>y vii'tue of:
(a) The British North America Act, 1807.
(h) The letters patent (now bein^' recited),
(c) His Conunission.
II. To sucli instructions as may from time to time be
j;iven to him,
(a) Under the Si^n Manual and Signet.
(b) By order of her ^Majesty's Privy Council.
(c) ^rhi"ou<^h one of the Secretaries of State.
III. To such laws as are, or shall hereafter be in force
in Canada.
Now although in the last analy.sis, the powei-s of the
G()vernor-(»eneral are derived from Iniperial authority, it
will neverthele.ss much facilit»ite our incpiiry, if we divide
these powers (as the Letters Patent practically divide
them) namely, with reference tt) their bnmeiJUite source,
thus :
1. Powers conferred from without the Dominion — i.e.,
by Imperial authority.
2. Powers conferre<l by Canadian enactments.
And with respcict to this division we may say that tlu^
powers directly conferred by Imperial authority, are — with
cei'tain few exceptions, to be hereafter discussed — powers
not re(|uirin}^ for their exercise, their legally-effective ex-
ercise, the concurrence of any other person or body ; while,
(h) See the Letters Patent printed in Appendix.
1()4 TIIK CANADIAN < ( »NSTI ITTIoN.
US 11 rule (tlif cNcrptions t > wliit'li niust jiIho Ik- jKhcrtcfl to
luM'caFtfr) tilt' powers ('oiil'crrf<l l»y ('uiuKliuii cimctniciit
i-f(|uir»' tlif coiicurrciu'c of tlic (^Juci'ii's Privy ('ouiicil for
(Viiiulfi, in oi'ilrr to tlirir ctU'ctivc t'xcrcisc, or in otlu'i-
words can om1\- l>c Icnullv fxcrciscd li\ Order in Council.
III considering; tlit'sc suiiic powers from a " coiiNcntionul "
Htundpoint, an entirely different principle of division must
lie adopted, if indeeil tlu-re is any dixision so far as re<;'ards
their "conventional " exei'cise. Followin;^' then the line of
division adopted, as likely to aH'ord assistance in arriN'in;;'
at a correct \iew of the (iovernor-(ilenerarH powers— from
the standpoint of the lei;al efficacy of tlu'ir exei'cise we
proceed to discuss shortly, the ])rero^'ative rii^hts and
]M)wers with which the ( Jovernor-(Jieneral is entrustiMl hi/
ilii'crf I miK'i'Kil o iillnn'il jj.
We liJiN t' already discussed the (piestion of the extent
to wiiich the Crown's preroy,ative rights are extM'cisihle in
tlu! colonial possessions of the Empire, l>ut we may here
a<4"ain ohserve that those ri^i'hts are in every poi'tion of the
Kmpire to he exercised according' to law, — that hy ijxpress
wonls or necessary intendment, an Act of the Imperial ])ar-
liameiit may either entirely take away from the Crown
{I.e., the executi\e) a prero^^ative ri;;ht theretofore exei'cise-
nl)le I»y and under the common law without the concurrence
of parliament, or may fetter its exercise witli any terms oi*
conditions which parliament may deem necessary in the
puhlic interest, — and that a " confirmed " Act of a colonial
lei^islature is iMpially effective to thos(^ ends so far as con-
cerns tlu! exercise of the prero^'ative ri^^'ht in the colony (*■).
It will i>e noticed that the lan^ua;;e emi)loyed in the Letters
Patent, constitutin<i' the officii of (jove)-nor-(ieneral, reco<^-
iii/.es the existence of leji;al limits to the exercise (even by
the s()verei*;n in pt^rson) of the prero^^ative ri<;lits therein
mentioned. With this perhaps unnecessary caution wt;
proceed to enumerate the pren)gatives of the Crown, the
((•) See Chap. VI , ante, p. 13'.), <t seq.
THK (iOVKHN'uH-fJEN'EISAl.. 165
|)i)\vt'r to I'xcrc'isc wliicli in (,'an»i«la is //y ilincf I iiiixrinl
jiutlioritv ♦'iitnistt'd to tin; (Jovernor-:! Jt'iu'ral.
I. By the i.etteus patent, constitntin*; tin- ortic of
(tovrnior-Ca'iK'Pal, he in aiith()rize<l ami t'lnpowt'ivil :
(ii) "III To constitute and appoint in our niime,
nnd on our behalf, all such ju(]f,'e3. commissioners, justices of
the peace, ami other necessary officers and ministers of our s;iid
Dominion, nx nun/ he luirfulli/ roiistitiUi-il or njifiointeil hi/ us.
"IV Snt'iirt(s »v Idiij'nlh/ III 'iij, \\\ion surti-
cient cause to him appearing, to remove from his office or to
suspend from the exercise of t!ie same, any person exercising
any office "
The exercise of the prerogative ri^ht of the Crown
(as the fountain of Justice) in the ajjpointnient t ) and
renjoval from office in ('(inii(lo,\H now — with the exception
of this one office of (lovenK^r-Ueneral — entirely regulated
l»y statutes ('/), Im[)enal and Colonial, so that it will he
necessary to rele<^ate to a f'lture statue the consideration of
this branch of a j;()vernor's general powers.
(b) "V To exercise all powers, /«n(7/<//)' /y.7o;/////7
tu IIS, in respect of the summoning, proroguing or dissolviu ,' of
the parliament of our said Dominion."
Of these powers in relation to the ])}irliament of Canada,
it may he oljserved that the exercise of the power of >iiim-
iiioii'nuj hanhinin the subject of legislative rej^ulation (f^) ;
the other two — of prorofjitinij and dixmlviv^i — exist as at
connnon law. The " conventional " limitations are many,
the lej^al ri^ht is absolute. For whatever reason, or with
whatever want of reason, parliament is prorogued or dis-
solved, such prorogation or dissolution puts an end to the
session, or the parliament, as the case may ba ; and the
assembling of the members without new summons would
((/) See the opinion of Sir James Scarlett (Lord Abinger) and Sir
N. C. Tindal (C.J., C.P.), on the power of the Crown to create the office
of Master of the Rolls in Canada (1827)— Forsyth, 172.
'e) B. N. A. Act, 18fi7, ss. 20 and 38.
!(>() THE CANADIAN CoNSTnTTKiN.
In; l)Ut as tlu' ^futlu'i'in;; oF a molt, uml tlu-ir Acts Itiit as
II. — HV HIM "INSTIU'CTIONS" (/').'
We neetl onl}' di'iiw jittcntioii to tlu' 5tli cIhusl', makiii;^
{H'ovisioii as to the excrciHt' oF tlir j)rt'i"();;ati\<' of jtiir'loii.
Thu ()ovL'i'nor-( u'iK'ral is dcUarrefl From t'xci'cisiii;;' tills ])1'«j-
r*»<;ativ»' without tii'st ivcoivino- the advice, in capital cases,
oF the Privy C^mucil For ('aiiada: in other castjs, oF one at
least oF his ministers : except in cases where the inteii'sts
oF the Empire, or oF some country other than ('anaWa mi;4ht
he directly att'ected ; in which exce})tional casi's, the (lover-
nor-General shall "take thost; interests specially into his
own personal consideration, in conjunction with such advice
as aForesaid." In other words, in those exceptional cases,
ho may disrej^ard the ailvice offered (//): in all othei- cases
he must Follow it. 4t
III. Bv THE B. N. A. Act. 1.S()7. the (lovernor-CJeneial
is entrusted with the Following;' prero<;ativeH, and the man-
ner of their exercise is to some extent defined.
A. — Aftpointmevtii to office.
Tlie vast majority (jF offices in connection with the
{jfovernnient of Canada are filled b}' persons appointed,
under statutory authority, l)y the Governor-General lit
Council; hut there are still a Few offices to which the
Governor may legally make appointments without, or even
contrar}^ to, the advice of the Queen's Privy Council tor
Canada, althouiifh, of course, the making- oF such a})point-
nients laern ipsluf< motii, would be a flagrant Itreach oF
" conventional" usage, a complete subversion of the right
of local self-government, long since fully accorded to Can-
ada. To give anything like a full enumeration of the
(/) i.e., the general "instructions" which accompany the Letters
Patent ; see appendix,
((f) That is to say, he acts in such case as an Iinparial officer, and is
supposed to act upon Imperial considerations.
Tin: (i'»vKiiN(tH-(;KM;iiAr,. 107
fornu'i' t'hiss oF others would lU'Ct'HHitHtt' n Hurvcy <>t' the
cntiit' CMvil Service of C^iiuulu. Hut coiiHuiii;;' our iittoii-
tioM to tlu' B. N. A. Act, tin- (»nly orticcr therein nieiitioniMl
in whose iippointuieiit th*- (Jovenior-denei'iil uud the Privy
Council nuist concur is the Lieuteniint-Oovei'nor of a I'ro-
viuce. or his position when H|»[)ointe(l nnich must he here-
aftei' said (A), hut us to the iippointnient itself it suttices
n(»w to siiy that it must l»e ma<le hy Order in Council (/).
Of the few officers whose appointment, uiuh'r the B. N.
A. Act, is in the hands of the (lovernoi-'ieneral personally,
the following;' is a complete list:
I. Mt'udtejs of the Qui'en s Privy Council foi- Canada. —
B. N. A. Act, s. II. In various Acts of the parliament of
Canada, pi'o\isions are contained as to the appointment of
the ministers (or other officers) who shall preside over the
various departments of state (^') ; hut in all, the appoint-
ment is left in tlu; hands of the (Jovernor-CJencral person-
allv. This is (',;• iii'cvssitdtf, in the case of a chanu'e in the
entire administration, hut tlu? position is the same in every
case — the appointment is, ^'//"///y voitsiih inl, the act of the
Uovernor-Cieneral alone. But there may he, and usually
are, mend»ers of the Privy Council who hohl no })()rtfolio,
(//) See notes to sec. 58, B, N. A. Act, poKt.
((■) See R. S. C. (188(1) o. 19, as to the use of the Great Seal of Canada
hi the appointment to certain offices.
(,y) Minister of Justice— R. S. C. c. 21, s. 1.
" the Interior— " c. 22, s. 1.
" Agriculture — " c. 24, s. 1.
*• Marine'and Fisheries — " c. 25, s. 1.
Secretary of State— " c. 26, s. 1.
Minister of Finance— " c. 28, s. 2.
Auditor General— " c. 29, s. 21.
Minister of Customs — " c. 32, s. 3.
" Inland Revenue— " c. 34, s. 2.
Post-Master General — " c. 35, s. 5.
Minister of Railways and Canals— " c. 37, s. 2.
Public Works— " c. 3«. s. 3.
" Militia and Defence— " c. 41, s. 4.
KIrt TMK CANADIAN < '. t\STITl TION.
und it imiy Ik- said, tlirn't'orc tliiit tin' |)(>w»'i' <»f iip|>uiiitiii;^
iu«'tnl«'iH of the Piivy ( 'oiuicil, Hiniply ii.s .such, is t\'tt«'n'(l
Ity no statutory liinitatioiis.
2. Senators.— B. N. A. Act, s. 24.
3. Speaker of the Senate.— B. N. A. Act. s. :U.
4. Ju<ljx«'«- — As enmnei'ated in B. N. A. Act, s. !Mi
fy. Deputy (}overnor-(ien«'ral. — B. N. A. Act, s. 14, and
Letters Patent, chiU;ie VI.
B. — The sn III iiionl in/ <>/ fxi rl i<i iiit'iif.
Refi'rence has ah'eady (/•) heen niadt^ to the clause in
the Letters Patent constituting the office of (lovernoi-
(ieneral of Cana(hi, by wliich the person Hilin;;' that ofHce
is empowered to exerci.sO the prerogatives of the Crown in
reference to the smninonin;;, i)roron-uinj^, and dissolvin;^; of
parliament; and it has heen j)ointed (Uit tliat tlie only
statutory repilation as to the exercise of this prero;,oitive
is in reference lo the muiwumlnij of parliament. Tiisitin;;
the j)arliament of Canada as one hody, the B. X. A. Act
provides (/) :
" There shall be a session of the parliament of Canada once
at least in every year, so that twelve months shall not intervene
between the last sitting of the parliament in one session, and its
first sitting in the next session."
and there can ha no douht that a (Jovernor-General who
should disrej^ard this imperative provisicm, even upon the
advice of her Majesty's Privy Council for Canada — i.e., his
Ministei's — would be guilty of a plain violation of his
duty ; and if it can be imagined that le^al dama^^e could
be suffered by any individual by riiason of such violation of
duty, such individual would have a right of action in
respect of such damage, in accordance with the principles
heretofore laid down (on). The similar provision {ii}
necessitating annual sessionH of the legislative assemblies
(k) Ante, p. 165. (0 Sec. 20.
(m) Ante, p. 158, et neq. {») B. N. A. Act, sec. 8 J.
INK <fnVKI{Nn|<-(iK\Kir\l.. III!)
ul' till' proviiu'cM of Oiitiii'io aiid (j)ut'lK'(', Ims, as wr write.
Imm'ii <liMr«';iHr<l«'<l liy tin* Li«'Ut»'imiit-(iovi'ni»ir i»t' tlu- lattci-
piKviiici', Itut tin* liittiTiu'MM tlicrc ul" cimtt'iiiliii;^ tuctions is
such tliat it is liar<lly posMihlc to tliscuMH this matti'i-
further uow, without aiUH-arin;; to advocate a paity's
cause.
Treatin;^ uow the parh'anieiit of Cauiuhi as coniposeil of
thre»' hranches — the Crown, the Senate, ami the House of
Coiruiions ('<) — attentuai nuist he drawn to the dirteience
in till' duration of the life of the respective hranches.
The Crown and the Senate are innuortal hranches, while
the House of Connnons niii^ht he nuav aptly termed the
folia;;e of parliainei\t, a[)pearin<; and disa))peaiin;,', sonie-
tinicM in (piick revolving; seasons (as in the Antipodean
Colonies), hut, at the lon;,fest, in i|uin(|uennial recur-
rences (/>). The analogy holds even more ftdly, for as a
tree «;rows and does effective work only when clothed with
foliage, so pailiament recpiires for the etiective exercise of
its functions the maj^ic ^'all of ;;uhernatorial sprin;,^ sum-
moning the nnn'muriu^ leaves of the Connnons into le^^is-
lative l)ein;j.
Analo;;ies aside, the result of this marki d distinction in
the constitution of the various hranches of parliament is
apparent in the B. N. A. Act, in the ahsence of any provi-
sio)i for the callinj^ together of the mend tors of the Senate,
while it is expressly enacted :
" 88. — The Governor-General shall from time to tune in the
Queen '.s name, by instrument under the Great Seal of Canada,
summon an^l call together the House of Commons."
This section however would seem to carry the j^overnor's
powei-s no further than the Lettei-s Patent alone would
have carried them, and therefore, as said hy Dr. Bourinot :
" The sunnnonin^, prorogation, and dissolution of parlia-
ment in Canada, are governed by Enj^lish couHtitutional
usa{;.je. Parliament can only l)e lej^ally sunnnoned hy
(o) B. N. A. Act. sec. 17. (p) B. N. A. Act sec. 50.
170 TMK < ANAIH.W <'n\,s |"ITI Tlo.V.
iintliority of tin- C'luwn." Af'trr tin- rxjiiiy of the House
of ( 'iiiiiiiiDiiH liy InpHt' (tf time oi' tlissuliitioii, tlinc luiist lir
II new House electeil l»y the people Hf('ol<liii;r to law, lii't'oie
there euu l»e till eft'ectixe exercise of the prero;,oiti\ e rinjht
to sunnnon piiiliuiiieiit ; iin*l we niiiy here note that in coii-
uectioii with Huch eh'ctioii certain powei-s are veste<l in the
(tovernor-(ieneral an<l C(>rtain <hities iniposed upon him l>y
(/anmlian le^ishition, in the exercise ol' which he, in con-
teniphition ol" law, acts |>ersonally. V\h>\\ him <levolves
tlie <luty ol* fixine; the date I'or the hoMinn; <>t' such election
— the rule is the same as to Kye-elections — and l»y him the
retiUMiin;; otHcei' for each electoral <listrict is appointed (</),
This howexcr hy the way. The House of Commons hein^
MO elected, parliament can meet to;;ether for thetlespatch of
husiness only upon the sunnnons of the (iovernor-( ieneral.
It is woi'thy of note that this word, " sn iinmni," is used in
the H. N. A. Act, in I'eference to tiie appointment of sen-
atoix (/•), and tliat, as has Iteen said, there is no le;^islative
ree;ulation of the method hy which the Senati' is called
to;;ether for the despatch of husiness: while in relation to
the House of C/onnnons the woi'd is used to indicate the
annual callin;; to^'«'ther of the elected memhirs of the
House for the exercise of their functions. As a matter of
usa;^e (in conformity with the English practice) the insti'U-
nient l»y which the (Jovernor-(Jeneral summons the House
of ConnnouH. vi/., a proclamation inider the (treat Seal, is
addressed to both senators, and memliei's of the House of
Connnons.
C. — Thf t'JTi'cisc of the jH'mtt/tifirc ri;//ifs of f/ic (-I'ouui
(tH (I consflfuciif hrnnc/i of tin' P<( linniu'nt of Htnindd.
This niattei" has heen fully dealt with in tlie last chap-
ter, and we need not thei'eforo dwell further upon it here.
|«if) R. S. C. c. H, H. 3. (r) s. 24.
TMK <JoVKHN<»H-nF;\KU.\F,. 171
1). — 'llif il istiUmrn iirt' of I' mri uriiil /Ir/s.
No |»r('ni;;iti\t' ri;;lit <»!' tlic ( 'ikwii is nunc fiiinly cstiili-
lishi'tl tliiiii tin- riy;l t t(» mujutn isc tin- l(';;i.sliitiv(' rnuctiiM'iits
ul* iill iniimr Iri^islatiNc ItoilifM -tlic riy-lit is iixltfil liiit tln(
l)»y;i('iil ifsiilt of the rule tlmt tlit- Crown is a ('(.nNtitiicut
|»ait nf cvrry l»'M;isliiti\t' Itoily tliroii^lioiit tin- Kiiipiif (")
Kvt'ii slioiiM a (lovcnior " tln'iTunto liiwhilly autlioii/rd"
assent in tlir i^iit'cn's name to an Act ol' a colonial Icnjsla-
tui'c, tlicic is Ity tlic common law of Kn;;lanil a icscrvnl
|M»wt'r in tilt' Clown to rcpu<liat»' tlic action ol' tlic Ciown's
otHccr in the colony an<l to disallow such Act. In the caM'.j
ol' ('anafja, the exei'cise of this |H'ei'OHati\e must, to l»e
le;;iilly etfecti\«', take |»lace within t»vo yeai-s after the
recei|tt of the Alt Ity the Secretary of State foi* the
f'olonies (0: hut the rinht once exeirised in the niethoil
|)ointe<l out Ity the statute, and such exercise Iteinj; <luly
"sijLjniHed " here, the Act, so disallowed, is ahsolutely an-
nulled " from ami aftei- the <lay of such siy;nitication." It
is to lie noticed, howev*'!', that this powei' of disallowance
cannot he le^^fall}' exeicised hy the (^ueen jiersonally, hut
onl\' Itv and with the advice of her I'rivy Council.
With regard, liowi'ver, to Acts of the h'^dslative assem-
hlies of the difi'ercnt provinces of the Dominion, tlu; ri;jht
to uxei'cise this jirei'oirative has heen taken awav from tlu;
Queen in Council, and is hy the JB. N. A. Act (n) conferred
on the (lovernor in Council — a nuittur fre(iuently a<Iverted
to, as indicating; the very extended rights of self-j^overn-
ment accorded to Canada. Much must l>e said hereafter
witli leference to this power, and tlie proper "conventional"
limits within which it should he exercised; ]>ut viewing it
fron» the standpoint of the le^al etficac}' of its exercise, it
would appear clear that, the Oovernor-Oeneral and the
((t) Cliitty, p. 2.5; see. Chap. VI. ante, p. J38; Th6berge v. Landry,
2 App. (Jas. 102 ; see notes to 8. GD B. N. A. Act, post.
(0 B. N. A. Act, B. 5G. ' ' •
(«) Sec. 00, road in connection with ss. 55, 5(5, and 57.
172 THK (ANAhlAX CoNSTITrTION.
Privy C.\)unc'il coiicuiTini^* in hucIi <lisullu\viiiicc .ukI fxor-
eisin^j tlu'ir powrr in tlio nuinnt'r ami within tlu- tinif indi-
cated in the statute, no jaovincial Act is U';;ally exempt
From the ()j)eiat!()n of this pi-eroijative of disallowance.
This is, perhaps, the proper [)lace to advert to a ylai'in^
error — <^larin^" to us in Canada at least — into which I'l-of-
Dicey has fallen in the work to which we have fre((uently
referred ('•) — a work which, in its elucidation of the prin-
ci})le of the .siijirt'uKici/ (>f ltiiv,iiH the fundamental jirinciple
of An;;lo-Saxou {government the world over, stands to-day
fiicile i)ri.an'i»<; hut which, in its references to the colonies
generally and to C-anada in particulai', displays a stran*^e
lack of appi'eciation of the tnie ])osition of atiairs {w). To
confine our attention, however, to tliis particular error —
Prof, Dicey is completely astray in layini;- it down, that the
l()dt;"in}^ of this veto power in the hands of the (Jovernor-
(ieneral in C'omicil — ic, with the J)ominion (Jovennnent, —
was intended to ol>viate the necessity for resort to the
courts, for the decision of "constitutionar' cases involvini^-
the determination of the line of division between the sphere
of authority of the Dominion parliament and that of a pro-
vincial assembly.
"The futility of a hope j^rounded on a misconception of
the nature of federalism," is a pretty stnm*; expression, and
contains a very direct char<^e that the Fathers of Confedera-
tion did not know what they were about in this matter.
One who, like Pi'of. Dicey, speaks with authority, should
not have penned such a j^jrave charge without tii-st consult-
ing the debates which took place in the various let;islatures
upon the "C(m federation Resolutions." Ha<l he done so, he
would have found that a very sharp line of distinction was
drawn between the exercise by the Dominion government,
((>i a mtitter of poUfictd (Wpcjflenc}/, of the power of dis-
allowance of provincial Acts, and the exercise by the courts
(v) " The Law of the Constitution."
(«•) See note at end of this chapter. And see Chap. I. ante.
rilK (ioVi:i{N(ili-(iKNKI!AI.. I 7M
(if ///' jiiil irnil J II iirl mil (if (IcclMl'ili;^' Jill Act nlfi'ii riirs.
As cxju'cssimI liy tin- ( 'liaiict'llor ul' Oiitjirio, in a recent
cdse (.'■), the su|»er\ ision, toucliin;^' prnvincial Ie;;islati(>n,
entnisteil t'» tile Dominion e<»verninent, works in tlie plane
of ]ii»Iitical exiiediency as well as tliat of Jural capacity,
while the (|iiestion for the courts is as t » the latter merely.
The franiiiiti' of the (^)uel>ec llesolutions, upon which the H.
N, A. Act is founded, was the worU of the most eminent
leual minds of that da\' in Canada: and a jjl'ince at the
deltates upon those Resolutions will show that they
thorou^l'lily apjireciated the distinction, pointed out in these
late)' days liy the Cliaiicelloi-. 'riirouehout the deltates, it
was clearly recoeiii/ed that the exercist' ly the Dominion
^•oN'ei'nment of the power of disallowance, was to l»e exer-
cised in suppoi't of federal unity, c;/., to preserve the
minorities in diti'ei'ent parts of the confe<lei-at«'<l ])i-ovinceK,
fi'oni oj)prcHsion at the hands of the majorities. Tliat it
was not intended to ol)\iate the nec«'ssity for vesort to the
courts, in ajipareiit from the following.;' extract. (Vmiplaint
was madi' that while the Dominion j;'o\ernment was
inv<!sted with this I'fto ])ower, nt) authority was pi'o\ided
to supervisi' its exi'i-cise : and the (piestion was further
asked, what che(d< will thei"c l»e upon Dominion le<iisla-
tion ^ The spi'aker (//) presumed, for the j)urpos(! of his
arnunu'iit, that in each of these cases, the oidy check
would Ite through the ImperifU ^'overnment.
" Hon. Attounky-Genku.\l Cartiku. — Tlie tl('le<,'ates undor-
stood the matter better than that. Neither the Imiurial govern-
ment nor the <,'eneral government will interfere, but the courts
of justice will decide all questions in relation to whicii there
may be diti'erences between the two powers.
" A voicK. — ^The Commissioner's courts !
" Hon. Mk. Dorion. — rndonbtedly. One magistrate will
decide that the law passed by the federal legislature is not law,
(.1) Atty.-Genl. (Can.) v. Atty.Genl. (Ont.),20 O. K. at p. 215.
(//) Hon. A. A. Porion ; afterwards Sir A. A. Dorion, Cliief JuHtice of
•Quebec. See Confed. Deb. p. 090.
174 THE CAXAIHAX cnXSTrnTlMN.
whilst another will dcciili' that it in law, and thus the diHerence,
instead of heinj,' hetvveon the legislatures, will he hetween the
several courts of justice.
" Hon. Attounky-CJknkkal Cartikh. — Should the ^'eneral
legislature pass a law heyond the limits of its functions, it will
be null and void, iilitm juir.
"Hon. Mn. Dokion. — Yes, I understand that; and it i»
douhtlcss to decide (juestions of this kind that it is proposed to
establish federal courts."
The fact is that the power of diHiillowancc xcstcfl in
the {}overnor-(n'iU'i"jil in Council, is pii'C'isely unalu^ous to
the power of disallowance \estetl in the (^uecn in Council
over Dominion Ici^islation. 'V\\v power in each case is
suhject to the limitations j)rescril»e(l by those "conventions
of the constitution" to which Prof. Dicey so fre(|Uently
refei's. An act of the Dominion [)arliament may run the
j^auntlet of the home ^ovenniu'ut, and yet be afterwards
declared by the coui'ts to be invalid. As is well known,
the supervision exercised l>y the law otticers of the Crown
in England, is directed to seeinj>; that any colonial Act,
submitted for their c<^nsideration, is not repugnant to any
Imperial let^islation : and they do not pretend to examine
Dominion Acts in or<ler to deteiniine the (piestion of their
validity, as beinj; within the ran^e of subject matters con-
tided to the parliament of Canada by section f)l of the
B. N. A. Act. And with regard to. the disallowance by
the govei'nor in council of provincial Acts, tht; exeicise of
this pt)wer by reason of the provincial Act bein*^ thoujjfht
iiltnt vires, has fUmost entirely ceased, and the supervisiiui
now works alnu)st exclusively " in the plane of political
expediency."
Note to p. 172 ante. — The first chapter of Prof. Diceys book — " On the
Ni'^ure of Parliamentary Sovereignty" — contains nothing which might
not be, with equal truth, said of tlie legislative bodies throughout
Canada. What he writes at p. 58 in disproof of " the alleged legal
limitations on the legislative sovereignty of parliament," — namely,
limitations arising out of the precepts of the moral law. the prerogatives
of the Crown, and the binding effect upon parliament of preceding Acts
THK (J()VKUN()K-riK\i:i{.\l,. 17.")
of parliiiment Ih -ill oiiually uppliuiible to the positio'i of Ciuuuliivi)
h'>,M Hint urea. And with reference to them, too, it may be aaid, that there
in no conipetinn li'iiiKlntin' power eitlier in tlie Crown, in either branch
of tlie lejjislature (wliere tlie lej^islature iiappens to be bicameral), in the
coiiHtitnencies, or in the hvw courtw.
Tlio wecond chapter " is to illtiHtrate the cl. iracteriaticH of wnch
Hoverei^nty, by comparin^^ tiie esueuHal featiireH of a soverei>«n parlia-
ment like that of EMj<lan<i, witii the traitn that mark non-aoverei^n law-
nnikinfi bodies," -anion j{ which he claasea colonial lef^islaturea. Yet, on
a later pat,'e (10.5) lie laya it down :
" When Hnnlish statesmen j^ave parliamentary government to the
colonies, they almost, as a matter of course, bestowed upon colonial
le^ialatiireB, authority to deal with every law, wln'lhcr conxtitiitiDintl or
not, which affected the colony, subject, of course, to the proviso, rather
implied than expressed, that this power should not bt; used in a way
inconsistent with the supremacy of the British putliameut. The
colonial le^^islatures in short are, within their men sphere, cojiiea of the
Imperial parliament. They are, within their own sphere, overeinn
bodies, but their freedom of action is controlled by their subordination
to the parliament of the United Kint,;dom."
To charge the men who had in hand the framing of the scheme
of confederation, with " miaconception of the nature of federalism "
cornea with rather bad grace from Prof. Uicey. He speaks 'y, 183)
of a federal state as " a political contrivanco intended to reconcile
national unity and power with the maintenance of ' state rights.' " The
end aimed at,"' lie says, " H.\es tlie csscntinl churdcter of federalism." A
very clear statement this ; and yet, the Professor apparently faila to
note that 'state rights' may be paraphrased and generalized as ' local
aelf-government,' and that his definition of federalism is clearly appli-
cable to those "conventions" of the British constitution which regulate
the relations between Great Britain and her colonies. We might refer,
too, to another passage in which he is historically inaccurate. He treats
(page 144) the division of power between the legislative and executive
departments of government, under the American system, and the
restrictions, which appear in their "Constitution," upon interference
with iiidivitlual rights, as being part and parcel of — "connected with" —
the same federal idea of division. In this he is clearly astray. Several
of the constitutions which existed in the individual states prior to the
adoption of "the Constitution of the United States," exhibit both these
characteristics— the first, because that was thought to be the English
principle, and the second, because of the prevalence then of the doctrines
of Rousseau and Montesquieu. •
CHAITb:K IX.
COLONIAI. LKCUSLATIVK POWKR.
\Vc lm\<' now ]»(iiiittMl otit tlint, in common witli otlu'i"
IJritisli colonics, Icoislutivc jiowcr in CfinjKla is sulijcct to
certain limitfitions, arising- IVom the colonial I'elationsjii]*.
Not only mnst the assent of the Ci-own as a constitu«'nt
Inanch ot" the lenislutni'e he ni\'en (»/); the Act so assenti;(l
to tnust inn the <;auntlet of the Home (Joveinment (f) 5
ha\ in<i<lone so, it may still, hy jn«liciHl decision, 1k> declared
nlisolutely Noid and inoperative Ity reason, and to the ex-
tent, of its " rejinnnancy " to Imjterial leoislation ha\in»j^
the force of law in Canada (/>).
Much must he heicaftcrsaitl in lefercnce to tlie division,
in Canada, of the snhject matters j)rt)})er for legislative
action, hetwt'en the parliament of Cana<la on the one han<l,
and the le;;;islative assend)lies of the lespective provinces
on the other: hut for the purpose of the enquiry to whicli
this chapt«'r is to l>e devoted, this division of the field may
he diNi-et;ar(hMl. We desire to treat of the powei- of lei^isla-
tion as a totality, and to ascertain what, if nny, fui'ther
boun«ls aiv set to tliat power in this British colony.
It may he ai-^ued thnt this ((Uestion is settled hy the
Colonial Laws Validity Act, l<S()5 (r), and tliat as any
colonial hiw is to l»e held inoperative to the extent of its
{<() See Chap. VII. ante, p. 147. (I>) Sec Chap. IV. ante, p. 58, el xc'i.
(t) 28 & 29 Vic. c. 03 (Imp.).
COI.OXIAI. l,i:«{|SLATIVi: I'oWKIt. 177
r('|)ii;^imm*y, !>>'( nnt itllirrn'isc, it iiiii)lit'(lly tnllows that all
(•iilniiiiil luWH not o])t'ii to the (.Imr;;t' of rc|iu;;iiaiK*v inu:it
lie licM oiK'rati\t', aixl that thciM't'orc the ixiwcr ol' legisla-
tion is — Hiiltjrct only to the h'lnitations ah'i-ady advcitt'd to
— as full as that of tht< IniiH'i'ial parliament, ami that
colonial laws are e(|naliy olili;;atory on courts of justict*.
Hut a i)ro|)osition formerly (*/) laid down nnist not lu' ovi-r-
look('(l : namely, that in the last analysis oin- ri;;hts, lenally
speakin;;', are held under Imperial ;;rant, and to oui' i-i^ht
to le;^islate this proposition is particularly a])plical»le. In
otiier wonls, we must always i-efer to the colonial "Charter '
— proclamation, conniiission, or Imperial Act — containing'
the ^rant of leoislatixe power, to ascertain its extent; and
heyond the limits therein laid down, the power cannot
extend. F<>i" us, this C'hai'ter is the H. N. A. Act, and the
terms of tlie erant are of the widest poHsil>le description
(.saving always Imperial soverei<;nty), and — suhject to the
division of th<' field hetween the Dominion and the pro-
vinci's and suliject always to the checks to which wr have
referred — the power of h't^islation is supreme in I'elation to
all matters within the limits of colonial le^dslative power.
This principle is fully recoj^ni/ed in the jud<;-ment of the
.Judicial Connnitteeof the Piivy CVamcil in a ca.se involving-
consideration of the position of the Le^jislatnre in In<lia —
(^)ueen v. Bui'ah ('). Lord Selborne, delivering- the unani-
mous o[)inion of the Conunittee, referred to the Judgment of
theccau't helow, as in effect treatini;- the Indian Legislature
as an a^ent or delet^ate, actinj^' under a mandate from the.
Imperial parliament, and dissented from that judgment in
the following; forcil)le lanj^uai^e :
" But their Lordship-s are of opinion that the doctrine of the
majority of the court is erroneous, and that it rests upon a
mistaken view of the powers of the Indian Lef,'islature, and
indeed of the nature and principles of legislation. The Indian
Legislature has powers expressly limited by the Act of the Im-
perial parliament which created it, and it can, of course, do
((/) Chap. IV. ante, p. o(). (<) L. R. 3 App. Cas. !I04.
C.\N. Con.— 12
17H THK < ANAIHAN <(>N.S 11 IC IK »N,
notliing beyond tho Uniits which clrcuuiscrihL' those powers,
lint when ftctinj,' within those Uuiits, it is not in anv sense nii
ii^'ent or (hlcij^ate of the Inipcriiil piirlinnient, but hits, iiml was
iutcnded to Imve, pk'niiry powirs of k'Lfisiiition, ns larL,'e, and of
the same nature, as those of l*arlianient itself. The cstuhhshed
com'ts of justice when n (juestion arise; whether the presnibtd
limits have lieen exceeded, must of necessity determine that
«|Uestion ; .Mid the only way in which tiiey can properly do so, is
by lookiU.i,' to the terms of the instrument by which, atlirma-
tively, tlie legislative powers were cre.ited, and by which,
neyativJy, they are restricted. If what has been done is legis-
lation within the general scope of the allirmative words which
give the power, and if it violates no express condition or restric-
tion by which that power is limited (in which category woidd of
course be included any act of the Iuii)erial parliament at variarce
with it) it is not for any court of justice to iiuiuire further, or
to enlarge constructively those onditions and restrictions" (/ ).
In an earlici- case in the C'.)iii't ol* (^hicen's Bench, ami
uftei'wards, on ;i|)])eal. in the l'2xcli('(HU'i' Ciiunilu'i' — the
riiiisr crlihr,' of l'hilli[)s \-. Kvre (f/) — tlu' jud^ies of thosi'
(•>)Uit- had to consider till' position and powiM's of a ODJonial
Ic^ishiture, anil the extent of the operation of ei)lonial
rnactnients. As a defence to the action, which was l)rou;nht
in Eii<;land, for trespasses alle(;ed to have l)een conimitte«l
in .Jamaica, tlie defendant, j^overnor of tlie island, [lieaded
an Act of Indenniitv passed hv the Jamaica Le^iislativo
Assenddy. The })lL'a was ilenuirred to, and the ((Uestion
was thus raisffl, (1) as to the power of tlie colonial assemldy
to pass an Act of Indemnity, ar.d (2) as to the extra teri'i-
torial operation of that Act. For the defendant it was
ai'g,ue(l tiiat l>y the law of Ent>-land the legislature of a
colony is supreme within the houndaiy of the colony: that
the courts in this country are hound to reeouni/e the laws
( /') C'omimre tlie liin>^ua^e of MurshiiU, C.J., in McCuUoch v, Mary-
land, 4 Wheat. 421 (United fi^tates S. C. Rep.), quoted at p. 1»2 of tlie
I\Iich. University Lectures of 18S',), pullished nnh. tit. "Const. Hist, as
seen in American Law."
{0) L. K. 4Q. 13. -.'So; f) Q. B. 1.
(•U|.(»XI.M, LK(ilS|,.\TIVK I'OWKH. 17!)
Nvliicli tilt' coloniiil It'Mislatun' nmkf us part o|" tlir Kii^i'lisli
law: that the Crown may rrfuMi- its ('(Hisi'nt to u cohaiial
Act : tilt' liiipt'rial parHaiiifnt may intfrtV-rt-, antl tlu" laws
wliicii tilt' colonial Ic^iislaturc make must not Itc " I'cpuy,-
nant to tlic law of Kn;4lan(l, as that word is (■vplainctl in
SJS (S: 2!> Vic. e. (I.S: luit, snltjcct to those t|naliticatit>ns, the
laws passt'tl l)y the colt)nial legislature ami nunle with
iderence to acts coniniitted within tliei)' jurisdictitm. are as
liindin^' as the laws t»r the lmj)erial parliament: that Kn;^-
lish ctan'ts rcco^'ni/e them, not throu;;h international
t'oiirtt'sv, hut hccause thcv nnist he taken tt» he i»art of the
It 1
law t»t' Kn^land (A): untl that it may woll he, that the
col(»nial It'Mislatui'e lia\i' no power to take away a remedy
from a Hi'itish suhicct, Imt the\- ma\' dischar<i'e a cause of
actitai which has accrued within the limits of their terri-
tory.
In deiiverint^ the unanimous juil^nient t)f the Ci)urt of
(Queen's Bencli, Chief Justice Cocklairn says:
" It cannot he disputed that the Jamaica
Li'gishiture, having full legislative authority within the limits of
tiie colony, subject only to the assent of the Crown, had full
power to pass the statute in question, so far as to take away the
right of action before the local tribunals .... but it is
centended on the part of the plaintitt", that a right of action
being given before the courts here, in respect of personal
wrongs connnitted in a colony, this right cannot be taken away
by an Act having no legislative effect beyond the limits of the
local authority It may be useful to consider what
would have been the effect if, instead of legislating <m' /instjavto,
the Legislature of Jamaica in anticipation of future events, had
passed a statute authorizing the acts which have given rise to this
iiction. ^Ve cannot doubt that in such a case, no right of action
would arise here It remains to be seen how far
this principle will apply where an act, adndtted to have been
unlawful when done, is legalized and divested of its tortious
character, and immunity is afforded to the wrongdoer in respect
(//) See Reilpatli v. Allen, cited pnnt.
ISO THE lANADlAN ( '< »\.STn ITHi.V.
of it, hy i-.r I'ltst I'lirt't \vi^'\Aixt\un Wl' uro, however,
of opinion that the sanio principK; wliicli wo Imvo statod to by
uppliciiltli! to an act mad*' lawful by fornior lo>,'islation, is oinially
applical)lt.' to an act ori^'inally wi-ongful, hut logali/cd hy ai)
,■,(• iHtst f'lii'ti) hiw. Local liOi^ laturi'.s havinj,' lH>on I'staliHsiuMJ ii>
o\ii' colonies with plenary powers of le;,M3lution, the same comity
wliich obtains between nations, should bo extended to tlieni by
the tribunals of this country, wiien their law conflicts with ours,
ni respect of acts done within their juiisdiction. . . . lMt.nary
power to nuike laws having' been conferred on the local lej,'is-
laturc, subject to the assent of the sf)vereifj[n, it cannot bo
disputed that it was within its competence to pass the law
referred to in the plea, and the only (juestion is, whether the
effect of it is to deprive the plaintiff of the right which he wouM
otherwise have had, of maintaining an action iti this country.
For the reasons we have j,'iven, we are of opinion that such is it?)
effect, and conseijuently that on the denmrrer to the plea, oui*
jud<,'ment must be for the defendant."
In tlu! Ex(,*h('(|ner Chjiinhcr (')- thi- cdurt was un'niu
niianinious. un<l Mr. Justice Willes, i.i delivi'i'iiio- the jinit;-
nu'nt of the seven judii'i's of which the court was eonii)ose(l^
savH :
" It seems to be plainly within the competence of the legis-
lature, which could have authori/ed by antecedent legislation the
acts done as necessary or proper for preserving the pul)lic peace,
upon due consideration of the circumstances to adopt and ratify
like acts when done, or in the language of the law under
consideration, to enact that they shall be 'made and declared
lawful and confirmed.' Such is the effect of the Act of Indem-
nity in ijuestion, which follows the example of similar legislation
in the mother country, and the other dominions and colonies of
the Crown The Crown has in numerous instances
granted charters under which houses of assembly, and legislative
councils, have been established for the government of colonies,
whether conquered or settled ; and such councils and assemblies
have from time to time made laws suited to the ' emergencies
(i, L. R. () Q. B. 1. Counsel for the plaintiff referred to the B. N. A.
Act as conferring xnpn'tnc powers.
(itl.nNlAL I.K(i|Sl..\TIVr; I'oWKU. IS|
of the colony,' wliicli, of oiirso. iiicliidf all iiU'iisui'eH iH'Cossiiry
for tlio conservation of peace, onlt r and nlltj^'iance therein. .
xuhject to tlu' approval of the Crown, and the control of the
Impel ial le;j;islatnre We are satisHed that a
confirmed Act of the local leL'ishitiiro lawfully constituted,
whether in a settled or compured colony, has as to niattern
witliin its competence, and the limits of its jurisdiction, the
operation and force of sovereijjn legislation, th()U<,'h subject to
lie controlled hy the Imperial parliament."
The MulisiMjiu-nt pa.Hsiines in the iinl;;nieiit distiiK'tly
attirni that colonial le;;islation will lu- ;ii\eii effect ti» l>y
Knulish Courts on the same |»iMM('i|»l»' of comity as iniluces
those courts to reco^ni/e f(U"ii;;n law.
The same \iews are expreMsetJ in the opinions of the
Ju l;:'»'s of the Court of Appeal for Ontario in a case which
c;imt' hi'fore them in 1S72 ( /'). It may he olisci-Nrd that
tlii'ir It-marks, althou;;h made in reference to an Act of the
lv';L:Mslative Asseml>l\- (tf Ontario, are — at least ("luallv —
npplicahle to le;;islation hy the j)arlianient of C'anatla n])on
,s\il.jfcts within its legislative competence. The (|Uestion
which arose for decision was as to the power of the()ntario
lejiislature to pass an Act contirmin;^' and Nalidatin;^', .-is
a;L;ainst infants, a deeil of settlement made li\' triisti-es under
a will, the contention l»eii»^' that s^ich le^dsjation had the
< rt'ect of depi'i\in<j,- one man of his propei'ty and jLi'iviujLi" it to
aiiothei'. Draper, ( '.J. .uses very clear and emj)hatic lan^ua;^;)'
as to the I'iii'ht of the L )cal leo-islaLure to pass pi'ivate Acts :
" As in England, it is a settled principle that the legislature
is the supreme power, so in thi.s province, I apprehend that within
the limits marked out l\v the authority which gave us our i)re-
.sent constitution, the legislature is the supreme power. It is on
this principle that private Acts of parliament are upheld as
connnon modes of assurance, being founded upon the actual or
implied assent of those whose interests nre afleetel
I think nothing is to be gainel by a theoretical distinction, which
has bpen suggested, between the authority of the legislature to
U) Ii>- Goodhue, 1') Grant, 8GG. •
I.S2 TIIK CANADIAN rnNsTITITInN.
pRHH tawH upon iM-rtnin K\ilijocts. tunl tlir liulit to exorcini' tlmt
powi'i" iH tlioy iiiiiy tk'i'iii titling'. Wln'tlifi' it hv calltil ii power
or 11 ri^lit, it coiiu's to tin- siiiiu' tiling'; Mince IIioukIi our l»%'iH.
lafiiro is limitt'tl by the C'or.Hiitutioiml Act to certain flelinetl siili
jei H, the Act iniposofl no limit to the exercise of the power on
thoMo snl)ject3. ... If the new law hu within tho chn^ of
snhjectH conunittotl to the provincial legislature, I know of no
authority in provincial trilMnnils to refiis»' tot,'ive it elTect.npply-
in;^' to its limgiinLfe the same rules of construction that are appli-
cahle to any other statute passed hy comjietent authority."
The snine (|Uesti<»n — uinl M;;»iiii in referenc*' t<» the leyiisln-
ti\e pKSver of a Proviiicinl AsseniMy — came liel'ore the
.In<lieial Conimittee of the j'livy ('onneil in the celeltrated
case of Hiidy;*' v. The (^)ueen (/). The ('!)mmittee very
emphatically re-afHnned the doctrine Iai«l dnwii in (^)ueen v.
Ihnah (/), ami held that the pi'ov incial leyislatni'e was
within its powers, in entrnstin;;' to a Hoard of License
('ommisHionei'M, anthoiity to enact re;jnlationM in reiVi-encti
t(» taverns antl hilliard-rooms in coiniection therewith, an<l
tluTcliv to create oflences and annex iieiialties. The cues-
tion was thus disposed oj* :
It appears to their lor(lshi[)s, however, that the olijectiou
raised by the appellants, is founded on an enlu'e miscoucei)tion
of the true character and position of the provincial legislatures.
They are in no sense delegates of, or acting under any mandate
from the Imperial parliament. . . . The H. N. A. Act con-
ferretl powers not in any sense to be exorcised by delegation from,
or as agents of, the Imperial parliament, but authority an
plenary and as ample within the limits prescribed by section !>2,.
as tho Imperial parliament in the plenituile c*' its power possessed
and could bestow. Within these limits of subjects and area, the-
local legislature is supreme, and has tho same authority as the
Imperial parliament, or the parliament of the Dominion would
have had under like circumstances to confide to a municipal
institution or body of its own crc'ation, authority to make bydaws
ov resolutions as to subjects specified in the enactment, and with
the object of carrying the enactment into operation and eft'ect. It
{k) 1) App. Cas. 117. (/) >tiitt; p. 177.
rnlnSIAI, l,K«ilsl. ATIVK PnWKH. IM.J
U ol)vi()iH that such lui imthnrity is ancillury to l»'.ri«iliUion. nul
without it nil iittiMiipt to pi-oviilo for viirviii^ il«>tiilH, uml
iiiiu'liiru'i'V to ciu'ry lln'iu out, might ln-conu' oppifssivi' or uli-to-
hitely fail It \va>4 iirKHi'd at the bar, that a \en\n-
lattiro coiiuiiittin^' important ri'^iihitions to agents or ileleuati's,
ett'acch itself. That in not so. It rotains its powers intact, and
can, whenever it pleasi s, destroy the a^oney it has created, and
Hi't lip another, or take thi' matter directly into it^i own hands.
Ilow far it sliall seek the aid of siiliordinate a^'encies, and how-
Ion;; it sliall contiinio th 'ni, are n>;Uler-» for each legif^latllre and
n«)t for courts of hiw to decide."
In the still jnon- ret'ent cusf of Powtdl v. A)>ollo Candh'
("».(/(»), the .ludieiiil C'unniittee of the Privy (' unieil ex-
pi'eMHeil their continueil mlherer.fe t » tlu' opinions laid <1 »\vn
ill th'- eiirlicr cnses to which \vc Im\f rid'eiTed.
The |»o\\ri(d' the Dominion i»arliamt'nt t » le;;Islatt' for
tlu' peace, onler, and ;;o(m1 ;;overMment of the North-West
Tenitia'it'M (conferred liy ."U \' :{.'> \'ic. c. 2iS, Imp.), \va«« held
to lie the same ph'naiy power of Ie;;'islation as is possessed
l»y the Imperial [)arliament ( /* ).
Applyin;^', then, the nile so clearly laid down ' y Lord
Selli»rne in the earliei* casi- (o), we have t> looU t» tlio.se
terms of the H. X. A. Act:
1. Hv which, aHirmativtd\', the le;;islative powers are
created.
2. Bv which, ney:ativelv, thev are restricteil :
ami we have to note that affirmatively the lee;islative
power is of verv wide ranije, namidv, to "make laws in
relation to" the various matters enumei'at«'d in the Act.
and that of ex})ress ne;,jative restriction there is no si^ii
within the fcair cornel's of the Act.
Hut as we are a I)(jminion "uinler the Crown of the
United K.iii<^dom " ( //), there must he in any Canadian
(m) 10 App. Cfts. '282.
(ii) Kiel V. Re>,'., 10 App. Ca3. ()75 ; s^^e put. (a) ant,', p. 178.
(p) See preamble to B. N. A. Act and n itcs tlierdto, ;» >it.
1N4 TMK fAXAIHAX cnNsTITI TloN.
IcM^lMljitiiiii II Miiviii;; ut' tin- Mi»\i'ri'iy;iity uF Kii;^'liiii<l In tin-
<,Mul.'c |{ts,.lutiitiiM, npMii wliicli tin- M. N. A. A<'t is t'lMiinlt'il,
this irstrictiMii is cxpit'ss {tf). Init i » tlif Act itsdl' it was
ii(H|niil)t tifi'iiii'tl uiiiit'Ct'NHiiry ti» iiiHt-rt iiiiy woi'ils ol" exprt'ss
I't'stiiction u|MMi tliis ptiint, iis it is an iniplinl rrstiicf ion
ii|Miti nil coluiiial lf;;i.slati<>ii (/•). In a vriy ••iirly c»is»' (w),
Cliirf .liistin* \'uii;;liiiii, umiIit tlif ln'mlin;; " What tiii- pir-
liaiiitiit ut' IrrJatui caniint do," HiiyH :
1. It niinintulicii itsfll', m- any part i»t' itself, tVoin lijny;
iimhT thi- tloniiiiiuii nl' Kii;^laii<l : \\<>v chaii;;*' its sMltjt'cti'in.
2. It cannot nuikf itself not snlijtct to thf laws of an<l
siihortiinatf to th** parliaim-iit of i'ji;^'lanil (/).
M It cannot clian;;f thf law of iuivinij .M*'..,''" '"tn tlwrc
irivcn, ii'ViTMcil for «'rror in liniManil ; ami others ini^ht '»«'
nanif)l (n ).
4. It cannot <liHpo.sc the (^rown of Irclaml t > the Kin;;
of J'!n;ul'HnrM second son, oi* any other lait to tlu' Kin;; of
Kn^^land.
And in a Canadian case it is laid down, that le^iislation
inconsistent with its relation to the Kinjiire of which it
forms a pai-t, would he ' un('onstituti(tnal " and Noid (')
The second and third propositions laid down hy C.'iiief
.Instice \'an;ihan, have been already discnsseij, with tlu)
exception of the (piestion as to the prero;4;ati\e i'i;;ht of the
Cntwn to hear, in the I'rivy Council, appeals fi-oni Colonial
Jud;;inents ; this must lu' dealt with hereaftei-. Propositions
I and 4 relate no douht to extreme cases, which can hardly
arise in this ae-t-, hut there an- many matters in resjJL'ct to
(7) R'.'Holution No. '2(). (/) Dicey ' Liw of tlie Count.' 10').
(i*) Craw V. Rivmsiiy, Vaii<ili. '21»2. (f) Fee (!Iiap. IV. miti'.
{it) i.e., it cannot loj^islate in roferdnce to tlr-> prero.,'iitivori>;ht of tlio
Crown to hear and dttermine appeals from colonial courts ; or cluuj^c
a Irvw of express colonial application.
((") International Briil^je Co. v. Can. Southern Ry., 2R Grant, at
p. 184; see also Tully v. Principal Offij^'rs of H. M. Ordnance, 5 TI. C.
Q. B. 0.
rnl.nNI.M. I.KUlHl.ATIVK I'nWKII. |H.")
\vlii<'li Wf pKMHi'Ms tin li'^^ixliitiNi' powrr iM't'iiusf itM «'N«'iri.s«»
\v.»ul»l !•»• a iism|tMtiiiii of H((\iTci;xiity in it^ iDtiriiittiuniil
HVUsv { "•).
'rii«-n> is a t'ui'Hirr implinl rrMtiictimi U|ii)ii oui- li';:iM|ii-
tivr |>ii\v«'r, vi/.. that Ity tlif \t'iy t»*riiiM of tin- ;4;iaiit that
\»t\\i'V\Hf»i'i'lf<ii'iiilli/\'\n\\U'i\ (,»'); uikI this hianch (»l" uu:'
Miliji'ct is uf HO much iiintiiitaMci' that wc iiiUMt ^/wr it
cai'i't'ul aiti'iitioii (//), It will hilp to a sulutioti of oiti'
|iroli|t'iii if \vc coMsiiltT, tirsl. the lro;isJati\ •• pow»'i*M, —
t«'rritorially cousiili'i-iMl - df th«' Iinpnial pailiaiiM-iit. That
hody is thr authorized cspoiH'ut ot" thr will of the nation
ill its international sense, anil so fai- as other nations
are conctTn*'"!, its enactments are of ciMnse inojeratiN«'
heyond the Itorders of the Km])irt', includin;: within
those liordei's, till' " lloatin;; islands" of tin- Mritish
na\y and mercantile marine ( : ). In a woi-k of reco«_j-
ni/ed authoi-ity ("), certain canons of construction are laid
down as applicnlth' to Imperial statutes, which may In-
shortly stated. /'/•////(' /(/r/r, enactments of the parliament
of the I'nited Kin;^dom are operative only within the
Tnitid j\in;;dom. and do not extend to the colonies (//),
noi' to Hritisli suhjects (noi-, a forlitirl. to forei;,'ners) (»ut
of the I'nited Kin^^dom (r) : unh'ss there is the intention
"clearly expressed or to he inferred either from its
(ir) Hae li. N. A. Act. ss. 1» n\u\ 13'2.
(x) See l» App. Cas. 117, i-assa^e (juotacl (Uitc, p. is'J.
(//) No text writer yives tliin mutter more tluin a passing notice. See
l>icty. '• Law of the Const." p. '.)", note (H).
(:) Von. V. Amkr»on, L. R. 1 C. C H. Idl; lien. v. Ciirr, L. H. 10
g. 15. P. 7(1.
(<i) Maxwell, "The Interpretation of Statutes," Chap VI.
('') See Cliap. IV. <in><', p. r)7, it hcii.
('•) Arnold v. Arnold, 2 Myl. iV Cr. at p. 270; Jeffreys v. Boosey, 1
H. L. Cas. 81o; Cope v. Doherty. 2 DeG. iV J. (U4 ; cr pnih' Rlain, L.U
12 Chy. D. o22. Laws as to iroc.diire in nctions, incliulin>{ the linjitiv-
tion of a time within which prjc?^din>;s are to be taken— /<'.'/<'i ./on'— are
of course bindin>i on all litijjants. subjects or foreij;ners ; Lopez v Burs-
lem. t Moo. P. C. 40').
186 I'lli: ( ANAIH.W (ONSTITirriO.N.
lMii;;im^t' or IVoiii tlu' (thjcct or HuKjt'ct nmttt'V oi* lii.stoiy of
the citMctnu'iit " ('/). Tlir (' (Idiiiiil Liiws \'uli<litv Act. Ist!."),
;>i\<'s tlic ''iiiioii (»r const luctioii in rct'ciciicc t(» lMi]n')i.'il
ciiiu'tnu'iits wliicli )irt' to lie held to cxtcn"! to u colonv
llicrt' iimst lie tlif " cxprt'ss \vor<l.s (»r ncct'ssury iiit»'ii<luu'iit '
of the Act. I5ut ill tiny oimc, if the Ifinn-nMi;'!' of an lni)»rrifil
Act of |iMrli)inifiit, nn)iiiil)i^iioM.sly Mini without reus )n)iMy
Mihiiittin;^' of any other mcaiiinn', applies to forci^^iiers
al>r()a<I, courts t»f justice, the IOMi]»ire o\'ei', must ohey and
a<hiiinister it as it stands, for tliey cannot <|Uestion the
authority of the Iinpeiial iiarliaineiit or assi^^ti any limits
to its powers (r). The entire ;;round would seem to lie
covered I»y the laneuae-e of llrett, .)., in delivci'in;^' judiiiiient
in a late Kn;;'Iish case ( / ) :
" (ieiieral words in ii statute, liiivo novt-r, so far as I am
awiu'e, been interiJivted so as to extend the action of the statute
hevoud the territorial aiithoritv of tli-j lt'''!slat.ure. All criininal
statutes are in their terms g«!iieral ; hat they apply only to
ollt'uces coiumittud within tho territory, or by iJritish suhjects.
When the lej,'islat'.u'e intends the statute to apply beyond tho
ordinary territorial authority of the co'.nUry, it S) stiites expr.'ssly
in tlu," statute, as in the Merehiuit Shippin<,' Act, and in some of
the Admir,df,y Acts. If the licgislature of I'hi^daiid, in express
terms, ai)plies its legislation to matter.s beyond its le<,'islatorial
capacity, an Euf,dis^h court nuist obey the English legislatu:e,
however contrary to international comity such legislation nuiy
be. JUit unless there be definite express terms to tho contrary,
the statute is to be interpreted a.s a,)i)licabl<.', and as intended to
apply only to matters within the jurisdiction of the legislature by
which it ..i enacted."
l»ut we' may he allowe<l to (juote also fiom the oi»inions of
((/) Maxwell, 10<>-70; The Susse.K Pterai^e Case. 11 CI. iVr F. at p. UO;
Jeffreys v. Boosey, 4 H. L. Cas, Hi.") ; IJrook v. Brook. !l H. L. Ca-i. I'Xi ;
Cope V. Doherty, 2 DeG. A J. 014. And see Ke.;. v. Keyii, L K. 2 Ex.
D. (IH ; Runtled^'e v. Low, L. R. 1 Cliy App. 42, 3 E. & I. App. 118 ; Atty.-
Genl. of Hoiig-Koni! v. Kwok-a-Hint,', L. K. 5 P. C. i;)8.
{e) Maxwell, 179--0.
if) Nib:iyet v. Niboyet, L. II. 4 P. D. at pp. 19-20.
r(i!,o.MAI. l.l.'llSLATIVi; l'(»\Vi;i« |,S7
two vciT ciiiiiit'iit hjiiilisli .hidnt's, wlio in siicccssion,
«)('(Mir»i('il tilt' position of L >r<l ('liicl" Justice ol' Kn;;liin<l —
in 11 Vi-rv ci'lclii'iiti'd cmsi- ai'i.sin;^," out oF the sinUin;;' ol' tin*
l']n;4liMli stcuintT " Stiatli<'ly<lc " liy the (ici-nwin stouni'r
" h'lJinconia," oH' Dovci-, in IS7() (,7). ('hi*'!' .iusticf ('olc-
riil^f ,s)i\'s :
•' I ilo not of coursj hv^'t that it is fVoi'ly atlmittcil to be
within the conipetoncy of piu-liament to extend the reuhn how
far so cvtif it pleases to extend it by eniictnients, at least so as
to hind the trilnnials of tin; C(juntl'y."
Child' .)ustic«5 C'ockhurn hjivs :
" Now no pm))osition of law ean bo more incontestable, or
more universally admitted, than that, according? to the i^'cnoral
law of n;tlions, a forei,L,nu'f tlioii'j;h criminally responsible to the
law of a nation not his own, for acts done by Inn) while within
th(( limits of its territory, cannot be made responsible to its law
for acts done beyond such limits. . . . This ride must
however be taken s;d)je'jt to this <iualilication, namely, that if
the leLjislature of a particular country shoidd think lit, by express
enactment, to render for(,'i<jfn(i's subject to its law, with refei-ence
to olVences connnitted beyond the limits of its territory, it
would be incumbent on the courts of such country to give elVect
to such enactment, leavinj,' it to the state to settle the question
of international law with the govennnents of other nations."
l''rom these uutliorities, we nuiy (roiudude that it" the
lhi])erial parliament should enact that any person, Ihitish
subject or I'oreienci', connnittin^" sueli-and-sueli an act
altroad, should, if found within Hritisli territory, sutler,
upon conviction, a certain punishnient(A ); or that, in deci<l-
iuL; a ci\ii action in respect to contracts niadi; abroad, to
be |)erfo)'me(J abi'oad, Enelish law should e()vern; there is
on doubt, every Hj'itish court of Justice would he ol)Ii<;ed t >
in) libji. V. Keyii, L. It. 2 Kx. I). V>:i, at p. 1.52 and p. HiO.
(/*) See sec. 2(57 of the Merjli-.int Hhippinj,' Act, 1854 ; Reg. v. Ander-
son, L R. 1 C. C. R. 1(11. It reijnired statutes to authorize a trial in
Olio county of En^'land for an offence committed in anotlier county. Kee
the vahiable note to Kuighley v. Hell, i F. iV V. at p. T'.tO.
ISH THK (AVAIHA.V (ONSTHI r|( »\.
;,'i\»' •Ml'ct to the fiiuctiiii'iit. .May \\r liiy down tin- suiiic
rule ill rf;^iir<l to u ' ('oiiliriiiffl " Act of a coloiiiul lt';4;isla
tiir«' !* W't' tliiiik not. I'litil st-ry recently, tlicrc was no
juflicial decision directly upon this »|iiestion, lait there was
hij^h authority in HU|i|iort ol' the \iew here adopted that
a '• iloiilal le;^dshiture cannot affix a criniinal character to
HctH conuiiitted l»eyoiid the; terj'lttjrial liinits ot" the colony:
iind there wouM appear to he no ar;^Miiiient in TaNor of this
\ iew, which would not l>e eipially appiicahle to the case of
(•olonial leniHlatioii all'ectin;;- ci\il ri;,dits "accrued" aluttad ( i)
<ir we may use the expression). The hiu^h authority to
which we rel'er as to criniinal legislation, is that ol' the law
otlicers ol' the ( 'rowii in l'in;;land. In IHOI , the pjuliaiiieiif,
ol' (Old) ( anada pas.sed an A( t to ij;\\i- jurisdiction to
('anadiaii nia;,^iHti'ateH in rerereiare to certain offences coin
niitted in New HriinNwi(d<. This Act was disallowed hy
<»rderol' the (^Mieen in ('ouiicil upon the report (»!' the law
officei's ol' the ( rown, who advised that "such a clian;;;e
<-aiiii<»t li«^ leo;Hlly eM'ected l»y an Act of the colonial ie^^isla-
tuie, the jurisdiction of which is conlined within the limits
of the colony " ( /').
And a^^aiii, the l)oniinion ]>arliaiiient, in IS(i!), passe(|
" All Act reHpectin^j perjui'y," the third .sectii»ii of which
I'eads :
"8. Any ixrsoii who will*'>,lly and corruptly makes any fiiho
alliduvit, aniniiiition, or (lechuatiun out (jf Caiiiulu, or out of any
l'ro\ince ol' (liiuada, hefore any fiinclioiuiry uiitliori/eil to tali(.'
the same for llie jjurjio.se of hcin^' used in C'anada, or in hucIi
I'i'ovince, shall h'.; deoint'd ;,'uilty of perjury, in like iniiniier as if
sutrh false aflidavit, allirmalioii ov dec^luration had hi-iMi made in
Cniiada, or in such i'rovijice, hefore competent authority; and
.siuii 1 e ';ioii may he dealt with, indicted, tried and if convicted,
I).' seiitenct'J, and th(; o'func m ly bt; laid and charged to have;
(/) Tile legal ri;4litH ftrisinv; out of u contract, are jjoverned l»y tlio
Ji:r liici idiitnictUH ; the lex fari noverus aw to tlie n;itiirc extent iiiui
<^:!iivracter of the remedy, Forsyth, '2U'J, '2i\t.
0) Jonr. Lcf,'. Aas. Can 1H(»2, p 101.
(•n|,n\i\i. i.i:<;isi,\i i\ i; i'(»\vi;n. |.S'>
ht'i'ii coiiiiuilU'il, ill tliiit (liMti'icI, coMity or plac*' when- lie Im^
Itccii iippifln'iKlt'il or is ill c'stody."
Ill ii <|i',s|)ul('li (/) J<» tlif ( HIS criiur-C Jciiriul, tin- ("i»l<iiiial
Sfcri'tiuy julvfjts to this section us ussiiiniii;^ " fo uflix
criiiiiiiiil clianictcr to acts coiMinittcil licy((ii(| tlir limits ol' tin*
|)oiiiiiiioii ol' ( .'aiiaila, " aii<l " as siicli a proxisioti is Ih-\-oii(|
tlic |i';4islati\ •■ power of tlic ( "aiia<liaii |iai'liaiiiciit," lie
sii^;f<'sti'(| aiiit'ii<liiitiit. 'I'lif Act, wjis not, <lisallo\vt'<|, Imt
tlif aci|iii«'sci'iicr ol" tlic Minister of Justice in the correct-
ness of the law laid <lown \>y the ('olonial Se('ret,ary, is
.•\i(|encei| l)\' tin- Tact that the Act was aiiieni|e<l in the
\ers' next session, so as to limit the ojieration of the thir<l
section 1,0 atii'lasits made in one |iro\ ince ol' the Dominion
Tor use in another |(ro\ince (/).
{''orsytli (//'), in his collection of o|)inions on constitn-
lional law, cites an o|»ini<»n ;;i\cn l»y the law ollicers ol' the
("row 11 ( (/ ), in l'Ji;^r|ainl, in IS.')"):
" W'e concei\e that, the ('olonial Le;j;islatuie cannot
|iu,i||y exercise it,s jnris<lictioii heyonil it,s territorial limits
three miles Irom shore or, at the utmost, can only <lo
this o\er persons <loniicilei| (o) in the colony, who may
oU'eniJ aj^ainst it,s (tr<linances e\en l»eyon<l tliose limits, Itiit
not o\er other [lersoiis " ( /<).
In the case ol' I'eak v. ShieMs (</) the (juestion was
<liscusse<l in our courts, hut owin^f to the <iiver;^ence of
\ jew on the ))art ol' the .iu<l;,4es (particularly in the
(/,) (,'.111. HcHH. I'aperK. 1870, No. H'.l; Hue To-ld, " I'url Govt, in JJrit,
(/) H;1 Vic c. '2(1, luneiuliiiK' H'2 s:i Vic. c. '2H, h. ;}
{ill] [). '2 J ; sue aJHO p. 2'M
[it] Kir J. Harfliii>^, Quwjii'h Advocate; Kir A. li. (.'(jclthuru, A.(i.
(uflerwurdH I.or(t (^iiiet JuHlioi! of Kii^laiid) ; and Kir K. liotiicll, K.G.
(iifturwardH Lord ('liancollor Weatbury).
(o) See poHl, p. I'M.
(//) Hee alHo Atty.-CJeii. of Ilonj^ Kon« v. Kwok-a Siii^', L. K. 5 P. (".
17'.t, and /c Goodhue, !'.» (Jlraiit HHC, at pp. 101 and liVi.
(7) ;U II. G. C. p. 112; (i (), A. K. OIW; H H. C. It. 571).
|!»0 THK CAXAIHAX cnNSTIirTlnN.
Sii|irfiiif ('iiiirt) till- jnsv oiii liiii<ll\' In- coiisidfrrfl nn
iiiitliority (/■). 'I'lii' plniiititfis iiiNokctl ii;i)iiiist tin- «lct"fii-
duiits II clause in tlu* JiiMolvont Aci oF liS?.'), whicli, slioitly
stjit«'<l, i»ru\ idt'il tluit wlifii it was I'ttuiul on tln' trial nl' an
action a^iainst an insolvent, that the tielit sne<l t'oi\ Iwul
lieen Contracted liy liini when, to his knowledy^e, he was
unaMe to nu'et his en;^'!iM(. incuts, he ini;;lit he inijii-isoned
for two years nnh'ss tlie deht and costs wcjv sooner paid.
In the case in (juestion, the delit had lieen contracted in
Kni^land. A majority of the Jud;;'es, who lendered opin-
ions in the case, held that the statute di<l not affix a o'ini-
inal chai'acter to an act connnitted ahi'oad: that the law
enacted hv the section, was a law fis fn f/u iniidli/ <iniil-
<i\)lc III niif cdii I'fs, and therefoiH' valid (s). Of the
►Supreme CVau't. the majority who expressed un opinion
on this constitutional point, decided against the ap])lica-
Itility of the section, invoking' the rules of interj)retation to
which we ha\e l)efore refenx-.l, as linn'tino- the section to
<U'lits contracted in Canada: hut at tin- same time serious
doultt was expressed hy each of these judges as to tlu'
validity of the enactnu-nt, in case its unamhi^'uous mean-
ini;' had admitted none hut the wider interpretation. The
position is thus clearly ]nit hy Mr. Justice Strong- (/) :
" By the 01st section ot the B. N. A. Act, tlie parliament
of Canada is empowered to make laws for the peace ordtr
and jj:ood government of Canada. Does this warrant the
enactment of statutes binding British subjects in respect of
()•) As to the questions arising; in this case, whicli involved consicleni-
tion of the B. N. A. Act, nee post, notes to s. 01, s-s. 21. etc.
(«) Somewhat analogous questions arise under the " Act respecting
Arrest and Imprisonment for Debt" (R. S. O. c. 07). It is submitted
that 80 far as these statutes make provision as to tlw rimedij to secure the
perjormance of the obligation created by the contract sued on, they apply to
the case of proceedings for a debt contracted abroad ; but that so far as
they are punitive— whether technically "criminal" or not — they do not
(as a matter of interpretation) so apply, and could not (as a matter of
jurisdiction to enact them) be made so to apply.
it) 8S. C. R.at p. 59()-7.
(cF.nNlAI. I.K(;is[. \TIVK |'n\Vi:i{. |!l|
iiits (lone without till' tcnitoiy of tlit- Doiuinioii, uit-rt'ly bt'cause
tliev liiiitiK'U at tlu' tiiiif to liavt' a doiiiicik' iii ihe Dominion?
()i are not such in-rsons, like nil other suhjects of the (^Jueen,
JiiiMe to lie atVected by no k'j,'islation icgulatinj,' their personal
I'onducl without the limits of the Pominion, save such as may
he enacted hy the Imperial le<,'islature. the |;ailiament cf the
I'nited Kin,i,'(loni '.' I think these wei,L,'ht\ and important
questions would arise and have to he determined in the present
case, if we found in the enactment under consideration, either
from express words or necessary inii)lication, that it was the
intention of the le,irislature to apply it to traders, domiciled
inhabitants of C'anfi<la, makin.ir jiurchases without the ]H)minion.
r>ut as there is not the sli,i,'litest indication of such a desi,i,'n, as
resjiects this IHOth section, we are relieved from the obli,L,'ation
((f determinin<,' such a grave question of constitutional law.'
The only otliei'ca.se in our courts, is Keoiufi v. Hrierh ( n )
involving' the validity' of section 4 of the "Act lesjiectint;
(tflenceH rel; ♦^inj; to the Law of Marriage " (H. S. C. c. Kil ) :
" [\'. Kvery one who being married, marries any other per-
i^on durinij: the life of the former husband or wife, whether the
second marriage takes place in Canada or elsewhere, is guilty
of felony and liable to seven years' imprisonment :
"2. Nothin'' in this section contained shall extend to-
(a) Any second marriage contracted elsewhere than in Canada
by any other than a subject of Her Majesty, resident in Canada,
leaving the same with intent to commit the offence ; . . ."
This section was lieM valid l»y the Divisional Coui't of
the Chancery Divison, hut in view of the decision ahout to
he referred to, it would appear that this jud<;inent can only
he supported as to forei^^n niarriayes, upon the view that
the ottence dealt with l»v the section, is the leaviuii' Canada
with intent. Tlie opinion of tlie Chancellor in that case, i.s —
if to say so he permissilde — a clear niarshallin*;- of all that
can he uro-ed in support of the jurisdiction of a colonial
leoislatnre to pass such an enactment ; and were it not that
Heyina v. Briei'ly must he considered overrule<l hy the
{ID 14 O. R. .5-2 ->.
|!)2 rill-: CANADIAN ('((NsTITrrinN'.
(U'cisioii ol' tlu' .Iinliciiil ('niimiittcf ol' the I'livy C'ouiu'il in
tlu' cast' aliout to lie iiotvil, it iiii;;lit Ih' tlt'cMU'il an ai-t ot"
jirt'smnptiini to t|Ut'stion tli«' con'i'ctiu'ss <»t" tlit- priiicijdcs
fiiMiiciatfil. Willi all <l('l'»'n'UCT. it is siil>niitt('<l that the
limitation of tlu' iiiu's of jiKliciai invt'sti;iatioii ojtfii to a
Canailiaii jii"!;^,*'. to a coiisidrration of the ('X|)r«'ss jtro-
visions of the H. X. A. Act on tli«' one liaiul, aixl of the
Colonial Laws N'alitlity Act on the (ttluT, is t<» Ifavo
unttaiclu'tl those iniplieil restrictions to which reference
has heen niatle in an earlier part of this chapter — such.'.//.,
as those in<licate<l in Craw v. Hanisay('')- The mean in;i"
e'iveii to the phrase, " extra territorial le;iislation " sei-ms
also un<hilv limited: in the hooks it is constantly used to
descrihe the attempt l»y the lei^islatuic of one state, to
determiiu' the le^i'al relation to ari.se, in that stati', fi'om
acts done and contracts entered intt> in another.
V'eiy oj)portunely, the ri'port of the case, McLeod v.
AttoiMiey-CJeneral foi- New South Wales (yr), hefore the
Judicial Conniiittee of the Privy C(unicil, comes to hand.
The leoislatur*' of that colony ha<l upon its statute hook
the following- iMiactment :
" Whosoever bein*,' nianiod, marries another person during
the life of the former husband or wife, wliere.soever such second
marriage takes place, shall be liable to penal servitude for seven
years."
By apj)lyin;4' to this enactment the rules of interpreta-
tion alreatly discusst-d, the Committee construed the wt>rd
" wdieresoever," as nieanin^j; " wheresoever in this col ,ny."
The (juestion of jurisdiction is thus dealt with :
" Their Lordships think it right to add, that they are of
opinion that if the wider construction had been applied to the
statute, and it was suppo.sed that it was intended thereby to
comprehend cases so wide as those insisted on at the bar, it
would have been beyond the jurisdiction of the colony to enact
such a law Their Lordships are far from suggesting
(r) See ante, p. 181, et seq. (it) App. Cas. (1891) 455.
HU.ONIAI. I-K«JI.S|,ATIVK I'nWKK. ID:{
tliiit the lo,f,Msl!ititri' of the colony (lid nioim to givf to iheinsolvea
HO wile ii jurisilictiou. The more reiMomihli' theory to iKlopt is,
thiit the hiMi,'Uii.,'e was iisimI siihject to tht.' woU known and well-
couHidiTi'd hniitatioii, that they were only le<,Mslatin,L,' for those
who were actually within their jurisdiction, and within the limits
of the colony. "
It will Im' noticed, |)t'rhii{)s, timt the i-eport nl' tliis case
lines not disfdose whether or not the a[)p(dliint was a
Hiitish sjihjeot, or whether lie w'us, or was not, a resilient
of the colony. His first niarriajfe took place in \e\v South
Wales, and it would apjjear that in the United StatoH,
where the second mari'iao-c was celehrated, he had in some
way pi-ocured a divoi'ci! from his first wife. As to his
nationality, the name is perhaps sn<r<j:estive. It mav there-
fore 1k' thou;;,ht that there is still nxan for ar;,;ument as to
the [)owei' of a colonial legislature to afHx criminal cluwacter
to acts done ahroad hy a, Britisii suhjeet, whose domicih? is
in the colonv, hut there is nothin'f in the iudi;ment of the
Connnittee to sui)j)ort such a view.
In this connection it may l>e remarked that in re;;aril
to Imperial Acts, the ipiestion is one of ct)nstructi()n
merely ; with us, it is a ([uestion of jurisdiction, or of
construction to sa\'e juri.sdiction. If the jnr'sdiction he
wanting', the legislation is void — is not law — and would
hav«' t) lie judicially so ludd (,/). Such an Act would he
unconstitutional, in the proper sense of that term — i.r., con-
trary to lau' constitution — and the very same doctrine
whicli lays down, that it is the ri<i^ht and duty of a
(-anadian jud^e to declare void an Act of a provincial
leuislative assemhly, trenching upon ^nmnd sacred to the
parliament of Cana<la, lays down with e(|Ual force, that it
is also his rinrht and duty to declare void — as nlfrii rircn —
any Act, provincial or Dominion, which in its territorial
scope exceeds the power of a colonial le<^islature (//).
(.r) See Reg. v. Brierly, 14 O. R. 525.
(i/) See the judjjrnant of Marshall, C.J., in Marbury v. Madison, 1
Cranch, 137; Political Science Lectures, 18S9, University of Michigan,
p. 77, et .leq, ; re Goodhue. 19 Grant, at p. 45 i.
Can. Con.— 13
194 TIIK c.WAI'IAN <'(i\SirirrinN,
All tin- liiiiitiitiouM up »ii I) ir It'^islativr jnnvcr (ulwiiys
t'oiiKiilcnMl JIM to its Miiiii ti>tiil) \m\i' now pruliilily luiii
udvcrttMl t"», Hiul wr limy u;;ain rett r tn tin* |M».sitii»ii t'or-
iiutIv tiikfii (:), iiiid iniiv siiniimirizc l»v suviii;;- : Witliiii
th«' limits liiifl iluwn, i-xprrsslv or iiiipli«<llv, liy our c'liJiitiT
— tlif IJ. X. A. Act — fiml sul»i<'ct always to Iinpnial coii-
ti-ol as Itct'orc iiitlinittMl (</ ), tlif pown-s of h';;isIatioii pos-
Mcsst'il l»y tlu' various l(';;islatiN»' luxlics cxistin;; in Caiiaila,
aiv plriiary jiowcrs, ami that, ' juiisdiction com'tMlcij, tlic
will of the h'<;iHlatur»' is oiimipotnit ac'cor«liiiy; to liritish
tlu'ory, ami knows no .su[»frioi' "" (/»). Paraphrasing thclan-
yfuau'*' of Chief .lustic*' Marshall in a \frv crh hrati-tl case
which canif hefoiv the Supnnie Court of the I'liitcil States
(r), Wf ailniit. as all must ailmit. that tin- powers of a colonial
;;overninent are limit«'tl. an<l that its limits are not to he
transcentleil : hut the souml construction of the W. X. A.
Act, must allow to the legislatures, that discretion with
respect to the means hy which these ]»owers, citnferred hy
it, are to he carried into exi'cution, which will eiiahle those
hodies to pei-fovm the hi^^h duties assinned to them in the
manner dt.'emed most heneticial to the peoph*. Let the end
1h' lee;itimate, let it he within tla* scope of the constitution,
and all means which are not prohihited hut consistent with
the letter and spirit of the constitution, are leeal. Where
the law is not prohihited, to undertake to eiKpiire into the
(z) Ante, p 177. ('/) Antr, Chap. VII.
{h) Per Mowat, AG., aifjiieiKln, lieg. v. Severn, 2 S. C. K. at p. 8l.
The theory is not e.xchiaively British, for, juriadiction conceded, the
eiime rule applies to Acts of Con;4res3 and of the State Legislatures in
the adjoining Republic.
(f) McCuUoch V. Maryland, 4 Wheat, 421. Note that Con^^resa is
fjiven certain "enumerated powers " and also power ''to make all laws
which shall be necessary and proper for carryin}^ into execution " those
powers, etc. The B. N. A. Act gives to each le;4i3lature power to make
laws "in relation to" the various matters as distributed between the
various legislative bodies. If there is any distinction, ours is the wider
phrase, and the principle of the decisions of the U. S. Supreme Court on
this subject of " implied powers " is applicable a fortiori to the powers of
our legislatures.
cnhnXIAI. LK(ilsl,A'IIVK I'nWKH. lf»5
(l(';;irr of its lU'C't'MNlty, Wolllil Im' to pHMs tllf line which
circ'UinscrilH's the jtiihciul <lt>|)iii-tinfiit, niid to trt-uil on
h'^'islutivt' j;i'ouii<l.
Ill courts of ju.stict' ill Kii;^'hiinl ninl otht r Ihitish colonics,
our liiw (statutory iukI coimiiioii) is I'lititlol to iit It'ust us
lull r('Con;iiitioii mill ctfl'ct us tin* laws of uiiy l"or»'i;;ii iiutiou
— ill iicconliiiit't' with the piinciph's of coinity {«/). On
ii|»|K'als to Mcr Majesty in Ihr Privy Council, Ju<licial
ii'('on;nitioii is, ol" course, acconleil them (r) ; in other cases,
they must he proNi'd as /(/«7, hut it shollM he nhserved that
ill ivy;ar«l to the proot' ol' our law,iisemho<Iie<l in le^^islative
enactment, the (ith section ( /) of the ( 'oloiiial Laws \'ali<lit\
Act, lS(i.'), provides for a simple inethtnl of proof, \i/., a
copy of the Act, certified as such hy the proper officer of
the lee;islature whose enactment it is.
In a late case (//) hefore the .Judicial Committee of the
Privy Council, it was very hroadly laid down hy Sir K.
Phillimore. in deliverine; the jud;,niient of the Committee,
that the law contained in an Act of the le<>islature of a
ci)lony, and ratified hy the exjM'ess sanction of her Majesty,
is, in every ca.se to which it is u))plicahle, of hindiii;;
authority, e(|ually in the <>)ue«'n's Hieh Courts in Kn^land,
and in Vice-Admiraltv Courts in the colonies. W'v are safe
therefore in .saying that in an action in an Kn<;lish court,
or the court of another colony, the law of Canada, statutory
or common law, would, on proof in the manner hefore
indicated, he {^iveii effect to, either on the doctrine of
Comity, or on the strony;er doctrine enunciated in Redpath
V. Allen.
((/) Phillips V. Eyre, L. It. 4 Q. B. at p. '2U ; Rej?. v. Brierly, 14 O. R.
at p o'M.
(' ) Cameron v. Kyte, 3 Kuapp, P. C. at p. 34'5.
(0 -is ,v 29 Vic. c. fiS (Imp.). Is this section in force in the colonies ?
or docs it merely affect the method of proof in the Kinjli-ih courts ?
{:!) Redpath v. Allen, L. R. 4 P. C. 511.
PAirr III
TIIKOKIOINAf. GHOUP.
riTAITKIl X.
TIIK DIVISION OF THK VWAJ).
Ill till' I'liilit'r I'lmptfrM nt* tliis liook. tin- piactii'jil
Kiii'iit'SM tit' the MpluTt's n|' iiiitlmrity <>t' tlu' lt';;isliitivt' iiii<l
»'Xt't'Utivt' <lt'i»irtiiit'Mts of ;;.>v«'nuiii'Mt Ims It'i-ii iiisisti'«l
UlMM, ami tllf lt';,'ill SU|ili'll|jU'V of till' t'oniUT over till' liltt*'!'
|ioiiit»'<l out("). Kx|)i«'SM«'i| in unotln'r way ainl in rt't't'i-
ciu'i' to a y;ov»'niiiifnt of liiiiitt'il autlioi'itv, it may '»t' sai«l
that to tix tlu' splu>r»' of aiitli uity of the l«';^iMlativt' tlt'part-
iH'iit of such a ;(ov»'niiiu'nt, is to fix at the sanu' tijia* the
splu'ro of authority of the t'xecutiN*' <lt'i)artiiu'nt of that
;,fov»'rmii('ut. A[)i)lyin;;' that priiiciph' to the Caiiaclian
t'oiistitutioii, it will 1k' at oiicv seen how iiu|)(a'taiit it is to
Hx, if possiMf. the exact line which is to <livitle. fo»' N';;is-
lativc puj'poses, the HeM of colonial authority hetween the
Dominion parliament ami the I'rovincial le;;islative asseni-
lilies. For, that line fomul, we have likewise cstaltlishetl
tlu' line of division hetween the I)omini(a» and the Pro-
vinces for the pi'rposes of executive ;;overnnient.
Before enterini; upon an examination in detail of the
sections of the B. N. A. Act which provide for the distribu-
tion of lej^islative power, we may shortly advert to the
laws and lei^al institutions existin^j in the different prov-
inces at the time the B. N. A. Act took ett'ect, an<l to some
;;eneral principles which have heen authoritatively estab-
lished in reference to the nature of the divisiiai effected by
the Act.
(d) See ante, p. 12, p. 22, et seq., p. 4(t, ,t neq., and Chap. VI.
200 THE CANADIAN CONSTriTTIoN. '
1. — WIiL'ii till' Union t(t(»k crt't'ct, tlvt-ro was in fxistcnce
in each of the individual pi'ovinces, a k'^-al sysU-ni — a
'■l»(»dv" oi' laws and k'^'al institutions. -Bv sec. 12!) of tliu
H. N. A. Act, it was provided that all laws, etc., in existence
in the diti'ei'ent provinces at the time of the Union, "shall
continue .... as if the Union had not heen made,
suhject nevertheless (except with respect to such as are
enacted It}' or exist under Acts t)f the parliament of Ciieat
Britain, or of the parliament of the United Kin;^dom of
(Jreat Britain and Irelan<l) to l»e repealed, ahojished or
altered hy the parliament of Canada, or hy the Le;,nslature
of the respective province, (iranuHnr/ to f/ic <iaf/i(irlf>/ of
the jun'llii itipnf or of ilmt hyislnturi' vixlcr this Act."
This mass of laws and lei^al institutions mav he con-
sidered tlie raw material, so to speak, upon which the legis-
latures of the Dominion and the respective provinces were
to operate, cdc/i accoi'd i luj io its (infhoritt/ iiinlcr ihc
H. N. A. Art; and it must be Itorne in mind that we have
laws (connnon law and statutory enactments) on many
sultjects which have come down to us from pre-Confedera-
tion days, and these can l»e repealed or altered only l»y that
le«^islati\e Ijody which could now, were they non-existent,
enact tliem (/>). The division, therefore, efi'ected hy the
B. N. A. Act, was a present division of the whole l);)dy of
existing Imv (in its widest sense), as well as a division of
the field for future exercise of authority (r). Of course,
tlie l»ody of law in existence when the B. N. A. Act came
into force v.'as of provincial creation, Imt at once upon that
Act takiui^' effect, that portion of existing laws, etc., which
fell within the sphere of authority of the Doniinion par-
liament, Itecame Avhat we may call a body of Dominion
law, while the remainder might, not inaptl}', 1)6 designated
a body of provincial hiws.
{h) Dobie V. Temporalitijs Board, 7 App. Cai. lan.
(c) Sea a)\te, pp. 4:), 50.
THK DIVISION (»K THK FIKI.Ii. 2Jl
II. — Tln' (lirlsioii ('(^'crfcil hi/ tlir li. X. A. Art 1m f.v-
Jid list ire. The limitatioUM upnii our |)ow(M's of si'lf-yovri-u-
iiifiit, nrisiny from our eoloniul status, havr \tvvu alri-ady
dealt with ('/). Tlif power to leeislate alony certain lines
and in reference to ci'i'tain matters, deemed to l>e mattei's
of Imperial conc<'rn, has heen ex|)ressly oi- is implie(lly
withheld: l>ut of all the matters in respect to which we
have ])ower — i.e., of the entire field of self-yovernment
alloted to US — the H. X. A. Act etiects a division, r>ssiynini>'
certain classes of those mattei's to tlie Provincial assem-
lilies, and the Italance to the parliament of Canada.
The following passan'e fi'om a I'ecent judninent of the
.ludicial C'onnnittee of the Privy Council discloses the con-
tenti(»n to the contrary which had Iteen raised, ami finally
disposes of it : {i)
" It only remains to refer to some of the grounds taken by
the learned judges of the Lower Courts which have been strongly
ohjected to at the r)ar It has been suggested
that the provincial legislatures possess powers of legislation
either inherent in them, or dating from a time anterior to the
Federation Act, and not taken away by that Act. Their Lord-
ships have not thought it necessary to call on the respondent's
counsel, and therefore possibly have not heard all that may be
said in support of such views. But the judgments below are so
carefully reasoned, and the citation and discussion of them here
has been so full and elaborate, that their Lordships feel justified
in expressing their present dissent. . . They adhere to the
view which has always been taken by this Committee, that the
Federation Act exliausts the whole range of legislative power,
and that whatever is not thereby given to the provincial legisla-
tures, rests with the Parliament (t'y
III. — The parliament of Canada and the provincial
assenddies possess, each within the sphere assiMiied t(» it,
(d) See Chap. IX.
((') Bank of Toronto v. Lambe, 12 App. Cas. at p. 587.
(.0 See further upon this point, the notes to the oi;ening clause of
*ec, SU jwst.
202 THE CANADIAN' ("oNsTITrTIoN.
plenary powers of le;;'islation. This nttrilmte <»!' coloniur
le-iislatures has heeii examined at some length in the last
chapter, and we need here only eniphasize this fact, that
there is no distinction whatever, in this re«;ard, hetween
tlie Dominion parliament and theassend»lies of the different
provinces. The principle has been applied alike to the
le;^nslative power of each — to nphold, for example, the
" local option " clauses of the Canada Temperance Act (,'/),
and the delegation of power to license connjiissioneix, \uider
the Ontario Licpior License Acts (A).
IV. — In a country under the rule of law, it necessarily
devolves upon the courts which administer law, to ent|uire
and determine, in any ^iven case, whether an Act of a
ley:islature havin<>' authority over a limited ran<>e of suli-
ject matters, is within or without its powers, — is or is not
l<iw. As we have already pointed (ait (/), lon^' he fore the
ptussa<(e of tlie B. N. A. Act, English and Colonial judges had
1)een called on to consider colonial Acts, and to determine
the (piestion of their legal validity ; and the duty of the
courts to determine like (|uesti(ms under the B. X. A.
Act, was no new jurisdiction, although full appreciation of
the extent of their judicial authority in this regard, seems
to have (Uiwned on Canadian judges with something- like
surprise. It serves to indicate how small is the range of
matters with which colonial legislatures are unaVjle to deal>^
that we find colonial ju<lges almost forgetting' that any
limits exist (J). After twenty-five yeai^s of experience
(//) Russell V. Reg., 7 App. Cas. 829.
(/() Hodge V. Reg., 9 App. Cas. 117. See also Reg. v. O'Rourke, 1
O. R. 405, 32 U.C. C. P. 388, as to the adoption by the Dominion Parlia-
ment, for purposes of criminal procedure, of Provincial Acts respecting
jurors.
(i) See Chap. IV. and Chap. IX., ante.
(j) In this connection we may point out that in L'Union St. Jacques
V. Belisle, L. R. 6 P. C. 31, the reporter states the question involved ta
be whether the Act there impugned was or was not repugnont to the
B. N. A. Act—& strictly accurate way of putting it, but in these days not
followed.
THK DIVISION OK THK h'lELI). 2011
un<U'r our tV'<U'nil syHtt'in, the (.'xeix'i.sc l»y tlio t'lmrtH of
this function, cxciti'.s no ivnuirk, and the ciiHes on this hrancli
of Can»i<Uan Jurispnulence now till many volumes. Under
the lepil system of the British Empire, the " last word "
upon these (piestions rests with the Judicial Committee of
the Privy Council, and so far as that tribunal has spoken-
and so far as the principles enunciated in its judt^jments
extend, its decisions are bindinj;' upon <air ' urts. In a
number of cases they luive determined the po. . m of tlie
line of division in rej^ard to the subject mutters immediately
involved in those cases, and they liave likewise enunciated
certain principles which must hereafter guide us in deter-
mining the line of division as to many subject mattei-s with
which they have not directly dealt. Our tii-st duty there-
fore is to examine tlieir ju<ljjfments. Next in onler of
authority will conje the judj^nuents of the Supreme Court
of Canada; then," for each province, the provincial Court
of final resort in the province, and so on tlu.mgh the whole
ranin'e of the judiciary.
Apart from certain sections which confer legislative
powers in reference to the conduct of business in the dif-
ferent legislatures (/.), and in reference to elections (I), the
• listi'ibution of legislative power is provided foi", in sections
!U-{)5 of the B. N. A. Act. We deal in this place with
sections 91 and 92 only, and have, for convenience of
reference an<l comparison, placed them side by side.
(k) See sees. 18, 35, 47, 78, 87, etc.; see also 28 & 29 Vic. c. 63, s. 5
(Imp.), and particularly notes to sec. 35.
(/) See notes to sec3. 40, 41, 51, 80, 83, and 84, post.
20+ tiik caxaihax (•(•nstititiox.
Powers of thk Pammamext.
91. Tt nIiiiII 1m- liiwfiil fur tlic <^iu'i-ii, liy mid witli tlif a<lvi(!f and cuiisont of
tlif SciiHtc and lloiiMf (if f'oniiiions, to iiiakf LawH for tlic pfacc, ordtT, iuid
g(K»d Kovfiiiint'iit (if Canada, in plation to all matters not foniiiiK within the
chiMws (if MulijcftH liy this Act assigned cxcliisivjdy to the LoKi'^l'ituri's of the
Provinces; and for preater certainty. Init not so as to restrict the ^^eneiality
of the foregoin).? terms of this section, it is hereliy declared that (notwith-
standing' anythin),' in this Act) the exclusive Legislative Anth(aity of the
I'arliamtnt of Canada extends to all matters coining within the classes of
>u))jt'cts next hereinafter enumerated ; that is to say : —
1. The puhlic del)t and imiperty.
2. The regulation of trade and commerce.
M. The raising of nmney by any mode or system of taxation.
1. The Itorrowing of money on the public credit.
."i. Postal service.
i\. Tlie census and statistics,
7. Militia, military and naval service, and defence.
M. The fixing of and providing for the salaries and allowances of civil .ind
other olticers of the (lovernmeiit of Canada,
it. Beacons, buoys, ligiithouses, and Salile Island.
10. Navigation and shipping.
11. (Quarantine and the establishment and maintenance of Marine Hos-
pitals.
12. Sea Coast and inland fisheries.
1.3. Ferries between a Province and any Uritish or Foreign Cuuntiy, or
between two Provinces.
14. Currency and coinage.
1'). Banking, incori)oration (jf banks, and the issue of paper money.
16. Savings Banks.
17. Weights and measures.
18. Bills of exchange and promissory notes.
lit. Interest.
20. Legal tender.
21. Bankruptfjy and Insolvency.
22. Patents of invention and discovery.
23. Collyright^.
24. Indians and lands reserved for the Indians.
25. Naturalization and aliens.
2(5. Marriage and Divorce.
27. The Criminal Law, except the Constitution of Courts of Criminal Jur-
isdiction, but including the procedure in criminal matters.
28. The establishmeiit, maintenance, and management of penitentiaries.
2!), Such Classes of subjects as are expressly excepted in the enumeration
of the classes of subjects by this Act assigned e.xclusivel}' to the
Legislatures of the Provinces.
And any matter coming within any of the classes of subjects enumerated in
this section shall not be deemed to come within the class of matters of a local
or i)rivate nature comprised in the enumeration of the classes of .subjects by
this Act assigned exclusively to the Legislatures of tiie Provinces.
THE DIVISION' ((F llji; IMKM). 205
KXCM'SIVIC l*(»Wi:i{S <»K I'UOVIXCIAL LKfJlSl.ATrilKS.
92. Ill t'licli I'roviiien tli»' Li-Ri^latiin'iiiay t'xeliiHivHly make Iuwh in rcliitioii
to iiiattiTM ciiniiiiK within the classfs of subjoctM m-xt lii'ivinafttr enunii-rated,
that is to say : -
1. The ataeiulineiit from tiiiu' to time, iiotwitlistandinHr anytliiuK in tliis
Aft, of tlu' Constitution of the I'rovinw', exct'pt aM ivKanN tin-
ottiee of Iiitnit»'imnt(to' <'rnor.
'J. Direct taxation uitliin tlic Province in order to t!i« raising of a revenuf
for I'rovinoial jmriioseM.
A. The l)orrowinf< of money on tlie sole credit of the Provinci-.
4. 'I'iie estalilislinient and tenure of l'ro\incial ortices, and tlie ii|i|ioint-
ment and paj-ment of Provincial otticers.
T). Tlie manaj,'einent and sale of the public lands helongin^r to the Province
und tlie tiniher and wood thereon.
(I. The estahlishment, maintenance and ninnajirement of Public and l{e
fornuvtory Prisons in and for the Province.
7. The establishment, maintenance, and management of Hospitals,
AsyluniH, Charities, and Eleemosynary Institutions in and for the
Province, other than Marine Hospitals.
5. Mimicipal Tn.stitutions in the Province.
il. .Shop, saloon, tavern, auctioneer, and other licenses in order to the
raisinjc of a Keveiuie for Provincial, Local, or Mimiciiial purposes.
10. Local works and undertakinj^s other than such as are of the following
classes, -
". Lines of steam or other ships, railways, canals, tele^craphs,
and other works and undertakinj^s connecting the
Province with any other or others of the Prcjvinces, or
extending i)eyond the limits of the Province ;
h. Lines of steamships between the Province and any IJritish
or foreign country ;
c Such works as, altliough wholly situate within the Province,
are before or after their execution declared by tho Parlia-
ment of Canada to be for the general advantage of
Canada, or for the advantage of two or more of the
Provinces.
11. Tht! incc)r|)oration of Companies with Provincial objects.
12. The solemnization of marriage in the Province.
13. Property and civil rights in the I'rovince.
14. 'liii. ;'dministrati(m of justice in the Province, including the constitu-
tiui., maintenance and organization of Provincial Courts, both of
civil and of criminal jurisdiction, and including procedure in civil
matters in those Courts,
li"). The imposition of punishment l>y fine, penalty, or inn)ri.sonment for
enforcing any law of the Province made in relation to any matter
coming within any of the classes of sulijects enumerated in thi.s
section.
10. (ienerally all matters of a nu>rely local or private nature in the
Province.
'20G THE CANADIAN C'(»NSTITrTl<iN.
A penisal, the nioHt curHoiy, of the cliis.st's oimnicj-iited
in tlu- various Hult-st'ctioiiH ( m ) oF tlu'so two si-ctions, reNt'iils
tliiit if, in evory cusc, tlic full niitinul incnninj;- is to lu' <;ivun
to tlu' words I'niployi'd, the classi's nuist incvitaKIy o\t'r-
la|). Hut the Act is cii'ar tl\at tlu* Juiistliction in each
case is r-.n/^'N/rr (/*), and, thrri'foiv, in the case of one of
the sections, or of the other, or of l»oth, that full natuivil
meanin;;' cannot he <;iven. If either one of the sections is
to he so read as to ^ive to the lan^uat;'i' used in every one
of its suh-.sections its full natural meaning, the other sectiiui
must necessarily he read as a suhoi'dinate secti<»n, and the
meaning of its various suh-st'ctions so limited as to exclude
those suhject matters monopolized hy the various suh-sec-
tions of the favored section. If neither section is t<» he
set up as a favorite, l»y what rule or rules are we to he
j,>uided in reconcilinjj;' them :* For, reconcile them we must,
if the jurisdiction in eacli case is exclusive. The first
method was favored hy the earlier decisions of our Supreme
Coui't. Section f)l was set up as the predominant section,
and this fornuila was suggested, and practically adopted
hy the majority of the court, as an unerring guide to the
detei'mination of tlie line (tf division as to any given suh-
ject matter :
" All suhjects of whatever nature not exclusively assigned to
the local legislatures, are placed under the supreme control of
the Dominion parliament ; and no matter is exclusively assigned
to the local legislatures, unless it be within one of the subjects
expressly enumerated in section 92, tnul tit the same tiinr dnrs ni>t
inrolie mv/ interj'ereuci' with muj of the suhjects emoiierateil in
Ht'ction 91" (<>).
(m) Strictly speaking, they are not sub-sections, but it is convenient
to speak of them as such.
(h) See ante, p. 67, for a suggested interpretation of this word. In
addition to the authorities there referred to, see Todd, " Pari. Gov. Brit.
Col." p. 189, et seq.
(o) Per Gwynne, J., in City of Frederickton v. Reg. 3 S. C. R. at p.
568; and see Citizens v. Parsons, 4 S. C. R. at p. 330.
IIIK DIVISION (»r THK I'IKLK. 207
H)i"l tilis I'iyid t'oniiula Iti-eii tiimlly »ulo[)t»'<l, tlu' pusi-
tiiili nl' H prdVilHM' would llUM' iict'll tllllt of U VtTy llliliol'
iMiiiiiciioility, mill tin- miioii ot* the pro\inces K'^islutiNc
nitlicr tliiui tViU'iJil. Its mloptioij ity the* Supivuif Court
WHS Ijii'^t'Iy owinn to a iiiise(»nstrut'tion of tlu- closiiijn' words
of srt'tion !M. " TIk' clfiss of ninttt'i's of n local ^tv j>ri\att'
iiatiirc ' WHS lit'ld to wW'V to and cmhracc the whole of the
suit-sections of sectif»ii !>2, altliou^ili the siny,"ulai' miniheris
used in immediate contradistincti(»n to the plural — "the
class . . , coni[)rised in the eiunneration of the classes"
— and although this i;ranMnaticHl reference to suh-sectioii
Ktonlv of section M2, had heen dearly I'ecoynizi'd in an
eai'lier jinl^inent of the Judicial Committee of the I'rivy
Council (y). The lahors of tlu' courts would certainly
ha\t' lieei) matej-ially lightened, had that Cianmittee ac-
cepted this formula. While, in a sense, it reconciled sections
U] ami {)2, it did away with any necessity for an attempt
to reconcile their res[)ective sul (-sections. F(trtunateiy for
the provinces, the Connnittee has decisively rejected this
formula, while at the same time (as we shall see) adopting'
it up to a certain point as a meth(jd of incpiiry. The view
of the Connnittee is set f»ut in a case (7) which nuist now
lie consiilered classic on this vital question, in the ft)llowing
ianyuau'e:
" The scheme of this legislation, as expressed in the first
branch of section 91, is to give to the Dominion parliament,
authority to make laws for the good government of Canada in all
matters not coming within the classes of subjects assigned
exclusively to the provincial legislature. If the 91st section had
stopped here, and if the classes of subjects enumerated in section
92, had been altogether distinct and different from those in sec-
tion 91, no conflict of legislative authority could have arisen.
The provincial legislatures would have had exclusive legislative
(/>) L'Union St, Jacques v. Belisle, L. R. 0 P. C. at p. 3.5. See the
reporter's way of putting it at p. 33 ; and see notes to the final clause of
sec. 91, post.
i'l) Citizens v. Parsons, 7 App. Cas. 96, at p. 107, et seq.
20H IHK ( ANAIU.W < itNsini lloS.
power over the sixteen cliiaseH of Hiil)jeet:j iiHsi^^'neil to tluin, and
tlie HoMiinion parliament exulu.sivo power over uM othci' niatter-<
relating' to the ^'ootl ^'ovennnent ot' Canathi. Hut it must have
hecM t'oieseen thiit this sharp and definite distinction hail not
heen and could not he attained, and that some of the classes of
Huhjects assif,'ned to the provincial !e<^'islatures unavoidahly ran
into, and were emhraced hy some of the enumerated classes of
subjects in section 1)1 ; henct! an endeavor appears to havt; heen
madt' to provide for casosof apparent conflict ; and it would seem
that with this object it was declared in the second hninch of the
Ulst section, " for ;,'reater certainty, hut not so as to restrict the
}j;enerality of tin; forei^'oiiif,' tei'ms of this section," that (notwith-
standing anything in the Act) the exclusive legislative authority
of the parliament of Canada should extend to all matters coming
within the classes of subjects er. imerated in that section. With
the same object, apparently, the paragraph at the end of section
1)1 was introduced, though it may be observed that this para-
graph applies in its gramnuitical construction only to No. 1(5 of
section 5)2.
" Notwithstanding this endeavor to give pro-eminence to the
Dominion parliament in cases of a conflict of powers, it is obvlou;*
that in some cases where this apparent conflict exists, the legis-
lature could not have intended that the powers exclusively as-
signed to the provincial legislature, should he absorbed in those
given to the Dominion parliament. Take as one instance, the sub-
ject 'marriage Jind divorce,' contained in the enumeration of
subjects in section 91 ; it is evident that solemnization of mar-
riage would come within tliis general description ; yet 'solemni-
zation of marriage in tluj province ' is enumerated among the
classes of subjects in section SJ2, and no one can doubt, notwith-
standing the general language of section !)1, that tliis subject is
still within the exclusive authority of the legislatures of the
provinces (r). So ' the raising of money by any mode or system of
taxation ' is enumerated among the classes of subjects in section
01 ; hut, though the description is sutlioiently large and general
to include ' direct taxation within the province, in order to the
raising of a revenue for provincial purposes,' assigned to the
()•) See 3 B. C. R. at pp. .'>(>8'.», wliere Mr. Justice Gwynne seelts to lit
the formula above (juoted to tlicse two sub-sections.
riii: DIVISION (»t' iiiK riKi.h. 2()!>
proviiK'iiil lo;,'iHl:ituret» by section !)2, it obviously could not Imvo
boon iiittiitlL'tl thnt in this instiuieo also, the general powt-r should
ovfi-ridt' tho piu'liculiir ono {■■<). With rt',L,'ar<l to certain classes
of subjects, thorefoi't', generally described in section i)l, IcLjisla-
tive |ii)\ver may reside as to some matters fallinj.; within the
^'eneral description of these subjects, in the le<,'islatures of the
provinces. In these cases it is the duty of tiio courts, however
dirtieult it may be, to ascertain in what degrtfe, and to what ox*
teut, authority to deal with matters fallint,' within these classes
of subjects exists in eacli legislalun', and to detine in the partic-
ular case before them, the limits of tiieir respective ))owers. it
could not have been the intention that a contlict should exist ;
and in order to prevent such a result, tlw tno sirtions mnst be nnil
tofii'tficr, ititil tfir liimiiitiiif of' mic iiitt'riintiil inul, n/nrr nevcssni't/,
iimtlitiiul III/ that nf t/ir ntlnr. Ill this Way it may, in most cases,
be found possible to arrive at a reasonable and practical construc-
tion of the lanj,nm^'e of the sections, so as to reconcile the res-
pective powers they contain, and <,Mve etl'ect to all of them. In
performiiif,' this ditlicult duty, it will bo a wise course for those on
whom it is thrown, to decide each case which arises as best they
can, without entering,' more largely upon an interpretation of the
statute than is necessary for a decision of the particular (piestion
in hand.
The first question to be decided is, whether the Act impeached
in the present appeal (/) falls within any of the classes of sub-
jects enumerated in section 92, and assigned exclusively to the
legislatures of the provinces ; for if it does not, it can be of no
validity, and no other question would then arise. It is only when
an Act of the provincial legislature iirinid I'mie falls within one
of these classes of subjects, that the further (luestions arise, viz :
whether, notwithstanding this is so, the subject of the Act does
not also fall within one of the enumerated classes of subjects in
section !)!, and nhitlwr tlie jxtirer of the jiroriurini It'i/islntuiy is, nr
in not, t/icrcliii ttri'rhonu'."
The purt italiciztMl constitutes the essential «listincti()n
between the formula alrea«ly (pioted, and tlie method of
eii(|nii'y adopted hy the Judicial Coniinittoo of tliu Privy
(•-) See notes fo sec. 91, s-s. 3, post, (0 A provincial Act.
Can. Con.— 14
210 ' r»iK <AN.\in.\N rnNsiin rrn\.
(.^»Ull('il. 'I'lif tuniiulii <liil iiwav witli nil iM-ccsMitN- \'ur tin*
tliinl tiHUiiiy, mul, l>y t'oiiM»'(|M«'iK't', with, us \vr lia\r >n'\i\,
all iH'CfHsity Jul- u ri'C'<»nfiliiitii>ii nf tli*- MiiimiM Huli-M»'i'tii»iis
of Ht'ctitniN !M utnl !»2.
Till' stjitiitf iiii|»ii!niir(| ill tilt' C'liHr h'oiii which wr ha\f
«|Ui>t«'<l, was a prnviiicial Act, Imt in aimtlHT casr in the
Haiiit' \oluiiit' (<»). the MTV Naiin- intthnij of enquiry was
a<l<»|)t»'il ill rt'ft'rciicc to a Duiiiinioii Act, ami has sine*' Imtii
n-aHinii('<l Ky (Ik- sniii*' triluiiiMl as ]a'ii|u'i' in rcHin-tl toltnth
Ddiiiiiiioii and Provincial lt';;islation, 'i'hc j»ro|nit'ty of this
nit'thoil of riKinir}- was Unally tstalilishcil when tlu'
I'xhaustivt' character of the division t'tli'ctt'ti hy the li, N. A.
Act was tIcHnitcIv enunciated (').
Altlmunh the .hulicial ('(»iiiniitt f the I'riNy Council
hm fre(|Uentl\" reiterated the caution against ■ eiiterinj'-
iih'ie lai'u'ely upon an interpretatiiui of the statute than is
necesMary for the decision of the |»artieular «|Uestion in
hand, an<l in a late case O'V has laid <lown, tliatc«airtsof law
'■ must treat the jaovisions of tiie Act in (|Uestion liy the
same metht>ds of construction and ex)>osition which tlu-y
ajiply to other statutes," their iud;^inents do lay down a
iiumher of rules of construction applicalile to the elucidation
<»f these two sections of the H. N. A. Act, which, even if not
exclusively applicalde to this statute, are certainly peculiarly
helpful in interpreting its meaning'.
(a) T/ie sect lolls htnsf hr rt'iiil tdi/cl/wr, ti ml the l<i iif/niii/c
>i)f thf (Htf I Dfci'pretcil mnl, ir/tcrc iwccisoi't/, itu)d[f\c(l hi/
that off/if i>f/irr(j').
This rule is not t(» he limited to a comparison and
reconciliation of one suh-sectioii of section fH, with an
jip})arently contiictinn- suh-sectitm (»f section 02. In order
(u) Russell V. Reg., 7 App Cas H'2'.i ; at p. !^3I1.
(i) See ante, p. "201.
(ic) Bank of Toronto v. Lambe, 1"2 App. Cas. at p. 57!».
(.t) Citizens v. Parsons, 7 App. Cas. S»0 ; see the entice passage quoted,
HJite, p. '207, ('( neq.
TIIF. hfVlHloV OK THF. FIELD 211
in arrivi' at tin- iiifiiiiin;; nf any sult-Hrctioii of (say) section
Ml, tin- oIImt Mul»-H«'cti<»ns (if tliat saiiic srctiMn imist lu*
fxainiiinl. As a rfsult <»t' such rxainiimtion, there h<is hec'ii
siiLiyt'stcM what may I'e callefl a sul>-nile nf eoiistriK'tiou
which has Ik'cii a))|>lieil in a uuiiiIht uf caneN to limit the
M('u|ie of Hotiie, at least, ol" the suh-sectiuus nf sec'tiitll !M.
Ill Idle of the earliest cases (//) which came hefure the
.liniieiiil ( 'omiiiitt«'e of the l'ri\y Council, iiiMiKini;' con-
siijeiation of suh-section 21, of section MI, — " liankruptcy
)in<l insolvencN' " — the C'onunittee speaUini'' ^eneraiU' of
section Ml sav :
" Their Lonlships ol)Herve that the scheme of eninneratiou
in tliat section is to mention various ciitej,'orie3 of general
Huiijects which nuiy he dealt with hy le;,'islation. There is no
iutliciition in uni/ /■>^><^/»<vof anythin<,' heiu},' contemplated, except
what may he properly described us general lej,'islation ; such
le^'islation as is well expressi'd hy Mr. Justice Caron, when he
speaks of the ^'cneral laws governing Faillite, hankruptcy and
insolvency, all which are well-known legal terms expressing
systems of legislation, with which the subjects of this country
and probably of most other civilized countries are perfectly
familiar.
This lany'uaye was used, as we have said, in ivfeivncc
to section Ml jjfcnerally, and has never been adversely
criticized in sul)sei|uent jud;;inents of the Committee. The
principle has been applied to a numher of the other huI>-
sections of section Ml. In the very case from which the
lule is (juoted, the meanine- of the terms, " regulation of
trade and connnerce " (:) was restricted: (1) because their
collocation with classes of sulijects «»f national and general
Concern, affords an indication that reuulations relatin}"' to
general trade and commerce were in the mind of the legis-
lature when conferrini; this power on the Dominion par-
liament: and (2) because unless intended to have a limited
meaning they would have rendered unnecessary' the .sub-
(;/) L'Union St. Jacques v. Belisle. L. R. 6 P. C. 31 at p. 36.
(:) 9-9. '2; &e3 the notes to this s-s.
•212 Till; CANADIAN CUN.M 1 1 L TH)N.
MfctioiiH ilt'iiliiiy with, «'.//., I>iiiikiny, \v«'i;;litH uimI inriiMUiVH,
ii«';ii»tiiil)l«' iiiHtiMiUH'iitM, «'t«'. ("). So ill ri'ft'i«'iic«' to li'y;iHlu-
tioii I'l'liitiii;* to imvi^jiitioii uiitl sliipiiiiiM (/«); hut jiiMt liow
t'ur this I'uh' of coiiMtnictioii is to he iipplinl to I'uch our of
tht' vjiiioiis suh-sfctioiis ol' s»'('tioii !M, is iiitittci' of i|oiilit>
us a rcltit'iicr to the \iirions cjiscs which hiivr uiisfii miii
hrj'll i|t'C'i<h'tl UlltliT those VlU'ioUS Mllh-srct i< »MS will fhsclosf.
Ki'Vi'i'tiii;;' howt'VtT to the nih' iil>ov»' liiid <Iowm, so Ihp
us it I'lijoiiis II coiiipurisoii of th«* vurioiis siih-scctions of
section !M with uppnreiitly coiitlictiiiy suh-Heetions of
section !)2, Mini rirr nrsit, we liiuy point out tliut the
pussu^je we hiiM' (|Uote<l from Citi/.eiis V Pui-Hoiis uHiinl.H
two inMtances of its npplicution, uiul we nee<| not in thin
pluce eiilur^ie Upon the rule, US Very few cases urise which
<lo not cull for its upplicutioii.
(1») /it niulir In ili'i'ii'r ill llir jirofU'i' iiiril ii I inf nf tin'
lun'imls siih-srri iDiis itf l/irsr I irit serf imis, itlhri' niii'lx nf lln'
Ii. A. A. All, ililil nf nl/ii'f I III jiri'iill Alls, in iiili'i uiillri'iil
iiiil 11 III' Innhril ill (r).
K<»i' exuiiiple, in construing- suh-sectioii 2 of sectit»u !)l,
the iiieunin^ propi'r to he ;^iven to the terms, "re;^ulution of
tru<le uml commerce," wum to a certain extent determiiu'tl
liy the meaning' ^iveii to a somewhat similar [ihra.se in the
Union Act which Joined Scotland to Kn;L;'land in legislative
union (</). i^^^^^ the meanine' t > he eivj-n to the J.Sth suh-
section of ,scction 1)2, "pro[)erty and civil rij^hts in tlie pro-
vince," wa.s elucidated l>y reference to tlie saim; phra.se in
section 1)4 of the \^. X. A. Act, and in section H of the
(^lehec Act, 1774 (^')-
(c) Thi: Inn: nulnrr uinl c/m I'lirlrr of flu'. Icfftsluf inn i ii
llii' ixii'tlciild r iiisfuiiiT II ii(h'r il isciiHsioii, niiisf diii'ii ijx he.
{a) 7 App. Cu8. at p. 112.
(b) See notes to sec. 01, s-a. 10, pout.
(c) Citizens v. Parsons, 7 App. Cas. %.
((/) See the passage (pioted in the notes to sec. i)l, s-s. 2, pont.
(<') Sea note (e) ante, p. ltd ; and notes to sec. 92, s-s. 13, pout.
THK DIVISION OK TIIK KIKI.D. 2|.'i
ih fn'itii ni''f ill ni'ihr ^» iiMtri'ttt} II llir rliiHH of miUii'vt tit
vhli'h if I'fiilhf Itflniii/s, — (>»', In nfln'r il'miln, irjnil is f/if
jn'i niiifil iiiiiffrr itt'iilt ii'lf/i f (f).
Applying ^'''^ lulr nf coiiMtniclioii, tin- .linlit'iu! Cniii-
iiiittt I" tlic Privy Cotiiicil Ih'M («/) that tin- ( 'iiimiln Tt'iii-
pmiiK't' Aft wiiM tu»t IcHislittiuii on the Mulijfct of licenses
oi- ri'liitiiiy to cIn il riylitN in a pruN iiicr, Kiit m lu-rul li-yisln-
tiiMi tor tlif nrdci' a lit I muud yuxcrmin'iit of tlu' Doiniiiinij;—
that the Act r«'sp«'('tiii;;' iiiiifoiiii (•(aulitiniis in tir»' insinanct'
pnli('i«'M, was l«';;ishitinii rfMpi'ctin;^' " pruprrty and civil
liuhtM in thi' province," ami imt n-spcctin;;' "the rf;4nhitiun
<»f trade and cnniineicr" in thr proper Hcnsc of the hitter
Mtih-Hfctioii (A); — that the iinpn.sitinn of a stamp duty on
|Mtlici»'s i.f insurance was nut a lici'nse Act, alth(»u;;h so
caMiMl in the iinpuyiieil statute (/): — that an Act for h-vy-
in^' a rate to pay a honus to an existing;' railway, was not
an Act respectiiiy "local works and undertakin;;s," and
therefore was not sultject to tin* exci'ptions nu'utioned in
the sul»-secti<»n dealiny' with those matters (/") — that an Act
ill re;;ulation (»f the internal affairs of a particular corpora-
tion was not a hanUiuptcy or insoKency Act {/,•).
(d) If, mi the il III' nmsfriKtiini of the Act, n Ici/lKlnfi I'c
linii'/r 1)1' finniil to full irif/iin ilf/icr .srrtioii, if ivoiilil In'
(ji'lfi ii'i'oiiif to ili'iiji its r.iiKtrnri' Item Use hi/ mnnc fuissihi-
lilil it mil 11 In' iihnsi'il. or iiii'i/ limit tlir I'li iii/r which
ofliii'ii'isr iroiilil hi' ofH'ii to the other li'i/isliitti re (/).
(e) Siihji'rf.s which in one Hxpcct mu J for one inirpot^e
full within section U.i, may, in iinofhrr iis^tect uml for
'11 iiofhi'r jiii r/iosc, foil within section Ul (»*).
(/) Russell V. Re«., 7 App. Cas. 829; at p. 839.
,(,'/) Russell V. Reg., uhi xiipni.
•(/() Citizens / Parsons, 7 App. Cas. 0(5.
•(/) Reed v. Atty.-Genl. of Quebec, 10 App. Cas. 141.
.(j) Dow V. Black, L. R. 0 P. C. '272 ; see notes to sac. 92, s-s. 2.
■{k) L'Union St. Jacques v. Bolisle, L. R. 0 P. C. 31.
(l) Bank of Toronto v. Lambe, 12 App. Cas. at p. 587.
^w) Hodge V. Reg., U App. Cas. at p. 130,
214 THE CANADIAX COXSTITrTIOX.
Wo (U'lil witli thi'se two nih's ti»<jvtlu'i", l^'ouuso tlu'V
both siiiij^vst tho oxistt'iJC*' of possibly coiicunvnt powers ( //)•
probably the iii<»st jK'rpk'xiiii;' i|nc'sti<»ii whieb arises uiuUr
these sections of the B. N. A. Act. In oi'dor to deal intel-
ligently with tliis (|iiestion, we must t ndeavor tf» <;et a dear
idea of the meaning of the plirases " nnifflrt of Itnrs," and
"concurrent jxuvcrn." Any case which conies u]) tor
judicial (lecision involves the application of law to facts-
The law applicable may i)e uiujuestionecb and the dispute
be aH to the facts, or, the facts bein<^' determined, the dis-
pute may be as to the law applicable tliereto. This latter
aspect is the one with which we have to deal. As Von
Savigny puts it, out of any given state of facts aiise
" legal relations," one or more, capable presumedly of a
definite, ab.solutely correct determination. As to any one
of these legal relati(ais there cannot l>e a contiict of law-
Of any nuniber of laws put forward as determining the
" legal relation," one only is the law which governs. The
views of advocates, and even judges, may conflict, but the
law though it may l»e, from time to time, varied at the will
of the law-making body in tlie state, is, at any given moment
of time, a thing certain. It follows that there cannot be
two statutes (k^termining, in «lifierent ways, any one of the
legal relations which is to arise from any given state of
facts. If there be two statutes purporting .so to do, one of
them must l.)e of no legal effect, either because rejtealed by
the other (o), or by some rule of law made subordinate
thereto as to the particular legal relatimi. It follows, too,
that, unless ' chaos' ha.s come again,' there cannot be in
two legislative bodies concurrent powers of legislation in
reference to the .same legal relation, in the sense, that in
the same moment of time the enactment of each is law^ ( i>).
(n) Jessel, \I.R.,had su^jgested this, in Atty.-Gen. of Quebec v. Queen
Ins, Co., 3 App. Cas. at p, 1097.
(o) This is sometimes discussed as a conflict in tn»w ; the other as a
conflict in space.
(p) See however per Wilson, J., in Reg, v. Taylor, 3G U. C. Q. B. at
p. 206.
THi: KIVISION (»K TIIK FIELD. 215
This is rec(»;;iiizi'<l in tlif li. N. A. Aet, lor in SL'cti<»n !>•';,
xvlitTf puwors of U'j^isliitioii aiv^^'ivfu, over the .suiiie snlijt'Ct
inattfr, to lioth the Doiiiinictn an<l the Provincial Ic^isla-
tureH. there is the express provision that the legislation is
not to he concurrent; that the enactment <»t" a Provincial
lejjislature is to 1>e law (»nlv in the altsence of Dominion leu-
islation upon the suhject matter. The first of the two rules,
at the head of this para;.ira])h, would seem to indicate that
in the view of the Judicial Connaittee of the Pri\ y Coun-
cil, the ahsence of let;islatit»n hy oiu' legislature, Dominion m-
provincial, u|ion the particular suhject matter may inci'easc
the ran^'e open t(» the othei". This view has to he reconciled
with the use of the term "exclusive powoi'," in reference to
each enumeration (tf clas.ses of subjects: or, if there is tio.
l)ossihle mode of reconciliation, the view of the Privy C<aincil
must he an unsoun<l ohifci'. The way of esca})e seems to lie
su^nested l>v the second of the I'ules at the head of this
[)arai;i'a[)h. The different aspects any ^^iven suhject may
jiresent, have reference to the different 'le<^al relations' tliat
may arise, or (from a le;;'islative standpoint) 1»l' created in
eoiniection with that suhject. Now, those two sections of
the B. X. A. Act, deal with the various enumerated classes
of suhjects, not as divisions of facts, 1 tut as divisions of le^al
relations. Insolvency, for example, is not a fact at all :
civil rights are not facts — hotli a)-e leu'al relations arisin!>'
out of a certain juxtaposition and co-relation of facts
Without unduly enlaru'inu- upon this theme it seems to us
that a correct appreciation of this principle of division will
help to make clear just in what sense legislation l)y one
legislature (Dominion or Provincial) may lessen the range
<»pei^ to the other ; in what sense the legislation of o)ie may
interfere with the leiiislation of the otlier. In the case from
which the first of the rules now being discusse<l is quoted^
that rule was applied to uphold the taxation of lianks by
provincial legislation (under section 02, s-s. 2), notwithstand-
ing that "banking, the incorporation of banks, and the issue
of paper money," is one of the classes of subjects assigned
21(1 THK CAXADIAN fnN'STITrTinN'.
to tlic cxclnsivi' kfii of tlic Doiniiiion parliaiiiciit. Should
the Dominion |)iirliaMit'nt n'|)fjil all cxistiny- laws u|)(»n this
hoad, the h'n'nl relation — a hank— would he non-existent,
could not l)e created hy provincial leuislation, and coidd
not he seized Upon, theret'oie, in ordei- to attach to it the
Further leyal relation of liahility to pay taxes t(» the j»ro-
\ incial treasury. And on the (»ther hand, an excessive tax
upon hanks nii<;ht possihly operate to prevent the co-
rtdation of facts ai'isiny- in any particular instance, upon
which l^oniinion legislation might attach. No suhject
matte)' has lieen more fruitful in produciny- cases for
decision under tlie B. X. A. Act, than the li(pior trattic (q),
The Jn<licial Connnittee of the Privy Council has in
effect held ( i') tliat the I)omini<»n parliament may create
such legal relations out of the facts of the li(|Uor traftic, as
to prevent the creation l)y provincial legislation (»f other
legal relations out of t!»e same facts: or perhaps we should
rather say, the Dominion i^arliament has power to prevent
the facts themselves from having an}' existence capable of
legislative ivcognition by a provincial legislature.
In an earlier case the extent of the power of the Do-
minion parliament along the line of bankruptcy an<l insol-
vency was authoritatively (enunciated by the same tribunal
(x), and the power of the provincial legislatures along the
same line, (now that we have no Dominion law upon this
subject) has been fre(|uently discussed. It is submitted
that in the absence of legislation by the Dominion parlia-
ment, creative of any such legal relation as bankruptcy
<»r insolveriicy, the provincial legislatures have full power
(under section 02, sub-section 13 — "property and civil rights
in the province ") to create such legal relations out of the
facts of commercial life as to ensure, if deemed expedietit,
[q] See notes to sec. 91, s s. 2, and sec. 92, s-s. 8 and 9.
(r) Russell v. Beg., 7 App. Cas. 829.
(s) Gushing v. Diipuy, 5 App. Cas. 409, at p. 415 ; and see L'Union
St. Jacques v. Belisle, L. R. G P. C. 31, at p. 3(.> ; and notes to sec. 91»
S-3. 21, vost.
THK DIVISION OK TMK KIKMi. 217
tilt- t'i|uitiil»K' ilistrihution (»t" tin- ('stutc of a man wli<»s«'
assfts do not covtT liis lialtilitics, and to onHiiiv also tlu' dis-
charge of the <l('l»toi' fi'oni tlu' lialancc <»f sncli lial»ilitit's.
In tlic aliHonce of legislation ]\y the Dominion, no set of
facts can constitute a le^al r«'lati(»n to l»c known as l)aid<-
niptcyo)- insolvency (t). By creatin<;' such a leyal relation,
to arise from such co-relation of facts as to the Dominion
parliament mi<iht seem meet, the })ower of the provincial
legislatures would he curtailed. Any attemjtt to state the
rsscnfiiil elements of l)ankruptcy and insolvency legislation
outside of a le;^islative definition of those terms, leaves one
ahout as nuich in the dark as d<tes Milton's (lescrii)tion ()f
Death.
(f) The /n'csutiipfton, In <ntt/ i/lrcn ctisc, is lu favoi' of
f/ic rulUHhj of (I U iti'juUfiH'd Act.
In the celebrated case (a) involving the validity of the
Dominion Controverted Elections Act, liS74, the Judicial
Committee f)f the Privy Council laid down the rule in this
lanuua»ie :
" It is not to be presumed that the legislature of the Dominion
lias exceeded its powers unless upon grounds really of a serious
character."
In numerous suhsequent cases the principle has been
invoked. One of the latest expressions of the rule is that
"in cases of doubt every possible presumption and intend-
ment will be made in favor of the constitutionality of the
Act" (r). It does nf)t apply to an Act, the language oi
which is unambiguous, and the effect (if the Act be held
valid) clearly l)eyond the competence of the legislature 1)}
which the Act was passed. It indicates, rather, a principle
of interpretation, and may be put thus : If possil)le such
a meaning will be given to a statute as to uphold its validity,
(t) " Persons who may become bankrupt or insolvent, according to
rules and definitions prescribed by law "— L. H. 6 P. C. at p. 36.
(") Valin V. Langlois, 5 App. Cas. 115.
(i) Reg. V. Wason, 17 O. A. R. 221 ; per Burton, J. A , at p. 235.
21H THE CAX.'DIAN rnXsTITrTloN.
for »i k';;islativi' Ixtdy must Ik' IicM t»» iiitoml to k('i'|) witliiii
its powHTs. No strong !• instancv of tlio ajiiilicatioii of tins
jiriiicijilf of iiiti'rpi'ctation couM \\v eit('<l than that aHonlnl
hy tlic very rt'cent case whicli canu' ln-fort' the Ju<lii'ial
(.'oininittt'o of the I'rivy Council, from New South Wales
( ir). The legislature of that colony lunl enacte<l :
" Whosoever bein^' marrieil, marries another person diu-ini,'
the life of the former husband or wife, wheresoever such seLoml
mnrria<,'e takes place, shall be liable to penal strvitude for seven
years."
The Lor«l Chancellor (Loril Halsltury), in <leliverinn the
jii«l«;nient of the Connnittoe, says:
In the first place it is necessary to construe the word 'whoso-
ever' ; and in its proper moaninj,' it comprehends all persons all
over the world, natives of whatever country. The next word which
is to be construed is ' wheresoever.' There is no limit of person
according to one construction of ' whosoever,' and the word
' v»'herescever," is equally universal in its application. Therefore,
if their Lordships construe the statute as it stands, and upon the
bare words, any person married to any other person, who marries
a second time anywhere in the habitable globe, is amenable to
the criminal jurisdiction of New South Wales, if he can be
caught in that colcny. That seems to their Lordships to be an
impcssible construction of the statute ; the colony can hii\e no
such jurisdiction, and their Lordships do not desire to attribute
to the colonial legislature an eti'ort to enlarge their jurisdiction
to such an extent as would be inconsistent with the powers com-
mitted to a colony, and, indeed, inconsistent with the most
familiar principles of international law. It therefore becomes
necessary to siiurli fm- liinitatiitiis to see what would be the
reasonable limitation to apply to words so general ; and their
Lordships take it, that the words, 'whosoever being married,'
mean, ' whosoever being married, and who is amenable, at the
time of the offence committed, to tlie jurisdiction of the colony of
New Soi'th Wales.' ' Wheresoever ' may
be read, ■ wheresoever in this colony ' It appears
to their Lordships that the effect of giving the wider interpretation.
(if) Macleod v. Atty.-Genl. of N. S. W., A. C. (1891) loo.
THK l)IVISI(»\ OK THE FIKIJ). 'il!*
to tliis st;ituto wi)iilil 1).; .... that tho stiituto w.is iilti'i
tins of tlu' ctdoniiil legislatufo to pass. Tlu'ir liordships nw far
from siigijostiii!,' that t!iu le^'islaturi' of tho colony did mean to
^ive to themselves so wide a jurisdiction."
a m-at way of " K'ttiiii;' thiMii down easy I ' Wluit
tlu- colonial k'nislatm-i- tli<l rcallv intcml can hanllv
111' niatU'V of <l»ml»t, Init, in favor of validity, it was la'hl
that they conhl not be even .sn])i)ose<l to have intended to
yo lieyond the limits of their le;nislative competence (./•).
The H. X. A. Act, as we all know, is largely foinided
on the resolntions of the (^nehec Conference, and the
(juestioii naturally arises, how far may these resolutions lie
looUed at in inter[)retin^' the B. N. A. Act ^ Canadian
judges have fre(|Uently quoted from the resolutions, and
have utilized them to aid in the construction of douhtful
nassaye-* in the Act: hut it is worthy of note that the
triliunal of last resoi-t — the .ludici;d Connnittee of the
:*rivy ('(unicil — has never made reference to tlu-m in its
juduuients. In the di'cision of (piestions strictly Ie;^al —
such as would come liefore the c<turts rather than hefore
the lei.'.islatures — these resolutions can afi'ord, at all events
at this date, verv little assistance, and at tlie most onlv in
the altsence of all li^ht from other parts of the statute, or
in cases perhaps where these resolutions might clearly sup-
])ort or negative one of two possible interpretations. The
fact that the B. N. A. Act nnist i>e judicially interpreted as
expressing the will of the Imperial parliament, rather than
of the federating provinces, tends to make it very doubtful
(.r) See, also, Atty. Genl. for Canada v. Atty. Genl. of Ontario, '20
O. 11. at pp. '24o-(5, and 19 O. A. R. at p. SH. Many other canons of con-
struction will be found throu'^hout the cases which have involved con-
sideration of the B. N. A. Act. See notes to the various sections, po^t.
In this place wi hav3 endeavjrjd ti gather into one chapter the most
important of those rules which aid in the determination of the line of
ilivision between the Dominion and the Provinces. It should perhaps be
noticed here that the Judicial Committee of the Privy Council have not
been unmindful of the large political character of the B. N. A. Act.
See Atty. Genl. of Ont. v. Mercer, 8 App. Cas. at p. 773.
±H) THE CAXAIUAN foXJSTITrTlnN.
li«i\v far, if at all, it is j>ru|H'i' to i-ctVi' to tln'sc I'csolutioiis.
Tilt' t'aot, too, that tlu'y wcii- suli'n'fti'il to itn isioii liy tlif
<lt'k'yat('H tVoiii tlif \arious pi'oviut'cs, at London, n-ndrrs
tlicni still niorc nin't-lialilf as Iri/n/ HuiiU-s to the intcrprt'-
tation of tilt' l>. N. A. Act.
'rin'if is anotli«'i' matter wliicli merits int'ntion in this
jilacc, tlu' extent, namely, to wliicli we may avail ourselves
of the judicial decision.s of the Anu'iican CNaiits — particu-
laily of the Sui»i'eme Court of the Unite»l States — upitn
cases involvintj;' in(|uiry as to the powers of Con^i'e.ss and
the State leyislatures respectively. They are not, of
course, authorities l»indinn' u])on (an* ctairts, hut undei"
proper safeguards, are \-ery valuahle aids to the study of
4 air Act (//). The real ditficulty, the risk even, in utili/,in^'
them for purpo.ses of illustrati(»n, ai'ises from the difiei'ence
not only in the princii)le, lait also in the method of division.
There are certain matters on which neither tlie Dominic »n
pailiament, nor a provincial leyislature can legislate (z);
and so, under the American system, there are certain laws
which neither Congress nor a State legislature can pass.
Hut thei'e is not the slightest grcamd for comparison as to
the nature and character of the subjects which are with-
held from the legislative competency of our legislatures
and theirs, respiictively. We are debarred from legislating
upon certain matters, because those matters are deemed
to he of Imperial concern, while, on the contrary, the legis-
lative power of both Congress and the State legislatures is
circumscribL'd in favor of individual lil>erty (a): and in
some of the State constitutions, more lately adopted, the
limitations on the legislative power of the State legislature
certainly go to very extreme lengths (h). It cannot be
.said, therefore, in reference to the American system, that
(y) See the remarks of Hagarty, C.J., in Leprohon v. Ottawa, 2
O. A. R. at p. 533.
{z) See Chap. IX. ante. (a) See Art. I. sees. 0 and 10.
(b) Bryce's " American Commonvealth," Appx.
Tin: I ti VISION (IF riii; hikld. 2-21
it' powiT ifvrr II ci'i'taiii swlijtct matter is n(»t with (*i»nj;ivss
it luu.st Ito with th»' State legislatures, for it may he with
neither, 'lue "penplt' ot" the UiiiteM States," as n jurainl
anMi».u,ite, Iiave hmite"! the |)(»wer <»r Citiij^^ress, and the
jieopK' <>r the intlivi»hial states, viewed as smaMer a;;';;r»'-
• •ates, have likewise limited the sjihere of authoi-itv <>f tlu^
ditierent State leyislatinvs. Tlu' mattei's allotted t*>
('onu'ress are, in a sense, siiecially enumerated, the uneini-
mei'att'd residuum hcini;' reserved (sultjeet tt> e»'itain
prohihitions set out in the Constitution of tlu' l'nite<|
States) ('■) to the States or to the peojile ; hut tlie Statt;
leu'islatuiH's ayain may hr, and in manv cases an*, under the
State (,'onstituti«»ns, hodies with specially enumerated
powers. In short, in the American system there ai'o
matters over which no Itody has li'^islative ])ower, matters
held in i'eser\'e, as it were, liy the people of the United
States, or hy the people of the respective States. Confin-
ing' our attention to Congress, we have to point (Uit, what
has heen hefore referred to (il), that after the enumeration
of the special matters (tliemselves described in very com-
prehensive terms) over which Congress is to have legisla-
tive power, there follows this clause {«') :
" To make all laws which shall be necessary and proper for
carrying into execution the foregoing powers, and all other
powers vested by this Constitution in the government of the
United States, or in any department or officer thereof " :
an<l under this clausi*, as construed l>y Marshall an<l his
successors, the powers of Congress in relation to the
National government of the United States can hardly ]>e
sai<l t(» l)e specially enumerated powers only.
Nothing .short of the most thorough mastery of the
United States constitutional system would warrant one in
drawing analogies between the line of tlivision they have
adopted and that drawn hy the B. N. A. Act. The Judicial
Connnittee of the Privy Ctnuicil, while not slow to express
(c) Art. I., sec. 10. {d) Ante, p. !>. (e) Art. I , sec. 8.
2'2'2 THE CANADIAN ( nNSTITI I InN.
tliiii- inliiiinitioii for tin- SujirtiiH' (Vmi't of tlic Unitrtl
Stiiti's, iudI tin* nuiiH'ut jui'istM who from tiiiu't<t tiino ]m\v
ofcupictl scjits ill tluit triliuiiMl, Iimnc hIwhvh (li'|ui'Oiit«'<l
liny uttt'iiipt to draw iiimltt«;it.'N lii'twccii the Cnimtliiiii uikI
the Aiiiericiin systt'iuH. The y'ww of the Coiimiittct' is thus
i'Xprt'sst'd ill n lute cuhc ( /') :
" Thoir Lordships have hi'en invittMl to apply
to the construction of t!io FediTution Act the principles laid
down for tlu' United States by Chief Justice Marshall. Kvery
one would <,dadly accept the guidance of tliat {,'reat jiulge in a
parallel case. \U\t he was dealing,' with the constitution of the
I'nited States. I'nder that constitution, as their Lordships
understand, each State may make laws for itself, uncontrolled
hy the Federal power, andsuhject only to the limits placed hy
law on the range of subjects within its jurisdiction. In such a
constitution, Chief Justice Marshall found one of those limits at
the point at wiiich the action of the state legislature came into
conflict with the power vested in Congress. The appellant
invokes that principle to support the conclusion that the Feder-
ation Act, must be so construed as to allow no power to the
provincial legislatures, under section 1)2, which may by possi-
bility, and if exercised in some extravagant way, interfere with
the objects of the Dominion in exercising their powers under
section 9L It is quite impossible to argue from the one case to
the other."
Thi.s passaoo su<;^ests that, in the view of the Com-
mittee, the absence of the power of diHallowin^^ State
legislation may have led the United States courts to
scrutinize that le<(islatic)ii more closely, and may have
caused the adoption of the wide interpretation of tiie
article of the " Constitution " above (luoted.
(/) Bank of Toronto v. Lambe, 12 App. Cas. at p. 587.
(MIAITKH XI.
()V\{ .ll'DICIAL SVSTKM.
W'v \\n\v thus far trt'iitfil of yovcniinrnt as (li\isililt'
into two diu'f (IcpartiiH'iitH — law-iiiakiiiin' aii«l la\v-«'.\fiMitiiiy'
— ami liaM' not «k'i'nu'(l it expt'dicnt to eonii)licute the <liM-
C'Ussion liv ivfi'iH-nct' to unv further Hnh-<livisions of tlicsc
two ilc|)artnn'nts. There is however a very distinct division
(if the executive department into branches, aihninisti'ative
and judicial ; the former concei-ned with what we may call
the ordinary administration of puhlic nfiairs, while upon
the latter devolves the duty of exjioundino', applyinj^' and
enforcing- law l)etween litiyants (f/).
Ti'ihunals foi* the administration of justice are an indis-
jMiisahle adjunct of any system of '.'ivilized oovennnent,
antl if there can he degrees of importance in connection
with such a matter, we would say tliat in every country
where government is a government-according-to-law, due
recognition of the authority of the courts is of vital im-
jMirtance to good government; and particularly is this the
case where the field for the exercise of the functions of
government, both leg'islative and executive, is divided, and
(«) Of late years there is apparent a tendency to clothe the judiciary
with what may be termed " advisory " functions, in aid of the Executive.
Hee R. S. C. c. 135, ss. 37 and 38, and cases noted in Cassel's Dif^.; K. S. O.
c. 44, 8. 52, 8-8. 2 ; Attorney-General for Canada v. Attorney-General for
Ontario, 20 0. R. 222 ; 19 O. R. 31. Also see R. S. O. c. 225 ; In re R. C.
Separate Schools, 18 O. R. 60(5. The policy of this innovation is ques-
tionable. The Courts of the United States have steadily declined to
exercise any such functions. See Mich. Univ. Law Lectures, 1889.
224 rilK < AXAIHAN < oxs-miTiox.
wIhtc, in (•oiisrinimcc, tlir courts Ikivc iicccsMaiily ttMltriilc
oil till' viiliility <»i- iiiMiliility ••!' lf;iiMliiti\i' t'lmctinciits, ami
ol" »'Xt'<'Mti\t' lU'tioti t'iiinnl('t| tln'icuii (A).
Tlic <li'('i,siuii ul" imy ciisc wliicli may I'niiif Itcfitrr a court
III' \i\\y. iii\(il\t's the a|t|>li('Mtioii ol" law to the Tacts as tlh-y
iiiav Im' admitted, or iiiiJicialU' <lt'ti*riMiii('<|, to cxi.st. < )iit
of fvcrv I'act. or set of tacts there arise " lemil I'eiations,"
aiiij, as was ]>oiiite<l out in the last chajiter (r), there can
lit' no foii/lirl <»!' law in reference to any i;iven leyal rela-
ti<ai, for the law aj)|tlicaMe to any ^liven circumstanccH —
to any stated facts — Is presumedly capaltle of dtlinite
expositi«ai. It may happen, thei-efoi'e, that in a case arisin;^'
in a Canadian court, the law which governs the le;^al rela-
ti(ais which arise out of the facts of the case may he. not
the law laid down in either I )ominion or Provincial statutes;
not, sti'ictly speakly (*/), the law of ( 'anada at all ; not e\ en
Imperial law: l»ut the law of a foreinn country. In
accordance with that comity hetweeii nati«ais, which is now
reci»^ni/ed hy thi' tiihunals of all civili/ed counti-ies, those
trihunals do not, where the facts out •)f which the liti;^ation
arose occun-ed in a ftireinn coinitiy, limit the enipiiiy to
what is the law which wcadd ;^'(»vern in case those facts
had occured within its own territory. Indeed, in rri mi md
matters, that is t»» say, whei'e a person is hein*;' pro.secuted
for acts c<anmitted ahroad, Kn;4lish courts have laid down
the ruh; that such ].)rosi'cution can oidy he had in the
ciauitry where the crime was committed. The ndministra-
titMi of international Justice, if we may use the expression,
is secured in such a case, l»y handin;^' over the alleged
ort'ender to tlu^ officers of the country in which the ortcnce
is alleu'ed to have l»een committed : and the jurisdiction of*
Knji;lish ti'ihunals has hei'u limited to a preliminaiy eiKpiiry
as to the (!xistence of a priiiHi facie case. With regard to
rii'il matters, the trilainals of most civilize*! states do not
{h) See niitc, p. 17'i. (c) See onte, p. 214.
((/) In a seuse, the rules of ititernatioiial law are part of the jurispru-
dence of nearly every civilized state.
ni u ,iri>i< I \l, sYsiKM. 22ii
\rvn^\u/A' ni\y Miu'li Itu'nl vi'imr tor tlu-ir triiil. It in 'H>yoii«l
iIm' Ht'njM' of tliiM Work to t'limiM'nitf tlw vniinUM cniiilitiniis
)ii'«'<*iMlciit til iiii'iHilictioii, liii'l ilowii ill tlif jurispriiilriicc of
till' 'litllrciit t'i\ ili/f(| stntt-s, Itiit in nil such iictiuus mm tlir
(•((Hits <|i» t'littTtiiiii, tlii'V >/\\f t'Hrrt t<t lt';;al liylitM ami
ul»li;;atiniis wliicli iiiay arise out ul" traiiNactiniiM uj-ciirriii;;'
nlx'oail: aiiil it may liapjx'it, tliri-i<t'iin>, that any iiumIi-i'Ii
trihiiiiai may Im- callnl ii|)mii, at tiiiii's, to <h*ti'niiiiit', aii<l
|»ni('ti('iilly tn ailministfi , tlu' law <»!' a Torci^ii cnuiitry {«).
Kst-ry tiiltuiial is, in a snisf, siilijcct to territori.il limits
i.r jiirisilictioii. It woiihl Im* inconsistent with the sover-
i'i;^iity of the tlitreieiit states into which this wi>rM is
iliviiletj, were tile jinl^^iiients ol" the coiirts of any one state
ellforcilile, />r'7»/-/'(» rii/nrf, ill the others. Hilt, e\e|i within
the same state, the territorial Jurisiliction of courts i»f law
limy Im- limiteij Their jurisiliction, t»»o, may lie in many
'■IJier ways limiteil nml <letinei|, I ly reason of the snliject
matter in litigation. Some courts may hase jurisiliction
o\er all classes of matters, ami throui^hoiit the ei, tin-
territory of the state, others anain may have the .same
wide territorial jurisiliction, hut may he restricted to
matters of minor importance, or invoKinn- smaller amounts.
Iiut. however their juri.sdictioii may he limited, territorially
or otherwrse, there may ai'i.se for determination hy them,
ca.ses in which the law to he applied is not law laid down
'ty till' power to which they owe their creation.
There is h.'irdly any line of division found«'d upon the
iiatiire of the suhject matter in liti;;ation, which may not
he, nr has not heen, adoptt'd in .some one country or an-
Mther: hut it is not of importance here to pursue this
general iiKpiiiy furtlu'r. It is of importance to note that,
I'ltth in the United States and in Canada, the jurisdiction
"f a court may l»e, and in many cases in the foriiUM' is,
(<■) What 18 the foreij^n hvw in such cases is, in British jurisprudence,
bmjuired into iis a matter of fact, and must be proved by the evidence of
experts versed in such foreign law.
C.KN. (Jon. — 15
22(1 rilK CAN.vmAN rnNhTniTloX.
rniiit»'tl tn til'.' iitrnnlicMtiuii of I'liusi-s ariHiit;;' out oF innttt'i'M
\vitliiii tlt« tX('Uisi\»' CDniiM'tciK'c of one or otlu-r of tlu»
«lifti-r«'iit Iryi.sliitixt' KotlicM cxiHtin.; tln'ri'iii. Akh ifiifxtlini
tif jii rimliifinn, tlnTi-fori', in niicIi niMr, it inny '••' ih'ci'smiu'V
to dftmiiiiM' JuMt w luTc tin- liiif of )li\ ision iM'twriii tin*
«litl«Ti'iit li'^^iHliiturcM, mIiouM In* <lni\\ti. In this coinifction,
W'v may notr too, timt it nuiy — tlioii;jli not of coui'Ht' its a
<|U«'Ntion of Jniistliction — ili-xoKf upon Camulian courts to
ilctrrmiiif likf iiut'stions. as ti' tlic linr of <li\ision 1m twrcii
thf ft'ilt'ial and statr ifnislaturrs in tin- ailjoinini; Hf|»Mlili('.
It is, howt'Vi'i', only in rxccptional cast's that the jurisijic-
tion of a ('anailiiin coMit of law will <lt>|)i>n<l upon thf
tlftfiniinatiiin of thf line of <li\ ision hi'twcfu the ilitt'trt'nt
('(inailian hiiislatiM- Itoilirs ( / ). W'c jia\f dwelt upon thesf
• litli-rmt I'onsjdri-ations in oidip tu niake clear that e\ery
coinl, l>\' w liutfNei' authoritN* created, ttr whatever its iin'is-
diction, tei-ritorially or otht-rwisi' may lie, may he called upon
to fletermine, and piactically tf» administer, Imperiid liiw,
Dominion law, Pr<t\incial law. oi* cNcn foreign law, in order
to deierndne tin' rifhts of litiyants.
I'uttiny' it lir<»adly, a ccturt of law may he said to he
an organization created with a \ iew to the determination
of facts, and the exjtositiou and t-nfoixu-ment of the law
applieahle to thos*- facts, hetween pai'ties who ai'e at
variance ujjou these points. In the performance of its
4luty, certain proc«'dure has to he adopted, and a ci'rtain
administrativi' star!" has to he made part of this or;;ani/a-
ti(»n in (»rder t.» secui'e the enforcement of the judj;nients
«tf the Court. ()v(;r these a;;ain may l»e estahlished appel-
late courts. Hut \vhate\er the details of the oi'fauizatioii
may he, and aside altogether from the question what
j;overnn»ent should create courts, or whether lioth Dominion
an<l Provincial goveriunents should have such power, it
would seem expedient, to say the least, that the whole
matter of the constitution of any fiven court should he in
(/■) See i>ost, p. 220.
nlU .11 l»l« lAl, sVMKM. 227
tli»' Imii'l.H <»t' (tiu' iiikI tilt' NjiiiH' p>v»'nmifiit (»/). II' tlitlei'-
nit pat'tM lit' tlir iiiacliiiiriy ••!' any coiirt niv Nii;i))liri| tn it
l>\- tlitli'n'nt aiitln>iiti«'M, it muMt iii'0«'SHarily !•<• a swy
tlitHciilt iiiattrr to fix rrs|M»iisil»ility \'n\- a miscaniayr fit'
jiistic*' ill any j;i\rn caMc, iiiiI«'mm llu- can.si' <»t' hucIi niis-
rarriiUf can Ik* "It'tinitt'ly Incatt'd, ami !•" flrcisivi'ly aHNiyiu'tl
in Huiiif particiilnp |iart of tlir iiiacliiiiiTy nf the CMiirt.
Tlir Iin)it*i'ial iiailiaiiiciit, as tli<- siipri'inc pnwcr in
MiiM-niiiitMit tliriiti;4liniit tin' lli-itisli Kiii|iirf (A), imiy
cstaMisli courts within tin* limits nl' any <int' ol' tlic cnliinics
(if (iirat Hiitaiii, and, as a matter oF tact, wc lia\»', in
CaiuHla, Vic«'-Ailminilty cnurts of ImjM'rial crciitinn, tlw
jnristlictidii dt' which istlftiiH'd Ky Iniju'rial statutes What
we must imtf is that in ailministfriiiu law within the sjihcrc
nl' their Jurisdiction, tlu'se Vici-Admiralty courts are not
limiteil to the eiit'oi'cemeiit of Im|ieriul law, liut must,
nhoiild occasion arise (as it may in any court of law),
expound and practically adminiKter Canadian law (/).
Hut. with the exception of the special cla.ss of cases which
come liefore those courts, the administration of justice,
iisiii^- that term in its widest sense, in Canaila. is left to
courts of Canadian creation.
At the ilate of Confederation, there were in existence, in
the different provinces, a laryc numher of courts of law ;
and. for some years thereafter, the administration of justice
throunhont Canada was in the hands of these provincial
courts, sec. 121) of the B. N. A. Act exjiressly providing, that
all laws <ii></ oil en (I lis nf cirll <nnl crlmmdl Jurimliction,
and all leyal commissions, powers, and authoriti«;s, and
all ottieers, judicial, administrntive and ministerial, existing
in tlu' diti'erent provinces at the I'nion, should continue as
if the Union had not heen nia<le. Except, therefi :v, as
(//) Hee po»t, p. 234 and notes to B. N. A. Act, sec. ill, s-s. 27, aud seo.
1*2, 8-8. 14. and sec. 96, et seq.
(//) See Clmp. IV., ante.
(/■) Wedpath v. Allen, L. R. 4 P.C. 511 ; see ante, p. 193
22S TIIK (ANA 1)1 AX cnN'STITL'Tlo.V.
otlienvise provitk-il in tliu Act(,y), iiii<l subjuct to Jiny
eh»in!;es whirl* hiive since ln'on niiidc in tlu' orj^nnization of
tlii'sc eonrts, tlu' limits of tln'ir jui-is<lic'tion arc, in pnnci[)lo,
in no wise iiltt'rf'<l. Any aitiTution in the jarisdicfloii of
these pie-Confe'denition provincial courts over matters
within the lei;islative competence of the Parliament of
Canada can, it is suhmitted, he eti'ected only hy Dominion
lei^islation (/.'). Until so altered their jurisdiction coiitnincx
'' suhject nevertheless . to he . altered hy the
I'arliament of Cana(hi or hy the legislature of the respective
\n'i)\\\\w,iivc(>i'<rnifi fit the iiufhorifij of the Pti li'm inruf in' itf
f/iiif If'i/lsltifii re luxh'i' this Act." It wouM unduly swell this
N'olume if we were to attempt to enumerate these ditl'erent
courts, or to indicate their ditt'erent jurisdictions. We
may say, however, that there were in all the provinces,
courts modelled upon the principle of the Superior Courts
of law \n EnjL;land, whose jurisdiction territorially was
limited only hy the boundaries of the respective provinces
in wdiich thev were established, and under these, and as a
rule sub(/rdinate to them, were various other courts whose
jurisdiction was limite<l as to the class of matters which
mi^ht be entertained by them (without territorial limita-
tion) (/), or wassubjecttolimitationsaion*;' both lines {nf); but>
it is almost unnecessary to sav, there was no limitation of
jurisdiction in any provincial c(au't, along any line identical
with, or in any sense analogous to, the line of division now
existing between matters within the legislative competence
of the Dominion parliament, and the provincial legi>''ative
assen}blies, respectively.
If it be permissible to express an opinion as to wiiat
was anticipated l)y the framers of the B. N. A. Act, we
(j) See sec. 101 of the B. N. A. Act and notes thereto ; also post, p. 229.
(k) See re Boucher, noted in Gassel's Dig. S. C. p. 181, and referred
to in the judgment of MacMahon, J., in Reg. v. Toland, noted |o«t, p. 236.
(I) e.g., County Courts in Upper Canada.
(in) e.(j., Division Courts.
oL'U .irinc'iAi. svsrLM. 229
hIiouM SUV that it whs intended that, in the main, tlie
adnunisti'ati(»n <>t' justice, thrctuiihout Canada, shimhl he
thr.>n;4h the medium <»f these j)r(»vincial courts, thus con-
tiiuu'il. This is clearly Menced hy the assiyinnent to the
provinces (»!:" the power t(. exchisividy make hiws in rela-
tion to 'the administration oi justice in the province, in-
chitliuL;- the constitution, mainti^nance and orL;anizati<»n of
]»r<»\incial courts, Itoth (»F civil and criminal/nirisdicti<»n" {n).
As. however, cases would ine\ital>ly arise, involving con-
sideration of tlie powers of the Dominion and Provin-
ci;i! legislatures respectively, and with a view, pei'haps, to
secui'inn uniformity of tlecision on such imi>ortant (pies-
tions throughout the whole l).)minion, the B. N. A. Act
pio\ides (section 101), that "the parliament of Canada
ma\'. notwithstandin!-' anvthinL-' in this Act, from time to
time, proviile for the constitution, maintenance an<l oi';;ani-
zation, of a general Court of Ai>pL'al foi' Canada (a), and
for the estalilishment of any additional C(»urts for the
hetti'i" administrati»»n of the laws of Canada." The phrase-
ology of the hist clause of this section is a clear recognition
of the fact that the provincial courts would neces.sarih' lie
called upon to administer the laws of Canada (ii) (as dis-
tin;4uished from the laws of the \ari(^us provinces), an<l
the provision was inserted with a view to the hettei- admin-
istration of those Dominion laws throuoh the medium of
additional courts estahlished by the Dominion t^'ovemnnent,
shoultl occasion arise. The jurisdiction of such additional
courts, estahlished l>v the Dominion i^'overnment, nnist he
a special jurisdiction, liniited to cases arising' out of tliose
matters only which are within the competence of the
Dominion parliament. This is the only case in Canailian
Jurisprudence where the jurisdictional line, if we may use
(n) B. N. A. Act, s. 'J2, ss. 14.
(o) See R. S. C. c. 135. The Suprems Court of Can.' cla was es-
tablished by 38 Vic. c. 11 (Dom.), and became a court on January 11,
187tj; see Reg, v. Taylor, 1 S. C. R. «5.
ip) See Resolutions Nos, 31 and 32, printed in Appx.
2.S0 Tin: rAXADI.W coXSTlTrTInN'.
tilut L'xpivssion, is eo-inciWt'ut with tlio line which dividi's^
the IcgiHlfitive powers of the Dominion and the provinces (7).
The provinces, in estiihlishini;' ctturts, may, hut are not
hound to adopt any such jurisdictional line. The ])ominion
is so limited except in the case of its "general Court of
Appeal" — the Supreme Coui-t of Canada.
What has taken place .since Confederation, serves to
support the view we have expressed as to what was an-
ticipated hy the Fathers «»f Confederation. The only
additional courts which have been estahlishetl hy the
Dominion government, are the Exchecjuer C<airtof Cana<la>
and the Maritime Court of Ontario, each with a specially
limited Jurisdiction, sufficiently indicated I)y its name(/')-
But any duly created court, no matter by what authority
created, or hy what authority the different parts of its
machinery may he supplied, may he called on to determine
cases involving the application of either Dominion or Pro-
vincial law; and this oh.servation applies even to the special
courts of Dominion creation, for, although of limited Juris-
diction as above indicatetl, incidental legal relations, depend-
ing upon provincial laws, may have to be determined in
order to indecision in any given case.
Any i'overnment uiav take advantage of the actual
existerce within its territorial limits of an organized court
of \ii\\, to impose on its judges and administrative statt*
duties (in relation to matters witliin its "sphere of author-
ity") other than those imposed upon them hy the power
which created the court, and wiiether this action is to be
(q) See ante, p. 225-6.
(/•) Note, however, in re The Bell Telephone Co., 7, O. R. (105 ; in
which it was held by Osier, J. A., that a court or judicial tribunal was
established by sec. 28 of the Patent Act of 1872, which provided that
in case disputes should arise as to the validity of patents (in certain
cases), such disputes should be setthd by the Minister of Agriculture or
his deputy, whose decision should be final ; and that the constitution of
such a court was intrx vire-i of the Dominion parlianiant. See B. N. A.
Act, sec. yi, B-s. 22. See, however, 9 O. R. 2SK We should, perhaps,,
refer also to the Revising Otticsrs' Courts under " The Electoral Franchise
Act " as to which see post, p. 240.
(»ri{ .IIDKIAL SVSTKM. 231
c'i)iisi(lt'r('<l us tlic fivjitioii <»t' )i new court, with tlie nmehiii-
cry of the <»1<1, oi- as the out'en-iuij;- uF a new jurisdiction
ujion tlie !)lil, seems to hj considered by the .Jmlicial Com-
mittee of the Privy C mncil, a matter of inditterence (,.vi.
Tlie <|uesti<tn has come up in various ways, and the
principle must now be considered as autlioritati\ely estah-
lislit'il. As an extreme instance of its appHcatimi, we
may cite the case of Attorn('y-( Jeneral v. Flint (0, in
which it was held by tlie Supreme Ccau't of Canada, that
it was competent for the Dominion parliament to confer
upon the Vice-Admiralty Court, existing;' in Xova Scotia
under ImperiiU authority, Jurisdiction to entertain pi-o-
ceedinn's for enforcing payment of penalties for breaches of
the Inland R'.'vemie Act. It appears to have been the
opinion of some at least of the Judges of the Sui)reme
Court, that a Ju<lge of a \'ice- Admiralty court minht
decline to take upon himself the burden of such cases, but
the jui'isdiction s<j to do, they held to l)e l)eyond (juestion.
It cannot of course be (h>ubted that if the Imperial
parliament, in the exercise of its legislative supremacy,
were expressly to prohibit such ccatrt from entertaining
other than matters arising under Imperial legislation, such
prohibition would l)e operative, but in the absence of such
prohibition, it is difficult to see how, as Canadian citizens,
the iudii'es and stati' of the court could lawfullv decline to
perform the duties inipose<l upon them by Canadian
law iiO.
Prior to Confe<leration, the decisicm of controverted
election cases had been entirely in the hands of the differ-
ent Provincial legislatures, and after Confederation the
Dominion parliament exercised the same jurisdiction over
(<) Viilin V. Langlois, 5 App. Cas. 115, passaj^e quoted jjost, p. 232.
{t} U) S. C. R. 707. See also " The Farewell," 7 Q. L. R. liSO.
{>() "Judges as citizens were bound to perform all the dutiea which
are imposed upon them by either the Dominio.i or Local LBgislature " —
per Dorion, C.J., in liruneau v. Massue, 23 L. C. Jur. CO.
232 THE CANADIAN CnNSTnirM )N.
elections to the I)niiiini<)i! Housf ot" Coimnoiis ; Imt in
lS7*i-4, the Dominion iiurlinnient (leci«le<l to transiVr this
Jurisiliction to the provineiiil eoni'ts. Theii' power so to <lo
was distinctly u^jheM l»y the Judicial Committee ol' the
I'rivy Council, (aHirminu' the decision oF the Supreme
C'ourt of Canada) in the well-known ease <>F Valin \ . Lan-
jflois (/•), in which Lord Selhoi'ue in deliveiin^' the
Judgment oF the Connnittee says :
" There is therefore nothin<jr liere to raise a doubt about the
power of the Dominion parliament to impose new duties upon the
existing' provincial coiu'ts, or to give them new powers as to
matters which do not come within the classes of subjects assigned
exclusively to the legislatures of the provinces."
and he afterwards characterizes the distinction which
was en<leavored to I'e drawn ln'tween tiie Act of iST.'i,
Aviiich entrusted the trial of election petitions to the Jml^^es
of the Supreme Court, and the Act of 1S74, which
entrusted this juris<liction to the provincial courts, as " hut
a nominal, a verbal, and an unsiihstantial distinction."
Tlu' validity of the Act, lil Vic. c. 7() (Dom.), which ])ro-
vided for utilizing- the macliinery of the provincial courts
for tlie taking of evi<lence for use Itefore foi'eign tribunals,
luiH been atlirmed by the courts of both Ontai'io ;ind
Quebec (w).
Somewhat the .same (juestion arose in Ontario in the
cases of Wilson v. McOuirc (,'), and Gib.son v. IMcOonall (>/)•
C^»unty Court jmlges in that province are appointed by the
])ominion government (c). Division Courts existed in the
various counties of tliat province prior to Confederation-
and had always l»een presi<led over by the judge of the
County Court of the particulai- county. By an Act of the
(i) ') App. Cas. 115, affirming 3 S. C. R. 1.
(if) In re Wetherell & Jones, 4 O. R. 713 ; Ex parte Smith, 1(5 L. C.
Jur. 140; and see notes to the opening clause of sec. 91 of the B. N. A.
Act, pout.
(.»•) 2 0. R. 118. iij) 7 O. R. 401.
{z) B. N. A. Act, sec. OC.
(Hit .iri>K"IAL SVSTKM. 2'M\
Pi'dviiiciul AssL'iiilily (</), it whs providt'd, in rft't'ct, tlint
two (•!• inojv ewUMtirs minlit l»t* j^rouped t<»;L;'t'tlH'i' F<»r tho
luirposL- of fiicilitatiii;;' the conduct »»F Imsincss in the Divi-
sion courts of tlic uroiipcd counties, and that the judp's of
the County courts of th<»se countii's niiyht arrange for
takinn' the work in rotation throughout the entire yroup.
The \ali(Hty of this Act was upheM in Wilson v.
Mc(}uire •(/>). In (lihson v. McDonaM, it was held that
a somewhat similar ai-ranu'e-ment as to the (Jeneral Sessi(»ns
of the Peace in the difi'erent comities of Ontario, was
in\alid, and there is no douht that the C(»rrectness of the
earlier decision must In.' deemed Home\\hat impunned l>y
this case. The point on which the bitter dt.'cision rests,
however, is the very Jiarrow one, that the judn'e of the
County Court (»f one county was sitting- as Chaii-man of
the ( ieneral Sessions in another, '' <n)<l not of/tcnrisr (Infn
liij rliiiir of /lis offiir <i.s jiuhjr of flic Con iif// Coiirf of /us
oii'ii codnf)/," and that this lie had, under his commission,
no riL;ht to do. Armour, C.J., exjiressly reserved the (|Ues-
tioii as to the powi-r of the provincial assemhly to provi(Ui
that the judge of tlie C<auity Court of one county shall l>e
Chairman at tlie General Sessions of the Peace in another,
and the decision therefore only goes to this length, tliat a
County Court jn<lge can act dsstich only in the county for
which he '■ appointed, l>y the Goveriior-( Jeneral in Coun-
cil, under section fXi of the B. X. A. Act. Taken together,
these two cases support our proposition. A Provincial
gdvenimeiit can impcKSe upon the indivi<lual who is County
Court judge, duties (falling of course within the range of
matters of provincial cognizance) other than those covered
liy his commi.ssion from the Governor-General, care lieing
necessary perhaps in detining that tho.se super-added duties
('() R. S. O. (1877) c. 42.
('') 2 O. R. 118, Arniour, J., dis32nt>ng. It is to ba noterl that the
majority of the Court expressly limited their jiulj^meut to aftirming the
validity of the Act, in its beariiin on Dirigion CoiirtK.
234 THi: CANADIAN (• (XSTnTTION.
»uv — wlu'ii i'\t'reisjil»l«' utlicrwisf tluni in his dwu (' uinty
('<»m-t — to 111' »'\i'iris(Ml l»y liiiii, imt (Hi;i County (.'ourb
judyt', Itut (|ua proviiifial ofHci-i'.
With ivj-'iird to thi' crcfition of courts liv' tht- Doiniiiion
( Jovt'iniiH'nt, thi' scht'iiit' <»f tht.- II X. A. Act is loL;'ical,
while as to those Provincial courts uicntiontMl in section !>(i
of the H. N. A. Act, the scheme is t|uite the reverse. We
<lo not ri'ly upon any possilile conii)licati(»n which may
arise from the way in which 'procedure ' is treated hy the
Act ((•)• It is (Htticult, in many cases, to distinguish he-
tween law and "procedure." In its narrow sense " pio-
ce(hu'e ' I'l'lates simply to the or;;iinic working' of a court,
ami is not su})i)osed to ati'ect rights, ov to alter the le^al
j-elations arisiiii-' out of anv yiven facts: while in a wider
sense it may have a mo-it potent effect alon^' lioth lines (th.
( )f this, however, more anon. The method of oi-puii/in;^'
thosi' pi-o\incial Cfairts menti<»ned in section f)() is illouieal
in this, that the machinery of those courts is suit[»lied
j)artly hy the Dominion u'overnment and partly hy the
Pidvincial, with the resultant ditiiculty in lixiuL;' res[)onsi-
hility t(» which reference has already l)een made (r). The
power to a])point, necessarily carries with it the power to
determine the tenure of office (sidiject, as to the Superior
Court Judju'es, to section i)!)), and therefore the power to
dismiss. This power of appointment and dismissal rests
with one •government: another j;'overnment defines the
duties of the office — an arrangement certainly uni(pie inider
a British constitution. But, except in so far as this peculiar
arrangement affects the law of our constitution, furtlier
conniient upon it is, perhaps, out of place here.
However constituted, the Provincial C(airts liave, we
again repeat, to administer Dominion as well as Provincial
law, and this is perhaps the proper place to advert more
(c) Compare s. 91, s-s. 27, and s. '.».', s-s. 14.
((/) See Excliinj^e Bank v. Reg., 11 App. Caa. at p. 1(59.
((■) See ante, p. "i-iT.
(HU .iri)i<i.\i, svsiK.M. 2;i5
lullv to tlu' tiut'stioii (>r " i)i'((Ct'<l»uv " nlhult'il to in tlu- last
l)aru;i'nil)li. Hii this (|U('.stion cniisifl»'ral»I»' ilivcr^^vnec of
\ir\v is a|)i»art'nt in the oasrs ( /'), ai-isiun' lai-juvly t'rnin tin-
(liHi'iiii";' constructions {)lacc(l upon the words " |»rocc<hu'c in
(•i\il matters in those courts" in section 92, sub-section l-t.
Takinj; that sul»-section alone, an<l noting' the sharp <listinc-
tioM (h-awn hetween criminal an<l civil jurisdiction, and
that to;^i'ther they are exhausti\e of the whole field, the
|ilain meanin;j; is, that " ])rocedure," in all matters (tther
than criminal, is suhject to the exclusive le;;islative power
(if the provincial legislatures, and there would appear to
lie no warrant therefore for the opinion that " procedtu'e in
civil matters " iti this suh-section nuist he read as limited to
|iroceedin<4S in relation to matters over which the provin-
cial legislatures ha\'e exclusive legislative power (</). Hut
what is "procedure" :* We have already uoted that the
W'lyi] is ca})a!>Ie of two very different inter[)retati(ais. It
is only usi'd once in sectit>n !H, and once in section !>2, ami
a comparison of the two suh-sections in which it occurs
will suffice t(» sliow that in suh-section 27 of section i)l, it
has the wide, and in sul>-sectiou 14 of section 92, the nar-
lower meaninj;'. " The criminal law . . I ncltuH u;/ t\u'
procedure in criminal matters," would indicate the view of
the framei-s of the B. X. A. Act, that "procedure in
criminal matters" is an essential and necessary ]»art of
criminal law; while "the constitution, maintenance, and
organization of provincial ccairts, hwliulhuj procedure in
civil matters," would a})pear to point to the "procedure"
incident to the organic workin<>' of the courts. In a sense
statutory regulation of procedure in any, the most im-
material, step of a cause nuiy afiect rights and oliligations,
(/') See notes to B. N. A. Act, s. 02, s-s. 14, where the cases are col-
lected.
([l) See Peak v. Shields, 8 S. C. R. at p. 591. " Matters " is here used
in two very different senses. " Civil matters, ' we take it, is but another
way of saying civil actions, suits, or other judicial proceeding's ; while
"matters over which, etc.," refers to subject matters for legislative
action.
'2'M Till': CAXADIAX CONSirnTinN.
luit only ii) a vtTV Hcoondiirv sense. \n i<lt')i oF iilti-riiii''
thnse Icn'iil i't'I)iti(»ns wliii'li urist' IVoin any facts irrcspec;-
ti\(' <»!' any liti;nati«>n in rcriTcnce tlid'eto, is j)r»'st'nt t<» tlie
niintl oF the le^iislature in layin;;' ilown sucli statutory
reonlations, and it is this sort of " jd'ocH'ilui'e " that is re-
ferred to in suli-section 14<tf section !>2: while as to criminal
matters, " pj'ocedure," from the laying of the information
to the inllicti(»n of the penalty, is carefully treated as a
('om))onent part of criminal law, the various safeguards
thereby created forminj;' ])art of the " ri;;hts " of persons
accusi'd of crime (//). So fai- as [)roci'dure is of this sort —
a necessary and pi'actically com])ojient part (»f legislation
relative to any (»f the classes of mattei's within the com-
petence of the Dominion ])Mrlianient — it is an nccessory
which follows its piincipal.
The cases nnder the H. N. A. Act hear us out, we think,
in this distinction. As t(» ci'iminal law, section !>I, sul>-
.section 27, is a deai" indication that "procedure in criminal
matters" is .such component part of that law, although, as
will appear later, the term "ci'iminal law" in Caujidian
jui"isj)rudence is a term of limited .scope: hut as to laws
relating' to matters other than ci'imes, a perusal of the
vai'i(aiK sub-sections of section !)1 discloses many mattei's,
any legislation on which mu.st involve procedure, — of which
matters, jirocedure is a com]ionent part. Maritime law is a
branch of jiu'isprudence which falls within " Na\ination
and Shippinii '"(/'), and its peculiarly peremptory in irrii
procedure is an essentiid part of any such law, practically
creative of )-i<>]its and obligations. And so of divorce law,
])atent law (7), insolvency law, and election law; and
(/() Since the above was written Mr. Justice McMahon has handed
out his judgment in Keg. v. Toiand, holding that 58 Vic. c. 18, s 2 (Out),
giving to a pohce magistrate jower to try certain offences under R. S. C.
c. 165, " An Act respecting ror;:ery," is ultra vires of a provincial legis-
lature. (/) Sec, !tl, s-8. 10 ; see " The Picton," 4 S. C. R. (US.
(J) See In re The Tell TeVphone Co., 7 O. R. 005, cited in foot note
Jiiite, p. 280. Aitcliesou v. Mann, 9 P. R. 253, 473.
olU JIDK lAI, SVSTK.M. 2M7
jM'iliM|is otlitT liianc'lu'M ol' jurispiutlfiu'c may ''«• t'ouinl
\vrain>t'«l n\> in tin* various hu I (-Hectic )ns of section !H. Tin'
Icaiiiii;^' c.iHcs on the siilijcct arc those involvin;L;' consiiU'r-
atioii ol* iuMolveiicv law «ui<l elccti(ni law. The extent to
which the J)oniinioii |»arliaineiit, Ity legislation uHder suh-
scetioii 21 ol' .-lection !M, " haiiki'uptcy and insolvency," is
einpowei'ed to iiitej't'ei'e with "procedure in civil matters
in the |n'ovince," came up I'or consideration hd'ore the
.Judicial ("onnnittce ol" the Privy Council, in the case ol"
Cushinu v. Dupuy (/.')- »ind was disp(»sed ol' in the judgment
i.f that ti'ihunal in these words:
" It was stron','ly contended that tlic parUiunent of Cunada
could not take away the n;^dit of appeal to the (^iieen (rom fund
ja(lj,Mnent.s of the Court of (Queen's Bench, which, it was said,
was part of the procedure in civil matters exclusively assij^med to
till' legislature of the province. The answer to this ohjection is
obvious. It would he impossible to advance a step in the con-
struction of a scheme for the administration of insolvent estates,
without interfering with and modifying somo of the orignud
riglits of property, and other civil rights, nor without providAig
some mode of special procedure for the vesting, realization, and
distribution of the estate, and the settlement of the liabilities of
the insolvent. I'rondun' must Ufcissdrih/ fonii mi essmtinl jtiat of
'III 11 liiir ili'iiliiiii iritli insalioici/. It is therefore to be presumed,
indeed it is a necessary implication, that the Imperial statute, in
assigning to the Dominion parliament the subjects of bankruptcy
and insolvency, intended to confer on it legislative power to
interfere with property, civil rights and procedure within the
provinces, so far as a general law relating to those subjects might
ati'ect them."
The power of the Dominion parliament to regulate the
procedure in connection with the trial, Ity provincial
courts, of controverted election cases, arising' out of
elections to tlie House of Commons, has scarcely been
((Uestioned. The lan«;uage of the Judicial Conniiittee of
the Privy Council, in Cusliing v. Dupuy, applies tnutatis
(k) 5 App. Caa. 409.
2''\H THE (AXAIUAN ( oNsTniTinX.
niiittniiHn to IrnlHlatinii )i])(iii this stilijt'ct, wliicli )»y Ncotiun
41 of tilt' H. N. A. Act, \H cU'iirly w itii tin- Doiniiiinii piirlin-
iiu'iit (/). Tilt' ('(iiitrttvt'rMy wliirli lias arisen ns to tin'
|Mi\vfr of tilt' Doiiiiiiioii |»arliaiiit'nt to rrlVr hiicIi cmsi's fur
tiftiTiiiinMtitiii liy i>rt>\ iiicial coiii-ts, lias lu'cii .st'ttiftj in
atliniianc'f »»!' thf powor {m).
So Far as prttN'liicial c'tturts art* concfniftl, tlif pj'ovin-
clal it'^isiatuit'M liavf rull coiitrtil ol' tlifin, suliit'ot tuily to
tlic a|>pointin;;' powfi- of tlit- Doiniiiioii j^'ovt'iniiuiit. in
ri'frn'nct' to tliosf nn'iitioiitMJ in .st'ction !MJ t>f tin- H. X. A.
Act — tilt' Su[H'i'iitr, District, and County ('(nirts in t-acli
jtrovinct', excepting' tlif i'l-ohatf CourtH of Nova Sctttia antl
Nt'W hrunswick — antl ti> the powt-rttf tin* l)oniini<ai parlia-
iiH-nt tt» I'cj^'ulatt' tilt' jn'oct'ilui't' in tlu' Ncnsf aliovo
fxj>laiiu'(l. This Jurisdictitai t»vt'r prttvincial courts is iit»t
liniitt'tl ti> tlit)sc which Wfi'o in existence at the l^nion, hut
fxtentls tt» the creation of such new pri>vincial courts (/*)•
with such Juris(lictit)n, ami with such jutlicial and adiiiinlH-
trati\e statt", as to the |)rovincial lej^islature may seem
])rtiper for "the atlniinistration of justice in the pi't)vince,"
which phrase is usetl in its wiilest sense. It covers the
appointment of all officers connectetl with the atlministra-
titai t»f justice {<>), with the exceptions notetl. The tpiestion
has l>een much discusseil in connectit»n with the appoint-
ment tif ])olice magistrates ami justices of the })eace, ami
has lieen ctanplicatetl somewhat hy considerations as to the
prerogatives of the Crown in this ctmneetion. With this
phase of the i|uestion we have alreatly dealt ( p). It is
now settled, subject to review h}' tair Supreme Court, an<l
the Judicial Connnittee ,>f the Privy Council, that the
{I) See notes to that section, jiost.
{m) See ante, pp. 231-2, and notes to s. 41 of the B. N. A. Act, pont.
(n) Beg. V. Coote, L. R. 4 P. C. 699 ; Ganong v. Bayley, 1 Pug. &
Bnrb. 324.
(o) Reg. V. Bush, 15 O. R. 398, per Street, J. See passage quoted
post. (p) See Chap. VI., and Chap. VIII. ante, p. 105.
mil .11 nil i\i. .HVsiKM. 'i.'iM
... . , II- • *
a »|ii>iiitiiii'iit oC jiistu't's <>t tlif pi'iict'iiMu |M»licr iiiii'^'i>»tnitt's,
rrliitt'M to "tlir inliiiiniNtrMtiuM of justicf " (wliicli tt-nii is to
Im* ivni\ in it.s Itpoiitj NeiiNt', ainl i|Ualiti*'(| only l)y the power ol'
tlir Dominion parlianirnt iiii<lt>i- st-ctions !Mi ami 101), ami
I'fMtM tlu'ict'orc witii tin- |>ro\ inct's. TIn' situation is thus
sinninnl u|) Ky Arnioin-, ('..I., in Hti;. \. husli (</):
" Laws providing,' for tlu' iippointnicnt of justicos of tln' pt'iicc
nil', it is lontt inU'd, and I tliinU iij,'iilly, laws in ii'lalion to the
administration of ju-sticc, for the appointmont of justices of tin'
pence is n primary requisite to the administration of justice ; and
if this contention be correct the passing of such laws is exclu-
sively within the power of the provincial le<j;islatures.
•' There is a consideraMe W('i<,'ht of judicial opinion in favor
of this contention, and althou^di not hinding upon ih, yet in a
matter of construction such as this, it ou,i,'ht not to be li.yhtly
dissented from."
And he ivfers to a nunil»erof aiithoritifs, which will he
found colh'C'ted in the notes to section !>2, sul»-section 14.
.Mr. .lustice Street savs, referring t(» the lan^ua;:!' (d' siih-
section 14 :
" Now, these words, standing: alone and without any interpre-
tation or context, appear to me to be sutHcient, had no otlu.'r
clause in ihe Act limited them, to confer upon the provincial
le,L,'islatuies the rij,'ht to regulate and provide for the whole
machinery coiniected with the administration of justice in the
t)rovinces, including the appointment of all the judges and
officers requisite for' the proper administration of justice in its
widest sense, reserving only the procedure in criminal matters."
And lie refers to sections J)0, 100, and 101 as the only
sections in any wa^' limitino- tlie niuanino- to l»e given to
sul)-secti<ni 14, and tlien proceeds:
"Everything coming within the ordinary meaning of the
expression, '• the administration of justice," not covered by the
sections which I have referred to, therefore, remains, in my
opinion, to be dealt wil;h by the provincial legislatures, in pur-
suance of the powers conferred upon them by paragraph 14 of
section 92."
('/) 15 O. R. .S9S.
240 THE CANAIUAN i oX.sTnrTloN.
Tm /v SinimoUMaiiil Dultoii (>■), it was lirltl \>y Mr. Iu,stln»
I'muiirnut that till' lliyli ('unit of .IiiMti«'«' for Ontario — tin*
" Supt'iior ( 'ourt ol" that |tro\ inn' has juriMilictioii in
H\\\)vv\'\H{> th«' cxtTfisf ol' jiitlicial I'lnictions l»y u " I't'ilt-ral "
( 'ouit —''.,»/., til" Ht'Nisin;; ( )Hi('»'iM Court nniN-r "'lln- KNt-
toral Kranrhisr Act ( K. S. ( '. r. i')) lait this tli'dMion has
hcrii ovcrrulol liy tlu> Divi.sionatI Court of the Chaiicciy
Division {><).
" 'IMui ChiinciTy DiviHion han, in coinnion with tho other
lUvisionn of th»' Hi^'h Court ol" .lastici', ijleuiiry juriHiliction to
(U'ul with nmttrrs of prohiiiition n/iir/t iimi'itit tin- iiihiiiitistiiitinn
lit iHnliir irifltiii iiiitiiiin lis II iniiiiiiiiiil unit. Tliis (inhorj'nt)
power is cirL'uuiscriht'd by the ri'((iiiit)nii'nts of thi' provinct!, iiinl
operator, I thiuN, or.ly us to hnis lUiirtnl In/ nr in Jhrrf in ihitmiit
l>titiiiniiiii to niiitti'iH lit' jifnrinritil rnifnivnitf nmlir tin II, .V.J.
A,t:'—I\, lioy.l. C.
( 'ourts.or jmlifial triliunals, cstalilishrtl nn<l«'i' |)nniinion
h'^i.slatio!! — liniit«'tl as their fnnrtions must hi* to ailniinis-
tciiujn' hniit'i itiini law (/) — art' entirely outsiijc of ••tin*
aijniinistration of justice in the Pi'ovincc," and "arc not
sulnatlinati' judicial ('oui-ts niuiml tlic Province." ( " )■
(*•) VI O. H. 50'.. {«) /,' Noitli I'fitli, n i). it. oilH.
(0 Hoe nut>; p. 22'.t.
(h) '21 O. H. at p. r»i;<; BGJ furtlicr on tliiH subject, notu-* to s. H of
the D. N. A. Act, iioxt.
CHAPTKR XII.
THM B. N. A. ACT, 1H07,
80«1 Vic. Cap. 8.
An Act for the Union of Canada, Nova Scotia, ancl
New Brunswick, and the Government thereof;
and for Purpc<sew connected therewith.
\2dth March, 1807. |
Whereas the Provinces of Cauada,
Nova Scotia, and New Brunswick have
expressed their desire (i) to be feder-
ally (ii) united into one Dominion under
the Crown of the United Kingdom (iii)
of Great Britain and Ireland, with a Con-
stitution simihir in principle to that of
the United Kingdom (iv) :
(i) " Have ex^yrexm'd t/irlr ((rttirc." — This exproHsioTi of
ilcsire iH to Ix) found in the Quebec Re.solutioiis, which will
he fcmnd printed in full in the appen<lix. See uiite, p. 2.
(ii) " Federally " — The uhc of this term would seem to
imply the continued existence of the parties to the /(iuIiih.
See chapter III., dute, p. 47 ; and see also the judgment of
tile Privy Council in Liquidators of Maritime Bank v.
Receiver-General of New Biimswick (<t).
Ui) At present only reported in Times Law Reports for week ending
<')th July, 1892 (Vol. VIII., p. 677).
Can. Con.— 16
242 THE B. N. A. ACT — PRE A MULE.
(iii) " Ui\(hr the Crown of the Unitetl Ki»(/tl(mi" — See
notes to sectioii 2, postt ; and see hIho, as to the iiecessaiy
saving of Imperial Hoverei^nty in colonial lej^islation, chap-
ter IX., (iiite, p. 183, cf w<i.
(iv) "A constitution shnUttr in principle, etc." — For a
conipfti'iHon and contrast of our system of «;(nernment, wiih
those of the United Kingdom and the United States, see
chapter I. As to the limitation of this preamble to the
Dominion government only, and the harndessness of such
limitation, see (inte, p. 3, and chapter III. It is submitted,
however, that read in connection with clause 3 of this
preamble, it should be treated as a general reference to
the type of governmental machinery, and its working
principle throughout both the Dominion and the various
provinces.
And whereas such a Union would
conduce to the welfare of the Provinces
and promote the interests of the British
Empire :
And whereas on the estabHshment
of the Union by authority of Parlia-
ment (i) it is expedient, not only that the
Constitution of the Legislative authoritj''
(ii) in the Dominion be provided for, but
also that the nature of the Executive
Government (iii) therein be declared :
(i) " Bi/ ((uthorlti/ o/ jfy«W-i(n)i(?i?i." — As to the legisla-
tive supremacy of the Imperial parliament over Canada, in
common with all other parts of the British Empire, see
chapter TV. In the earlj' days of our colonial history
provinces were divided, and again joined together by the
Crown in the exercise of " prerogative," but as representa-
tive legislatui'es were in existence in the pre -Confederation
proviuv ?s, any attempt to effect their union otherwise than
by Act of the Imperial parliament would have been illegal.
THE B. N. A. ACT — SEC. 1. 243
See ante, p. 30, and chapter VI. avte, p. 140; and see also
notes to section 3, j)o.*t^
(ii) " The ler/idntire authority in the Dominion" — As
to the control exercised by the executive department of the
Imperial government over Dominion legislation, see chap-
ter VII. ante, p. 145, where will Ite found a full discussion
of sections 55, 50 and 57 of the B. N. A. Act. As to
colonial legislative authority and the limitations thereon,
see ?^^apter IX.
(iii) " The nature of the executive fjovernnunt." — As to
the necessary co-extension n.nd practical oneness of the
spheres of authority of the legislative and executive
departments of government, see ante, p. 12 et seq., 22 et mq.,
45 et seq., and chapter VI. See also notes to section 9,
post.
And whereas it is expedient that pro-
vision be made for the eventual admission
into the Union of other parts of British
North America (i) :
(i) " The eventual admission of other j^r^Ws of British
North America." — See sections 146 and 147,^)osf, and Part
IV. of this book.
Be it therefore enacted and declared
by the Queen's Most Excellent Majesty,
by and with the advice and consent of
the Lords Spiritual and Temporal, and
Commons, in this present Parliament
assembled, and by the authority of the
same, as follows :
I. — Preliminary.
1. This Act may be cited as '' The «i^°^'^^"^-
British North America Act, 1867 " (i).
244 TMK It. N. A. ACT — SEC. 2.
(i) 'riin>u^h()iit this work we Iwive adoptetl tlio sliorter
iiioiU; of citation, "tlie 15. \. A. Act." It slioiild Itc pointed
out, liowever, that there are two other Acts siniiljirly entitled,
namely, the B. N. A. Act, 1.S71 (/>), and the B. X. A. Act,
ISHG (<•). By .section .S of the last-named Act, these throe
statutes are to be conHtrue«l together, and may he cited as
"The British North America Acts, I.S07 to 1880." We
•Iraw attention, too, to " The Parliament of Canada Act,
1875 (</), as to which, see notes to section 18, ^>(>«^
pvMouT^' 2. The provisions of this Act refer-
Quee'ii*! ^° *^* ring to Her Majesty the Queen extend
also to the heirs and successors of Her
Majesty, Kings and Queens of the United
Kingdom of Great Britain and Ireland (i).
(i) "KiiKjfi (iiul Queens of fhe United Kiiif/doin." —
The succession to the Crown of England is now regulated
hy the Act of Settlement, 12 & 13 Wm. HI. c. 2. By the
connnon law of England, upon the abdication of a sovereign,
parliament might re-settle the succession, and in compar-
atively modern times we have the precedent of the Bill of
Rights, 1 Wni. & Mary (st. 2), c. 2, by which it was de-
clared that, l)y his flight from the kingdom, James 11. had
abdicated the throne, and the crown was settled upon Wil-
liam and Mary. Then came the Act of Settlement, to which
we have referred, settling the succession upon the Electress
Sophia, of Hanover, and her heirs, being Protestants. The
power of parliament to alter the succession is distinctly
affirmed in 6 Anne, c. 7, which adjudges traitors all who
affirm "that the kings or queens of this realm, with and by
the authority of parliament, are unable to make laws and
statutes of sufficient force and validity to limit and bind
the Crown and the descend, limitation, inheritance, and
(jovernment thereof." While, as we have frequently pointed
(&) 34 (ft35 ViQ. c. 28 (Imp.); 8eej70«t.
(c) 49 & 50 Vio. 0. 36 (Imp.); see jfott.
(<i) 38 & 39 Vic. c. 38 (Imp).
TFIK H. \. A. A( T— SKC 3. 245
<nit. t'ltlitiiial I<';;iHliitiuvs imv(.' full power tocurtiiil the prc-
i(»"nti\eH of the Crown in connoction with the oxociitivc
^•overnnient of a colony (c), this does not extend to enal)le
n colonial le;;islature to pass an Act jiff'ectin;;' the position
of the occu[)ant of the throne of Knyland as Executive
Hea<l thnaiyhont tlie Knipire : see Ciaw \. Ramsay, cite(l
tmh . p. l!S4. See s. !>, /xtnf, and notes thereto.
II. — Union.
3. It shall be lawful (i) for the Queen, .Vf\S'""
by and with the advice of Her Majesty's
Most Honourable Privy Council, to de-
clare by Proclamation (ii) that on and after
a day therein appointed, not bein^,^ more
than six months after thepassinf^ of this
Act, the Provinces of Canada, Nova Scotia,
and New Brunswick shall form and be one
Dominion under the name of Canada;
and on and after that day those three
Provinces shall form and be one Do-
minion (iii) under that name accordin.i^ly.
(i) " If shall ho l„vyfal."—Heo. note (i) dvic, p. 242 : the
Proclamation of Union rests upon the express "authority
of Parlifinient," as intimated in the preamble.
(ii) Her Majesty's Proclamation bore date 22nd May,
1<S()7, and provided that the U^nion should take eti'ect on
Jidy 1st of that year.
(iii) " One Dominioii" — i.e., for all purposes of govern-
ment, legislative and executive, in relation to matters of
connnon concern, leaving the component provinces their
full rounded autonomy in all other niattei*s. " The object
of the Act wa.s neither to weld the Provinces into one, nor
((') See ante, p. 140 ; Exchange Bank v. Reg., 11 App. Cas. 157 ;
Liquidators of Maritime Bank v. Receiver-General of New Brunswick,
Times Law Rep., Vol. VIIL, p. iMl.
24G THE «. N. A. ACT— SECS. 4, 6.
to 8uVK)r(liiiato provincial <,^ovennnentw to a central author-
ity, but to create a federal o()venniient in which they shouM
all be represented, intruHted with the excluwive adniinistra-
tion of ati'airH in which they had a common interest, each
province retaining its independence and autonomy." — Per
Lord Watson, in Maritime Bank v. Receiver General of
New Brunswick, Times L. R., Vol. VIII. p. 077. See the
judgment (juotetl more at length in notes to section OiS, post.
oSZ,u°"* 4. The subsequent provisions of this
i^roviaiouH 01 ^^^ shall, uiiless it is otherwise expressed
or implied, commence and have effect on
and after the Union, that is to say, on and
after the day appointed for the Union
taking effect in the Queen's Proclamation ;.
and in the same provisions, unless it is
otherwise expressed or implied, the name
Canada shall be taken to mean Canada
as constituted under this Act (i).
(i) "Canada as constituted under this Act." — This.
Act must now be read in connection with the various Im-
perial " Orders in Council," passed under section 146, post,
and having,under that section, the force of Imperial statutes;
and with the Acts in amendment of this Act. See note to
section 1, ante.
fn°ce8.^''°'" 5- Canada shall be divided into four
Provinces (i), named Ontario, Quebec,.
Nova Scotia, and New Brunswick.
(i) " Fowr Provinces." — For the boundaries of the
Dominion, and of each of the different provinces of which it
is now composed, see Houston, " Constituti(jnal Documents of
Canada," appendix B, p. 271. At the date of Confederation,
there were in existence in British North America three
other provinces, namely, Newfoundland, Prince Edward
Island, and British Columbia, ; the balance of the territory
TIIK M. X. A. AC'I" — SEC. tJ. 247
Itfiii^ un(»r<;)inize«l, except in ho far us the governiiit'iit of
the Hu«ls(»n's Hay Company in llnpertH Lan<l nii;;ht be
deemed an or^ani/ed Government. Newfoiuidland has .so
far declined all invitations to unite her fortunes with the
Dominion, althoujiili she was one of the provinces repre-
sented at tlie Quebec Conference. Prince Edwanl [sland
and British Columbia have since joined, and the remainder
of British Ncjrth America has lieen annexed to Canada, and
the province of Manitoba erected therein, so that there are
now seven "provinces" in the Dominion, exclusive of the
North West Territories. See Part IV. of this l)ook.
6. The parts of the Province of Can- JiS^ald
ada (as it exists at the passing of this '^"^ '^"'
Act) which formerly constituted respec-
tively the Provinces of Upper Canada and
Lower Canada shall be deemed to be
severed, and shall form two separate Pro-
vinces (i). The part which formerly con-
stituted the Province of Upper Canada
shall constitute the Province of Ontario;
and the part which formerly constituted
the Province of Lower Canada shall con-
stitute the Province of Quebec (ii).
(i) "Two separate provinces." — See Quebec Resolu-
tions, No. 2. Aithougli joined in legislative union under
Imperial Act, 3 & 4 Vic. c. 85 (" The Union Act"), the
diti'erence in race, language, and legal systems justified the
popular description of the two parts of old Canada as "the
two Canadas." For an interesting sketch of the devices
resorted to, in order to work out the federal idea in the
government of these tw'o parts of Canada, see Bourinot,
" Parliamentary Procedure and Practice," 2nd ed. p. 89, et seq.
The necessity, created by this severance of the tw<) Canadas,
for the establishment of new governmental machinery in
each of them, and the argument founded on the clauses of
248 'IIIK n. X. A. AfT — SKCS. 7-'.».
the Act which innk«> in'ovision then;t'<»r, will l>c found (lis
cuHHt'd in clmptt-r I IT. )inf^\ p. 4(i.
(ii) See the JndniiK'iit of Rolrinson, C..T., in Doe <h
Andei-Hon v. Todd ((|Uott'd anfc, p. 1()4-) for n statement in
reference to the honndaries of (old) Quehec.
I'o'lT^otil 1 The Provinces of Nova Scotiu and
MiT.nswick. New Bninswi(dv shall have the same
limits as at the passing of this Act (i).
(i) See foot-note tn\U\ p. 4().
Sus.'^"' 8- Ii^ the general eensns of the popu-
lation of Canada which is herehy re(piired
to be taken in the year one thousand
eight hundred and seventy-one, and in
every tenth year thereafter, the respective
populations of the four Provinces shall
be distinguished (i).
(i) "Shall he tUsti/nfjuifihpd." — In order to a re-adjust-
ment of the representation, in the parliament of Canada, of
the respective provinces. See section 51, [lo.sf, and notes
thereto.
III. Executive Power (i).
ExSve"°' 9- The Executive Government and
Queli.'"^'^ authority of and over Canada is hereby
declared to continue and be vested in the
Queen (ii).
• (i) "Executive 2)ower." — As to tlui necessary suhordi-
nation of the executive to the legislative department of
government, see ante, p. 12. In reference to the govern-
ment of Canada as part of the Brltlsk Eviii>ire, the Queen's
authority as executive head of that Empire is subordinate
to the parliament of the United Kingdom, the supreme
Imperial legislative power; and her authority as executive
TIIK W. N. A. ACT — HEC. 0. 24l)
licml <•!' (^>iim*h'i {I Ik if is in rrfrrcurr ti) mil' srlf-i/orci'i)-
ii)fiif\ is siiliordiimtL' t<» the uutliority ul" CmuKliim
]t)irliiniK'nts. In otlu'i' Wfirds, in su tai- as thf liiipcrifil
|i)H'liiini('nt Iwis i-cscrvt'il t<» itscIF, control (»ver ccrtuin
sul>j<'t't ninttci's, as Itciny' inattcrs oF Inipcriul concern (sncli
r('Sfi'vati<»n Itfiny' evidenced, eitliei* l>y express oi- implied
limitfition njjon tlie powers of tliu colonial legislature over
eel-tain subject mutters ( /'). or l»y the existence of Imperial
legislation upon these matters) (//), the executi\e authority of
the (^)»ieen is exercised suhject to the control (»f the Imperial
])arliament, //., hy and with the advice of the executi\o
committee or Cabinet of the Empire ; while, on the other
hand, in so far as leyislative power has lu'en conce(led to a
Colonial le^^islature, the executive authority of the Quoen is
exercise(l, throuL;h her representative, suhject to tlie control
of the colonial lej^islature, I.e., hy and with the advice of the
executive connuittee or Cahinet, Dominion or Provincial,
as the case may he. We may here notice on(.' particular
Hiihject matter, whicli for obvious rd'asons is treated as
matter of Iniperial concern, and in respect to which,
tla-refore, no lee'islative power is conceded to Canadian
jiarliaments; the constitution, namely, of tlie connecting"
links in the cliain of executive eovei-nment, from the
Imperial, through the Dominion, to the Provincial. The
executive government of the British Empire is, in truth,
in its Imperial, as well as its English aspect, a unit ; and
for the purpose of securing luiity of national jnirpose and
method throughout the Empire, the appointment of the
local executive heads is so arranged- that the execu-
tive department of that government which is pos-
sessed of the widest territorial juris<liction, appoints the
executive head of the government next in extent, and
exerci.ses executive supervision over its legislation; and so
on. We may here note that tlie Imperial government can
also exercise a h'<ilM<itive supervision over colonial legisla-
tion : the Dominion government is limited to the exercise
(/) See Chap. IX. {o) See Chap. IV.
250 THE H. N. A. ACT— SEC. !».
of I'.i'cciifirr sn]H'rvisi()n — to wit, the power of <li.sjillowimct»
— over proviiic'iiil Ic^fisliition. Leaving' out of eoiisidtTJition,
however, the leni.sliitive supreiimey <»f the liii|»eriHl jtiiiliu-
ineut, whut the .Fudieiiil ('oiniiiittet' has .sjiid (A ) in relercnce
to the relation hetwi-en the Doiniuion and the Proviiu-fM,
in Canada: " No one of the })artH can pass laws for itstdf
except under the control of the whole, acting; thronyh
the (}overnor-(»eneral : " is e(|ually applicahle — suhstitutin;;
the Queen for the (Jovernor-CJeneral — to the relation of the
colonies generally to the Empire.
Under existing' arran^eujents, the (^ueen occupies a dual
position, lieing- executive head of the Empire and, at the
same time, local executive head of the United Kingdom :
hut the union, in one le^^islative l»ody with one executive
connnittee or cabinet, of the power to le^^islate for the
whole Empire as well as sj)ecially for one of its territorial
divisions, leaves the line of division a purely "conven-
tional " one — in this sense, at least: that the ptjwer of the
Imperial parliament to alter the i)osition of the line, is
restrained only hy the "conventions," and not l»y the law
of the constitution ; but at any «;iven moment of time the
lino of division is a leual one. See (iiiff, p. 11.
The Governor-Cieneral of Canada again occupies a dual
position. He is one of the Imperial executive staff' as well
as executive head of the Dominion. In the former capacity,,
he is subject to Imperial executive authority, which, as we
liave said, extends to all tl»ose suV)ject matters, which, at
any given moment of time, are witliin the category of
matters of Imperial concern, controlled by Imperial legis-
lation, or — from the other point of view — uncontrollable
by colonial legislation. In regard to such matters his
actions are regulated by instructions, general or specific,
received from his official superi<jr at home or by Imperial
statutes. In his capacity as executive head of the Domin-
ion, he acts by and with the advice of the Queen's Privy
Council for Canada, and is, in the exercise of his executive
(/) Bank of Toronto v. Lanibe, 12 App. Cas. tit p. o87.
THE H. N*. A. ACT— MEC. 0. 251
jMitlinritv ill nlatioii to iiuittiTH within tin- l«'<!isliitivi' com-
|M't('MC'i' of tliu Dominion piirhmiK'nt, Hultjt'et to tlu* control
of that ImiiIv. Hiw |«»Hition with ivft-ivnc*' to the Lifiitt'ii-
aiit-(iovt'rnoi'H of thi' Hcvt'i'iil provinces, inuHtnitt'H tht* dis-
tinction wc have hccn tryin;,^ t(» ])()int out. The Dominion
piirliament cannot provide any method for the appointment
of a Lieiitenant-(Jovernor, or for his removal, otlier than
that provided in the H. N. A. Act. It is deemed matter of
Inijitiial concern that there should he a sinj^le executive
hea(Mor each of the jn'ovinces : that the Dominion execu-
tive committee or cabinet should appoint him; and that,
once app(tinted, he sluaild not he removed except for cause.
Any dei)arture from the mode provided in the B. N. A.
Act wouhl he illegal and nuyatory. and in performance of
his duties in this ciumection, the Governor-Cieneral must»
as an lm}>erial officer, follow the Imperial statute, as that
statute may be authoritatively interpreted by his otKcial
sup«'ii(»r in Enj^land. As to the mode of appointment, the
I). N. A. Act is explicit — the a})pointment must be by order
in council — so that the (piestion, who shall fill the ])osition,
is K'ft as a matter of local Canadian concern, to the deter-
mination of the Dominion Cabinet; while as to the
removal of a Lieutenant-Governor, the B. N. A. Act is
e(|ually clear in giving that power to the Oovernor-Cjeneral
alone. That is to say, the Governor-General cannot, alone,
legally ap])oint, but he can, alone, legally remove for cause.
This (|uesti()n is perhaps not of nuich practical importance,
liecause, in the Letellier case, the Imperial authorities laid
• lown the "conventional" rule for the guidance of the
Governor-General, that he should, in this matter of reiiunal,
act l>y and with the advice of the Dominion cabinet; but
should he at any time undertake to act upon his own
judgment a Lieutenant-Governor removed would legally
cease to be Lieutenant-Governor. The laving <lown of
this conventional rule has certainly very largely increased
the power possessed by the Dominion executive to interfere
in the afiaii-s of the provinces; but it was necessary, per-
252 rm: n. n. a. a<t— mkc ».
hiipH, tn till' loyiciil imit'unnitv nl' tin- t'olrnil mcIwiih'. It in
])frlin])s iimrr cunsniiiiiit with liiitisli iiutiuiis to liiivr the
mil |M»\vrr CMiiplt'd with rciil ifsiKHisiliility to the wh»th»
•'Icctoratt' of the I )oniiiiioii, ill whost- iiitrrrstM |nT,suimil»ly
thf power will III' csfrciMfil in any ;;iv('H casi', A political
cynic may jM'ihaps think not mot oiirofinM the remark of
Mr. Ihnnltlf when informed that a hnsliaiKl In, in law, pre-
Humeti to contrid his wife: " If the law |)re.sum«'M anylhin;;-
(»f the sort, the law H a fool — a natural fool." It is indeed
a serious (|UeHtion whether it would not l»e conducive to
the impartiality »»f the pro\iiicial executive heads to
make them entirely independent of Dominion executivj-
HUthoritv; or whether anv yiiin al(»ni>' this line w(tuld not
l)e mor«' than countt'rhalanced hy the loss of one item of
colonial self-<;(tvernment. See not»'s to st'ction r),S, y>os7.
(ii) " /// f/ir IJiiccii." — This section is declaratory
merely, and was inserted sim]>ly l»y way of almndant
caution, for, accord iny- to Chitty. "the kin;i;df Kn^land is
not only the chief, Imt pi'operly the sole magistrate of the
nation, all others actin;;' Ity cominission from, and in <lu(^
sultordination to him " (h/i)- lu an earlier cha[)ter we liave
treated at some length of the preroo-ativus <»f the Crown in
their relation to colonial yovenuiient, — see chapter VI.: and
we ha\(' endeavored to emphasize this leyal principle that
tlu'se prerogatives of the C^'own are noti>iu<^' mor«' than
powers \ested l»y the common law of En;4land in the execu-
tive iiead of the nation in aid of tin? execution of the law.s
of the realm, and that, by Act of parliament, these preroj^-
ative riyhts may he, and in a ^reat many instances ha\t'
heen modified — turned into statutory powers — oi- entirely
witlulrawn. The (piestiori has heen mooted, although per-
hai)s not of such practical importance, whether Her
Majesty could, in person, carry on tlie government <»f
Canada, or of one of the provinces; it is suhmitted that
(hh) See the jurl|.'ment of the P. C. in Liquidators of the Maritime
Bank v. Receiver-General of New Brunswick, as yet reported only in
Times L. II., Vol. VIII. p. ()77.
THE H. \. A. ACT--.sk* •. lU. -J.^ii
witliniit r»'|M')il ul" tin- h. N. A. Act, mIic cuuM not Icyiilly
• |u HO. All tli»' |M»\v»'is, uutliojitit's and ruiit'tioiis nfi't'ssary
t< I " carry in;;" on tin* ^ovcrnnu'iit " of the Dopiinion ami of
the ivspcctivc jnovinci'M arc, liy the cxprcHs terms ot" the
B. X. A. Act, vestetl in the (lovernor-deneral, or th»' I^ien-
tenant-Ciovernor, JUH the ease may recjuire (/); an<l Ky no
Act of Imperial rrcfutirr anthority con'd these express
provisions of this Imperial statute he overrithlen. In the
ahsence, therefore, of further Imperial legislation, we
must put up with Her Majt'sty's representatives.
The power (I) to <lisallow colonial le^^islation ; (2) t<>
Mppoint tlu^ ()lovernor-(ieneral ; (.S) to a{)point a I'om-
inaniler over tlie military and naval forces of Canada: (4)
to make international arrangements which will Kind
Canada; and (5) to liear appeals from Canadian courts iu
her Privy ('ouncil (,/'); W(aild seem to l»e ahout all the.
cnnnnon law prerogatives of the C^rown in connection with
colonial afiiiii-H, over which colonial le;;iNlatures have no
It'nislative power. As a nuitter of fact, some of tliese
powers can hardly l>e tlesij^nated preroj^atives of the Crown,
lis their exercise is entirely controlled by Imperial statutes.
As one example, we may note the power to disallow Do-
minion lef^'islation, which under section 50 of the B. N. A.
Act, CMi only be exercised within two yeai*H from the
recei})t of the Act by the secretary of state, and by order
in c<anicil.
10. The provisions of this Act referring jM^nrre'
to the Governor-General (i) extend and uovJiuoj-
apply to the Governor-General for the
time being of Canada, or other the chief
executive Officer or Administrator, for
the time being carrying on the govern-
(0 See notes to as. 10 and 62, post.
(j) Cuahing v. Dupuy, 5, App. Gas. 409, and cases there cited ; and
see Th4berge v. Landry, 2 App. Gas. 102 (as to appeals in election cases
under the Quebec Acta of 1872 and 1875), noted pout, under s. 41.
254 THE B. N. A. ACT — SEC. 10.
ment (ii) of Canada on behalf and in the
name of the Queen (iii) by whatever title
he is designated.
(i) "The Governor-General." — We have already de-
voted one chapter of this book to a consideration of the
position of the Governor-General, and need not therefore
make furtlier reference to that office here. As was pointed
out, the B. N. A. Act contains no express provision for his
appointment. By R. S. C. c. 3, he is a "corporation sole."
(ii) "Carrying on the government." — Compare with
this section, the language of section 62 in reference to the
carrying on of the government of the respective provinces
by the Lieutenant-Governors. The use of this phrase in
reference alike to the Dominion and the Provincial govern-
ments, has been much utilized in argument in support of
the contention that the Lieutenant-Governor is within his
sphere, an officer clothed with authority as complete as
that of the Governor-General; but as we shall have to deal
with this matter more at length when we come to deal
with the office of Lieutenant-Governor, we need not stay to
consider it at length here. See notes to section 58, ])08t.
(iii) "On behalf and in the nanw of the Queen." — The
absence of this phrase from section 62, has been utilized in
the opposite direction in Regina v. Amer {k), and other sub-
sequent cases. It was laid down by Harrison, C.J., tliat
the Governor-General is the only executive officer provided
for by the B. N. A. Act, who answers the description of
"representative of the Queen," but it is submitted that the
difference in the wording of this section and of section 62,
does not warrant any s ich distinction. Any pei*son carry-
ing on government within the British Empire must do so
on behalf oi, and in the name of, the executive head of the
British Empire, as all other executive magistrates act
under commission from, and in due subordination to, that
executive head. If reliance is placed upon the fact that
{k) 42 U. C. Q. B. 391.
THE B. N. A. ACT — SEC. 11. 255
the Lieutenant-Governor is described as an " officer," it will
be seen that this section uses the very same word in de-
scrioing the po.-tition ot* the Governor-General, and a refer-
ence to chapter VIII. and the cases there collected, will
show that the Governor-General occupies, in this respect, a
position in no way different from, or superior to, that of the
Lieutenant-Governor of a province. Very opportunely, there
comes to hand the report of the judgment of the Judicial
Committee of the Privy Council in Liquidators of the
Maritime Bank v. Receiver General of New Brunswick
(Times L. R., Vol. VIII. p. 677), which authoritatively
establishes the doctrine that the position of the Governor-
General and the various Lieutenant-Governors is, in prin-
ciple, precisely analogous. " A Lieutenant-Governor when
appointed is as much the representative of her Majesty
for oil purposes of provincial government as the Governor-
General himself is for all purposes of Domiinion govern-
ment." See further on this subject, section 58, et seq. and
notes.
Coustitution
for
11. There shall be a Council (i) to^.Triyv
aid and advise in the Government of cauada,
Canada, to be styled the Queen's Privy
Council for Canada (ii) ; and the persons
who are to be members of that Council
shall be from time to time chosen and
summoned by the Governor-General and
sworn in as Privy Councillors, and mem-
bers thereof may be from time to time
removed by the Governor-General.
(i) '' There shall he a council" — Compare with this,
the language of section 63. This latter section seems to
" take it for granted " that an executive council would be
called into existence in Ontario and Quebec, while as to the
Dominion it was necessary to make express provision there-
for. See ante, p. 50-1.
256 THE B. N. A. ACT — SEC. 12.
(ii) " The Queens Privy Coimcil for Canada." — Fol-
lowing the English practice, members of the Canadian
Privy Council, are not removed from their position upon
the resignation of the "ministry" of which they may happen
to be members ; but, of courae, those membei*s only who are
of the cabinet are summoned to meetings of the Privy
Council. See Bourinot, "Pari. Proc. and Pract.," 2nd
ed. p. 54 and Todd, " Pari. Gov. Brit. Col," p. 42.
undeHctlto 12- (i) All powers, authorities, and
be exercised i» ,• /•■-\ i-v t k l /'"S £
by Governor- luiictions (ii) which Under any Act (in) of
General with " ^ ^
advice of the Parliament of Great Britain, or of the
Irnvy Council '
or alone. Parliament of the United Kingdom of
Great Britain and Ireland, or of the
Legislature of Upper Canada, Lower
Canada, Canada, Nova Scotia, or New
Brunswick, are at the Union vested in or
exerciseable by the respective Governors
or Lieutenant-Governors of those Pro-
vinces, with the advice, or with the advice
and consent, of the respective Executive
Councils thereof, or in conjunction with
those Councils, or with any number of
members thereof, or by those Governors
or Lieutenant-Governors individually,
shall, as far as the same continue in exist-
ence and capable of being exercised after
the Union in relation to the Government
of Canada, be vested in and exerciseable
by the Governor-General, with the advice
or with the advice and consent of or in
conjunction with the Queen's Privy Coun-
cil for Canada, or any members thereof, or
by the Governor-General individually, as
the case requires, subject nevertheless
THE B. N. A. ACT — SEC. 12. 257
(except with respect to such as exist
uiuler Acts of the Parlian^ont of Great
Britain or of the Parliament of the United
Kingdom of Great Britain and Irehmd)
(iv) to be aboHshed or altered by the Par-
liament of Canada (v).
(i) We have already ha<l occasion to treat with some
fullness of this section and its companion section (Go) ; see
chapter III., pp. 48, et seq.
(ii) " All po'wcrs, etc." — Compare the language of sec-
tion 65, which vests these same " powers, etc.," so far as
they are capable of being exercised in relation to the gov-
ernment of Ontario and Quebec, in the Lieutenant-Gover-
nors of those provinces respectively. The B, N. A. Act
art'ects no division of these powers, but of the tield for their
exercise merely.
(iii) " Under any Act." — This section 12, refers only to
statutory powers and does not touch the common law " pre-
rogatives of the crown." The vast majority of the powers
exerciseable by the Governor-General are statutory powers,
that is to say, are vested in him under Canadian legislation.
See chapter VIII. anic, p. 168, et seq., where this (|uestion is
fully discussed.
(iv) "Except witii rexpect, etc." — Tliere are no Imperial
Acts conferring powei-s, authorities, and functions on
colonijd governoi-s generally: as to Canada, see the Consti-
tuticmal Act, 1791, and the Union Act, 1840. All the
p()wei*s,etc., conferred by those Acta — and more — are included
in the B. N. A. Act, which at the present time is the only
Imperial statute which in any way defines the duties of the
Governor-General or of the Lieutenant-Governors of the
various provinces.
(v) " To he abolished or altered by the parliament of
(Mnada." — This of coui-se is limited to the abolition or alter-
ation of these powei's, etc., so far as they are exerciseable in
Can. Con— 17
258 THE' 13. N. A. ACT — SECS. 13. 14.
relation to the goveniiiieiit of Canada. See (section 05, which
confere like power on the provincial legislative assemblies, so
far as these powei*s are exerciseable in relation to the govern-
ment of the provinces of Ontario and Quel)ec. See also
notes to section 129, 2)osf, with particular reference to
Dobie V. Temporalities Board, L. R. 7 App. Cas. 13G.
mS&e! 13. The provisions of this Act refer-
ve7nof-Gone°' Hiiff to thc Govemor-General in Council
ral in Council.
shall be construed as referring to the
Governor-General acting by and with the
advice of the Queen's Privy Council for
Canada (i).
(i) Compare section G6, and see chapter VIII. unte^
p. 167, et seq., for a reference to those matters in respect of
which the Governor-General, in contemplation of law, acts
alone.
MaTesi^t^au- 14. It shall be lawful for the Queen,
eruol-Gen°eVai if Hcr Maiesty thinks lit, to authorize the
tf I appoint '' ''
Deputies. Governor-General from time to time to
appoint any person or any persons jointly
or severally to be his Deputy or Deputies
wdthin any part or parts of Canada, and
in that capacity to exercise during the
pleasure of the Governor-General such
of the powers authorities, and functions
of the Governor- General, as the Governor-
General deems it necessary or expedient
to assign to him or them, subject to any
limitations or directions expressed or
given by the Queen ; but the appoint-
ment of such a Deputy or Deputies shall
not affect the exercise by the Governor-
General himself of any power, authority
or function (i).
THE B. N. A. ACT — SEC. 15. 259
(i) The commission to Lord Monck (clause 8), and the
Xetters Patent of 1878 (clause 6), expressly authorize the
oipi ointment, by the Governor-General, of a deputy. See
■chapter VIII. ante, p. 168. In the case of Regina v.
Amer (I), which came before the court upon a case stated,
a commission to hold an assize, attested in the name of
*' , Deputy of the Governor-General of Canada," was
referred to in the " case," and Harrison, C.J., assumed :
" 'L'hat the Queen authorized the appointment of a Deputy
Governor, and that the prerogative power in question was 'jon-
ferred by the Governor-General upon the Deputy Governor,
without any limitation or direction on the part of the Queen,
and so that it has been exercised by the proper authority," —
there being no statement to the contrary in the case. In
tliat case, commissions had been issued both by the Gover-
nor-General, and b}' the Lientenant-Governor, and the
judgment of the Court affirmed the authority of the
Governor-General to issue such commission ; but it is sub-
mitted that the power to exercise this prerogative is
properly with the Lieutenant-Governor, and not with the
the Governor-General — so far at least as provincial courts
are concerned — as it is a prerogative directly connected
Avith " the administration of justice in the province,"
and therefore falls within the class of matters over which
a provincial legislature is exclusively entitled to exercise
legislative authorit}'. See B. N. A. Act, s. 92, s-s. 14.
As to the appointment of a Deputy Lieutenant-Gover-
nor, see notes to section 67, jwst.
15. The Command-in-Chief of the ^^Zd'orces'
Land and Naval Militia, and of all Naval be vestedTn °
tbe Queeu.
and Military Forces, of and in Canada, is
hereby declared to continue and be vested
in the Queen (i).
(i) This is one of those mattei-s in respect of which
colonial legislative power is subject to many restrictions
(I) 42 U. C. Q. B. 391.
20*0 THE \i. N. A. ACT — SECS. l(i, 17.
ttrisin*^ from the existence of Imperial leyisiation of expreHK
colonial application. See chapter IX. (Uife. So far us such
legislation does not extend, the subject is, as between the
Dominion and the provinces, exclusively with the for-
mer: see B. N. A. Act, secticm !)1, sub-section 7, and notes
thereto. Oiu" legislation upon the subject is contained in
R. S. C. c. 41, to which the reader is referred, as the subject
is Ijeyond the scope of this work — political rather than
legal.
ernmen?or 16. Uiitll the Queeii otherwlse di-
cauaaa. ygcts, the Seat of Government (i) of Can-
ada shall be Ottawa (ii).
(i) "The .seat of (jocernment." — Compare section 0<S,
where the same form of expression is used in reference to
the provincial capitals. This fact, too, strongly supports
the view that the position (jf the provinces is the same, in
principle, as that of the Dominion.
(ii) " Ottiiiva." — This city is wholly within the boun-
daries of the province of Ontario. See the powerful
speech of Mr. C. Dunkin, in favor oi placing the Federal
capital entirely under the jurisdiction of the Federal gov-
ernment, just as the District of Columbia (within which is
situated the city of Washington) is under the control of
the Federal government of the United States. — Confed.
Deb. p. 507. •
IV. — Legislative Power, (i).
offrHament 17. There shall be one Parliament (ii)
for Canada, consisting of the Queen (in),
an Upper House, styled the Senate (iv),
and the House of Commons (v).
(i) " Legislative 'poiveT." — See chapter IX., mjie, for a
full discussion of the extent of the legislative power of a
British colony.
THE U. X. A. ACT — SEC. 18. 261
(ii) " F<(rllument." — Tlie use of tliis term in reference
Do the legiHlative luxly of the Dominion only, lias l»een
much utilized in argument to l»elittle tlie position of the
provincial legislative assemlilies ; but their co-onlinate rank
with the ])ominion parliament (each supreme within its
sphere of legislative authority) is now finally estahlished :
Hodge v. Reg. 0 App. Cas. 117 ; Bank of Toronto v. Land>e,
12 App. Cas. 575: Li(|uidators of the IMaritime Bank v.
Keceiver-General of New Brunswick, Times L. R. Vol.
\'III. p. 677. The appellati(m hestowed upon any of tliese
Ixxlies is immaterial. Tlie (piestion is, have they Iccjl slat Ire
powei-s in the proper sense of that term ?
(iii) "'The Queev^ — The position of the Queen as a
constituent hrancli of parliament will he found discussed
in chapter ^'I. anie, p. 132, et i^eq., where we liave also
pointed out that the Crown is also a constituent branch of
every colcmial legislature. As to the position, in this regard,
r)f tlie legislative assend)lies of the province, see notes to
.section 69, post.
(iv) " The Semite." — See secti(m 21, et seq.
(v) " The House of Commons.'' — See section 37, ef neq.
18. The privileges, (ii), immunities, ^f Houfes'i*''
and powers (iii), to be held, enjoyed and
exercised by the Senate and by the House
of Commons and by the members thereof
respectively shall be such as are from time
to time defined by Act of the Parliament
of* Canada (iv), but so that any Act of the
Parliament of Canada defining such privi-
leges, immunities and powers shall not
confer any privileges, immunities or
powers exceeding those at the passing of
such Act held, enjoyed, and exercised by
the Commons House (v) of Parliament of
2C2 THE B. N. A. ACT — SEC. 18.
the United Kinf^doin of Great Britain andl
Ireland and by the members thereof.]
(i) The section, as it originally stood, limited the power
of the Pariiainent of Canada to <lefininjj its orivileoes, etc.^
by its own enactment, " but so that the same shall never
exceed those at the passing of thin Act, held, enjoyed, etc'
In 1873, the parliament of Canada passed an Act, 36 Vic.
c. 1, " To provide for the examination of witnesses on oatli
by connnittees of the Senate and House of Connnons.
in certain cases." At the date of the passage of the B. N. A.
Act, the connnittees of the Imperial " Connnons House "
had no power to examine witnesses upon oath (although
they had been given {no) that power prior to 1873), and for
this reason the Dominion statute was disallowed by the
Imperial Privy Council. The Act had been passed in order
to facilitate encjiries into what is popularly known as the
" Pacific Scandal," and its disallowance created some excite-
ment. The result of negotiations with the Imperial author-
ities (n) was the passage of " The Parliament* of Canada.
Act, 1875," 38 & 39 Vic. c. 38 (Imp.), which substituted the^
section, as above printed, for the original section 18 of the
B. N. A. Act, 1867. It also expressly validated 31 & 32
Vic. c. 24 (Dom.), "An Act to provide for oaths to witnesses
being administered in certain cases for the purpose of either
House of parliament," as to the validity of which doubts
had been expressed. " Tlie Parliament of Canada Act,
1875," contains no further legislation than as above noted,
and it is therefore not thought necessary to reprint it in
full.
(ii.) " Pi'Lviletjes, etc." — The law which defines the
" privileges, immunities, and powers " of tlie British parlia-
ment, and of the members thereof, is almost altogether paii:,
of the ancient law of England. The branch of English
(m) See 3i & 35 Vic. c. 83 (Imp.).
(h) See Can. Comm. Jour., 1873 (Oct. Sess.), p. 5; Hess. Pap. (I8771v
No. 89.
THE n. N. A. ACT— SEC. 18. 263
coimnon law wliich deals with this subject is known as the
lex cf vonxaetiulo paii'urineiiii, and the Judicial C*(»iinnittee
of the Privy Council, on appeals from the colonies, have
uniforudy held that this branch of English connnon law
was strictly local in its application, and referre*], not to a
supreme legislature in the abstract, but to the Parliament
of Cireat Britain in the concrete, and that therefore it was
a branch of the connnon law which emigrating colonists
would not carry with them. The grant; therefore, of a
legislatui'e to a colony diti not, without more, invest such
body and its members with" those pnvileges, immunities,
and powers which were by the lex et consiietwlo parlia-
ment i annexed to the British parliament and its memljers.
The powers, (^ther than legislative, of a colonial legislature
(unless expressly extended by the terms of the charter,
commission, or Imperial Act constituting such legislature),
are such only as are incident to or inherent in such an
assendjly, viz., " such as are necessary to the existence of
such a body, and the proper exercise of the functions which
it is intended to execute." — Kielley v. Carson, 4 Moo.
P. C. .s«.
" Whatever, in a reasonable sense, is necessary for these pur-
poses, is impliedly granted whenever any such legislative body
is established by competent authority. For this purpose, pro-
tective and self-defensive powers only are necessary, and not
punitive. If the question is to be elucidated by analogy, that
analogy is rather to be derived from other assemblies not legis-
lative, whose incidental powers of self-protection are implied by
the common law (although of inferior importance and dignity to
bodies constituted for purposes of public legislation), than from
the British parliament, wdiich has its own peculiar law and
custom, or from courts of record, which have also their special
authorities and privileges recognized by law." — Barton v. Taylor,
11 App. Cas. at p. 203.
The existence of these limitations upon the powers,
privileges, and innnunities of a colonial legislature was the
reason, presumaldy, for the enactment of the above section
2G4 THK It. N. A. ACT — SEC IH.
of tlie B. N. A. Act; nud that eimctiueiit, aii<l tlio huIwu-
t|iient oimctments of tliu J)oiuinioii purliaint'ut, luive had
tlie ert'ect — .so far as the Dominion parlianieiit is ccjucoinud —
of relt'iiatinii' the numerous authonties wliicli deal with the
position, in this retj;ar<l, of colonial h'oislatures to the realm
of the constitutional hi.storian. But ltecau.se of the conten-
tion advanced in certain (|uarters tiiat the provincial leuis-
latures are subject to the law as laid down in those author-
ities, we ma}' say that in Barton v. Taylor, 11 App. Cas.
197, the result oH the authorities is clearly stated, and in
Woodworth V. Landers 2 S. C. R. loH {<>), will he found a
compendium of the law on this sahject (y>).
This clause of the B. N. A. Act has, on the othei- hand,
had the effect of limiting' the wide power of the Dominion
parliament to define l>y its own legislation the privileges.
etc., of itself and its memhers. c tnferred l»y .section 5 of the
Colonial Laws Validity Act, lM()o. as t(» which see note (i)
to secti(»n 35, and note (iii) to section Hi), post. It can never
go further than the Tn»perial parliament in this direction.
See further, on this aspect of the case, the notes to section
00, /tOKf.
As to the nature and e>.tent of these jjrivileges, etc.,
reference may be made to Ma}', Hatsel!. and Bourinot.
(iii) ''Powei\s." — The reference is, of course, to powers
other than legislative, as for example, the power to commit
for contem])t, to compel the cattendance of witnesses, and
to compel the production of papers, etc., etc., '♦vhicli may he
described as inquisitorial and punitive powers, in aid of
intelligent legislation. As to thn trial of electi(»n petitioris,
nee notes to section 41, ^jo.sf.
(iv) '' Deiined hy Act of f/ie jKiiiiamcnf of Cf((V(id(i." —
Dominion legislation upon this subject is contained in
R. S. C. (188G), c. 11, ss. 3-8, 20-23 :
(o) The " apology " branch of this case is, in view of Barton v. Taylor,
of doubtful authority.
(p) See Anderson v, Dunn, 0 Wheat. C04, and Kilbourn v. Thompson,
103 U.S. 1G8, as to the position of Congress.
'IHE H. N. A. ACT— SEC. IS. 2()5
"PRIVILEGES AND IMMUNITJES OF MEMBERS AND •
OFFICERS.
3. The Senate and tbe House of Commons respectively, and
the members thereof respectively, shall hold, enjoy and exercise
such and the like privileges, immunities and power* as, at the
time of the passing of " 'I'hc Ihitish Xort/i Aniericn Act, 18G7,"
were held, enjoyed and exercised by the Commons House of
Parliament of the United Kingdom, and by the members thereof,
so far as the same are consistent with and not repugnant to the
.'^aid Act, and also such privileges, immunities and powers as are
from time to time defined by Act of the Parliament of Canada,
not exceeding those at the time of tl;e passing of such Act held,
enjoyed and exercised l)y the Commons House of Parliament of
the United Kingdom and by the members thereof respectively.
4. Such privileges, immunities and powers shall be part of
the general and public law of Canada, and it shall not be
necessary to plead the same, but the same shall, in all courts
in Canada and by and before all judges, be taken notice of
judicially.
»>. Upon any inquiry touching the privileges, immunities
and powers of the Senate and of the House of Commons or of
any member thereof respectively, any copy of the journals of the
Senate or House of Commons, printed or purporting to be
printed by the order of the Senate or House of Commons, shall
be -admitted as evidence of such journals by all courts, justices
and others, without any proof being given that such copies were
so printed.
O* Any person who is a defendant in any civil or criminal
proceedings commenced or prosecuted in any manner for or on
account of or in respect of the publication of any report, paper,
votes or proceedings, by such person or by his servant, by or
under the authority of the Senate or House of Commons, may
bring before the court in which such proceedings are so com-
uienced or prosecuted or before any judge of the same, first
giving twenty-four hours' notice of his intention so to do to the
prosecutor or plaintiff in such proceedings or lo his attorney or
solicitor, a certificate under the hand of the Speaker or Clerk of
the Senate or House of Commons, as the case may be, stating
206 THE B. N. A. ACT — SEC. 18.
tliat the report, paper, votes or proceedings, as the case may be,.
in respect whereof such civil or criminal proceedings have been
commenced or prosecuted, was or were published by such person
or by his servant, by order or under the authority of the Senate
or House of Commons, as the cass may be, tf)gether with an
affidavit verifying such certiftcate ; and such court or judge shall
thereupon immediately stay such civil or criminal proceedings,
and the same and every writ or process issued therein shall be
and shall be deemed and taken to be finally put an end to,
determined and superseded by virtue of this Act.
T. If any civil or criminal proceedings are commenced or
prosecuted for or on account or in respect of the publication of
any copy of such report, paper, votes or proceedings, the defen-
dant at any stage of the proceedings may lay before the court or
judge, such report, paper, votes or proceedings, and such copy
with an affidavit verifying such report, paper, votes or proceed-
ings, and the correctness of such copy ; and the court or judge
shall immediately stay such civil or crimi jal proceedings, and
the same and every writ and proces? issued therein, shall be and
shall be deemed to be finally put an end to, determined and
superseded by virtue of this Act.
H, In any civil or criminal proceeding commenced or prose-
cuted for printing any extract from or abstract of any such
report, paper, votes or proceedings, such report, paper, votes or
proceedings, may be given in evidence, and it may be shown
that such extract or abstract was published huna fide and with-
out malice, and if such is the opinion of the jury, a verdict of
not guilty shall ba entered for the defendant,
* * » * *
EXAMINATION OF WITNESSES.
UO. Witnesses may be examined upon oath or upon affir-
mation, if affirmation is allowed by law, at the bar of the Senate,
and for that purpose the Clerk of the Senate may administer
such oath or affirmation to any such witness.
31. Any select committee of the Senate or House of Com-
mons to which any private Bill has been referred, by either
House, respectively, may examine witnesses upon oath or affir-
mation, if affirmation is allowed by law, upon matters relating
THE B. N. A. ACT — SECS. 19, 20. 267
to such Bill, and for that purpose the chairman or any memher
of such committee may administer such oath or affirmation, ta
any such witness.
22* Whenever any witness or witnesses is or are to be
examined by any other committee of the Senate or House of
Commons, and the Senate or House of Commons has resolved
that it is desirable that such witness or witnesses shall be
examined upon oath, such witness or witnesses shall be exam-
ined upon oath or affirmation, if affirmation is allowed by law ;.
and such oath or affirmation shall be administered by the chair-
man or any member of any such committee as aforesaid.
2S. Every such oath or affirmation shall be in the forms A
and B respectively, in the schedule to this Act.
(v) "Commons Houf<e" — The House of Lords in Eng-
land has certain judicial and other functions which our
Senate does not possess. See notes to section 21, ])ost.
19. The Parliament of Canada shall ^/•;t^Sa. ,
be called together not later than sixnada."^*'
months after the Union.
20. There shall he a Session of the Xl'par-'"''
Parliament of Canada once at least incauaX."
every year, so that twelve months shall
not intervene between the last sitting of
the Parliament in one Session and its
tirst sitting in the next Session (i).
(i) See chapter VIII. ante, p. 168, for some observa-
tions as to the duty oi a governor to insist upon the
observance of this section. In the case of the Dominion
government no question has ever arisen, the jiv >visions of
the section having been uniformly observed. The object of
the section, it is almost unnecessary to observe, is to pre-
serve the English rule of annual grants for the public
service. In England, the rule is guarded by the passing of
the Mutiny Act for one year (mly.
^fiS THK li. \. A. ACT — Si:c. 21.
f
1'hk Sknatk (i).
SmiorH''^ 21. The Senate sliall, subjeet to the
provisioiiK of tliis Aet (ii), consiKt of
seventy-two menihers, wlio shall he styled
Senators. - .
(i) " 'lltr »SV;/f//^'."— Stniii;4C as it iisfiy Jipftcui", ii pcnisal
of tln' «K'l»!it«'S oil the ('onriMlcriitioii Rt'.sohitioiis <lisflus«'s
tlmt lut (|n('sti(»ii was rai.scMl as to tlic uscruliicss <ir uscIhsh-
IH'HS ol' an r|>]j('r lloiisc. 'V\\v hi-caiiuTal system would
siTiii to liavL! hetMi at that time universally lavoivd, s(t I'ar
at least as tlie coiuititutioii oi* the Dominion government
was concej'ned. To the <lele<iates to the (^Mieltec Conrereiice
of |S(i4, two examjiles ol" an Tpper House ]»resente<l them-
selves— the Kniilish House of Lords, and the Tiiited States
Senate. The position ol' the former in the !*iii;4lish t'oiisti-
tutioiial system is Ncry cleMily delineij Ity l>a<;'ehot:
" Since the lleforiii Act, the Iloiiso of Lords has hccoiiie a
revisiiif,' and Huspoiidinj,' IJousc Their v(!to is a
sort of hypotlieticid veto. They say, we reject your hill this
once, or these twice, or even these thrice, hut if you keep on
sending it up, at last we won't reject it."
The House of Lords, to(», is possessed of judicial functions
of H ci'itain s(»rt, hut it is manifest that, lioth histoiically
ant! in actual |»ractice, the House of Loi'ds is in no sense a
federal element ill the Imperial scheme of o(»\(>i'iiuient, that
in no wjiy does it staiul out as the guardian of colonial
riehts. The IT. S. Senate on the other hand was institute(l
as a part of the feileral scheme, for the Vi^vy j)ur[»ose of
prot<'ctiim' " state riohts," and to that end, each state, lar^c;
(»r small, is entiile<l to two senators and no more. I*y tlu;
fathers of our ('onfech-ratioii, the Senate of ('anada was
announced as answerin<if both [)urposes ; as att'oidiii;;- a
check <»n hasty or ill-di jested legislation, and als(t as ])ro-
tectiny local interests and the autonoinv of the provinces.
Th(! attainment of the former purjioso was supposed to he
TIIK It. \. A. ACT — SKC. 21. 2<)J>
iiifulc s('cur«! Iiy ili^* modoof uppointiiHMit, the life teuuie ol"
the st'iiatorH l)('iii;^liel(l out as a guarantee for iiul(;pen<l«!nce
ill the exeici.se, of tlieir lej^ishitiv*! Wiitiiss; vvhihi the n/iud
repiesiuitatioii, in the Senat(% of each of the distiiietly
(jiffereiitlated jiortioiiH of the J)oiiiiiiioii wouM make that
liody th(! ^uaidian of " provincial rights," or at h*a.stof local,
as distinct from ;^eneral, interests.
" In order to protect local intereHts, and to prevent sectional
joalousies, it was found reqiuHife that th(i three great divisions
into which IJritish North America is separated, should he repre-
sented in the Upper House on the principle of equality. There
iuo three great sections, having (hft'erent interests, in this pro-
poHcd Confederation. We have Westcsm Canada, an agricultural
country far away from the sea, and having the largest population
who have agricultural interests principally to guard. We have
Lower (,'anada with other and separate interests, and especially
with institutions and laws which she jealously guards against
absorption hy any larger, more numerous, or stronger power.
And we have the Maritime Provinces, having also different sec-
tional interests of their own ; having, from their position,
classes and interests which wo do not know in Western Canada.
Accordingly in the Upper House — the controlling and regulating,
hut not the initiating hranch (for we know that here, as in Eng-
land, to the Lower House will practically belong the initiation
of matters of great public interest) in the House which luis the
sober second- thought in legislation — it is provided that each of
those great sections shall be represented equally by twenty-four
members. . . . The provision that each of the great sections
shall appoint twenty-four members and no more, will prevent
the Upper House from being swamped from time to time by the
ministry of the day, for the purpose of carrying out their own
schemes or pleasing their partizans. The fact of the govern-
ment being prevented from exceeding a limited number, will
preserve the independence of the Upper House, and make it, in
reality, a separate and distinct chamber, having a legitimate and
controlling interest in the legislation of the country
There is this additional advantage to be expected from the limi-
tation. To the Upper House is to bo confided the protection of
sectional interests ; therefore it is that the three great divisions
270 THE B. N. A. ACT — SEC. 21.
•are there equally represented for the purpose of defending such
interests against the combination of majorities in the Assembly.
It will, therefore, become the interest of each section to be
represented by its very best men, and the members of the
administration who belong to each section will see that such men
^re chosen, in case of a vacancy in their section. For the same
reason, each State of the American Union sends its two best
men to represent its interests in the Senate." — Per Sir John A.
Macdonald, in Confed. Deb. p. 35, et seq.
The Senate of Canada exercises no judicial functions
akin to those exercised by the House of Lords ami, to a
smaller extent, by the U. S. Senate ; nor has it anj' execu-
tive functions like those exercised by the U. S. Senate in
"'executive session," in relation to treaties and appointments
to office. Its functions are purely legislative.
In the light of subsequent developments, the criticism of
Mr. Dunkin, upon this part of the scheme of Confederation,
reads like a prophecy. Wanting in the characteristics
which, to some extent, uphold the exercise of authority liy
the House of Lords as a " dignified " part of the constitu-
tion {(]), the revising and suspending functions of our Senate
are a myth and, in practice, are limited to rejecting bills
which the government desire to see defeated but do not like
to oppose in the popular chamber; and, Avanting as its
members are in any distinctly different character, aims, and
interests from those of the members of the popular chamber,
and appointed, too, as they are, not by the provincial legis-
latures, but by the Dominion government, they are as
strong!}' and ccmtinuously party men as are the nieml>ers
of the House of Commons, and they divide on part}', not on
provincial or sectional, lines. Such federal element as ex-
ists at all in the constitution of the Dominion government,
is in the distribution of portfolios in the cabinet, as Mr.
Dunkin predicted it would be. With the entry of Mani-
toba, British Columbia and the North W^est Territories into
(q) See Bagehat, p. 89, ct seq.
THE H. N. A. ACT — SEC. 21. 271
the Dominion, all attempt to continue the principle otV^/nrr^
representation wan abandoned in favor, practically, of re-
presentation by population, so far at all events as the new
territories were concerned. Upon the passage of an Act
forming a new jirovince, such Act at once passes beyond the
competence of the Dominion parliament, and the representa-
tion allo\ve<l such new province in the Senate is thereafter
incapable of increase or decrease except by Imperial legis-
lation (/')• The representation of the province of Manitoba
in the Senate is now three, with a maximum liniit of four.
Upon the admission of Prince Edward Island, the ])ro-
visions of section 147, post, took effect; and that province
is now represented l>y four Senators. Upon the admission
of British Columbia, tlie representation of that province in
the Senate was fixed at three. By the B. N. A. Act, IHHd,
the Dominion parliament is empowered to make provision
for the representation, in the Senate, of any territories which
for the time lieing form part of the Dominion and are not
include<l in any province thereof; and, pursuant to the
power granted by that statute, the North West Teriitories
liuve been given two Senators, There is this peculiarity
about the position of the North West Territories — that the
imndjer of Senatoi-s, who may be appointed to represent
that district, is a matter entirely for the Dominion parlia-
ment, so that it is in the power of the Dominion govern-
ment to swamp the Senate, so long as the additional
inendiei's are appointed to represent the North West Terri-
tories. The original design has, however, left this mark
upon our system, namely, that Ontario, Quebec, and the
Maritime Provinces are still tied down to equality of repre-
sentation in the Senate, irrespective of differences in popu-
lation, and any alteration of our constitution in tliis
[•articular nnist l)e l)y Imperial Act. But it oidy recjuires
an enumeration of the number of Senators to which each
province is entitled, to show that the position of the Senate
as a guardian of local interests has entirely vanished.
{)•) B. N. A. Act, 1871, sec. 6; aeopost, Part IV.
272 THE H. X. A. ACT — SEC. 21
(ii) " Sahjcd to the pt'ori^iuwH i>/thifi Act." — 8eo HoctioiiH
2() and 27, pont, and notes thereto. This Act must now
be construed as one with the B. N. A. Acts, 1.S71 and ISSO,
See section 3 of the latter statute. We have referred in
the last note to the provisions of these statutes, both of
which will be found printed in full and further discussed in
Part IV. of this work
uou'ofTo'^" 22. In rehition to the constitution of
KTe!" the Senate, Canada shall be deemed to
consist of three divisions (i) —
1. Ontario ;
2. Quebec ;
8. The Maritime Provinces, Nova
Scotia and New Brunswick ; which three
divisions shall (subject to the provisions
of this Act) be equally represented in the
Senate as follows : Ontario by twenty-
four Senators ; Quebec by twenty-four
Senators ; and the Maritime Provinces by
twenty-four Senators, twelve thereof rep-
resenting Nova Scotia, and twelve thereof
representing New Brunswick.
In the case of Quebec (ii) each of the
twenty-four Senators representating that
Province shall be appointed for one of the
twenty-four Electoral Divisions of Lower
Canada specified in Schedule A. to chap-
ter one of the Consolidated Statutes of
Canada,
(i) " lltree (Jivif^ions" — See note (i) t(> section 21
ante, p. 2G9 et -seq.
(ii) " In the aine of Quebec." — This sub-aection reveals
a federal scheme within a federal scheme. See also section
THE B. N. A. ACT — SEC. 28. 273
.23 sub-section 6. Tlie reason for these provisions is dis-
closed in the Confederation Debates :
" It has been so arranged to suit the peculiar position
of this section of the province (.s). Our Lower Canada
friends felt that they had Frencli Canadian interests and
British interests to be protected and they conceived that
the existing system of electoral divisions would give
protection to these separate interests. We in Upper
Canada, on the other hand, were c|uite content that they
should settle that among themselves, and maintain their
existing divisions if they chose." — per Hon. George Brown,
Confed^ Deb. 90.
" Lower Canada is in a different position from Upper
Canada and there are two nationalities
in it, occupying certain portions of the country. Well,
these divisions have been made so as to secure to both
nationalities their respective rights, and these, in our
opinion, are good reasons for tlie provision that has been
made."— /x^/' Sir E. P. Tache, ih. 210.
23. The qualification of a Senator ^^seSoi!!"'
shall be as follows : —
(1) He shall be of the full age of
thirty years :
(2) He shall be either a natural-born
subject of the Queen, or a subject
of the Queen naturalized by an
Act of the Parliament of Great
Britain, or of the Parliament of the
United Kingdom of Great Britain
and Ireland, or of the Legislature
of one of the Provinces of Upper
Canada, Lower Canada, Canada,
Nova Scotia, or New Brunswick,
\[s) i.e., of (old) Canada. . =,
Can. Con.— 18
2Y4 THE B. X. A. ACT — SEC. 24.
before the Union, or of the ParHa-
ment of Canada after the Union.
(3) He shall be lenjaily or equitably
seised as of freehold for his own
use and benefit of lands or tene-
ments held in free and connnon
socage, or seised or possessed for
■ his own use and benefit of lands or
tenements held in franc-aleu or in
roture, within the Province for
which he is appointed, of the value
of four thousand dollars, over and
above all rents, dues, debts, charges,
mortgages, and incumbrances due
or payable out of or charged on or
affecting the same :
(4) His real and personal property
shall be together worth four thou-
sand dollars over and above his
debts and liabilities :
(5) He shall be resident in the Pro-
vince for which he is appointed :
(6) In the case of Quebec he shall
have his real property qualification
in the Electoral Division for which
he is appointed, or shall be resident
in that Division.
senatT'°^ 24- The GoveHior- General (i) shall
from time to time, in the Queen's name, by
instrument under the Great Seal of Can-
ada, summon qualified persons to the
Senate ; and, subject to the provisions of
THE B. N. A. ACT— SECS. 25, 26. 275
this Act, every person so summoned shall
become and bo a member of the Senate
and a Senator.
(i) " The Govenior'Gener(iL"—The (hities of tlie Gover-
nor-General under tliis section liave been already (liscussed.
See chapter VIII. ante, p. IGO, where will also be found
noted, the <lifterent meaning given to the word " Hunnnon "
in this section, and in section 88.
25. Such persons shall be lirst sum- fl?s["Ciy o°/
iiioned (i) to the Senate as the Queen by ^"""'"'■'•
warrant under Her Majesty's Royal Sign
Manual thinks fit to approve, and their
names shall be inserted in the Queen's
Proclamation of Union.
(i) " Suck j)ermns shall be Jirst summoned"— See the
Queen's Proclamation of Union in the Canada Gazette.
26. If at any time on the recommen- seSrs^i
dation of the Governor-General the Queen h'es'li)
thinks fit to direct that three or six mem-
bers be added to the Senate, the Gover-
nor-General may by summons to three or
six qualified persons (as the case may be),
representing equally the three divisions
of Canada, add to the Senate accordingly.
(i) " Aildition of Semftors."— The Quebec Resolutions
made no provisions for any alteration in the number of
Senators, and the absence of such provision was commented
on in a despatch of the then Secretary of State for the
Colonies in these terms :
" The second point which Her Majesty's government desire
should be reconsidered, is the constitution of the Legislative
Council. They appreciate the considerations which have
mfluenced the Conference in determining the mode in which
276 THE B. N. A. ACT — SECS. 27, 28.
this body, so important to the constitution of the legislature,
should be composed. But it appears to them to require further
consideration, whether, if the members be appointed for life,
(inil their mmher Iw fi.ml, there will be any sufficent means of
restoring harmony between the Legislative Council and the
popular assembly, if it shall ever unfortunately happen that a
decided difference of opinion shall arise between them."
The a])<)ve section was inserted in the Act to meet the
views of the Imperial authorities as expressed in the ahove
despatch, but it has never been acted upon. In the only
case in which an addition to the niembei*ship of the
Senate was sought under this section, it was refused b^'the
Imperial authorities (0- In view of the position to which
we have before adverted, namely, the power of tiie
Dominion parliament to regulate the nundjer of Senators
from those parts of Canada not erected into provinces,
this and the next section niay be sai<l to be practical!}'
effete. It is certainly somewhat anomalous to place in the
hands of the Imperial Cabinet the power to grant or refuse
the re(|Uest of the Dominion government, in a mattei- .so
entirely one for local consideration.
se^uate'io""' 27- Ih ciise of siicli additloii being at
normal uuui- .• jj i.\ n /-i i
i)er. any tnne made the Governor-General
shall not summon any person to the
Senate, except on a further lilie direction
by the Queen on the like recommendation,
until each of the three divisions of Canada
. is represented by twenty-four Senators
and no more.
.mmbirof 28. Tho nuuiber of Senators shall
Senators. ^^^^ ^^ ^^^ ^.^^^^ cxcccd sevcnty-cight (i).
(i) " Seventy -e iff ht." — This is the legal limit at present,
so far as regards Ontario,Quebec and the Maritime Provinces ;
(0 See Todd, " Pari. Govt, in Brit. Col.," p. 1G4
THE H. \. A. ACT — SECS. 29-81. 277
iiainely, Heventy-tvvo under section 21, with a poHHi])le addi-
tion of six under section 2(5. In note (i) to section 21, we
have referred to the additions which have heen made to the
nieinhei-ship of the Senate (jn tlie afhnission of the different
provinces and territories which, since C»)n federation, have
become part of the Dominion. See also Part IV. There is
now no "niaxiniuin nuuil)er" as indicated iii the side-note.
29. A Senator shall, subject to the ^CT'
provisious of this Act (i), hold his place ^'"'*'®
in the Senate for life (ii).
(i) " S(iJ>jecf to the provifilonnof this Act," — See tlie two
following .sections, 30 and 81.
(ii) " For llfe:'—Hee note (i) to .section 21, ante, p. 268.
30. A Senator may by writing under of%'ffln"
his hand addressed to the Governor-Gene-
ral resign his place in the Senate, and
thereupon the same shall be vacant.
31. The place of a Senator shall be- t^W""""
come vacant m any oi the followmg
cases : —
(1) If for two consecutive Sessions
of the Parliament he fails to give
his attendance in the Senate :
(2) If he takes an oath or makes a
declaration or acknowledgment of
allegiance, obedience or adherence
to a foreign power, or does an act
whereby he becomes a subject or
citizen, or entitled to the rights or
privileges of a subject or citizen of
a foreign power :
278 THE B. N. A. ACT— SECH. 82, 83.
(3) If he is adjiid^^ecl bankrupt or in-
solvent, or applies for the benefit
of any law relating to insolvent
debtors, or becomes a public de-
faulter :
(4) If he is attainted of treason or con-
victed of felony or of any infamous
crime :
(5) If he ceases to be qualified in re-
spect of property or of residence;
provided, that a Senatoi* shall not
be deemed to have ceased to be
qualified in respect of residence by
reason only of his residing at the
seat of the Government of Canada
while holding an office under that
Government requiring his presence
there.
32. When a vacancy happens in the
Senate by resignation, death, or other-
wise, the Governor-General shall, by
summons (i) to a fit and qualified person
fill the vacancy.
(i) "By summons." — See note (i) to section 24, and
also chapter VIII. (njf^-, p. 170.
?o"quaiifloa-' 33- If ^uy qucstlou arises respecting
vac"a^ucie^8in tlic qualification of a Senator or a vacancy
Senate
in the Senate the same shall be heard and
determined by the Senate (i).
(i) " Determined by the Senate" — Up to the date of Con-
federation, the legislatures of the various provinces had
Summons on
vacancy in
Senate.
TIfE H. N. A. ACT — SECS. »4, 35. 279
ittniiK'tl in their own Imuds the juriMdictioii t<» deteriniiie all
<|UeHtionH relatin*^ to the nt(i.tan of their ineinherH, ami for
.smiie 3'eai'M after Confederation, the parliament of tlie Do-
minion exercised like jurisdiction. Section 41, however, of
the B.N. A. Act (see j)osf) impliedly emn(>wer.s the Dominion
pjvrliament to provide otherwise as to the House of Com-
mons, and as the notes to that section will sliow, this
power has l»een acted upon. No similar power is given by
the B. N. A. Act to alter the provisions of this section 88, as
to determining the nfntas of membei-s of the Senate. As
they are not elected hy popular vote, (juestion win hardly
arise as to the mode of api>ointment, unless indeed appoint-
ments were made in excess (jf those allowed by the Act. As
the varifuis niattei-s which work disqualification, are, with
the exception of the failure to give attendance in the
Senate (see secti<m 81, sub-section 1), mattei"s as to which
ijuestions of disputed fact might arise, it may be worth
consideration whether the determination of these matters
.shouM not be left to the courts. Up to the present time
however, none of the sub-sections of section 31 have been
invoked, with the exception of sub-section 1, and upon tliat
head, the proof of disijualitication would appear in the
Senate's journals.
34. The Governor-General may from oVff Sk"/"*
time to time, by instrument under the ° ^^"**®'
Great Seal of Canada, appoint a Senator
to be Speaker of the Senate (i), and may
remove him and appoint another in his
stead.
(i) See R. S. C. (1886), chapter 11, section 24 (a), which
provides for a salary of |?4,000 per annum for the Speaker
of the Senate. See note to section 44, j^ost.
35. Until the Parliament of Canada Kr°'
otherwise provides (i), the presence of
280 THE B. N. A. ACT — SEC. 35.
at least fifteen Senators, including the-
Speaker, shall be necessary to constitute
a meeting of the Senate for the exercise
of its powers.
(i) " Until the 2^iiflM'inent of Canada otherwise pro-
vides"— See Valin v. Langlois(5 App. Cas. 115), in which it
was held that under these same words, in section 41, tlie
Dominion parliament has full power to pass laws in
relation to the various mattei-s enumerated in that section.
It follows, tlierefore, that (apart altogether from the pro-
visions of the Colonial Laws Validity Act, 1865, about to
be noted) the " quorum " of the Senate may be altered by
the Dominion parliament. Compare section 48, post, as to-
the " quorum " of the House of Commons. This latter
cannot — so far as the B. N. A. Act affects the question —
be altered by anything short of Imperial legislation. But,
in reference to the constitution of all colonial legislative
bodies, the provisions of the Colonial Laws Validity Act,
1865, must not be overlooked. By the fifth section of that-
Imperial Statute, it is enacted :
" 6. — .... Every representative legislature shall,,
in respect to the colony under its jurisiiction, have, and be
deemed at all times to have had, full power to make lawa
respecting the constitution, powers and procedure of such h't/islatiire ;
provided that such laws shall have been passed in such manner
and form as may from time to time be required by any Act of
parliament, letters patent, Order in Couocil or colonial law, for
the time being in force in the colony."
It may perhaps be contended that this section cannot
apply to Canada, as the B. N. A. Act, 1867, is of a later
date ; and, certainly, so far as the latter statute contains*
express provision in reference to the matters referred to in
the section quoted, its provisions would govern.
No colonial legislature, it is submitted, can under thi»
section enlarge the sphere of its legislative jurisdiction, and„
a fortiori, no such authority is conveyed by this section to-
THE B. N. A. ACT — SEC. 36. 28T
any legislative body in Canada, where the field for the
exercise of colonial legislative power is divided in such
express terms by the B. N. A. Act. The section relates ta
the organization of the legislative bodies throughout the
colonies, their powers other than legislative, and the mode
in which their functions are to be performed, an<l has no
relation to their sphere of authority. It is submitted,,
therefore, that the Dominion parliament has full power to
alter these various provisions of the B. N. A. Act, relating
to powers and procedure, except where express or implied
limitation upon such power (as, for instance, by section 18,
ante) is imposed by the Act.
So far as the provincial legislatures are concerned,
express power to amend the provincial " constitutions "
(except as regards the office of Lieutenant-Governor) is
conferred by section 92 (sub-section 1), of the B. N. A. Act,
and the maxim Expressio uniiis exclitsio est alter ins may
perhaps be invoked in denial of the power of the Dominion
parliament along this line. The argument cannot apply to
the question of parliamentary " procedure," but it does very
strongly negative any power in the Dominion parliament to
alter its " constitution," that being a matter fixed by the
agreement of the federating provinces and exhaustively dealt
with by the B. N. A. Act. The difficulty is, perhaps, to
define what provisions of the B. N. A. Act relate to the
" constitution " and what to the " procedure " of the
Dominion parliament. See further upon this question,
sections 69 and 92 (sub-section 1), post, and notes thereto.
36- Questions arising in the Senate seuLll/u)
shall be decided by a majority of voices,
and the Speaker shall in all cases have a
vote, and when the voices are equal the
decision shall be deemed to be in the
negative.
(i) " Voting in the Senate." — Compare sections 49, 79,,
and 87, and see note to last section.
282 THE B. X. A. ACT — SEC. 37.
The House of Commons.
oS\se"oT 37. The House, of Commons shall,
Canada"^ ^" subject to tlic provisioiis of this Act (i),
consist of one hundred and eighty-one (ii)
members, of whom eighty-two shall be
elected for Ontario, sixty-five foi Quebec,
nineteen for Nova Scotia, and fifteen for
New Brunswick.
(i) " Subject to the lyrovisiona of this Act." — See section
51, jt>o.s^ providing for a re-distribution f)f the representa-
tion, as between the various provinces, after each decennial
census. See also section 52, which provides that the
number of members of the Hduse of Commons may l)e,
from time to time, increased, provided the proportionate
representation is not therel^y affected. Upon tlie admission
of Prince Edward Island and Britisli Columbia, and upon
the formation of the Province of Manitoba, tlie representa-
tion in the House of Commons from those provinces was
<letermined, but subject in each case to re-distribution
under section 51. See Part IV.,^>(^sY. The North West Terri-
tories would seem to be in a peculiar position with regard
to tlieir representation in the House of Commons as well as
in the Senate. As to the formei", see note (i) to section 21,
(iiite p. 271. As to the latter, see the B. N. A. Act, 188G,
wliich apparently does not limit tlie power of the Dominion
parliament V)y any reference to section 51 unless, indeed,
the provision (section 3) that the B. N. A. Acts of 18G7.
1871, and 188G, are to be construed together, would have
the effect of making applicable to the representation of the
territories, the provisions of section 51. This can hardly
be, however, as section 51 is distinctly limited to the distri-
bution of representation as between the " provinces."
(ii) " ISl inembers." — There has just been pasjsed by the
Dominion parliament a re-distribution bill, consequent upon
THE B. N. A. ACT — SECS. 38-10. 283
the census of LSOl, which apportions the nieuiljei-ship as
follows: (55-50 Vic. c. 11).
Ontario 92
Quebec Co
New Brunswick 14
Nova Scotia . . . 20
Prince Edward Island 5
Manitolm 7
British Columhia 0
Total— 209
To which add the representation to
which the N. W. Territories are
entitled under R. S. C. c. 7 . . . 4
Grand total— 218
38. The Governor-General shall from ff"Ee oi''
time to time, in the Queen's name, by in- '^'"'"°"^'
strument under the Great Seal of Canada,
summon and call together the House of
Commons (i).
(i) See chapter' VIII., (intf, p. IdS, as to the exercise by
the Governor-General of the prerogatives of the Crown, in
connection with the summoning, proroguing and dissolving
of parliament , where will also be found noted the ditierence
in the meaning of the word "sunnnon" as applied to the
niembei-s of the House and of the Senate respectively.
39. A Senator shall not be capable uf's^SJ^L
or bemg elected, or of sittmg or votmg as
a member of the House of Commons.
40. Until the Parliament of Canada K°o?the'"
otherwise provides, Ontario, Quebec, Nova '""'
Scotia, and New Brunswick, shall, for
the purposes of the election of mem-
284 THE B. N. A. ACT — SEC. 41.
bers to serve in the House of Commons^
be divided into Electoral Districts as fol-
lows : — [Here follows' an enumeration
(ivith reference to schedulen) of the elect-
oral districts in the provinces named. In
view of ivhat appears in note (i) to section
41, it appears needless to reprint this
enumeration.]
«°exSr' 41. Until the Parliament of CanadiV
untiVparur otlierwise provides (i), all laws in force in
da otherwise the several Provinces at the Union rela-
providea.
tive to the following matters or any of
them, namely, — the qualifications and dis-
qualifications of persons to be elected or
to sit or vote as members of the House
of Assembly or Legislative Assembly in
the several Provinces, the voters at elec-
tions (ii) of such members, the oaths to be
taken by voters, the Returning Officers,
their powers and duties, the proceedings
at elections, the periods during which
elections may be continued, the trial of
controverted elections (iii), and proceed-
ings incident thereto, the vacating of
seats of members, and the execution of
new writs in case of seats vacated other-
wise than by dissolution, — shall respec-
tively apply to elections of members to
serve in the House of Commons for the
same several Provinces.
Provided that, until the Parliament of
Canada otherwise provides, at any elec-
THE H. N. A. ACT — SEC. 41. 285
tion for a Member of the House of Com-
mons for the District of Algoma, in
addition to persons qualified by the law
of the Province of Canada to vote, every
male British subject aged twenty-one
years or upwards, being a householder,
shall have a vote.
(i) " ihitil the pmiiainoit of (ki)uiAa otherwm' pro-
viih'K." — The parliament of Canada has long since otlienvise
prtjvided, and these four sections (40-43) are now therefore
practically effete, except in so far as they confer power to
legislate upon the various matters referred to in them. See
note (iii) to this secti(^n. The electoral districts in the
various provinces and territories of the Dominion will be
found defined in the Act (55-50 Vic. c. 11) which has just
passed the Dominican parliament. The law upon the
N'arious matters referred to in section 41 will be found in :
R.S.C. (ISHG), c. 5.— "The Electoral Franchise Act."
" c. !S. — " The Dominion Elections Act."
" C.J). — "The Dominion Controverted Elec-
tions Act."
" c. 10. — Providing for commissions of encjuiry
in certain cases.
" c. 11. — See secticms 9 to \\),svh. tit. "inde-
pendence of parliament ' ;
and the various amendments to these Acts.
In Willett V. De Grosbois (u), certain pre-Confederation
laws of the old province of Canada in respect to electii^n
matters were held to be still in force in Quebec. The Act,
23 Vic. c. 17 (LSGO), made void any contract referring to or
arising out of a parliamentary election, even for payment
of lawful expenses. The Dominion parliament, after Con-
fetleration, passed an Act respecting Dominion elections,
liut not containing this or any like provision, and it was
(u) 2 Cart. 332 ; 17 L. C. Jur. 293.
286 'JHE H. N. A. ACT — SEC. 41.
held that this provision, never havinj^ l»een repealed, was m
force in Quebec as respects Dominion elections, under this
section 41, an<l section 120, post, and that therefore a pr«^-
niissory note given as a contribution to the expenses of a
subse(|uent Dominion election, was void. In 1(S74, however,
this old statute Avas repealed so far as it affected Dominion
elections (87 Vic. c. 9, s. 133), and it was expressly enacted
that thereafter pre-Confederation provincial laws touching^
elections should not apply to elections to the House of
Commons.
(ii) " The vofevK <(t elections." — The law upon this sub-
ject, so far as relates to elections to the House of Connnont*
of the Dominion parliament, will be found in " The Electoral
Franchise Act " (R. S. C. c. 5). Compare with this section
41, the provisions of section 84, poi^t, relating to electicms to
the legislative assemblies of the provinces. In reference to
provincial "votei"s' lists" the municipal machinery is utilized,
but " the unity in federal and provincial electoral matters
has been completely dissevered " (f), and for the Dominion
an entirely distinct and independent system has been
adopted. The work of preparing the lists is committed to
revising officere, sitting in " federal courts." In connection
with these courts arose (w) the question of the jurisdictiim
of provincial "superior" courts to supervise the exercise of
judicial functions by federal courts ; this (juestion will be
found discussed in chapter yil.,<mie, p. 240, and in the notes
to section 101,^)o.s/. We may here note, however, that the de-
cision in Re Simmons and Dalton was put upon the ground
that the light to vote at an election. Dominion or Provincial,
is a " civil right " within the meaning of section 92, sub-sec-
tion 13, and that therefore a provincial superior court may, by
prohibition, restrain a revising officer from improperly inter-
fering with such " civil right." The point is referred to in
Th^berge v. Landry, referred to in the next note. In
Re North Perth it is thus dealt with :
(i) Per Meredith, J., in Re North Perth, 21 O.R. at p. 540.
(w) He Simmons and Dalton, 12 O.R. 505; Re North Perth, 21 O.B. 538.
I'HE 15. X. A. ACT — SEC. 41. 287
" Now, the gi'oup of statutes i-elating to the election of
members to the House of Commons .... are all of the
proper competence of the Dominion. In particular, Ontario has
no legislative power over the electoral franchise of the Dominion.
That subject has been regulated by the Parliament of Canada^
and a new jurisdiction conferred for the ascertainment of duly
(qualified voters in and for the Dominion.
" This legislation does not trench upon ' property and civil
rights in the province,' as was intimated in lie Simmons and
Dalton, 12 0. R. 505. On the contrary, this class of legislation
is contemplated and sanctioned by the -list section of the B. N. A.
Act.
" Ontario has her own like sphere of the electoral legislation
provided for in section 84 of the same Act. Neither interferes
with the other, because they occupy different planes of political
territory, but both are essential for the efficient working of the
Canadian system of dual government.
" The subjects of this class of legislation are of unpolitical
character, dealing with the citizen as related to the Common -
weath (whether province or dominion), and they are kept distinct
in the Federal Constitutional Act from matters of civil rights in
the provinces, which regard mainly the ineum and tuum as
between citizens. It is, in my view, rather confusing to speak
of the right of voting as comprehended under the • civil rights,'
mentioned in section 92, sub-section 13 of the B. N. A. Act.
This franchise is not an ordinary civil right ; it is historically
and truly a statutory privilege of a political nature, being the
chief means- whereby the people, organized for political purposes,
have their share in the functions of government. The question
\r> hand, therefore, falls within the category not of ' civil rights
in the province,' but of electoral rights in Canada." — l^cr
Boyd, C.
We may also refer to Valin v. Langlois (5 App. Cas.
115), in which it was intimated that, apart even from this
section 41, "the administration of justice in tlie province "
could not properly be construed as covering the trial of
controverted election cases, arising out of elections to the
House of Commons of Canada. See r.lso the next note.
'288 THE H. N. A. ACT— HEf. 41.
It is, W(! iiiiiy Hiiy, entii'dy Iti^yojul tin* Hcopc ol:' this
work to (li.scUHs tin; |L';l'HL'Iji1 liiw hikI jHuctic*' in ivtViciuM'
to elcetiouH ami clt'ctioii ti'ial.s. VW* siiiiply dcsii-o to uhhIhii
tlics*; Hulijt'cts their propci- [)luce in our constitutioiuil
.sy.st»'ni.
(iii ) " The t.i'lol itfronfiutvcrfrtl rlrrJionmnul pnn'cci/luffs
inililriif f/irrrfo." — Prior to conrcdeiation, tliu It'^iHlaturcs
of tli(! varioUH proviiiwH followed the; exainj)le of the iiritiHli
]»arlianieiit, and )'etain(;d in their own hands tin; ri^ht to
decide all (|UeHtionH as to the nfo/ns <»f their niendtei'M, and
for some years after Confed«;i"ati(»n, iMtth the l)oniini(»n an<l
j>ro\incial legislatures retained this juris<lietion.
" As the House of Connnons in j'ingland exorcised sole
jurisdiction over all matters connected with controverted elections
except so far as they may have restrained themselves by statutory
restrictions, the several Houses of Assendjly always claimed and
exercised in like manner the exclusive right to d<'al with, and he
the sole judges of el(!:;tion matters, unless restrained in hke
manner, and this claim, and the exercise of it, I have never
lieard disputed ; on the contrary it is expressly recognized ns
existing in the Legislative Assend)ly hy the Judicial Connuittee
of the Privy Coma il in Theberge v. liandry," /*/v Jlitchie, C.J.,
in V'alin v. Langlois (8 S. C. R. at p. 10).
See also his short histoi-ical sketch of Kn;^liHh practiei;
jind lej^islation on this siihject, ([)[). 12 and \'\). In the
judninentof the.lndieial Connnitt(!e(d' tlu; Pj-ivy Council (.»),
to which the leanuMl Chief .Justice i-efei-s, Lord Cairns
(p. ]()()), sfieaks of the Quebec Controveited Elections Acts
of 1.S72 and l(S75, as " peculiar in theii' chaiacter " :
'* They are not Acts constituting or providing for the decision
of mere ordinary civil rights ; they are Acts creating an entirely
new, and up to that time unknown, jurisdiction in the particular
. court of the colony for tlie purpose of taking out, with its own
consent, of the legislative Assembly, and vesting in that Court,
.that very peculiar jurisdiction, which, up to that time, had existed
in the Legislative Assembly, of deciding election petitions, and
(/) Thoberge V. Laiulry, 2 App. Cas 102. .
Tin: M. N. A. A<T— SKr. 41. 280
(iLtt')ininin^' ll»;s'/»'».sof thoHo wlioclaiincil to W numbers of th«
Lci,'islativo Assombly."
mill the ( *(iiiiiiiittc(' held, in tlntt chhv, tlnit tlioHt- Acts <li<l
not aniu'X to tin* dt'ei.sionH ol" tin; tiiltunjilH eoiiHtitutcM l»y
llitni, till- or»liniiiy incident of Itfiny' iT\ic\vc(| Ity tli<' (.rown
ini<l»r its |)rt'r()Huti\(' i-iulit to licnr MppcjilH IVoni colonial
courts.
VVm'Tc tln'if any <|iit'stion ol" tlit- li^lit ol" n cojnniul
It .lislatupf to set up and r.xcrcist' sucli a claim (sec notes to
section IS, (Uiif, p. 2(i2, an<l s«'Ction (>!>, y/o,s/), the al»ove sec-
tion 41, ami tlie cories](on<lin^' section (section <S4), as to the
lei;islatui('s of Ontario and <J|u«dtec, woidd seem suHicient
statutory acknowhd^^nient <»!' it, and, as notetl hy Iiit(;hie,
( .J., 'rhel»ei";;(! v. Lan<liy is a distinct jij'cooiiition <»!' its (!X-
istence. The paiticulai* point involv*'*! in \'»Uin v. Lan;;l(»is
was as to the povv(ir (»t' tht; Dominion pailiam«!nt to conl^M"
upon provincial courts, jurisdiction to tiy petitions under the
Dominion Controverted Klections Act, 1875, and this will he
i'ound discussed in cha}>ter XJ, onfc, p. 'I'M, <■! wvy. and in
the not«.'s to section 02, suit-section 14, juiHt. It was
held that the statute was intra vi/rw (.S S, (y. U. I, and 5
Ap)). Cas. 1 15), and we need h(M'<; only note that, in the view
ol" the.liidicial Committee of the I'livy Council, the openinji;-
clause of section 41 : " Until thr jxi liianicnt of (%iii(uln
nf/wrwi-st', itfouiih'-s": impliedly conferred ujxtn the Dominion
[tarliament full power to make laws in relation to the
matters enumerate<l in the remain<ler of the section, al-
thou<.;h not enumerated in any of the various suh-sections
of section 01 — and this, irrespective of the construction to
h<' put upon the "general words of the openin;^- clause of
section 01. .
" That other clause, the 41st, expressly says that the old
mode of determining this class of (jiiestions was to continue
until the parliament of Canada should otherwise provide. It
ii'is, tjierefnri', the ixtrlininent itf (.'iinmlii iihltli uas othrnrisc to
I'lovitle. It did otherwise provide by the Act of 1879, whicli
Act it afterwards altered and then passed the Act now in (question.
Can. Con.— 19
290 THE H. N. A. ACT — HEC. 42.
So far, it would appear to their Lordships very difficult to
suggest any ground upon which the competency of tlie parha-
ment of Canada so to legislate could be called in ciuestion." —
Iter Lord Selborne, 5 App. Cas. at p. 119. See also por Ritchie,
C.J., 8S. C. R. at p. 11.
The k'j^islativt' juriHiiiction of the Dominion juirliuniL'nt
witli respect to the election of ineniher.s of that IkmIv Ims
been said hy the Court of Appeal for Ontario to he
" heyond dispute." See Doyle v. Bell. 1 1 O. A. R. :i2() (affirm-
ing 82 V. C. C. P. <).S2), in which the provisions of tlu^
Dominion Controverted Elections Act, for tiie prevention of
corrupt practices at elections, and for their punishment,
(hither ci'ininally or l>y the forfeiture of money to he sued
for and recovered hy an informer, were uphelil as the
exercist! of power nt^cessarily "incident to the ])owi'i' to
re<;-ulate the mode of election of meniUers of [)arlianient."
The contention of the defendant was, that the >^ivin_L;" of a
riyht of action to an informer was leiiislation as to " civil
rij^hts in the province," and therefore itlfru rlrcs. See
notes to section !)2, suh-seetion 18, /xisf.
The trial of contiovertcd elections Wiis transferred to the
ccauts, in Eiij^land in l.S(i<S: in Ontario in INTO, (84 Vie. c. 8):
in Quelec in 1.S72 (8(j \'ic. c. 5) : l»y the Dominion parliament
in 1.S78. See also 85 Vic. c. 10 (Manitoha) ; Con. Stat. c. 40
(British Columhia) : R. O. I.S.SS, c. n (N. W. Territoiies) :
82 Vic. c. 82 (New Brunswick); 87 Vic. c. ''l (T. E. Island);
and 88 Vic. c. 25 (Nova Scotia).
lleollT^""' 42. For the hrst election of luenibers
to serve in the House of Commons the
Governor-General shall cause writs to be
issued by such person, in such form, and
addressed to such Returning Officers as
he thinks fit.
The person issuing writs under this
section shall have the like powers as are
THE H. \. A. ACT — SEC. 43- 15. » 291
possessed at the Union by the otticers
charged with the issuing of writs for the
election of members to serve in the re-
spective House of Assembly or Legislative
Assembly of the Province of Canada,
Nova Scotia, or New Brunswick ; and the
lieturning Officers to whom writs are
directed under this section shall have the
like powers as are possessed at the Union
l)y the othcers charged with the returning
of writs for the election of mend)ers to
serve in the same respective House of
Assembly or Legislative Assembly.
43- In case a vacancy in the repre- vac'lncuT'
sentation in the House of Commons of
any Electoral District happens before the
meeting of the Parliament, or after the
meeting of the Parliament before provision
is made by the Parliament in this behalf,
the provisions of the last foregoing section
of this Act shall extend and apply to the
issuing and returning of a writ in respect
of such vacant District.
44. The House of Connnons on its oVg.e'^.ti'o"
first assembling after a general election cmmnons.
shall proceed with all practicable speed to
elect one of its members to be Speaker.
45. In case of a vacancy happening ;tp l^aSi^'i..
in the office of Spepker by death, resigna- sreTker.
tion or otherwise, the House of Commons
shall with all practicable speed proceed
202 THE H. N. A. Arr—SKCS. Id, 17.
to elect HMotlier of its ineinluTs to he
Speaker.
Sao""'" 46- The Speaker (i) shall preside at
all meetiiij,'s of the House of (Jomiiioiis.
(i) "7'//^' Sf,r„l,rrr—><vv U. S. (.'. (LSSU), c. II, s. 24,
uliicli |)r()vi(l('H that the sulurvor the Spcukcrof tiic I louse
«»F (JoiiiiiionH hIuiH hi! 84,000 per iiiiniiin. 'riic duticH (d" tlm
S|M'n,k('r Hit' not tjctiiicd in tlu* H. N. A. Act, otlH'rwisi' thnn
l»y .section Mi, hut his p(»sition (the same is true of the posi-
tion ol" the Speakers oi* the vaiious |je^islati\'e A.sselnhli(^s)
is |>ractically tin; same as that of tin* Speaker of the House
of Connnons in Kn<^lait(l. His functions art; to a certain
<'xtent of a senii-jufjiciai nature, ami 1m' is supposed to have
tiir(»\vn aside all party hias Jipon his (dcivation to the chair.
So*! hourinot " Pjirl. Prt.c. and Trac." (2nd ed.) p. 202, rf sctj.,
where will he found a succinct stat«'nient of his position and
duties. By way of contrast, S(!e Prof. Wilson's " Conirres-
sional (jiovennnent " for a clear statement as to the position
of tiie Speak(;r of tlm Hou.se of Representatives at Washing-
ton. There he is suppo.stjd to ex(!rcise the powers of liis
ofKce in furtherance of the aims of his political party, and
is })ractically the leader of that party in the House ; the
chairmen of the various standinj^" committees of Con-
j^ress are appointe<l hy liim, and hy exercising judicious
selection in this respect he is ahle to ensiu'e that his views
upon puhlic matters will find practical expression in the
woi'k of Congress.
iase^ofab-"' 47. Uiitil the Parliaioeiit of Canada
HpoakeJ otherwise provides (i), in case of the ab-
sence for any reason of the Speaker from
the chair of the House of Commons for a
period of forty-eight consecutive hours,
the House may elect another of its mem-
bers to act as Speaker, and the member
I'MK l». N. A. \(T — SKi'H. iH.r,{). 298
HO t'l(u;tf(l shall diiriii^^ t\ui coiitimiaiice
of such iil)S(Mi('(i of tlu! Speaker have and
execute all the powers, privilege's, and
duties of Speaker.
(i) "IJ^nli/ llif Pii rl ill nfiif of Cdinh/ii ol/irftrlsr pru-
ritics." Sec iKttc (ill) to section 41, iiiih'. P»y 4<S <S: 41) \'ic'.
c. I, tlici'c Nvus cit'utt'd tln' otHcf (if Deputy Speiikei', with
jMiweis us l»y that s(iitiit<' <letiiie<l.
48. 'I'lie pres(;n(;e (rf at h-ast twenty li;;;;:,;;';.'/''
ineinh(;rs or the House ot (Jonnnons sliall
l)e necessary to constitutes a ine(itin^' of
the House for the; (exercise; of its powcsrs,
and for that purpose tin; Speaker shall be
rtsckoned as a niend)er.
49. Questions arising' in the House of h?,','",^ ,!}'
('onnnons shall he decided by a majority """"'^'"*'^
of voices other than that of the Speaker
and when the voices are equal, but not
otherwise, the Speaker shall have a vote.
(i) " Qiumtm" — "votiitff" — Compare sections 8.5 and lUi,
and see notes to those sections. S(M! also section >S7, and
n»»tes thereto, /tost.
50. Kvery House of Connnons shall }{;j|;^^':;',"''
(tontinu(i for live years (i) from the day of ^""""""''
the return of the writs for choosing the
House (subject to be sooner dissolved (ii)
by the Governor-General), and no lon^^er.
(i) "Shall coiiflniu' for fivr jjearH." — This is one ol' those
iiiatteix which, it is sulmn'ttcd, the. Dominion parliament
lias no power to alter — see note (i) to section .S.5, (inic —
wliije provincial legislatures may lengthenor shorten the
period of their own duration. See section 92, suh-seetion 1.
294 THE B. N. A. ACT — SEC. 51.
(ii) ''Dissolved by the Governor-General." — See chapter
VIII., ante, p. 165, for a full discu.ssion of the powers of the
Governoi'-General in connection with the summoning, pro-
roguing, and dissolving of parliament.
adTusunlLfof 51- On the 'completion of the census
Bepresenta- .^_^ ^j^^ ^^^^^, ^^^^ tliousaiid eight hiuidrcd
and seventy-one, and of each subsequent
decennial census, the representation of
the four Provinoes shall be readjusted by
such authority (i), in such manner and
from such time as the Parliament of Can-
ada from time to time provides, subject
and according to the following rules : —
(1) Quebec shall have the fixed num-
ber of sixty-five members.
(2) There shall be assigned to each
of the other Provinces such a
number of members as will bear
the same proportion to the number
of its population (ascertained at
such census) as the number sixty-
five bears to the number of the
population of Quebec (so ascer-
tained).
(3) In the computation of the num-
ber of members for a Province a
fractional part not exceeding one-
half of the w4iole number requisite
for entitling the Province to a
member shall be disregarded ; but
a fractional part exceeding one-
half of that number shall be equiv-
alent to the whole number.
THE B. N. A. ACT — SEC. 51. 2f)5
(4) On any such re-adjustment the
number of members for a Provmce
• shall not be reduced unless the
proportion which the number of
the population of the Province bore
to the number of the aggregate
population of Canada at the then
last preceding re -adjustment of
the number of members for the
Province is ascertained at the then
latest census to be diminished by
one- twentieth part or upwards.
(5) Such re-adjustment shall not take
effect until the termination of the
then existing Parliament.
(i) "By fiacli (nithoritij." — From the debates on the
Quel)ec Resolutions in the parHanient of (old) Canada, it
would appear that some uncertainty existed as to the terms
of tlie 24th resolution. As printed in the volume of Debates
on Confederation (published by authority), resolutions Nos.
28 and 24, read as follows :
"23. — The legislature of each province shall divide such pro-
vince into the proper number of constituencies and define the
boundaries of each of them.
" 24. — The local legislature of each province may, from time to
time, alter the electoral districts for the purpose of representation
in melt local Icifislatun', and distribute the representation to which
the province is entitled in such local legislature, in any manner
such legislature may see fit."
In Gray's " Confederation " — Mr. Gray was a delegate
to the Conference, from New Brunswick — the 24th resolu-
tion is given thus :
" The local legislature of each province may, from time to
time, alter the electoral districts for the purposes of representation
i)i thi' Home of < 'oiiiwous, and distribute the representation to
296 THE B. N. A. ACT — SEC. 51.
which the province is entitled in any manner siuOi legislature
may soe fit."
In moviny the resolutions in the House, the Attoi'nev-
(Jeneral-West (Sir John A. Mac<lonjiM) said :
" A good deal of misrepresentation lias arisen from the acci-
dental omission of some words from the 24th resolution. It was
thought that by it the local legislatures were to have the power
of arranging hereafter, and. from time to time, of re-adju^ting
the different constituencies, and settling the size and boundaries
of the various electoral districts. The meaning of the resolution
is simply this : that for the //rs< General Parliament, the arrange-
ment of constituencies shall be made by the existing local legis-
latures ; that in Canada, for instance, the present Canadian
parliament shall arrange what are to be the constituencies of
Upper Canada, and to make such changes as may be necessary
in arranging for the 17 additional members given to it by the
constitution ; and that it may also, if it sees fit, alter the
boundaries of the existing constituencies in Lower Canada. In
short, this parliament shall settle what shall be the different
constituencies electing members to the first Federal Parliament.
And so the other provinces, — the legislatures of each will fix the
limits of their several constituencies in the session in which they
adopt the new constitution. Afterwards the local legislatures
may alter their own electoral limits as they please, for their own
local elections. But it would evidently be improper to leave to
the local legislatures the power to alter the constituencies seed-
ing members to the General Legislature, after the General
Legislature shall have been called into existence. . . . No;
after the General Parliament meets, in order that it may have
full control of its own legislation, and be assured of its position,
it must have the full power of arranging, and re-arranging the
electoral limits of its constituencies as it pleases, such being one
of the powers essentially necessary to such a legislature."
Confed. Deb. p. 89.
Both of these resolutionH were struck out at the con-
ference, in London, of the delegates from tliose provinces
which had agreed to the Quebec Resolutions, probably
because the limits of the various constituencies had been
THE K. X. A. ACT — SEC. 51. 2J)7
Ht'ttle<l by the local legislatuivs in the inaniiei" pointed out
Ity Sir John 3Iac(lonaM, and such anangenient was put
into statutory fonn, in section 41 . Nothing appears in these
ivsolutions, or in the debates thereon, in reference to the
(juestion of delegating the power f>f "distribution" to an
authority independent of parliament : but, as we write, the
(piestion has been raise<l in the Donnnion })arlianient, and
two of the Fathers of Confederation are reported to ha\»'
stated that the above section 51, wasileliberatelv franie<las
it is, in order to take from parliament this dangerous p()wer
— dan<jerous in the hands of anv niaioritv- and to s»'cure
its exercise by an independent authority. If such was the
intenti(Hi, it has been persistently ignored, and the re-dis-
ti'ibution after both the census of 1.S71 and of lISSl, was
effected by an Act of the Dominion parliament in the exer-
cise of its ordinary legislative functions : and an Act (55-50
Vic. c. 11) has just been passed by the Dominion parliament
providing for the re-distribution consecpient upon the census
of 1(S92. As a legal proposition, the power of the Dominion
parliament to constitute itself the authority by which the
re-adjustment is to be effected, cannf)t be doubted what-
ever may be said of the impropriety of so doing. Under
section 40, natc, p. 2<S3, the power of the Dominion
parliament to alter electoral districts is clearly estal)-
lished. See note (i) to secticm 41. This section 51
applies only to the re-adjustment :)f the representation
of the provinces ^r*? hefirpi'n flifmi^flrr.^, and has no refer-
ence to the boundaries of the electoral districts in each
province, and it would appear therefore that the re-
adjustment, under this section, is a matter merely of
mathematics. The wording of section 52 bears out this
construction, indicating as it does that the "fixed (juantity"
in the scheme of representation, is the proportioiuiir repre-
sentation of the provinces. The electoral districts may be
altered at any time (section 40), and the total number of
members increased (section 52), by the parliament of Cana«la,
2!)<S THE B. N. A. ACT — SECS. 52-54.
' provided the proportionate representation of the provinces
prescrihe<l l>y this Act is not thereby disturl>ed."
ninXT^f' 52. The number of members of the
cSo'iL. House of Commons may be from time to
time increased by the Parliament of Can-
ada, provided the proportionate represen-
tation (i) of the Provinces prescribed by
this Act is not thereby disturbed.
(i) " The j)i'()portiov(ite veprfiMentdtiov" — See note (i)
to section 87, ((vte.
Money Votes (i), Royai. Assent.
dTaTimx 53. Bills for appropriating any part
of the public revenue, or for imposing any
tax or impost, shall originate in the
House of Commons.
(i) " Mod f' If votpxy — The suVjiject of money votes relates
nicn'e particularly to parliamentary procedure and practice,
and the subject will be found fully discussed in Dr. Bouri-
not's work upon that subject (2nd ed., chapter XVII). Tlie
restriction provided for })y section 54 was first introduced
into Canada by the Union Act, 3 & 4 Vic. c. 35,
s. 57. See Lord Durham's report, p. 34. The restric-
tion is enf<)rced by the Speaker upon a point ()f order
taken.
"or/'of mmfey 54, It shall uot be lawful for the
vote. House of Commons to adopt or pass any
vote, resolution, address, or bill for the
appropriation of any part of the public
revenue, or of any tax or impost, to any
purpose that has not been first recom-
mended to that House by message of the
Governor-General in the Session in which
THE B. N. A. ACT — SECS. 55, 5«. 2f)})
such vote, resolution, address, or biii is
proposed.
55. Where a bill passed by the MX'u).
Houses of Parliament is presented to the
Governor-General for the Queen's assent,
he shall declare, according to his discre-
tion, but subject to the provisions of this
Act and to Her Majesty's instructions,
either that he assents thereto in the
Queen's name, or that he withholds the
Queen's assent, or that he reserves the
bill for the signification of the Queen's
pleasure.
(i) " Roj/dl r<.sw')>^" — The provisions of this ami the
two follo\vin<i,- sections luive heen ahvmly fully discnssed ;
st'o oitte, chapter VII., p. 147, H x('<].
56. Where the Governor-General as- Ki'S'"
sents to a bill in the Queen's name, he as° entecTto by
shall by the first convenient opportunity General,
send an authentic copy of the Act to one
of Her Majesty's Principal Secretaries of
State; and if the Queen in Council within
two years after the receipt thereof by the
Secretary of State thinks fit to disallow
the Act, such disallowance (with a certifi-
cate of the Secretary of State of the day
on which the Act w^as received by him)
being signified by the Governor-General,
by speech or message to each of the
Houses of the Parliament, or by proclama-
tion, shall annul the Act from and after
the day of such signification.
800 THE n. X. A. ACT — ,SECS. .57, 58.
oigi.een"'" 57. A bill veservecl for the signilica-
{!in"re='eVJ<i. tloH of tlic Quceii's pleasure shall not
have any force unless and until within two
years from the day on which it was pre-
sented to the (nn'ernor-General for the
Queen's assent, the Governor-General si<;-
nifies, by speech or message, to each of the
Houses of the Parliament or by proclama-
tion, that it has received the assent of the
Queen in Council.
An entry of every such speech, mes-
sa<,'e, or proclamation shall be made in the
Journal of each House, and a duplicate
thereof duly attested shall be delivered to
the proper officer to be kept among- the
Records of Canada.
V. — PROVINCIAL Constitutions (i).
Executive Poiver (ii).
o/KleT' 58- For each Province there shall be
norsl.?*"*^' an officer (iii), styled the Lieutenant-
rroviiices. • \ •
Governor (iv), appointed by the Governor-
General in Council by instrument under
the Great Seal of Canada (v).
(i) " Provinciid coitstitafitnis.'^ — In chapter HI. will be
found a discussion of the (juestitm how far the pre-Con-
I'ederation })rovnncial constitutions are continued by the
B. N. A. Act. That chapter was written in order to show
that the working principle of those earlier constitutions
was evidently intended to l»e continued in the constitutions
of the provinces as defined in the B. N. A. Act. Ever since
the passage of that Act, there has been in progress a peace-
ful warfare as to the position of the provinces under our
THE H. N. A. ACT — SEC. 5S. HOI
constitutional system, — a conflict not y«'t pci-liaps imkKmI
Imt now Ix'coniu hopelcsH to tlioHc wh<» would deny tlu;
full autonomy of the provinces in relation to all those
matters which. l>y the B. N. A. Act, art^ connnitte<l to the;
le^islative auth<»rity of the provincial asscmhlies. In tlu^
earlier stages, the attack was directed toward narrowing
the range of the legislative powerof the pi'ovinces, and this
phase of the conflict has heen already dealt with in chapter
X. At the present time the flehateahle jL^round is that
relating to the exercise of executive power in connection
with the government of the provinces, the contention of
those who wcadd helittle the executive "sphere of
authority" of the provinces being-, in efl'ect, that under the
H. \. A. Act, there has l»een a severance of the functions
of government in relation to some, at least, of those suhject
matters which, for purposes of legislative action, have
lieen committed to the provinces. In the earlier pages
<tf this hook we have not hesitated to attack this
position, and further reference to the (juestion will he found
in the following notes. We should mention, howevei, that
the first three chapters of this book were already in press
before the report of the judgment of the Judicial Committee,
in Litiuidatoi-s of Maritime Bank v. Receiver General of
New Brunswick (Times L. R. Vol. VIII., p. (577) reached us,
and this fact will account for the lack of reference to this
important decision as supix)rting the views expre.ssed in
those chapters upcm this (piestion of the position of the
provinces. The particular point for decision was as to the
right of the provincial executive of New Brunswick to
claim the benefit of the prerogative right of the Crown to
priority over other cretlitors, in the winding up of the
uffaii-s of the Bank, lait tlie judgment of the Connnittee
• leals with the general question, and, as we have already
intimated, affirms, with tinal authority', the full autonomy
< >f the provinces.
"The appellants coiiceded that, until the passage of the
B. N. A. Act, 1807, there was precisely the same relation between
802 THE H. N. A. AC'I' — SEC. 58.
the Crown and the province which now subsists between the
Crown and the Dominion ; but they maintained that the effect of
the statute liad been to sever all connection between the Crown
and tiie provinces, to make the government of the Dominion the
only government of Her Majesty in North America, and to reduce
the provinces to the rank of independent municipal institutions.
For these propositions their Lordships have been unable to iind
either principle or authority. Their Lordships do not think it
necessary to examine in minute detail the provisions of the Act
of 1H67, which nowhere professed to curtail in any respect the
rights and privileges of the Crown, or to disturb the relations
then subsisting between the Sovereign and the provinces. The
object of the Act was neither to weld the provinces into one, nor
to subordinate provincial governments to a central authority,
but to create a federal government in which they should all be
represented, intrusted with the exclusive administration of atfairs
in Avhich they had a common interest, each province retaining
its independence and autonomy. That object was accomplished
by distributing between the Dominion and the provinces all
powers, exevntirc loul Iciiinliitirc, and all public property and
revenues which had previously belonged to the provinces, so that
the Dominion government should be vested with such of tliose
powers, property, and revenue as were necessary for the due per-
formance of its constitutional functions, and that the remainder
should be retained by the provinces for the purposes of provincial
government."
(ii) " Kt'ccafirc juncer." — In urriving' at a proper nndei-
Ktandin*;' of the position of the provincial executive, notliin*;'
is more essential than to liave a definite idea of the neces-
sary connection whicli, in iiny country wdiere the govern-
ment is a g'overnment-according-to-law, must exist between
the li'gislative and executive powders in government : and
various phases of this (piestion will l)e found discussed in
chapter I. [ante, p. 12, et w(/.), chapter III. {ante, p. 45,
et Heq.), and chapter VI. {ante, 142, et .s<?g.), and in the notes
to section 0, (irde, and tlie other notes to this section 5<S.
(iii) " There shdll he <rn ojficer." — Compare section 10,
THE JJ. X. A. ACT — SEC. 58. 'MVA
anil', and see notes thereto. See also cluipter III., ffnfc, ]).
48, and notes to section 59, pout.
(iv) " The Lifudendvt-Gorr'rnor." — Tlie Lieutenant-
Governor of a province is tlie chief executive otficei* "carry-
inj;' on the government of the province " — see section (52.
2)()sf. In some of the cases will he found discussed the
([uestion whether or not a Lieutenant-Governor is to he
considered a representative of the Queen. In Regina v.
Anjer (//), Harrison, C.J., laid it down that the Goveriior-
(Jeneral is the only officer named in the B. N. A. Act who
answers that description — see notes to section 10, ii.i>ff' ; and
in Regina v. Bank of Nova Scotia, in our Supreme Court,
Mr. Justice Taschereau says (z) : " The Lieutenant-dlover-
nnrs, no douht, in the performance of certain of their duties
as such, under the B. N. A. Act, may be said to repn sent Her
Majesty in the same scnise, and as fully, perhaps, as Her
Majesty is represented, foi- instance, hy justices of the peace,
constaljles, and l>ailitf's, in the execution of their duties." A
reference to chapter VIII., oiifc, and to the cases which
(leHne the position of the (Jovernoi' of a colony, will show
that this description of a Lieutenant-CJovernor is ecpially
iip[)li('able to the Governor-General. Both are " officei's,"
with powei-s, authorities, an<l functions distinctly limited,
and they can be said to represent Her Majesty, not in the
sense of being Viceroys, but onl}' to the extent to which
powers are delegated to them, by virtue of their commis-
sions, or under the B. N. A. Act. In the veiy case to which
we have last referred — The Queen v. Bank of Xo\'a Scotia —
Mr. Justice Strong points out that the Queen is at the ht?ad
of the government of Canada — see section 0 ajid notes
thereto. This section, fis was pointed out, is declaratory,
and, so considered, it entirely agrees with what is laid
down by the older wiitei-s as to the necessary unity of
executive government throughout the Empire. "The King
of England is thei'efore not only the chief, but properly
(j/) 42 IT. C. Q. B. 3!»1. {:) 11 S. C. R. at p. 24.
304 THE I). N. A. ACT — SEC. 58.
the sole iuHj;iHtnite ot" the uatiDii ; all otheivsactin^^' ))y com-
iLiission from, an<l in due suhonlination to liim " {<i).
Anythiuji;' tlieivfore which may l>e said in the way of
helittliiii;' the office of Lieiitenant-CJovenior, is e(iually
a])|)hcal>le to the position of the Oovurnor-ln'iR'ral — with
this ditlerejce, of course, that the tei'ritorial sphere of
authority of the hitter is lar<>ei-, and the ranye of matters
in connection with which his powers may lie exercised (piite
different from that of a Lieutenant-Ciovernor. But each of
these officei-s is characterized by the B. N. A. Act — see sec-
tions 10 and ()2 — as the chief executive officer " carrvinyon
the government " of the ]3ominion and the provinces re-
spectively. Any officer, exercising executive functions
anywhere in the British Empire, nmst act under connuis-
sion from the Queen, and, to the extent indicated hy his
connnission and any Imperial statute in that behalf, does
represent, a ml act on hehidf of and in thf name of, the
executive head of the Empire. We pointed out in the
notes to section 9, ante, that the Governor-General of
Canada occupies a «lual position, and the same may be said
of the Lieutenant-Go verntn- of a province. In a sense, he
is a mend)er of the executive staii'of the Dominion govern-
ment, as well as executive head of the province. But there
is this difference to be noted between his position, and that
of the Governor-General, namely, that while, on the one
hand, the Imperial parliament has legally unlimited power
over the Dominion in respect of every conceivable subject
matter, and may therefore increase or diminish the power
of a Governor-General, the parliament of Canada, on the
other hand, cannot invade the legislative sphere of a pro-
vincial assembly, or interfere in relation to its executive
head. This practical result therefore ensues that a Lieuten-
ant-Governor, once appointed, is subject to the "instruc-
tions " of the Governor-General only upon, at most, those
matters in respect to which the executive of the Dominion
(ft) Chitty, p. 4. '
THE B. N. A. ACr— SEC. 5H. 305
is entitled to exercise supervision over provincial legisla-
tion. As executive head of a province, the Lieutenant-
(lovernor is connni.ssioned, l>y the B. N. A. Act, to "carry
on the jifovennnent of the province"; and an}' attempt to
instruct him as to how he should exercise the powers,
authorities, and functicjus of his office in relation to matters
within the sphere of provincial authority, wouM l»e in
direct suV)version of the principle of provincial autonomy
as now authoritatively declared.
The division of suhject matters afi'ected by that Act
lieing" exhaustive (/. e., exhaustive of all matters over which
colonial lej^islatures have power) and exclusive as well (h),
the same principle must be acknowledged in reference to
the division of those matters for executive action. Mt)st of
the cases which have arisen under the B. N. A. Act liave
involved enquiry as to the position of the dividing line,
for legislative purposes, between Dominion and Provincial
jurisdiction ; but, as we have always insisted, the ascertain-
ment of such line is at the same time the ascertainment of
the line of division for executive action. In more recent
times the question has arisen directly in reference to the
exercise of executive power, and the courts of Ontario have
<listinctly recognized the principle for which we have been
contending. Reference has been made to the limitation of
sections 12 and 65 to statutory "powers," etc.: and as to
these, the provisions of the B. N. A. Act seem to be per-
fectly clear. See chapter III., ante, p. 50. The dispute
has been in reference to what may be called prerogatives
])roper, viz., those powei-s connected with executive govern-
ment which depend for their efficacy upon the common law.
In 1887, the Legislative Assembly of Ontario passed
'an Act respecting the executive administration of the laws
of this province," making provision as to the exercise of
( xecutive authority in connection with these common law
prerogatives. The (juestion of the validity of this Act was
(l>) See Chapter X.
Can. Con.— 20 .
3()() THK II. N. A. .\<T— SKC f)8.
Huliinittt'd to tlu' Divisional ('oint of tlic ('liunccrv Divisioii,
wliicli <K't'i<l('<l ill favor of its validity, aii«l an Hj)|)('al to tlic
C^tuit oT A|»|M'al for Ontario was tlisiiiisHtMl. Tlu' Act was
distinctly limited to cxccntiv*' action in connection with
those sidtject matters onci- which the |)roviiicial leuislative
assemhly has jurisdiction, and (constrninj^ the Act as so
liniite(l)'the courts tiecided that, although possihly the Act
was unnecessary, it couhl not he said to he ultm rii-rs.
The position niay he sunniied up in the lannuaj^t' of Mr.
.lustice Burton (c):
" 1 liave always l)ecn of opinion that tin.' legislative and
executive powers granted to the province were intended to he
co-extensive, and that the Lieutenant-Gcvernor became entitled,
liitiitr ti/licii, and without express statutory enactment, to exer-
cise all prerogatives incident to executive authority in matters in
which provincial K'gislatures liave jurisdiction; that he had in
fact delegated to him the administration of the royal prerogatives
as far as they are capable of being exercised in relation to the
gf)vernment of the provinces, d:^ fully as the Governor-General
has the administration of tliem in rdation to the government of
the Dominion In my view, no legislation wns
necessary, but, to remove doubts, such an Act seems de.sinil)le
and iree from objection. "
Refei'ence should i:o\v heailded to the j)assa_i;'e from the
judgment (d' the Privy Council (|Uoted in note (i), (infc
|). 802, and to the further j)assaj;(' (|Uoted in the next note.
See, also, notes to .section (I!), /losf, as to tlie })osition of the
Lieutenant-CJovernor in relation to the provincial asseni-
hlies, where we have endeavored to make clear that the
Queen is a constituent lnanch of sucli a.sseml»lies, heing
repi-esented therein by the Lieutenant-Governor, just as she
is ie})re.sented in the Dominion parliament by the (Jovernor-
(leneral.
(v) "Aj)/)oi nt('</ h>j llic (riir('riK>i'-(r('iii',i'((l, etr" — Much
Htress has been laid upon thi.s clause in support of the con-
ic) Atty.Genl. for Canada v. Atty.-Geiil. of Ont., lU O. A. R. at
p. 38.
TMK n. \. A. A<T — SEC. 58. .S()7
tciitiiui tluit u Lit'iitoniint-Ciovcrnor is nut n rcprcHcntiitivc
fit* tli(! (yi-own, Itut of the (»(»vt'iii()r-(it'in'i»il. Tlic l'<»II()wiiio'
fxtnict from t]\v jn<l^iiit'iit of tlicJinlieiul ('oimnitti'c of the
I'livy Council in Li(|ui<lntorH, ivc. v. ]{t'(H'i\('i--(i('ii('iiil of
N"\v Hi'uiiswick, will .show how the (jUi-Htion Iihh hueii
tiiuilly (lisjioHcd of :
" The appellants .... relied upon the fact that,
whereas the (lOvernor-deneral of (Canada indirectly appointed hy
the (^ueen, the Lientenant-dovernor of a Province is appointed,
not hy Her Majesty, hut by the (iovernor-Cleneral, who has also
the power of dismissal. If the Act had not committed to the
(iovernor-Cienoral the power of appointing,' and I'enioving Lieu-
tenan^-Clovernors, there would have been no room for the argu-
ment, which, if pushed to its logical conclusion, would prove that
the Governor-General, and not the Queen, whose viceroy he is,
became the sovereign authority of the province whenever the
Act of 1H()7 came into operation. ]>ut the argument ignores the
fact that by section 5H the jippointment of a provincial Governor
is made by the ' Governor-General in Council, by instrument
under the Great Seal of (,'anada,' or, in other words, by the
executive government of tlie Dominion which is hy section W
expressly declared 'to contiinic and be vested in i\u; (^ueen.'
Tliere is no constitutional anomaly in an executive olHcjr of the
Crown receiving his appointment at the hands of a governing
body irhn hurt' no ixnrcr mid lui funrtions twicfil its rt'jirr>{,iitntin's aj
ilif Cntini. The Act of the Governor-General and his council
in making the appointment was, within the statute, the Act of
the Crown ; and a Lieutenant-Governor, when appointed, was
as nuich the representative of Her IMajesty for all purposes of
provincial government, as the Governor-General himself was for
all purposes of Dominion government . . . . "
and the dcci.sionH in Mercer v. Attoiney-Cleneral »d' Ontario
(S App. Cas. 7()7), St. Cathexines Milling Co. v. Tin; Queen
(14 Ajtp. Chh. 4(5), and Attorney-General of British Colum-
bia V. Attorney-Oeneral for Canada (14 App. Cas. 295), are
referred to by tlie Conunittee as " based upon the general
recogiiititm of Her Majesty's contintted sovereignty under
the Act of 18G7."
308 THE B. N. A. ACT — SEC. 59.
The view expres.sed in the italicized portion of the a hove
extract affirniH what we had ventured to lay down {avfe,
p. 304), that a Lieutenant-Governoi", once appointed, is suh-
ject to " instructions " from the Governor-General only upon
those matters connected with the exercise, hy the executive
of the Dominion, of supervision over provincial legislation.
See section 90, po.sY.
offlce'of"^ 59- A Lieutenant - Governor shall
Gov'ovnm'.' " liold office diu'ing the pleasure of the
Governor-General ; but any Lieutenant-
Governor appointed after the connnence-
nient of the first Session of the Parlia-
ment of Canada shall not be removable (i)
within five year3 from his appointment,
except for cause assigned, which shall be
communicated to him in writing ^yithin
one month after the order for his removal
is made, and shall be communicated by
message to the Senate and to the House
of Commons within one week thereafter
if the Parliament is then sitting, and if
not then within one week after the com-
mencement of the next Session of the
Parliament.
(i) " kShall tiot be renwvdble .... except for
ca use." — The position of the Governor-General in reference
to the removal of a Lieutenant-Governor has been already
referred to — see notes to section 9, iivtc, p. 251. The onlj'
instance of such removal which has sti far occurred under
the B, N. A. Act, is that of Lieutenant-Governor Letellier,
and it was in connection with his removal that the Im-
perial authorities laid down the " conventional " rule that
the Governor-General should act, under this section 59, hij
and ivith the advice of the Queen's Privy Council for
THE K N. A. ACT — SEC. 5{>. 809
('<nia<l<(. But, tiH has been already pointed out, the power
of removal (subject to the obsei'vanee of the formalities
prescribed by the section) is, legally, with the Governor-
general alone. The cause assigned in the Order for the
removal of Lieutenant-Governor Letellier was that, after
the vote of the two Houses of the Dominion parliament
censuring him for the dismissal of his ministers, his useful-
ness as a Lieutenant-(J(n'ernor waso-one. Had Lieutenant-
(fovernor Letellier declined to recounixe the validitv of the
Order in Council, a veiy nice (piestion woidd have lieen
raised as to the meaning of the phrase "for cause assigned,"
for it is very doubtful if the facts alleged constituted
" cause " within the meaning of this section. Is the Do-
minion government — for, under the terms of the despatch
to the Governor-General in this case, it is left with that
government — the sole judge of what constitutes " cause 'V
If so, a Lieutenant-Governor holds his office sul)ject possibly
to partisan caprice, not to law. Is the vote of the Houses
of the Dominion parliament an element of " cause "? If so,
a Lieutenant-Governpr is subject to the vote of a parlia-
ment which cannot enact a single law to govern his conduct
in the administraticm of the affairs of the province over
which he presides. On the othe)* hahd, it may be argued
that as the Lieutenant-Governor is a link in the chain of
federal government (now practically operative throughout
the Empire), appointed by the executive of the Dominion,
who are responsible to the electorate of Canada ///?v>Hr//i the
D(yniinion j>(iHinineiif, the decision of that parliament, ex-
pressive of the will of the people of Canada as a whole,
should govern in regard to all matters entrusted to the
executive of the Dominion. The difficulty is that the ex-
ecutive power, in this regard, of the Dominion government
is entirely divorced from all legislative power. That
goverirme)it " has no powers and no functions except as i-e-
presentatives of the Crown " in this matter of the removal
of a Lieutenant-Governor (see ante, p. 307. It strikes one
810 THE B. \. A. ACT — SECS. 60-G3.
that it may perhaps be advi.sahle for the Imperial authori-
ties to reconsider the " instructions " al)ove referred to.
Lieuteua^ut- 60- The salai'lesof the Lieuteuant-
oovornors. Q-Qve^i^iors shall be fixed and provided liy
the Parliament of Canada.
ofilieutemuu 61- Every Lieutenant - Governor,
Governor. ^\^^^\\^ beforc assumin*^- the duties of his
office, make and subscribe before the
Governor-General or some person author-
ized by him, oaths of allegiance and office
similar to those taken by the Governor-
General.
oYSoSL 62. The provisions of this Act refer-
ifi/utinfuu- ring to the Lieutenant-Governor extend
and apply to the Lieutenant-Governor tor
the time being of each Province or other
the chief executive officer or administrator
for the time being carrying on the govern-
ment (i)-of the Province, by whatever
title he is designated.
(i) "Ctii'injlnif on f/w (/overmiKiif of the prorincc." —
8ee notes to section 10, ante, p. 254, and to section 58, ii nfe,
p. 308. The word " government, ' in its widest sense, com-
prises the exercise of both the law-making and the law-
executin<4' power, Imt here it has more particular reference
to the exercise of the executive powers of government, the
legislative powers of a Lieutenant-Governor being exercis-
able only in connection with the legislative assembly. See
section (39, po^f.
ofTecuuvf 63- The Executive Council (i) of On-
ontarioaud tarlo aud of Qucbcc shall be composed of
such persons as the Lieutenant-Governor
THE H. N. A. ACT — SEC. 63. -SU
from time to time thinks fit, and in the
first instance of the following officers,
namely: — the Attorney-General (ii), the
Secretary and Registrar of the Province,
the Treasurer of the Province, the Com-
missioner of Crown Lands, and the Com-
missioner of Agriculture and Public
Works, with, in Quebec, the Speaker of
the Legislative Council and the Solicitor-
General.
(i) " E.cecufive CoavcU." — Conipjire section 11, and .see
notes thereto, onte, p ^^5. Since 1867, the Executive
Council of Ontario luis been increased by the addition of a
Minister of Education and a Minister of Aoriculture. See
section 92, sul (-section 1, and notes tliereto.
(ii) " The Atforru'ii-Ganci'dl." — The position of a pro-
vincial Attorney-General will he found discussed in Attor-
ney-General V. Niagara Falls International Bridge Co., 20
Grant, 34; Attorney-General v. International Bridge Co.,
28 Grant, 05, (> O. A. R. 537: and in Mousseau v. Bate, 27
L. C. Jurist, 158. In the first case, it was held by Mr.
Justice Strong, that the Attorney-General of a province is
the <»fficer of the Crown who is considered as present in
the courts of the province to assert the rights of the
Crown, and of tho.se who are under its protection, and that
the provincial Attorney-General, and not the Attorney-
General for the Doniinicni, is the proper party to tile an
information when the complaint is, not of an injury to
property vested in the Crown as representing the govern-
ment of tlie Dominion, but of a violation of the rights of
the public of a pi'ovince. The information, in that ca.se,
was in respect of a nui.sance cau.sed by the defendant
company's interference with a railway incorporated prior to
1807. In the second case it was held by the Court of
Appeal, revei-sing the judgment of Spragge, C, that the
312 THE B. N. A. ACT — SEC. 63.
non-cfmipliaiice by a company, iiicorpoiatdl by an Act of
the Doniinioii parliament, witli the terniH or such Act, siicli
iion-e()m[)liaiice operatin;j;', as was. alleged, to the detri-
ment of the locality in which the work was ))eing can-ieil
on, could not be the subject matter of an infornifition at
the instance of the provincial Attorney-Cjleneral. In Mous-
seau V. Bate, deci<led in Quebec (bS,S8), it was held that
proceedings in the natun.' of a xci. f\i. to set aside letters
patent of invention, issue<l under the Dominion Patent Act,
cannot be instituted in the name of the Provincial Attornev-
General, but can only be legally taken b}^ the Attorney-
(Jeneral for the Dominion. See further, upon this last
subject, the notes t<> sub-section 22 of section 91, y)o.>/.
It has been practically conceded l)y the Dominion govern-
ment that a provincial Attorney-General properly repie-
sents the Crown in criminal prosecutions l)efore provincial
courts, but so far as we are aware there has been no
judicial determination of the point. It seems difficult to
appreciate the «'istinction between proceedings in respect
of a breach of criminal law, and proceedings founded
upon a breach of " patent " law. Dominion statutes, how-
ever, expressly recognize the intervention of a provincial
Attorney-General in the former class of cases. See Abraham
V. The Queen, 6 S. C. R. 10.
As to the liability of mend)ers of the Executive Coun-
cil for acts done by them in the performance of their duties
as such, see Molson v. Chapleau (3 Cart. 360), where their
non-liability is distinctly affirmed. This latter subject is,
h(^wever, while no doubt a question of constitutional law,
so fully treated of by other writers, that it is not
deemed advisable to enter upon it here. See Bromn's
Constitutional Law, p. 521, et mq.; Forsyth's Opinions on
Constitutional Law, p. 85 ; and see also the Muskoka Mill
Co. V. The Queen, 28 Grant, 563 ; O'Brien v. The Queen,
4 S. C. R. 529; re The Massey Manufactuiing Co., 13
O. A. R. 446 ; and re Bell Telephone Co., 9 O. R. 339.
THE li. \. A. ACT — SECS. (U-tJo. 818
64. The Constitution of the Execii- riovc^ent
tive Authority in each of the Provinces of ami New '"^ '^
iSova Scotia and Aew Brunswick shall,
subject to the provisions of this Act (ii),
continue as it exists at the Union until
altered under the authority of this Act
(iii).
(i) Tlie early constitutions of the Alaritiino Provinces
will be found treated of in chapter II., iititc. In chapter
III. we have pointed out the importance of this section,
taken in connection with section S8, as showing that in the
Maritime Provinces at least, the old provincial constitutions
are continued: the sphere of tlieir authority heing, of
course, under the B. N. A. Act, limited to a smaller range
of matters. See also notes to section oJS, <iiit<'.
(ii) " Subject to the jirovwioiiH of tlils Aet." — That is to
say, subject to the change in the mode of appointment of
the executive head of the province, and subject also to
those provisions of the B. N. A. Act, which limit the pro-
vincial sphere of autliority. These are the only provisions
of the Act which in any way limit the full operation of
this section, unless perhaps the group of clauses which deal
with the division of assets — see section 102, ct .^eq, post, —
may be said to be provision relating to the pro\incial
constitutions. See particularly the notes to the word
" royalties " in section 109.
(iii) " Until altered, iimler the inithor'ity of this Act J' —
That is to say, until altered by the provincial legislative
assemblies, under section 92, sub-section 1. See notes
thereto.
65- All powers, autliru-ities, and tunc- eSclLcfby
tions which under any Act of the Parlia- Gmenim'of
Ontario or
nient of Great Britain, or of the Parlia- ^^'.^cfor'*^
nient of the United Kingdom of Great"*'*'"'"*'"
814 THE H. N. A. ACT — SEC. 05
Britain and Ireland, or of the Legislature
of Upper Canada, Lower Canada, or Can-
ada, were or are before or at the Union
vested in or exerciseable by the respective
Governors or Lieutenant-Governors of
those Provinces, with the advice, or with
the advice and consent, of the respective
Executive Councils thereof, or in con-
junction with those Councils, or with any
number of members thereof, or by those
Governors or Lieutenant-Governors in-
dividually, shall, as far as the same are
capable of being exercised after the Union
in relation to the Government of Ontario
and Quebec respectively, be vested in and
shall or may be exercised by the Lieuten-
ant-Governor of Ontario and Quebec
respectively, with the advice or with the
advice and consent of or in conjunction
with the respective Executive Councils,
or any members thereof, or by the Lieu-
tenant-Governor individually, as the case
requires, subject neverthless (except with
respect to such as exist under Acts of the
Parliament of Great Britain, or of the
Parliament of the United Kingdom of
Great Britain and Ireland), to be abolished
or altered by the respective Legislatures
of Ontario and Quebec (ii).
(i) 8ee notes to section 12. (infe. p. 256; and see also chap-
ter III., p. 48, rf ^eq. The powers here referred to are
statutory powei^s. No such provision is made in reference
to Nova Scotia and New Brunswick, nor in the Orders in
THE H. X. A. ACT — SEC. (io. .SI 5
Cimncil sulniittiny' Prince Edward Island and British
C*)lund)ia to tlie Dominion. Owing' to the division of (Old)
Canada into Ontario and Quel)ec, it was necessary to pro-
vide for the exercise of the powers, etc., which had thereto-
fore l)een exerciseil l>v the Governor or Lieutenant-
(Jovernor of the old provinces : and by section 12, nil
such powers are vested in the (Jovernor-General, so far
us the same are capable of l)ein«>' exercised in relation to
the •government of Canada, while, by this section, the
veiy same powers, in their entirety, are vested in the
Lieutenant-Governors of Ontario and Quebec respectively.
The two sections, taken touethei*, effect no division of power
but provide simply for the exercise of the same powers in
the <litt'erent spheres of authority createtl l)y the B. N. A.
Act. In Gibson v. ^IcDoiiald (</), Mr. Justice O'Connoi-,
referred to a slight ditt'ei'ence in the wordinu' of this section,
as compared with section 12, — the words "as far as the
same continue in existence," which appear in the 12th
section, beinu- omitteil from this (Joth section — indicating,
in his opinion, that some powers contiimed to exist in
relation to the Dt)minion, and were vested therein, which
did not continue to exist in relation to tlie provinces. It
is dirticult to imagine what idea in the mind of the drafts-
man led to this ditierence in phraseology. The governments
of the Dojuinion and of the provinces of Ontario and Quebec
were all, in a sense, new creations. The exercise of the.se
powers, etc., in relation to the government of the Dominion
cannot be said to be a coiiti n (Kifiori of them, while, in a sense
it may be so spoken of in relation to the governments set
up by the B. N. A. Act, in Ontario and Quebec. It is
impossible to assign any ditt'erence in meaning to the two
sections, owing to this ditterence in plu'aseology Theii'
effect is suificiently clear, that all these powers, etc., are to
be ve.sted in the executive liead of the Dominion and of
each provincial government, so far as they are capal)le of
id) 7 0. R. 401.
:il() THE n. N. A. ACT — SEC. (15.
l)t'ino- fxereist'd in relation to those ocjvcrnnients res^x c-
tively.
Tlie fact that the B. N. A. Act (joesetiect a clear division
of the "sphere of authority," si'enisnot to havelieena})pre-
ciated in Retina v. Anier ('/'/), whm'e i\Ir. Justice Wilson
treats these two sections as ve.stini^' the same )>o\ver in the
(Tovernor-Cieneral an<l a Lit'Utennnt-Ciovernor in irfciritcc
ft) f/i(' KHiiie xuhjcff nicff',: In \ iew of the su1»se(|Uent
discussions which have taken place in reference to the
sclienie of the B. N. 'A. Act, the words which we have
italicized, would seem to lie an incorrect construction of
these two sections.
In Attorney-General for Queh^'C v. Reed (« S. C^ R. 40S,
atfirmeil on appeal, 10 App. Cas. 141', it was contended that
the Quei)ec Act, 43 <S: 44 Vic. c. f), which imposed a duty,
to he paid in stam]is, upon every " exhihit " tiled in court in
any action dependinj;' therein, might he supported under
C. S. L. C, c. 109, section 82, which gave to the government
of (Old) Canada, power to inipose Ijy Order in Council such
a duty on exhibits. This contention is thus disposed of in
the judgment of the Judicial Connnittee of the Privy
Council :
" With regard to the third argument, which was fomided
upon the OStli section of the /ict, it was one not easy to follow,
hut their Lordshios are clearly of oj^inion that it cannot prevail.
The 6oth section preserves the pre-existing powers of the Gover-
nor-; or Lieutenant-Governors in Council to do certain things
not there specified. That however was subject to a power of
abohtion or alteration by the respective legislatures of Ontario
and ^^^uebec, with the exception of course of what depended on
Imperial legislation. Whatever powers of that kind existed, the
Act with which their Lordships have to deal neither abolishes
nor alters them. It does not refer to them in any inanner whi't-
ever. It is said that among those powers, there was a power,
not taken away, to lay taxes of this Vi;ry kind upon legal pro-
ceedings in the courts, not foi* the gener.il revenue purpose of the
(ild) 42 U. C. Q. B. 391.
THE B. N. A. ACl— SE<'. 05. HI7
province, but for the purpose of forming a spociiil fund called
♦The Buil'ling an I Jury Fund," which was appropriated for
p'.irposes connected with the administration of justice. \\'hat
h;is been done here is (juite a different thini^. It is not in aid of
','iie iJuilding and Jury Fund. It is a legislitive Act, without
:tny reference whatever to those powers ; if they still exist,
•juiti coHateral to them ; and, if they still exist, it is capable
of being exercised concurrently with them."
See further us to tliis case, section f)2, suh-sectinn 2.
The power of the Lieiitenjint-Governor t()inn),).se, by Order
in Council, such tax as was inijUestion in Attorney-General
V. Reed, has been entirely aliroiiated by the limitation of
provincial powers of" taxation to direct taxation: a limita-
tion which, it is submitted, applies to all the revenue pro-
ducing' powers of provincial governments. This point is
referred to, l)ut not decided in Attorne^'-General v. Reed ;
see 10 App. Cas. at p. 145. A reference to the judgment of
(J Wynne, J., in the Supreme Court — see S S. C. R., at p.
4S2 — will show that, in his view, this limitation does so
apply. See, also, the decisions of the Manitoba Courts
r'ferred to in the notes to sul (-section 2 of section 9'2,])i>st.
In Lenoir v. Ritchie (3 S. C. R. 575) the (juestion of tlie
jiower of the Nova Scotia Provincial Assembly to author-
i;^e the Lieutenant-Governor to appoint Queen's Counsel,
and to assign precedence, as between those Queen's Coun-
sel and those appointed by the Dominion Government, was
under consideration. Before Confederation, the (|uestion
was not regulated by any statutory enactment, but the
Governors and Lieutenant-Governors of the various ])rov-
inces had been in the habit of exercising the prerogative of
the Crown in this regard. After Confe<leration, the goN-
trnment of the Dominion claimed that the Governor-
< ieneral, as representative of Her Majesty in Canada, was
alone entitled to exercise this prerogative. It was treated
as falling within the class of prerogatives vested in the
Crown as the fouiitain of honour — treated so to speak as a
[)rerogative-at-large, not connected with any particular
lilH THE It. N. A. ACT — SEl'. 05.
(k'|)!irtiiit'iit oF t'Xi'C'uti\i' ;;()Vt'nmit'nt. IF this he its |)r()])('r
position, it is hnnl to set' how uny colonial otticer can t-xt'i'-
oisc such ])i't'ro!nativt'. AH the otln-r pi-cro^atives which fall
within this catc<ioiy arc tivatcd as prerogatives pcitainin^
to iiitiffcrs of fui/x'rltil coil <■<'!• II, siicli as, t'oi- instance, the
appointment ot" kniyhts, haroncts, etc., etc. IF, on the
other hand, the prerogative is one connected with the ad-
ministration <tF justice, it Would appear that it is one
])roper to he exercised hoth hy the C}overnor-(Jeneral and
the Lieuteiiant-CJovernors oF the varicais pr(>vinces — hy the
FoiMucr in relation to courts oF Dominion creation, hy the
latter in connection with provincial courts. It is laid down
in all the hooks that mendtei's oF the Bar are " officers " oF
the courts, anti the assi<>nment oF precedence to certain oF
tliose memhers, w<Mild seem to he a matter relating eithei'
t(t the organization oF the courts or to procedure therein.
In Lenoii' \'. Ritchie, it was not necessary to the determina-
tion of that case to decide whether or not a Lieutenant-
(lovernor is entitled to exerci.se this prerogative — the
(piestion there invohed l)einy as to the precedence ^^iven to
provincial over Dominion Queen's ('lanisel. At the same
time, some oF tlie jud*;'es, hoth in the Nova Scotia ccairts antl
in the Supreme Court oF Canada, expressed very decidi'd
views against tlu' i-i<>ht oF the Lieutenant-Oovernor toexe?*-
cise the prerojji'ative in any case. The ([uestion is now
stan<lin^- For argument heFore the Court oF Appeal For
Ontaiio. Subject to the assignment oF this prerogative to
its proper place in connection with executive government—
to di'Hning the suhject mattei- within which it properly
Falls — the general principle which must govern in regard to
all these (piestions oF "prerogative" would now seem to he
authoritatively stated in the judgment of the Privy Coun-
cil in Li(iuidat()i"H oF Maritime Bank v. Receiver-General oF
New Brunswick. See notes to section 5cS, (ivfc.
(ii) "Suhject to he nh()li>^he<l or altered hy the resjiectiix'
'legiddtiireti of (h}t(trio av<l Qaehec." — See notes to section
12, ((vte, p. 257 ; also to section 129, poxt. The decision
THK H. \. A. ACT— SEC. m. 81 f)
ill J)()l»i(' V. 'IV'iii|)i»nilitit'H B(»ii«l, 7 Apj). Can. \'Mk is
(liiH'Ctly fij^plicnltk' to the ijiU'i-pivtution of tla-so two sro-
tioiiH, 12 find (15. All the vurious Hul»j«'Ct matters in respect
to which, IteFore Coiit'edi'intion, these "powers, luithdities,
and functions" couhl l)e exeivised, are, hy the ettect of
these sections, divided, and, in rehition to each di\ision, "//
these powers, etc., are vested in the executive liead of the
Dominion and of each province respectively. Ihit in
ri'spect to each division, the Dominion parliament or the
provincial le<'islativt' assendtly may aholish or alte»' these
powers in such fashion, and to such extent, as may he
thouf^'ht necessary to the j)roper government of the Domin-
ion or the j)i-ovince, as the case may he. The holding in
Dohie V. Temi)oralities Boai'd is thus expres.sed in the
head-note :
" Tiie powers conferred hy the li. N. A. Act, lH('i7, .section
12{), upon the provincial le^'islalures of Ontario and Quehec to
repeal and alter the statutes of the old parliament of Canada, are
precisely co-extensive with the powers of direct legislation, with
which tho.se bodies are invested by the other clauses of the Act
of 1H(',7."
See further as to this s"ction, Attornev-deneial
(Canada) v. Attorney-Cieneral (Ontario), 20 O. K. '222 :
atiirmed in appeal, li) (). A. R. .'VI.
66- The provisions of this Act refer- ;tf'Sni!.ions
ring to the Lieutenant-Governor in Conn- Limltelmnt'-
•11111 -1 e • Governor 111
cil shall be construed as referrnig to the t'"">cii
Lieutenant-Governor of the Province act-
ing by and with the advice of the Execu-
tive Council thereof (i).
(i) Compare section 18, (iiifc, p. 25.S. A reference to
section (Jo. suggests that there may possibly be powers
vested in the Lieutenant-Governor oi a province which he
may exercise individually ; that is to say, that his exercise
of such powers, even contrary to the advice oi* the Execu-
320 THE U. N. A. ACr — SEC. 60.
tive Ct)uncil, would In* legally valid. 80 far as the H. N. A.
Act itsclF is conct'incd, the only powers which a Lieiitenant-
Governor may exorcise otherwise than hy Older in Council,
are: — tho.se conferred l»y section (J.S, in reference to the jvp-
|)ointnient of inendu-rsof the Executive Ctanicils of Ontario
antl (^uelit'c: l»y section 72, in reference to theapjtointnient
of Le:;'islative Councillors in (^iieh^'c ; l>y sections <S2 and H'),
in reference to the sunnnoniny and dissolving' of the pro-
vincial Legislative As.st'nd»ly; and hy section 90, the giving
or withholding of the assent of the Crown to bills passed
by the Legislative Assembly. But, with reganl to all of
tliese, with the exception of the last named, the " conven-
tions of the constitution " which, as we hnvo sliown, are as
fully operative within Canada, in relation to the various
governnients here existing, as in relation to the parliament
of the Uniteil Kingdom, require that all such acts must be
done upon the advice of ministers ha\'1ng the confidence of
the legislature of the province. As to the appointment
of mend)ers of the Executive Council, the Lieutenant-
Governor must e.v vecef^nltdte, so far as the legal position is
concerned, appoint, witliout advice, the new members upon
the defeat and resignation of an entire administration, but
even in such ca-ses, tlie in-coming ministry or Executive
Council must accept entire responsibility for the acts of the
Lieutenant-Governor in connection with the formation of
the new Executive Council. With regard to the giving or
withholding of tlie assent of the Crown to bills passed by the
Legislati\e Assembly of a province, a Lieutenant-Governor
acts as a mendjer of the Dominion executive staff, or, at all
events, is supposed to be subject to " instructions " from the
Ginerncjr-General, although, in practice, tlie supervision of
provincial legislation entrusted to the Dominion executive
is exercised after the event, by " disallowance," rather than
before the event, by " instructions " to withhold the
Crown's assent. See notes to section 58, ante, for some
further observations as to the position of a Lieutenant-
Governor in relation to the federal executive.
• THE H. N. A. ACT — HE(\ 67. 821
67. The Governor-Geneml in Conn- ^llU'lJ,""*'''-
cil may from time to time appoint an ofLtouTennm-
administrator to execute the otHce and
functions of Lieutenant-Governor during
his absence, ilhiess, or other inability (i).
(i) With this suction compare Huctiou 14, (mta, wliich
(coiiplt'd with the Letters Patent) empowers the Governoi-
(Jeneral to appoint a Deputy Governor-General. This
section, it will 1)e noticed, conveys no such power to u
Lieutenant-Governor, and as to him, therefore, the maxim
(Idcfpitas non pote^tt (lelcfjdrl applies. We do not over-
look the rule of law that a colimial legislature has as full
power to alter and mould the lex pi'croijdthva in the colony
as has the Imperial parliament in Great Britain ; l)ut, on
the other hand, the provisions of section 92, sub-section 1 ,
must not l)e overlooked. See notes to that sub-section, which
expressly prohibits a provincial legislature from amend-
ing the provincial constitution " as regards the office of
Lieutenant-Governor."
Reference has already been made to Attorney-General
(Can.) V. Attorney-General (Ont.) {e), in which there aros !
for discussion the (question of the power of a provincial
assembly to vest in the Lieutenant-Governor powei-s in con-
nection wdth the Executive government of the provinc •
other than those expressly vested in him by section 65 of the
B. N. A. Act. See ante, p. 305. The language of the various
judges who delivered opinions in that case supports the
view that there is the power in a provincial assembly — to
use the phrase of Boyd, C. — to impose upon a Lieutenant-
Governor any executive functions "germane to the office."
In view of the recent decision of the Privy Council already
noted, the legislation impugned in this case w^ould appear
to have been, as Mr. Justice Burton considered it, unneces-
sary. A somewhat different question is suggested by this
(<;) 20 O. R. 322 ; 19 O. A. R. 31. / ; ^^ '
Can. Con.— 21
822 THE li. N. A. ACT — SEC. <j7.
.section (57, taken in connection witli sub-section 1 of section
92, cont'erring- upon provincial legislatures power to anientl
the provincial constitution "except as rej^ards the office of
Lieutenant-Governor."
During the last illness of the late Lieutenant-Cirovern(}r
C'aniphell, an Order in Council was passed appointing a
Deputy Lieutenant-Governor, and this action on the part of
the provincial government gave rise to considerable discus-
sion. It is understood that the Attorney-Genei'al of
Ontario prepared a " state pa])er" in support of this action
of his government, hut this we have not seen. A Lieuten-
ant-Governor— standiiiii' as he does in the same relation to
tlie government of a province as the Governor-General does
in relation to the government of the Dominion — lias \ested
in him the appointment of all subordinate executive officers
throughout the province, but Ave do \u)t see how this could
extend to authorize the appointment of a deputy. Uiider the
B. N. A. Act this would seem to be clear, that the executive
head — the person carrying on the government — of a prov-
ince is to be (me link in the chain of federal connection
between the provinces an<l the Imperial government, an<l his
tenure of office is (section oO) during the pleasure of the
(irovernor-General, suliject to certain restrictions upon the
exercise of the power of removal, already adverted to-
This would seem to l)e one of those essentials in connection
with the office of a Lieutenant-Governor which a provincial
legislature cannot alter, under section 92, ^?uV>-section \.
By section 02 {a nfc, p. .SIO) the provisions of the B. N. A.
Act relating to a Lieutenant-Governor apply also to "otlu"]'
the chief executive officer or administrator for the time
being carrying on the government of the province, />^ wlnd-
cvcr title he is desif/iuited," and the express provision of
tlnis sectitm 07 was hardly needed to negative the power of
a Lieutenant-Governor to appoint a deputy to "carry on
the government" of the province during the al)sence, etc., of
tlie Lieutenant-Governor.
THE B. N. A. ACT — SEC. 68. 82:i
We liave not seen the connniwsion to the Deputy Lieu-
tennnt-Governo)-, and it may possiltly Ik that it is nothinjj;
more tlian the appointment of a subor(liiK*,te officer to jK'r-
t'orm certain of the executive functions of the Lieutenant-
(lovernor (such, for instance, as to perform the ceremony of
opening' the session, and others which might be named), and
is not in trutli the appointment of a deput}' in the proper
sense of tliat term. Tliere are, however, some of the (hities
cf a Lieutenant-Governor which tlie B. N. A. Act expressly
provides are to l)e performed by him, and any general deU-
gation of the (hities of liis office to a deput}'-, would seem
contrary to l)otli the spirit and the terms of the B. N. A.
Act.
68- Unless and until the Executive SVi'oov-'
Government (i) of any Province otherwise ^"""^"'''•
directs with respect to that Province, the
seats of Government (ii) of the Provinces
shall be as follows, namely, — of Ontario,
the City of Toronto ; of Quebec, the City
of Quebec ; of Nova Scotia, the City of
■Halifax ; and of New Brunswick, the City
of Fredericton.
(i) "The executive (jovermiieut.' — This is a somewhat
])eculiar provision. The idea probably was to pro\'ide for
n change of tlie seat of government upon a sudden emer-
gency whicli might not allow of the calling together of the
legislature. There is no doubt, however, that this is one
of those clauses relating to the provincial constitution
which may be altered by the legislature of a province,
under section 92, sub-section 1. A provincial assend)ly,
therefore, may, if so minded, take from the executive this
power.
The seats of government of the provinces and territories
acijuired since Confederation are as follows :
324 THE B. N. A. ACT — SEC. ()9.
Of Manitoba, Winnipeg: of the North West TerritorieH,
Regina; of Prince Edward Ishmd, Charlottetown : and of
British Columbia, Victoria.
(ii) '* The seats of (joreruiiienf." — See notes to section
1(). <iute, p. 200.
Legislatire Power (i).
1.— OXTAEIO.
^o!'outrio. 69- There shall be a Legislature for
Ontario consisting of the Lieutenant-
Governor (i) and of one House (ii), styled
the Legislative Assembly of Ontario.
(i) " Letjisldfive power." — The nature of the legislative
power which resides in provincial legislative assend)lies
has been fully discussed in previous pages, and we need
here only sunnnarise the position shortly. The limitations
upon that power are : First, in respect of the subject mat-
ters : Second, the territorial limitation ; Third, those general
and implied limitations (such as the necessary saving of
Imperial sovereignty) before referred to. But, as expressed
by Lord Selborne in Hodge v. Queen (/), "within these
limits of subjects and area the local legislature is supreme,
and has the same autJiority as the Imperial parliament or
the parliament of the Dominion." See chapter IX., ante,
p. 182. To the cases tliere collected there should now be
added a reference to Li(}uidators of Maritime Bank v. Re-
ceiver-General of New Brunswick ((f), in which the above
passage is (quoted with approval, and the Committee lay it
down that " in so far as regards those matters which hy
section 92 were specially 7V'.s'f/'iV(? for provincial legislation,
the legislature of each province continued to be free from
the control of the Dominion, and as supreme as it was
before the passing of the Act." See alstj notes to section
58, ante.
if) 9 App. Cas. 116. {rj) Timea L. R. Vol. VIII., p. ()77.
THE B. X. A. ACT — SEC. O'J. 325
(ii) " TJw Lieatemt nt-Governor." —Qom\)'AVQ the lang'uage
of Ht'ctioii 17. Owing- to the dirterence in the phraseology
employed, it has been conten<le(l tliat the Queen does not
form a constituent part of the provincial legislatures, but
in the present state of the authorities, this view can hardly
be said to be tenable. It is laid down by Chitty, that the
Crown has a part in legislation throughout the Empire, and
we have already {It) (pioted the passage from that w /iter in
wiiich it is laid down, that all executive officers act imder
con)mission from, and in due subordination to, the executive
head of the Empire. The Lieutenant-Governor acts under
Her Majesty's connnission in carrying on the government
of the province over which he presides, and is as fully Her
Majesty's representative as is the Governor-General in re-
ference to the Dominion at large. The assent, therefore,
given by the Lieutenant-Governor to Acts of the legislati ve
assembly, is the assent of the Crown. This is distinctly
recognized in Theberge v. Landry, where an Act of the
Quebec legislature is described by Lor<l Chancellor Cairns
as — " an Act which is assented toon the part of the Crown,
and to which the Crown therefore is a party." For a
further reference to this case see notes to section 41, unte,
p. 288. Whether, therefoi'e, Acts of a legislative assembly
are pronnilgated as the Acts of the Lieutenant-Governor,
by and with the advice and consent, etc., or as the A-c^JS of
the Queen, by and with such consent, would seem matter of
indifference. Again we are able to (juote, from the latest
deliverance of the Judicial Connnittee of the Privy Council,
language authoritatively enunciating the views above ex-
pressed :
"It would require very express language, such as is not to
he found in the Act of 1867, to warrant the inference that the
Imperial legislature meant to vest in the provinces of Canada,
the right of exercising supreme legislative powers in which tlie
Ihitish Sovereign was to have no share " (/).
{h) Ante p. 252.
(/') Liquidators, etc. v. Rec.-Gen. of New Brunswick, Timee L. R .Vol.
VIII.. p. ()77. This passage immediately precedes that quoted ante, p. 307.
82H THE H. N. A. ACT — SEC. 69.
(iii) " One house."--T\nH form of a legislature was the
deliberate choice of the Upper Canada representatives in
the old parliament of Canada. Lower Canada (n<jw Quebec)
eliose the In-cameral form: see section 71, />unt. Nova
Scotia and New Brunswick prior to Confederation had that
form, and the constitution of the legislatures in those pro-
\inces was continued l>y the B. N. A. Act — see notes to
section (SiS, ^>t>.sY. Prince Edward Islan<l was in like position
upon its adnnssion in 1(S73 ! Upon the formation of the
|)i-ovince of Manitoba, a second chamber was established,
but was afterwards abolished by an Act of the IManitoba
legislature, 89 Vic. c. 29, under the powers conferred by
section 92, sul t-.section 1. At the time of its admission to
the Union, British Columbia had a legislature somewhat
similar to that of Ontario, consisting of one house <mly.
It may here be noticed that no section of the B. N. A-
Act makes any express provision (such as is made in refer-
ence to the Dominion parliament, — see notes to section IS,
riite, p. 2()1) as to the " privileges, immunities, and powers "
of the provincial legislative assendjlies and the members
thereof, respective!}'. In common with all legislative l)odies
they have certain incidental and inherent powers, — " such
as are necessary to the existence' of such a body, and the
proper exercise of the functions which it is intended to
execute " (_/'). "Whatever in a reasonal)le sense is nece.ssary
for those purpo.ses, is impliedly granted whenever any suei;
legislative Ixuly is estaldished by competent authority ;
for tiiese purposes, protective and self-defensive powers
only and not punitive are necessary " {k). This (piestion
lunvever arises, — can they, as law-making liodies, give
themselves, and their members, other and greater powers,
etc., than these ? It is submitted that according to the
weight of authority' they can do so. Indeed, some sanction
is given by Kielley v. Carson (a case from Newfoundland),
(./■) Kielley v. Carson, 4 Moo., P. C. 88.
(/(•) Barton v. Taylor, 11 App. Cas. at p. 203.
THE H. X. A. ACT — SEC. 69. 327
to tlie c«jntonti()n tluit usage in a col(»ny, judicially sanctioned
there, might raise a presumption that the power {e.fi., of
committal for contempt of the colonial as.sembly) had been,
as For.sytli puts it, duly connnunicated by law, or, as wt;
would prefer to put it, had been recognized as part of tlu;
law introduced into the colony upon its settlement. But
however that may l)e (l), the authorities do lay it down —
,-dtlu)Ugh no doubt obiter dicta — that the power to mak(!
laws for a coh^ny cari'ies with it the power to make laws as to
the privileges and innnunities of the law-making- body and
its memViers {m). We have already ([uoted the fifth section
of the Colonial Laws Validity Act, LS(35, — see notes to
section 85, ovte, p. 2<S(), and have discussed its bearing
upon Dominion legislation. It is not, however, necesary
to rely upon this Act, so far as concerns the position of the
provincial legislative assemblies ; in fact, this section of the
C/olonial Laws Validity Act, was passed "to remove douljt," and
as we have said, the weight of judicial authority was in favour
of the view, that colonial legislatures have power tcj define
their own privileges and immunities. The same rule would
apply to a provincial legislature. It cannot, it is true,
enlarge its sphere of legislative activity, but it can make
laws as to how and under \\ aat safe-guards it shall do its
work within the sphere assigned. Such a law would be
" in relation to the classes of matters " coming within section
92 of the B. N. A. Act, — treating those classes as a whole.
Moreover, sub-section 1 of section 92, giving provincial
ussend)lies power to amend the provincial constitutions,
would seem to be sufficiently wi<le to emln-ace legislation
(I) Only on such ground is Reg. v. Gamble, '.» U. C. Q. B. 540, support-
able. This view is very strongly combatted by Mr. Justice Ramsay, in
A.r parte Dansereau, 2 Cart. 165, 19 L. C. Jur. 210. His judgment was
overruled by the majority of the Court, but upon the ground that an
Act of the Quebec Legislative Assembly which purported to confer powers,
etc., other than those annexed by the common law^ to a legislature,
such as that of Quebec, was (contrary to his view) intra vires, sup-
porting the view expressed in the text.
(m) See Barton v. Taylor, uhi nupra, and cases there noted.
32S THE 15. N. A. ACT — SEC. 70.
as to the privileoes. etc., of the provincial assemhlies and
tlie members tliereof. Sucli legishition could in no sense
lit" said to effect an enlargement of their sphere i)f legisla-
tive activitv. We do not overlook what was'laid down in
Bank of Toronto v. Lauibe {n), that provincial legislatures
have no inherent or reserved riiihts of lej^islation datinij:
from a time anterior to the B. N. A. Act, — that liy that
Act the whole range of colonial legislative power is
e'xhausted ; our argument is based on the language of the
Fj. N. A. Act itself, and on what, we submit, is a reasonable
construction of that lanyuage.
The following provincial acts, defining the privileges,
etc., of the legislative assemblies in the respective provinces,
and of their members, are therefore, it is submitted, i ufra
Ontario. R. S. O. (1887), c. 11, s. 37, et seq.
Quebec. R. S. Q, (1888), Art. 124, ei seq.
Nova Scotia. R. S. N. S. (1884), c. 3, s. 20, et seq.
New Brunswick. 33 Vic. c. 33.
P. E. Island. 26 Vic. c. 15 (1863).
Manitoba. R. S. M. (1880), c. 5, s. 36, et seq.
British Columbia. R. S. B. C. (1888), c. 22, s. 76, et srq.
Tlie position of the N. W. Territories will be found
treated in Part IV., post.
SSi). 70- The Legislative Assembly of
Ontario shall be composed of eighty-two
members, to be elected to represent the
eighty-two Electoral Districts set forth in
the first Schedule to this Act.
(i) The representation in the different provincial legisla-
tures has from time to time since 1867 been altered, under
the power granted to the provincial legislatures by section
92, sub-section 1. Owing to the frequent revision of the
statutes in the various provinces, it is not thought desirable
(«) 12 App. Cas. 575.
THE H. X. A. ACT — SECS. 71, 72. 821)
to encumber this work with u list of the various electoral
(listrictH for provincial purposes. So far as]^()ntario is con-
cerned, they will he found set out in R. S. (). c. 7, and suh-
seciuent amendments. The nundter of niend)ers is now 91.
2.— QUEBEC.
Quebec
71. There shall be a Legislature for J;^r|||,'J.\;y;f
Quebec consisting of the Lieutenant-
Governor and of two Houses (i), styled
the Legislative Council of Quebec and tlip
Legislative Assembly of Quebec.
(i) " Two hoastcs." — See notes to section 09, where will
be found a statement of the position of the various pro-
vinces, in regard to this matter. See also the notes to sec-
tion 21, (inte, p. 268.
72. The Legislative Council of Que- ^rSSio
bee shall be composed of twenty-four ^°"'^*'"'
members, to be appointed by the Lieu-
tenant-Governor in the Queen's name (i),
by instrument under the Great Seal of
Quebec, one being appointed to represent
each of the twenty-four Electoral Divi-
sions (ii) of Lower Canada in this Act
referred to, and each holding office for
the term of his life, unless the Legisla-
ture of Quebec otherwise provides under
the provisions of this Act (iii).
(i) " In the Queen's ndine" — See note (ii) to section (iJ),
aiite, p. 325.
(ii) "Each of the twenty -f o wr €lect<yt'(d dlvif^iov^." — See
notes to section 22, sub-section 3, ante, p. 272.
(iii) " Unless the legislature of Quebec otherwise pro-
vides."— Up to the present time no change has been made
:i80 THE H. N. A. ACT — SECS. 73-77.
in the constitution ot" the legisUitive council of that pro-
vince.
^fTeSauvo 73. The qualifications of the Legisla-
tive Councillors of Quebec shall be the
same as those of the Senators for Quebec
(i).
(i) See section 2'^,iivh', \\ 278.
DiSmS 74. The place of a Legislative Coun-
t.on. &( ciWoY of Quebec shall become vacant in
the cases inutatis inutandis, in which the
place of Senator becomes vacant (i).
(i) See sections 30 and 31, (intc, p. 277.
vaca.H;ies(i) tj Q Wheu a vacauc}' happens in the
Legislative Council of Quebec, by resig-
nation, death, or otherwise, the Lieuten-
ant-Governor, in the Queen's name (ii)
by instrument under the Great Seal of
Quebec, shall appoint a fit and qualified
person to fill the vacancy,
(i) See notes to section 82, (ivfc, p. 27(S.
(ii) " It) the Qaeev's naiiic." — See .section 72, above, and
see al.so notes to section 09, (ivte, p. 325.
ti'vacaneioB, 76- If '^^^^Y questiou arises respecting
the qualification of a Legislative Council-
lor of Quebec, or a vacancy in the Legis-
lati^^e Council of Quebec, the same shall
be heard and determined hv the Legisla-
tive Council (i).
(i) See notes to section 33, ante, p. 278.
LeSative 77- The Lieutenaut-Govemor may
from time to time, by instrument under
THE B. N. A. ACT — SECS. 78-80. 331
the Great Seal of Quebec, appoint a
lueiiiber of the Legislative Council of
Quebec lo be Speaker thereof, and may
remove him and appoint another in his
stead (i).
(i) See section 84, untc, p. 271).
78. Until the Legislature of Quebec Siiuve
otherwise provides, the presence of at
least ten members of the Legislative
Council, including the Speaker, shall be
necessary to constitute a meeting fov the
exercise of its powers (i).
(i) See notes to section 85, oniv, p. 280.
79- Questions arising in the Legisla-
Voting in
Legislative
tive Council of Quebec shall be decided ""'"'""
by a majority of voices, and the Speaker
shall in all cases have a vote, and when
the voices are equal the decision shall be
deemed to be in the negative (i).
(i) See notes to section 80, 'O/^r', p. 2iSl. It will be noted
that in the Senate of Canada, and the Legislative Council
of Quebec, the Speaker is entitled to vote as an ordinary
nieniVter, and has no tasting vote: while in the House of
Conunons, and the Leyislative Assenil)lies of the various
provinces tlie Speaker has only a casting vote in case of a
tie. See sections 49 and 1)0.
80. The Legislative Assembly oi"^^^^^
Quebec shall be composed of sixty-five qSc.'^ °
members, to be elected to represent the
sixty-five electoral divisions or districts
of Lower Canada in this Act referred to,
subject to alteration (i) thereof by the
332 THK 15. \. A. .'XT— SEC. 81.
Legishiture of Qiu bee : Provided thiit it
shall not be lawful (ii) to present to the
Lientenant-CTOvornorbf Quebec for assent
any bill for altering the limits of any of
the Electoral Divisions or Districts men-
tioned in the second Schedule to this Act,
unless the second and third readings of
such bill have been passed in the Legis-
lative Assembly with the concurrence of
the majority of the members representing
all those Electoral Divisions or Districts,
and the assent shall not be given to such
bill unless an address has been presented
by the Legislative Assembly to the Lieu-
tenant-Governor stating that it has been
so passed.
(i) "Subject toiilter<diov."—^e&h^ Vic, c. 3 (Quebec),
by which the ineiiibei'Hhip of the legislative asseinbh' of
that province is fixed at 72.
(ii) " It shtill not he lnwfal, etc" — See notes to section
22, ante, where the considerations which led to this par-
ticular arrangement in the case of Quebec are adverted to.
The electoral districts set out in the second scliedule, are,
or were at the date of Confederation, .inhahited largely b}'
protiistant English, and are familiarly known as the "east-
ern townships."
3._0NTARI0 AND QUEBEC.
of rlS-°" 81. The Legislatures of Ontario and
Quebec respectively shall be called to-
gether not later than six months after the
Union (i). > : - .
(i) This section is now effete. The first sessions of the
legislatures of Ontario and Quebec respectively were held
THE B. N. A. ACT — SECs. 82, 83. M.S3
on the 27tli of I)ect'inl>er, 1(S()7, Just in time to CJniply wit!i
the provisiouH of thi^ .section.
82. The Lieuteiifiiit-Clovernor of On- o"~atfvo
tiirio and of Quebec shall from time to •^'""""'''"^^'
time, in the Queen's name (i), by instru-
ment under the Great Seal of the Prov-
iiice, summon and call together (ii) the
Legislative Assembly of the Province.
(i) " />* titc Quccu'k ixnnc." — See note (ii) to section (J!),
^iiifc. A clearer indication than this section (S2 aftbnls
could hardly have lieen given, that the Lieutenant-Gov-
ernor of a province, in his relations to tlie legislative
assend)ly of such province, represents the Queen. And see
also notes to section 90, post.
(ii) " Sammone^l (md called torjcthcr." — See notes to
section 38, ante, p. 2(S3. Wliat is laid down in chapter
V'lII., as to the exencise, by the Governor-General, of tlie
prerogatives of the Crown in connection with the sum-
moning, proroguing, and dissolving of parliament, is eijually
applicable to the case of the Lieutenant-Governor of a
province. See notes to section 58, ante, p. 303.
83. Until the Legislature of Ontario ^Slonor"
p r\ I 11 ■ •! /•\ holders of
or 01 Quebec otherwise provides (i), a per- omcea.
son accepting or holding in Ontario or in
Quebec any office, commission, or em-
ployment permanent or temporary, at the
nomination of the Lieutenant-Governor,
to which an annual salary, or any fee,
allowance, emolument, or profit of any
kind or amount whatever from the Prov-
ince is attached, shall not be eligible as
a member of the Legislative Assembly of
the respective Province, nor shall he sit
',V,H THE n. N. A. .\< T — SKC. 8».
or vote us such; but nothiufj iu this sec-
tion shall luiike incli^nble (ii) any person
bein^^ a nienil)er of the Executive Council
of the respective Province, or holding
any of the followin«^' otHces, that is to say,
the offices of Attorney-CTcneral, Secretary
and Registrar of the Province, Treasurer
of the Province, Commissioner of Crown
Lands, and Conunissioner of A^n-iculture
and Public Works, and in Quebec Solici-
tor-General, or shall dis(|ualify him to sit
or vote in the House for which he is
elected, provided he is elected while hold-
ing- such office (iii).
(i) " Until f/tr IcifisUil (I ri' i>f Oiitu rli> or of (^nrhcr of/icr-
toisr /trai'idcs." — St'i' notes ti) section 41, irnfc, p. '2So. It
is to !)(.' notici'tl tluit theiv is no coi'respon<lin<;' provision
with ivpml to tlio Dominion government, except so tar as
it may lie embodied in section 41. It is ditticult, in viewol'
section (S4, to see the necessity for this section NH in the ease
of these provinces, except, perhaps, in connection with the
tirst elections after Confe<leration. The mattei's referred to
in the section have heen tiie subject of legislation in all the
provinces. Th«^ law, as to Ontario, will he found in K. S. ( ).,
c. 11, and, as to Queliec. in R. S. Q., articles 18(5 to 144.
(ii) " NothiiKj i I) f/tis scctiov s/kM vuikr iiu'li(/ihl<u
etc.'' — Prior to Confederation, this was the law in the vari-
ous provinces, and upon its existence hinges the difference
hetween tlie British constitutional system, and that of the
United States: see chapter I., avfc, p. 14, et xeq. As to the
Dominion, the law in this respect was continucvl hy section
41, avtc, p. 284, and as to Nova Scotia and New^ Brunswick
by sections 64 and 8(S. See also section 129. Upon the
admission of the other portions of British North America.,
THE H. :>. A. .\( I - SKC 84. 'Mi')
vnrv wjis takon to t'stultlish th<.'»viii the huimc systnn of re-
jn't'Ht'Htiitivo jMirliiUiK'ntiiry ^ovonniu'iit as exists in tlic
Unitt'd Kin<;<l()iii, and as L'\istr«l in tlic vai'ioiis pr<'-( 'onfcil-
cration ja-ovinci's. Sec Part TV., i>tisl.
(iii) " Pi't>r'i(h'(l he Is cb'ch'd trhih' lioldi inj .siir/t nffin-.'' —
This provision is a rt'inin<U'r oF tlu' days when " tin- Kind's
party " was accustoniud to ivcruit its ranks l»y a lavish dis-
trihution oF ofHcf. It appHcs even to the acceptance of
office hy nienihers of a new achiiinistration after a general
election. See Mc])<»nell v. Smith, f 7 U. C. Q. H. MO, and
Macdonell v. Macdonald, -S U. C. C. P. 47f), whidi upheld
as k'^al what is popularly known in Canadian histoi'y !>^*
tlie "double sluitffe " of iSoS.
84. IHitil the Le^nslatiires of Onturjo .V,":,','!^"'
Quebec respectively otherwise pro-
vide (i) all laws which at the Union are
ill force in those Provinces respectively,
relative to the following inatters, or any
of theni, namely, — the (jualilication and
disqualifications of persons to be elected
or to sit or vote as niembers of the
Assembly of Canada, tlie (]ualilications or
disqualifications of voters (ii), the oaths
to be taken by voters, the lieturning
Othcers, their powers and duties, the pro-
ceedings at elections, the periods during
which such elections may be continued,
and the ' trial of controverted elections
(iii) and the proceedings incident thereto,
the vacating of the seats of members and
the issuing and execution of new writs in
case of seats vacated otherwise than by
dissolution, shall respectively apply to
elections of members to serve in the
836 THE B. N. A. ACT— SEC. 85.
respective Legislative Assemblies of On-
tario and Quebec.
Provided that until the Legislature of
Ontario otherwise provides, at any elec-
tion for a member of the Legislative
Assembly of Ontario for the District of
Algoma, in addition to persons oualiiied
bv the law of the Province of Canada to
vote, every male British subject, aged
twenty-one years or upwards, being a
householder, shall have a vote.
(ii " Until, etc." — See notes to section 41, (mte, p. 2iS4.
Were it not tliat the power of the provincial legislatures to
deal with the various matters referred to in this section
may perhaps depend thereon, it might be said to be effete,
as the legislatures of all the provinces have long since
otherwise provided.
(ii) " Voters" — See note (ii) to section 41, avte, p. 280.
(iii) " The trial of controverted elections." — SeeTheberge
V, Landry, referred to in tlie notes to section 41, ante, p. 2<S8.
All that is laid down in the notes to that section, applies,
nmtatis niatavdis, to the case of the provincial election
laws.
EeSative^ 85- Every Legislative'Assembiy of
ssemwies. q^^|^^j,|q ^y^^ cvcry Legislative Assembly
of Quebec shall continue for four years (i)
from the day of the return of. the writs
for choosing the same (subject neverthe-
less to either the Legislative Assembly of
Ontario or the Legislative Assembly of
Quebec being sooner dissolved (ii) by the
Lieutenant Groveinor of the Province),
and no longer. .
THE B. N. A. ACT — SECS. 80, 87. 337
(i) " Four years." — See notes to section 50, (infc, p. 293,
Avliere tliis ditterence is noted in the position of the Do-
minion parliament and the legiskture-i of the different pro-
vinces, namely, that the former cannot alter the provisions
of the B. N. A. Act in regard to this matter, while the latter
(under section 92, sub-secticm 1), can do kSO.
(ii) "Sooner diisoloed." — See notes to section 50, (rufc,
p. 293, and note (ii) to section 82, ante, p. 333.
86- There shall be a Session of the s^>'ovKu-
Legislatiire of Ontario and of that of Que- ^'^^"'•'^'*'^
bee once at least in every year, so that
twelve months shall not intervene between
the last sitting of the Legislature in each
Province in one Session and its first sit-
ting in the next Session.
(i) " Yearly Session." — See notes to section 20, <n)fe,
p. 267, and see also chapter VIII., at} te, p. 1 6(S. Wh t is there
laid down as to the duty of the Governor-General to insist
upon the observance of the provisions of section 20, is
e([ually applicable to the case of a Lieutenant-Governor
under this section. There is no similar provision in the
B. N. A. Act as to Nova Scotia and New Brunswick, and,
so far as we have been able to fintl, no such provision exists
by law in those provinces.
As to Manitoba, British Columbia, Prince Edward Island,
and the North West Territories, see post.
87- The following provisions (i) of QViwum, &c.
this Act respecting the House of Commons
of Canada shall extend and apply to the
Legislative Assemblies of Ontario and
Quebec, that is to say, — the provisions re-
lating to the election of a Speaker (ii)
originally and on vacancies, the duties of
Can. Con.— 22 -,■■■. ■ ;• r
838 THK i'.. X. A. ACT — SEC 88.
the Speaker (iii), the absence of the
Speaker (iv), the quoniin and the mode of
voting (v), as if those provisions were
here re-enacted and made appHcable in
terms to each such Ijcgishitive Assembly.
(i) " Tim Jolloiri iKj /rrorisions." — Tlio provisions m-
feired to are contained in sections 44 to 49 (both inclusive).
Upon nearly, if not (piite.all of these matters, tiie assemhlies
of tlie various provinces have exercisjMl the legislative
p( wer given by section 02, sub-section 1. See notes to
section 85, unte, p. 2(S0, for some observations as to the
powers, in this regard, of the Dominion parliament.
(ii) " Tha elecfioii of <i S/x'okfir." — See sections 44 and
45.
(iii) " The duties of o Speoker." — See section 4(5, and
the notes thereto, where we have pointed out that the
B. N. A. Act contains no further definition of the <luties of
a Speaker, and where a contrast is drawn l)etween the
position (jf a Speaker in a Cinadian legislature, and that
of a Speaker undei- the American system.
(iv) " l^ie (il)s(iue of ihe ^lynkcr." — S(H' section 47, and
notes.
(v) " Tk'' Qitofiiiii o.iiil the iiitx/e of Kotiiif/." — See
sections 4<S and 4!): v;ith which compare sections 85
and 8(), relating to the Senate, and sections 78 and 7 J), as
to the Legislative Council of Quebec.
4.— NOVA SCOTIA AND NEW BKUNSWICK.
ofTS'.""" 88. The constitution of the LegisUi-
tures of Nova ■ <• ^ l' i.^ • £ x^
scotiflaiui ture 01 each or the provnices or IS ova
wick. Scotia and New Brunswick shall, subject
to the provisions of this Act (i), continue
(ii) as it exists at the Union until altered
under the authority of this Act ; and the
rilE H. N. A. AC'I" — SEC. 89. MM)
House of Assembly of New Brunswick (iii)
existin^^ at the passing of this Act shall,
unless sooner dissolved, continue for the
period for which it was elected.
(i) " Siihjccf fi> titc prorisioiis of this Act." — That i.s to
say, suUject to the liiiiitation of the "sphere of autliority '*
of the lej^ishitures in th(;se provinces under the B. N. A.
Act, and suhject also to tlie difference in the mode of
appointHHint of the Lieutenant-Governor. In all (^ther
respects, the C(Hi.stitutions of these provinces may l»e, from
time to time, altered hy the provincial legislatures, under
the terms of section i)2, sub-section 1.
(ii) "Shall confinuc." — See chapter III., (iiifr, p. 52, cf
scf/.; also section ()4 and notes thereto.
(iii) The Hoitse of Asscnihlij of Nr/w Bran-wuck" — See
a/iifr, p. .52, where the difference in the provisions made for
New Brunswick, and for Nova Scotia — see section SJ) — is
referred to.
5.— ONTAKIO, QUEBEC, AND NOVA
SCOTIA.
89- Each of the Lieutenant-Govern- ^'iljp^^'^lr"
ors of Ontario, Quebec, and Nova Scotia
shall cause writs to be issued for the first
election of members of the Legislative
Assembly thereof in such form and by
such person as he thinks fit, and at such
time and addressed to such lleturning Offi-
cer as the Governor-General directs, and
so that the first election of member of
Assembly for any Electoral District or
any subdivision thereof shall be held at
the same time and at the same places as
the election for a member to serve in the
lUO IHK n. N. A. A< T — SKC. '.»(),
House of CoiMinons of CfUiHcl;! for that
J^jlectonil District.
(i) " Fii'sl rlf'cl ions." — This section is now crt'ctv'. Scm^
notoH to last suction.
C).— THE FOUK PUOVlxNCKS.
t^'tSir 90- Tlic follo\vill,^• provisions of tliis
tnoTisioMH Act respecting' tlio Parliament of Canada,
inonoy vot.js, nanielv, — the ])rovisions relatm<^ to ai)-
iVu. (11. •' ' L n I
propriation and tax hills, tlie recommen-
dation of money votes, the assent to hills,
the disallowance of Acts, and the sif>nifi-
cation of pleasure on hills reserved, — shall
extend and apply to the Le«.(islatures of
the several Provinces as if those provi-
sions were here re-enacted and nnide ap-
plicahle in terms to the respective Pro-
vinces and the Legislatures thereof, with
the sul)stitution of the Lieutenant-Gov-
ernor of the Province for the Governor-
General, of the Governor-General for the
Queen and for a Secretary of State, of
one year (ii) for two years, and of the
Province for Canada.
(i) " The folloivliH/ jirorisiniis.'' — Li reference to some
of the sections of the B, N. A. Act — thost; niakino- provision
for the constitution, ])()th leyisiutive and executive, of
Ontario and Quebec — we have spoken of tlie " necessities of
thi' draftsman," as the reason for their introduction. See
(tnfc, p. 4(). The insertion of this clause in the Act in its
present shape miolit more properly be said to have been
caused by the laziness of the draftsman. Applying its pro-
visions, literally, certainly makes some of the provisions to
TflK l(. \. A. A<T — SKC !»0. .'HI
wliicli it rcfciH it'jid very peculiarly, jiikI aftords an ar<^u-
iiR'iit ill support of the view which would Ix-littlo the posi-
tion of proviucifil Icn'islatui'cs, aiul o(* the Lifiutcufint-
(Jovci-uors of the provinces. L<'t us take thnii in their
(trdei- :
(1) " T/ir iH'ortsnnis I'ddfiiHf lo <i i>i)i'<ti>riafKm (iiidfa.r
lulls." — See section 5!^ 1'his section can only Ije made to
art'ect those provinces in which a l.'i-caineral le;;islature ex-
ists. ShouM any of tin- pi'ovinces which now ha\t' one
house decider to alter their constitution in this respect, it
Hiii;ht perhajjs he difficult to say which one of the two
houses would ansvv(!r to the House of (,'onnnons, foi- hoth
houses nji;4ht j)ossiI»Iy Ixi elective.
(2) " Tlw rccoiiniK'iiildt KHI i>f iiHUK'ii rotrs.'' — -HcM section
54, mile. What has been said as to sectif)n o.'i applies with
e(pial force to any attempt to paiviphrase section 54.
(3) '' As-sriil lo hills." — See section 55. To para[)hrase
this section in accoivlance with the literal provisions of
section !)(), would indicate that, in the view of the framers
of the B. N. A. Act, th(; Li(!utenant-( Governor's assent to
Acts of a provincial l(!;.;islature is not the assent of the
(^)ueen hut of the (iov(U'nor-( Jenei'al. TIk; case of Thehei'^t?
V. Landry (o), hefoi-e the Judicial Connnittec; of the Privy
Council, in which it was held that the Lieutenant-(iover-
nor's assent Wfis thi; assent of the Crown, has been already
I'eferred to: see also the pi-ovisions as to tlu^ sununoning of
the j)rovinci}d legislature of Ontai'io and (Quebec (section S2,
(I life, [). -VAH), and the provisions in reference to tln^ appoint-
ment of members of the Legislative Council of (^)uebec,
(section 72, (infr, p. li'2i)). As has been fre(|uently pointed
out, all executivi^ officers th)'ou«.^hout the Empire act under
connnission direct from the executive head of the Empire,
although their appointnu'ut may Ik; through the medium
of certain other executive officers. The dis[)ute has now
h(!en given its <]iil('fii.s by the recent judgment c»i the
((») 2 App. Cas. 10 J.
842 THE li. X. A. ACT — SEC. DO.
Judicial Coiuiiiittee of the Privy Council in Liijuidutors,
etc. V. Receiver (leneriil of New Brunswick, Times L. K.,
Vol. V^III., p. 077. See the passages (juoted in note (v) to
section 58, and note (ii) to section ()f).
(4) " The (Hsiilhnni iH-c of Arfs" — Tliis matter haslieen
already fully dealt with. In chapter VIII, dufc, p. 172,
will l)e found a criticism of Professor Dicey's statement
that the >'d(.> ])ower was ]odi;e<l with the Dominion CJovern-
ment in order to obviate tiie necessity for resoi-t to the
courts for the determination of these constitutional (jues-
tions : and by reference to the debates upon tlie Quebec
Resolutions, we endeavoured to point out that the fi'amers
of tliose resolutions knew perfectly well what the position
of atl'airs would be, upon the carrying out of the scheme
therein contained. The views of judges since Confedei'ation,
cannot of course l)e cited against Professo)' Dicey's state-
ment. We may I'efer however to Leprohon v. Ottawa ( />),
in which the Judges of the Court of Appeal for Ontario,
laid down without hesitation, that thu fact that a pro-
vincial law had not been disallowed l)y the Dominion
authorities, could in no way afi'ect the (juestion as to its
legal validit}'. Hagarty, C.J., sa^'s : ' I do not soe how the
existence of such power can afi'ect the constitutionality of
the enactment " ■ and iMr. Justice Burtoi> uses this language :
" Whether allowed or not, to the extent that provincial
Acts transcend the competence of the provincial legislature,
they are void." To refer again to the language of tlu-
Cliancellor of Ontario, in Attorney-General (Canada) w
Attorney-General (Ontario) (.q), the power of disallowance
is one which may operate both in the plane of political
expediency, and in that of jural capacity. Its exercise in
these days is largely cojitined to the former. The result is
very fairly sunnned up l)y Lord Hobhouse, in delivering the
(p) 2 O. A. R. 5'i2. See also Reg. v. Chandler, referred to in the
notes to S9C. 91, p-3. 2], post.
(q) 20 O. R. at p. 245.
THE U. N. A. ACT — SEC. 91. 843
judgiiiont of the Judicial Coiniuitteo of tlie Privy Council,
in Bank of Toronto v. Lanihe (/•) :
" Their Lordships have to construe the express words of an
Act of parHament which makes an elaborate distribution of the
whole field of legislative authority between two legislative bodies,
and at the same time provides for the confederated provinces a
carefully balanced constitution under which no one of the parts
can puss laws for itself, except under the control of the whole
acting through the Governor-General."
(5) " The hI<) 11 if} cat Ion of ■plensarc on hills rrserre'l." —
See section 57 : also chapter VII, ovtc, p. 14f).
(ii) "Ouc yrc r." — In chapter VII. {(inte, p. 149), we
have pointed out that upon the expiration of the two 3'ear.s
allowe«l l>y section 5() for the (lissallowance by the Queen in
Council of Dominion legislation, no act of Imperial execu-
tive authority can thereaft(U" weaken its effect; that
nothing short of " repugnant " Imperial legislation can
override; it. The first proposition is e(iuall3' applicable to the
position of the Dominion executive in reference to provin-
cial legislation after the expiration of the one year allowed
by this section 90 for its disallowance. The second propo-
sition has no application, except in the case of section 95.
Upon the expiration of the year, no }X)wer short of Imperial
legislation can interfere \\'ith the operation of a provincial
Act, passed in relation to a matter within its legislative
competence. Tlie Dominion legislature cannot interfere
because the legislative powers of the Dominion and of the
provinces are exclusive, each of the other. See chapter X.,
ovtc. p. 200.
VI. — Distribution of Legislative Powers (i).
Potvers of the ParUament (ii).
91. It shall be lawful for the Queen ^.X^ty of
/•'•\ -i -\ • l^ i.1 T • T J. Parliameut of
(ill), by and with the advice and consent caim-ia.
of the Senate (iv) and House of Commons
(;) 12 App. Cas. at p. 587.
.'{44 rm; it. \. a. a^ r— skc !)1.
(v) to iiiiiko laws for the p(?}ic(', ordci-, jiud
^(H)<\ ^^ovcnimeut (vi) of Ciiiiadji, in rela-
tion to (vii) all inatteis not coniin^^ (viii)
within tlu! classes of sul)j('ets hy this Act
assi^n(;(l exclusivtdy to tin; Le^Mshitni'es
of the Provinces; and for greater cer-
tainty (ixj hut not so as to restrict the
•Generality of the fore^'oin<^- terms of this
sectio}!, it is herehy de(-lared that (not-
withstanding' anything in this Act) tlu'
exchisivt! (x) Jje^nslativc- Authority of the
Parliament of (Canada extends to all mat-
ters coming' within the classes of sul)jects
next hereinafter enumeratcid (xi) ; that is
to say : —
(i) " iJisfrihitfMii) of In/lsljifirc poire fs." — Ah a prcliiii-
iiijiry to tilt! study of this uud tli»' folIowiii<^' s('('ti<»ii, clui])-
te)'H X. and X J. (particulHi'Iy Dm forniei') shoidd ha car<;fully
r«;ad. In chapto' X. wi; liav<; (!nd(!avor(;d to collect from
tlui cases — paiticulai'iy tliost; wliicli lia\'(! bocn dccidcfl hy
tlu; .Judicial Connuittee of tin; Pi'ivy (Jouncil — what lias
hcen authoritativ(;Iy laid down as to the natuic of the
division efHicted hy tlu; H. N. A. Act, and have; noted also
certain ^(^nei-al rules of construction a{)|)lica,lile to the in-
terpretation of tlies<; tw() veiy ditlicult sections of the Act,
(ii) ' Poii'crs of llic i>ti rtiii hii'iif." — These powers are- not
exhausted hy the; various sul>-sections. See notes to section
41, (iiilr, p. 2S(), and s(!ction l.'32, jxtsf. Other sections, too,
have Ijeen noted in which power has heen expressly j^i'^en
to the jjai'lianient of (Canada ^tlu; same is true of the [>ro-
vincial leniHlatures as well) to alter certain pi'ovisions
of the B. N. A. Act in reference to the conduct of
its husiness. But, apjirt altogether fi'om these \ariouH
sections dealing with special matters, the opening woitls of
'I'Hi: i;. N, A. .\< r -,six'. <.n. ;{45
Hcctioii 1)1 clcuily assign tin- uii('imiiifrut»'<l " rcsiiliimii " of
siil)j»'ct iiifittci's, ])r<)jM !• to lit- I(';;i.slntiv('ly trcutol l»y u
Cfdoniul Ic^isliiturc, to tlic ])urliiiiii('iit of ( 'uiiudu, uiid vui'iou.s
Acts of the Doiiiiiiioii }tfirli)iiii('iit liJiAf Itccii iiplicM Hltlioii;^!!
it wjis not jiossiMf to clussify tlirii- proNisionH m^ fnlliii;;'
within Miiy of tin- varioiiH siili-Hcctions of st'<-tioii !>!.
l*'oi- itiHtuiicc, ill Kwsst'll V. Tin- Qiircii (.s), the .lii<li('iul
( "oiiiiiiittcf of tilt' Privy (.'oiiiici! iijilicM tlx' |)i-<)visioiiH (»f
tlif ( "aiiuda 'rcmpciuiicc Act U|)oii this nrouinl :
" If the Act <1()(!S not full within any of the claHses of siihjectH
in section 'J2, no further qiuistion will rcnniiin, for it cannot be
conti.'nd('(l . . that, if iIk; Act dooH not conio within one of
tilt.' classtis t)f subjects asrii^ned to the provincial Ic^'isluturoH,
the parliament of t'anaila hatl not hy its i^cuaval power ' to make
laws for tlu; pt'ace, onler, and j^'ood f,'ovfriim(;nt of Canatla,' full
Icf^'isliitive authority to pass it."
Ill (/iti/itniH V. Parsons (/), tin- j)t>\vi'r of tin; Doiniiiioii
|jar!iaiiieiit t(» ineoi'iiDratt! ct>in|)aiiit'S with jjovvcrscxtiMitlino'
<>vc\' tlu; wliolt! Doniinion, or over inort; than orn; ])i'ovinci',
was clearly rcco^ni/eil as ('xistin;^' uiitlcr tin; ;^('n('ral woi'iis
of this section, 'i'he ftilhiwin^' ])assa;4t' is taken from the
juilj^inent <»f Sii- Moiita^ui! Smith, in ticliverin;;' tht; Judg-
ment of the l^rivy Council :
'* TaKclureau, J., in the course of his vigorous judgment, seeks
to plaet! the plaintilf in tin; action against the (.'iti/eiis Company
in a dilemma. He thinks that tlu; assertion of the right of the
province to legislate with regard to the contracts of insurance
etjmpiUiics amouiits to a denial of the right of the Dominion
parliiuneiit to do so, and that this is, in etfect, to deny the right
of that parliament to incorporate the Citizens Company, so that
the plaintiff was suing a non-existent defendant. Their Lord-
ships cannot think that this dilemma is estal)lishe<l. The
learned judge assumes that the power of the Dominion govern-
ment to incorporate Companies to carry on business in the
Dominion is derived from one of the <-;numerated clasces of subjects,
viz., ' the regulation of trade and commerce,' und then argues
(x) 7 App. Cap. H'2f>. it) 7 App. Can. '..'(5.
:U() THi: 15. N. A. ACT— .SEC. l»l.
that if the authority to incorporate companies is given by tliis
clause, tlie exclusive power of regrlatinj? them mu.st also be
,!,'iven by it, so that the denial of one power involves the denial
of the other. lUit, in the first place, it is not necessary to rest
the authority of the Dominion parliament to incorporate com-
panies on this specific and enumerated power. The authority
would belong to it by its general power over all matters not
coming within the classes of subjects assigned exclusively to the
lo.,'isl.itures of the provinces ; and the only subject on this head
assigni'd to the provincial legislature being ' the incorporation
of companies with p)'ovincial objects,' it follows that the incor-
poration of companies with objects other than provincial falls
within the general powers of the parliament of Clanada."
Tn Ho Bi-it'tii ^rcilical and (U'licvjil Life Association ("),
it was held tiiat the Dominion Acts which re(|Uii'e a deposit
with the Minister of Finance \\y foreign corporations se(d<-
ing" to <]() liusini'ss within Canada, wei'e iiifiui rlrrs.
In Rr Wetlurelland Jones (r\ the power of the Dominion
parliament to pass an Act in reference to tlie taking of
evidence in ilu; various provinces for use Ijefore foi'eign
ti'ihunals, was upheld, as coming within the general words
of this .secti(m 91. The pi'ovincial legislatures, it was held,
have no power to pass sucli Acts, as in tlieir operation,
tlie}' are of extra-})rovincial pertinence, and do not '• vlate to
the administration of justice, (>r to pj-operty and ci\il rights
in the province. It may he note(l, too, tliat such laws in
no way offend against the rules which have been laid down
as to the territorial limitation upon the legislative power
of a colony. The extra-territorial effect to be given to
proceedings taken under sucli Acts depends upon the law
of the countiy in wliich the evidence is to he u.sed. Mi'.
Justice Torrance, of the Quebec Superior Court, had arrived
at the same conclusion in K>- parte Smith (w), which came
(ii) 12 O. R. 441. Ses further, on this subject of the incorporation,
etc., of companies, the notes to s. 92, s-s. 10 and 11.
(i) 4 O. R. 713.
(w) 10 L C. Jur. 140; 2 Cart. 330.
THK H. N. A. ACT — SEC. (U. 847
bet'ore liim in 1.S72. Hv Hjx'uks of the Dominion Act in
<|uostion, us jin Act in relation to 'ii matter of intiTnationnl
c'omitv."
(iii) " T/ir IJiicrn." — See n(»tes to sections f), 58 and (>!).
<i iiff .
(iv) " The Srinifcr—Hee section 21, rf sfq.
(y ) " H(nis( (}/ ('(mniioiis." — See section 1^7, ff sctj.
(vi) " Tlic jx'iirc, order, (ind (food <j(>rf'rni)ifitf." — This is
an expression \ery freijuently used in Imperial Acts oeative
of colonial constitutions (,/•), and it also occurs in many of
the commissions to the early oovernors. Tlie same words
.ire used in 84 ^ 85 \'ic., c. 2S, yivinj;' the Dominion parlia-
ment legislative power over the territories. Their very wide
scope is thus referred to in Riel v. Regina (//) by Lord
Chancellor Halshur}', in delivering the judgment of the
Judicial Connnittee of the Privy Council :
" It is not denied that the place in question was one in les-
pect of which the parliament of Canada was authorized to make
such provision, but it appears to be suggested tliat any provision
ditt'ering from the provisions which in this country have been
nuxde for administration, peace, order and good government, can-
not, as matters of law, be provisions for peace, order and good
government in the territories to which the statute relates, and
further that, if a court of law should come to the conchision that
a particular enactment was not calculated as matter of fact and
policy to secui'e peace, order and good goveriiUient, they
would be entitled to regard any statute directed to those objects,
but which the court should think likely to fail of that effect, us
ultra rire's, and beyond the competency of the Dominion parlia-
ment to enact. Their Lordships are of opinion that there is not
the least colour for such a contention. The words of the statute
are apt to authorize the utmost discretion of enactment for the
attainment of the objects pointed to. They are words under
which the widest departure from criminal procedure as it is
known and practised in this country, have been authorized in Her
Majesty's Indian Empire. Forms of procedure unknown to the
:.r) See note (t) p. 54, ante. (//) 10 App. Cas. C75.
84S THE H. X. A. AC'l'— SEC. ill.
English common law have there been established and acted upon,
and to throw the least doubt upon the validity of powers con-
veyed by these words would be of widely mischievous conse-
<iuence."
(vii) " L(urs in *v/. Hon fo." — See chapter IX., )iii(c,
p. 194, note (r), wliere reference is made to the wordinu' of
the C\)iistit\itioii of the United States in tliose sections of
it which confer legislative power upon Congress. As is
there pointed out, the words of oiii- statute are, if compari-
son be in ordei', wider tlian the woi'ds of the American
"Constitution," and tlie various American authorities sup-
porting the doctrine of " implied powers " may, therefore,
appear applica1)le, <( fortiori, to the powers of Canadian
legislatures.
In Bennett v. Pharmaceutical Association of Queliec(:),
])orion, C.J., lays it down :
" We consider, as a proper rule of interpretation in all these
cases, that when a power is given, either to the Dominion or to
the provincial legislatures, to legislate on certain subjects coming
clearly within the class of subjects which either legislature has
a right to deal with,. such power includes all the incidental sub-
jects of legislation which are necessary to carry on the object
which the B. N. A. Act declared should be earned on by that
legislature."
The a])])lication, however, of this doctrine brings us face
to face with the ([uestion as to the existence of "concuri'ent
})owers" and, in every case, calls for a careful consideration of
those rules of interpretation (laid down by the Judicial Com-
mittee of the Privy Council in Russell v. Reg. ((')and Bank
of Toronto v. Land)e (/>)), which we have already discussed
in chapter X. — see (intc, pp. 212, 218, rf seq. In truth, as
a distinct, independent rule of i utrrpretdfion, this doctrine
of "implied powers" is scarcely appli«..able to a federal
system such as ours. It is really nothing more than a
{z) 1 Dor. 83G; 2 Cart. 250. Sej also notes to section 01. sub-section
2, and section 92, sub-s'.ctioii IG.
i<i) 7 .\pi\ Cas 82;). {b) 12 App. Cas. 575.
THE 1$. \. A. ACT— SEC. 1)1. 849
short t'orin of expression enilxxlying the <l(jctriiie of the
supremacy of tlie leyishiture (r) in relation to tliose matters
which, upon a reasonal»le and proper interpretation, can
fairlv be said to fall within one of the chisses of subjects
committed to such legislature : but, as will Vm at once per-
ceived, this still leaves the (piestion open for the application
of those other rules — rules of interpretation proper — appli-
cal)le for the reconciliation of a})parentiy conflictinj; sub-
.sectiims of sections 01 and 92. Legislative ji' risdSction
must first be conceded before the doctrine of "implied
p(3wers " can apply. A reference to the various cases, in
which this doctrine lias been applied in terms will, we think,
disclose that as a preliminary to its application, jurisdiction
over the subject matter in dispute was determined. It is
noteworthy that the Judicial Connnittee of the Privy
Council have never used the phrase " implieiJ powers," pve-
f erring the other form — " j>l('V((ry powers." Gushing v.
Dupuy (//) in reference to the scope of " l)ankruptcy and
insolvency " legislation, is frequentl}' referred to as illustra-
tive of the application of this doctrine of " implied powers,"
but a perusal of the judgment of the Connnittee in that
case discloses tiiat no such doctrine is referred to, the point
decided being that procedure is an essential part of insol-
vency legislation — a decision as to the scope of certain
words in the B. N. A. Act, not as to the nature of the legis-
lative power of the Dominion parliament.
(viii) " N<if coinmij within." — See note (ii) to this
section.
(ix) "For nreater cei't(iint>/." — See the passage, frv)m
the judgment in Citizens v. Parsons, (pioted (infr, ]>. 207,
rt Ke(]., with which may he compared the language of the
judges of the Supreme Court of Canada in the same case (c)
and in City of Fredericton v. Keg. (/').
(c) See ante, p. 177, vt scq., 194, ct si'q (e) 1 8. C. R. v!!-).
(d) 5 App. Cas. 40'.). (J) 3 S. C. 11. ."05.
850 THE 15. N. A. ACT. — SEC. <>l.
(x) " Exclasi re." — It is now settled beyond controversy
tluit this word refers to tlie extent to wliich the legislative
power of the Dominion parliament .may be exercised to the
exclusi(m of legislation by the provincial assemVtlies, and
was in no way intended as a limitation upon the supreme
legislative authority of the Impeiial parliament. We have
already referred to this (juestion in chapter IV. — see trnfc,
p. 67 — and need here merely add a reference to some other
Canadian cases in which the legislative supremacy' of the
Imperial parliament has — in view of this phrase in the
B. N. A. Act — been (questioned.
In the case of " The Farewell " (see notes to sub-section
10 of section 91, post), Mr. Justice Stuart, of the Quebec
Vice- Admiralty Court, distinctly recognizes the continued
supremacy of the Imperial parliament. He held that upon
the proper construction of the Colonial Laws V^alidity Act,
1865, effect should be given to an Act of the parliament of
of Canada, even though in part repugnant to an Imperial
statute, so far as its provisions do not conflict with those of
such Imperial enactment (ry).
See also the case of Holmes v. Temple (k), referred to
more fully in the notes to section 91, sub-section 7, po.sf,
an<l we may also note upon this ({uestion as to the continued
supremacy of the Imperial parliament, since the B. N. A.
Act, the language of Ritchie, C.J., in delivering the judg-
ment of the majority of the New Brunswick Supreme
(>()urt, in ex pdrfc Renaud (i), a case which will be found
more fully discussed in the notes to section 98, post.
(xi) " The cliisses of sahjects next /terelnnffer enutKer-
oted." — In chapter X. — see ante, p. 211 — will be foun<l
([uoted the language of the Judicial Connnittee of the Privy
Council in L'Union St. Jaccjues v. Belisle (ii), in which that
tribunal lays down that, in this section 91, "there is no in-
(g) 2 Cart. 378 ; 7 Q. L. R, 380. (t) 2 Cart, 445 ; 1 Pug. 273.
(//) 2 Cart, 3% ; 8 Q. L. R. 351. (n) L. R. 6 P. C. 31.
THE M. \. A. ACT — SEC. 91. 851
(lication in <i at) Ivstavce of anytliiny heing' contemplfited
except what may be properly descriljetl as general legisla-
tion." We there ventured to say that just hov far this rule
can be or should be applied in determining the scope of eaeli
and every one of the various sub-sections of this section 91,
is matter of doubt. Before venturing anything further
upon this (piestion, we shall refer to certain other cases in
whicli tlie general scope of the various sub-sections of sec-
ti(m 91 has been discussed.
In Regina v. Mohr(j), the late Chief Ju.stice Dorion in-
timate<l that, in his opinion, section 91 deals with subjects
which from their nature affect the interests of the whole
Dominion, and that all matters of a local nature, affecting
but one of the provinces, or a portion of a province, are
within the control of the legislature of the province affected
thereby, unless exce])ted from this general rule l)y a special
enactment, such for instance as sul)-section 29 of section 91,
and the exceptions particularly mentioned in section 92,
sub-section 10.
In Angers v. City of M<mtreal (k), Mv. Justice Johnson
refers to tlie words " of Canada " as indicatino' the intention
of the Imperial parliament, that legislation by the Dominion
parliament should be legislation for the (jcnenil y>ar/>r>.s'es of
tint Dotiii nion. Reference may also be had to the ea.ses
collected in the notes to section 91, sub-sections 10 and 12.
See particularly Central Vermont Railway Co. v. St.
John's, and The Queen v. Robertson. In the notes to sec-
tion 91, sub-section 2, will be found (|Uotati(jns from
Citizens v. Par.sons, and Bank of Tor<mto v. Landje, in
which the Judicial Committee of the Privy Council have
intimated their view, that "the i-egulation of trade and
conunerce," has reference only to general legislation —
' political arrangements in regard to trade, recjuiring the
sanction of parliament ; regulations of trade in matters of
( j) '2 Cart. '257 ; 7 Q. L. R. 188.
(k) 2 Cart. 335 ; 24 L. C. .Jur. 25'J.
852 THE H. X. A. ACT— SEC. 91.
intei'pi'ovincal concern, and it may be that they would in-
clude ^eiieml regulations of trade, (iff'f'cfii);/ (',c ivliolc Do-
minion. In Citizens v. Parsons, the Committee referred to
the collocation of sub-section 2 with "subjects of national and
general concern," but there is nothing to indicate whether
this was intended as a reference to all the sub-.sections of
section 01 or merely to those innnediately preceding and
following sub-section 2. In a recent case l)efore the
Supreme Court of Canada, involving the consideration of
sul)-section 10, of section 01, " intcresf," Mr. Justice Patter-
son refers to its collocation with sub-sections nundtered
from 14 to 21, Ixtth inclusive, "all of which relate to the
reu'ulation of the yeneral commercial an<l financial system
of the country."
Taking the language of the Judicial Connnittee of the
Privy Council in L'Union St. Jacques v. Belisle (l) literally
it would entirely preclude the Dominion parliament from
what is known as " private bills " legislation ; but against
such a construction, the later case of Colonial Building
Association v. Attorney-General of Quebec (rn), in wliich
an Act of t\w Dominion parliament incorporating the ap-
pellant company was upheld, must not l)e over-looked. The
power of the Dominion parliament to pass Acts for the in-
cf)rporation of companies with objects other tlian provincial
was in Citizens v. Parsons put expressly upon the general
words of the opening clause of this section 01, and it may
be contended, therefore, that the private bills legislation of
the Dominion parliament must be limited to this residuary
clause, as it has l)een termed, of sectiim 01. In this connec-
tion, however, we must not overlook tlie concluding clause
of .'■ection 01, which expressly provides that any matter
coming within any of the sub-sections of section 01, is not
to be deemed to come within section 02, sul)-section IG,
" matters of a merely local or private nature in the pi-o-
vince " : a provision which would seem to indicate that in
(/) L. R. G P. C. 31. (m) U App. Cas. 157.
THE B. X. A. ACT — SEC. 91. 353
the opinion of the Imperial parliament, matters ft)r legisla-
tive action would come before the Dominion parliament,
whicli u|i.<n their face, so to speak, might appear to be of a
mei'ely local or private nature in one province. Again, to(\
we nuist notice the exceptions to section 02, sub-section 10.
The works and undertakings there referred to, which, by
force of the exce})tion read in connection with section 01,
sub-section 20, are without doubt within the legislative
competence of the Dominion parliament, are mattei-s in
respect of which it is difficult to imagine any general legis-
lation capable of application to all alike. They are subjects
which naturally call for what is known as private bills
legislation.
With reference to the incorporation of companies, and
Acts respecting works and undertakings within the
legislative ken of the Dominion parliament, the question
has arisen how far the Dominion parliament can confer upon
such corporations immunity from provincial law. See par-
ticularly the cases collected in tlu' notes to sub-section 13
of section 02, ponf. In Citizens v. Parsons ( /* ), the Counnittee
distinctly held that an insurance compan3% incorporated
under Dominion legislation, is subject, as to the contracts
of insurance entered into by it, to the laws of the province
in relation to such contracts generally, as being a matter of
property and civil rights in the province. By way of illus-
tration obiter, the question of the applicability of the
statutes of Mortmain to such a company was touched upon,
and the view expressed that a company incorporated under
Dominion legislation would be subject to the law of the
})rovince in this regard. In Colonial Building Association
V. Attorney-General of Quebec {<)), this view was again dis-
tinctly einmciated. Carrying these decisions to their logical
conelusi(m, it would appear that the Dominion parliament
caimot confer, upon any body incorporated by it, any power
in relation to mattei'S falling within the legislative com-
(n) 7 App. Cas. 96. (o) 9 A.pp. Cas. 157.
Can. Con.— 23
354 THE B. N. A. ACT — SEC. 91.
petence of a provincitil legislature — eaimot eoiifer, in otiier
words, any power which it could not itself directly exercise.
There is nothing in any of the other judgments of that
tribunal to throw doubt upon this as being a correct enunci-
ation of the law in regard to this very perplexing matter.
A i)recisely sinnlar (juestion arises in connection with the
subject of " municipal institutions" and will be found <lis-
cussed in the notes to sulj-section H of section 1)2.
The subject of f^pecidl legislation has been lately
brtmght again to the front by the judgment of the
Supreme Court of Canada in a case(j>) which arose out of
the winding up of tlie defunct Bank of Upper Canada.
Prior to Confederation the bank had l)ecome insolvent
and had assigned all its property and assets to trustees.
By 31 Vic. c. 17, the Dominion parliament incorporated
the trustees and gave them authority to carry on the
business of the bank so far as was necessary for winding
up the same. By 33 Vic. c. 40, all the property of
the bank vested in the ti'ustees was transferred to the
Dominion government, who became thereby seised of all
the powers of the trustees. In the Court of Appeal for
Ontario, the court was e(|ually divided as to the validity
of this Dominion legislation. Hagarty-, C.J.O., and Osier,
J.A., upheld the Acts as being within the legislative pcnver
of the Dominion parliament over "banking, the incorpora-
tion of banks," and also over "bankruptcy and insolvency";
while Burton and Maclennan, JJ.A., held that the Acts
were in relation to " property and civil rights in the pro-
vince," and could only have been validly passed by a
provincial legislature. In the Supreme Court the judgment
was unanimous, upholding the validity of the impugned
Acts. Ritchie, C.J., held that the legislative authority of
parliament over banking and the incorporation of banks,
and over bankruptcy and insolvency, empowered it to jjas.s
(/)) Quirt V. Reg., 19 S. C. R. 510, affirming 17 O. A. R. 421 (Reg. v.
Wellington).
THE B. N. A. ACT — SEC. 91, S.-S. 1. 855
Mich Acts, while of tlie other ineiiibera of tlie court, Stron<,r
iinl Patternoii, JJ., founded their jud<,mient upon the latter
power only, the three other judges not intimating the
ground of their concurrence.
This legiHlation was undoubtedly private bills legislation^
and the judgment of the Supreme Court nmst l)e taken as
conclusive upon all Canadian courts, that the power of the
Dominion parliament under the various sul>-sections of sec-
tion 91 does extend to private bills legislation so long as
the subject matter legislated upon can l»e fairly said to fall
within any of those sub-sections. There is one of the sub-
sections of this section 01 which upon its face would seem
to indicate that it was intended to confer power to ]>ass
private and special Acts, namely, sub-section 7, reb'rring
to "Sable Island." No argument, howevei', can be founded
upon this sub-section, as it nnist evidently be read in con-
nection with sub-section 10, and, in fact, the only legislation
in reference to it is in connection with light-houses and
other safeguards to navigation. See R. S. C. (1<S(S()), c. 70.
It is hardly necessary to say that in considering this
([uestion those other rules of interpretation which have
l)een laid down as applicable for the reconciliation of appar-
ently conflicting powers, must not be lost sight of ; but the
([Uestion now being discussed has reference, rather, to the
possibility of laying down a general rule of construction
applicable to section 91 and its various sub-sections, irre-
spective, in a sense, of section 92 and its sub-sections. We
shall have occasion to again touch upon certain aspects of
this (piestion, but we may say that we make no pretence
to an exhaustive treatment of it, and any views ^ve may
venture upon moot points are advanced with much mistrust.
1. The Public Debt and Property. *
This has reference, of course, to the public debt of the
Dominion, as a unit, assumed upon Confederation or since
incurred, and to tlie public property held by the Dominion
Government in trust for Canada as a whole.
350 THE n. N. A. ACT — SEC. 91. S.-S. 2.
In section 102, /)o.s/, nnd the Followin*^' sections, will he
f()un<l the pi'ovisions of this Act as to the division of assets,
and the distribution of revenue producin*;- powers )>etvveen
tlie Dominion and the provinces, and an • extended reference
to this (piestion will he more in ordei »vhen we come to con-
sider those provisions of tlie Act. \V«> niaj'' say, liowever,
in reference to tlie le<;islative power of the ])ominion and
the provinces over tiieir respective })ro[)erty,and in connec-
tion with their revenue pro<lucin^' powers, tliat tiie absence
(f any provision in the variiais suit-sections of section 92,
similar to the provision made hy this sul»-section 1 of sec-
tion 91, does not in any way attbrd an argument against
tlie full legislative authority of a provincial legislature in
reference to provincial assets. The B. N. A. Act simply
atiects a division of the beneficial interest in the various
provincial assets as they existed at the time of Confedera-
tion, but, in reference to the revenue therefrom, cannot be
deemed to weaken in any way the effect of the Imperial
Act, 17 & 18 Vic. c. 118, and the other Imperial Acts,
giving Canadian legislatures full power of app' >priation
over all revenues from whatever source within ilie colony
arising. See notes to section 126.
2. The regulation of Trade and Com-
merce.
In the leading case of Citizens v. Paraons, the meaning
proper to be atti'ibuted to the language of this sub-section
w^as discussed. In that case, the Act impugned was the
Ontario Act providing for uniform conditions in fire insur-
ance contracts. Without deciding whether or not fire
insurarice is a trade, the Judicial Committee of the Privy
Council decided that this sub-section does not extend to
the regulation of the contracts of a particular business or
trade in a single province. What, in the view of their
Lordships, may properly be held to come within this sub-
section will be best shown by the following extract from
the judgment in that case (q) :
(q) 7 App. Cas. 96.
THE 11. N. A. ACT— SEC. 91, S.-.S. 2. 357
" The words ' regulation of trade and commerce ' in their
unlimited sense are sufliciently wide, if uncontrolled by the
context and other parts of the Act, to include every regulation
of trade, ranging from political arrangements in regard to
trade with foreign govornnients. requiring the sanction of
parliament, down to minute rules for regulating particular
trades. But a consideration of the Act shows that the words
are not used in this unlimited sense. In the first place the
collocation of No. 2 witii classes of subjects of national and
general concern, affords an indication that regulations relating
to general trade and connnerce were in ti:e mind of the legis-
lature, when conferring this power on the Dominion parlia-
ment. If the words had been intended to have the full scope
of which, in their literal meaning, they are susceptible, the
specific mention of several of the other classes of subjects
enumerated in section 91, would have been unnecessary ; as, 15,
banking ; 17, weights and measures ; 18, bills of exchange and
promissory notes; 19, interest, and even 21, bankruptcy and
insolvency.
" ' Regulation of trade and commerce ' may have been used
in some such sense as the words * regulations of trade,' in the
Act of Union between England and Scotland (6 Ann., c. 11),
and as these words have been used in Acts of State relating to
trade and commerce. Article V. of the Act of Union enacted,
that all the subjects of the United Kingdom should have ' lull
freedom and intercourse of trade and navigation ' to and from
all places in the United Kingdom and the colonies ; and Article
VI. enacted, that all parts of the United Kingdom, from and after,
the Union, should be under the xaiin' ' prohibitions, restrictions,
•tnd rcfiulations of trade.' Parliament has at various times since
tne Union passed laws affecting and regulating specific trades in
one pai't of the United Kingdom only, without it being supposed
that it thereby infringed the Articles of Union. Thus, the Acts
for regulating the sale of intoxicating liquors notoriously vary in
the two kingdoms. So with regard to Acts relating to bank-
ruptcy, and various other matters.
"Construing, therefore, the words 'regulation of trade and
commerce ' by the various aids to their interpretation above
suggested, they would include political arrangements in regard
358 THE H. N. A. ACT — SEC. 91, H.-S. 2.
to trade requiring the sanction of parliament, regulations of
trade in matters of inter-provincial concern, and it may be that
they would include general regulations of trade alf'ectmj the irlinic
Ihminion. Their Lordships abstain on the present occasion from
any attempt to define the limits of the authority of the Dominion
parliament in this direction. It is enough for the decision of
the present case to say that, in their view, its authority to legis-
late for the regulation of trade and commerce does not compre-
hend the power to regulate by legislation the contract of a
particular business or trade, such as the business of fire insur-
ance, in a single province, and, therefore, that its legislative
authority dots not in the present case conflict or compete with
the power over property and civil rights assigned to the legisla-
ture of Ontario by No. 18 of section 92."
In Russell v. The Queen, in the same volume (/•), involv-
inj^' the validity of the Canada Tenipei'ance Act, 1H78, Sir
Montague E. Smith, in delivering the Judgment of the
Judicial Connnittee of the Privy Coiuicil, intimated tliat
their Lordships —
" Must not be understood as intimating any dissent from the
opinion of the Chief Justice of the Supreme Court of Canada and
the other judges who held that the Act as a general regulation of
the traffic in intoxicating liquors throughout the Dominion, fell
within the class of subjects, ' the regulation of trade and com-
merce ' enumerated in that section, and was on that ground a
valid exercise of the legislative power of the parliament of
Canada."
As has l)een already noted (.s), tlie judgment of the
Privy Council proceeds upon the ground that the subject
was one not falling within any of thu sub-sections of sec-
tion 92, and was therefore witliin the power oi the
Dominion parliament as a matter pertaining to " the peace,
order, and good government of Canada," but in Hodge \.
The Queen, involving the question of the validity of the
Ontario Liquor License Act, 1877, the earlier decision is
discut^ised and again put clearly upon the (opening language
(r) 7 App. Cas. 829. j .. (») Ante, ^. U^.
THE B. N. A. ACT— SEC. 91, S.-S. 2. 35!)
of .section f)L The Li<iuoi' LiceiiHe Act was held not to l)e
an interference with the general rejjfulation of trade and
connnerce, which belongs to the Dominion parliament, and
it was also held not to conflict with the Canada Temper-
ance Act, which had not been locally adopted.
This is perhaps the proper place to notice the various
cases which have arisen in reference to the li(juor traffic,
for the attacks which have from time to time been made
upon provincial legislation in connection with this subject
have practically range<l themselves under this sub-section.
At this date, however, there is only one matter which is
open to argument, the power, namely, of a provincial legis-
lature to pass a prohibitory law for the province.
Owing to the emphatic pronouncement of the Privy
Council in Hodge v. The Queen (t), in support of the
])ower of provincial legislatures to vctju.lote the sale of
intoxicating liquor, and to their equally emphatic affirm-
ance of the invalidity of the Dominion Licpior License Act,
i;s.S3 (<'), it will not be necessary to discuss at any length
the earlier decisions in the various provinces.
In Ontario, the power of a provincial legislature to
empower a municipality to limit the number of tavern
licenses, and t( > entirely prohibit the sale of liquor in places
other than houses of public entertainment, was affirmed
(1875) by the Court of Queen's Bench in Slavin v. Orillia
(v), and the decision in this case may be said to eudjody
the law upon this point as judicially recognized in the
courts of that province until Hodge v. 1'he Queen Ijecame
the leatling case. Such power was held not to infringe
upon the field allotted to the Dominion parliament by the
term " the regulation of trade and commerce," but to fall
prf)perly within the field covered by " municipal institu-
tions " and " property and civil rights in the province." As
it) {> App. Cas. 117. (u) Cassela, Sup. Ct. Dig. 543.
(i;) 1 Cart. 688 ; 36 U. C. Q. B. 159.
:^00 THE Fi. N. A. ACT — SEC. 91, S.-S. 2.
to tliia last point — wliich sub-section of section 92 supports
such legislation ( — we shall have to speak later.
The (question came before the Supreme Court of the
province of New Brunswick, in 1875, in Reg. v. The
Justices of King's {w), and although the decision of the
court was against the validity of the statute thei'e impugned
(3() Vic. c. 10), it was upon the ground that the Act was
prohil)itoiy in its character, allowing, as it did, a majority of
the ratepayers in a municipality to entirely prevent the
issue of any licenses for the sale of intoxicating liquor
within such municipality. Power to make regulations for
the good government of saloons, taverns, etc., such as
W'Ould tend to the preservation of good order in the
locality — "matters of municipal police, and not (»f com-
merce " — was conceded by Chief Justice Ritchie to pro-
vincial legislatures, but " if, outside of this, and beyond
the granting of the licenses referred to in order to i-aise
a revenue for the purposes mentioned, the legislature
undertakes directly or indirectly to prohibit the manu-
facture or sale, or limit the use of anij artirle of iivde
or roniinerce, whether it be spirituous liipioi-s, flour, or
other articles of merchandize, so as actually and absolutelv
to interfere with the traffic in such articles, and therebv
prevent trade and connnerce being carried on with respect
to them . . they assume to exercise a legislative power
which pertains exclusi\ely to the parliament of Canada."
This represented the law of that province, as recognized
at least until Hodge v. Reg. In fact, it is still a (juestion
about which opinions conflict, whether a local legislature
can empower a majority of the ratepayers of a municipality
to absolutely prevent the issue of any licenses to sell
intoxicating liquor therein. As we shall see, the judgment
of the Supreme Court in Danaher v. Peters (x), does not go
the full length of upholding such a provincial enactment.
In Nova Scotia, the question was pronounced upon by
the Supreme Court of that "province, in 1877, in Keefe v.
(w) 2 Cart 499 ; 2 Pug. 535. {x) 17 S. C. R. 44.
THE B. N. A. ACT — SEC. 91, S.-S. 2. 8()1
McLennan (//), and it was Itroadly hold that a provincial
lt'<dslature "is entitled to le;4islate with a view to reu'uhite
within the province the sale of whatever may injuriously
affect the lives, health, morals, or well-heinii;' of the com-
munity, whether it he intoxicating liipiors, poisons, or un-
wholesome provisions, if such legislation is made bona fide
with that object alone, even though to a certain limited
extent it should affect trade and connnerce."
In Quebec, the (|uestion did not come s(|uarely V>efore
any a})pellate court until very shortly before the decision
in Hodge v. The Queen {z) was pronounced by the Judicial
Connnittee of the Privy Council. The Canada Temperance
Act of 1(S{)4 was in force in many of tlie counties of that
province, and the earlier decisions in connection with this
subject dealt, rather, with tlie (piestion as to the position
of that Act after Confederation.
In Hart v. Mississ(|Uf)i {a), however, Mr. Justice Caron
held that a provincial legislature caimot repeal or modify
those sections of the Canada Temperance Act, 18(54 (the
Dunkin Act), which conferred (m nuniicipal councils the
power to pass by-laws for pro/riltifivi/ the sale of intoxica-
ting licjuors. The ground upon which this decision is put,
namely, that such legislation would conflict with th«^ powei's
of the Dominion govennnent under this sub-section 2, is the
debatalile ground to-day. See this (piestion also discussed
in Be Local Option Act (J>), in the Court of Appeal ft!r
Ontario. To the same effect is the decision of Mr. Justice
Dunkin, in Cooey v. Brome (c), in which, after reviewing
niunicipal legislation prior to 18(57, he refei"s to section 125)
of the B. X. A. x\ct as leaving the law as it then existed,
subject to repeal or amendment by that legislature, which
if the law were non-existent, would now have authoritv
to enact it. He considered that the Dunkin Act in its
(i/) 2 Cart. 400 ; 2 lluss. & Ches. 5. (h) 18 O. A. K. 572 ; gee pott,
(z) 9 App. Cas. 117. (c) 2 Cart. 385 ; 21 L. C. Jur. 182.
(a) 2 Cart. 382 ; 3 Q. L. R. 170.
8()2 THE H. N. A. ACT — SEC. 91, S.-S. 2.
general scope and effect was an Act respecting trade and
connnerce and that, therefore, none of its provisions could
be altered by provincial legislation. Noel v. Richmond,
(1 Dor. 333; 2 Cart. 246) deals only with the question
arising' under section 129.
In Blouin v. Quebec (d), it was held by Chief Justice
Meredith that the provision of the Quebec statute (3iS Vic-
c. 74), fixing- the hours during which taverns, etc., should be
kept open, was within the competence of the provincial
legislature : that the provincial legislatures may make
reasonable regulations for the preservation of good order in
the municipalities under their control, and may for this
pur})()se restrict the sale of spirituous li<[Uors. The Chief
Justice lujlds tliat provincial legislation, such as above in-
dicated, falls within the provisions of section 92, sub-.section
•8, " municipal institutions," such laws being in the nature
of police regulations.
It was held by Mr. Justice Alleyn, in De 8fc. Aulnni v.
Laf ranee (f), that while provincial legislatures nmy make
laws regulating the sale of liijuors in taverns and pul)lic
places, in order the better to maintain peace and good order,
they cannot directly or indirectly pro/iihif the manufacture
or sale of spirituous litiuors, or other articles of connnerce
or confer authority for that purpose upon municipal
councils. Such leuislation it was held would be in direct
conflict with the powers of the Dominion parliament under
this sub-section.
Finally, just piior to the decision in Hodge v. Reg., the
general ipiestion of the power of a provincial legislature in
connection with the liijuor traffic came before the Queliec
Court of Queen's Bench (appeal side), in Three Rivers v.
Suite ( /')• It was held broadly that a provincial legisla-
((/) 2 Cart. 3G8 ; 7 Q. L. E. 18 (1880).
(e) 2 Cart, 392 ; 8 Q. L. R. IKO (1892).
(f) 5 Legal News, 330; 2 Cart. 280. Affirmed 11 S. C. R. 25. See
alFO Poulin v. Quebec, 9 S. C. R. 185.
THE B. N. A. ACT — HEC. 91, S.-S. 2. 8(53
tuie liaH the power under " municipal institutions " to pass
a prohibitory lifjuor hiw, or a licjuor law which is proliihi-
tory except under certain conditions. Reference was made
to the conditi(m of affairs in the provinces prior to Confed-
eration, and it was held that the powei-s then possessed hy
nnuiicipal bodies in, at any rate, " 'wo ^reat provinces of
Confederation and one of the smaller ones " (Nova Scotia),
are the powers which a provincial le^^islature can now
bestow upon such l)()dies. The affirmance of the decision
in this case in the Supreme Court cannot be taken as an
affirmance of the ground upon which the decision was
base<l. The judgment of the Supreme Court is avowe<lly
put as following;" Hodge v. Reg.
We have already (quoted, see <inte, p. 35iS, the passage
from the judgment of the Judicial Connnittee of the Privy
Council in Russell v. The Queen (</), in which that tribunal'
intimated that although its judgment uphoMing the
validity of the Canada Temperance Act, bSTH, was based
upon the residuary clause, as it has been termed, of section
01 thev nevertheless did not desire to be understood as dis-
senting fiom the position taken by the Supreme Court of
Canada in Fredricton v. The Queen (/i), in which the Act
was i)}>he1d as a matter relating to the regulation of trade
and conunerce. In many (|uarters this was taken to mean
that the Dominion parliament alone has power to legislate
in connection with the liipior traffic. This view however
was very decisively negatived in the judgment of the Privy
Council in Hodge v. The Queen (/), U[)holding the vali<lity
of the Ontario Li(iuoi- License Act. While, as we shall have
to point out, a good deal of uncertainty exists upon the ques-
tion upon which one of the vari(»us sub-sections of section,
})2, the legislative power of a j)rovincial legislature ovi^r
certain phases of the li([Uor traffic is to l)e rested, it is now
clearly settled that, so long as provincial legislation stops
(</) 7 App. Cas. 829. (/*) 3 S. C. R. o05.
(0 9 App. Cas. 117.
8(i4 THE li. X. A. ACT — SEC. (»1, S-.S. 2.
slinrfc of absolute proliiltition, it cannot l>i' takrn to infj-ini;f
upon the ivnulation of tra<le and eoninu'i'cc
Kollowinij;" Hod^c v. The (»)ueen, the Supreme (^>urt of
Canada lias since aHirnied the validity of the Liijuor License
Acts of (^)uel»ec an<l New Brunswick i'es})vctively. Sec
Suite V. Three Rivers {J), and Danaher v. Peters {!,-\
We shouM, perhaps, mention here that in Sevei'u v. Tin-
Queen (/), the Supreme Court of Canada held that a pro-
vincial legislature has no power to pass an Act re(piirinin' <i.
brewer to take out a license to sell licpior manufactured by
him. The judj^ment of the c<nirt was founded on the view
(1) that such legislation was an interference witli trade and
commerce: and (2) that a brewer's license is not cJHxdciii
(/cncris with the licenses particularly mentiotied in section
02, sub-section f). So far a« the tiret ground is concerned,
Hodi^e V. The Queen (ht), must be considered to deprive
Severn v. The Queen of its support: and Jis to the second,
the jud<,niient of the Privy Council in Bank of Toronto v.
Land)e (/<) must be taken as an atfii'mance of the power of
a local leifislatui'e to levy such a license fee as beinii' '^
"direct " tax within the j)rovince under .sub-section 2 of
section 92.
'^rhe ivnioval of the tii'st «;'i"ound of support is ivcoyinzed
by the judgment of the Svipreme Court in Abtison v. Lamlie
(o), although that case is complicated somewhat by reason
of the (piestion as to the propriety of the issue of a writ of
prohibition under the peculiar circumstances of the case.
The majority of the court, however, were of opinion that
the ([uestion of the validity of the Quebec License Act had
been settled by the judgments of the Judicial Connnittee
of the Privy Council. Ritchie, C.J., expresses himself thus :
" In view of tlie cases determined by the Privy Council since
the case of Severn v. The Queen was decided iu this court, which
ij) 11 S. C. R. 25. (7n) 9 App. Cas 117.
{k) 17 S. C. R. 44. (n) 12 App. Cas. 575.
(I) 2 S. C. R. 70. ({)) 16 S. C. R. 253.
THE H. X. A. ACT — SEC !>1, S.-S. •_». 'Muy
appear to me to luive establislied conclusively that the riu;ht and
power to legislate in relation to the issue of licenses for the sale
of intoxicating liquors /'// irhnlrsnlr ami ntail belong to tli!> local
legislature, we are bound to hold that the Quebec License Act,
1S7H, and its amendments are valid and constitutional."
Mr. Justice tJwynne exi)ieHS('s the view that Scveir, w
The (^)ue('n is still an authority hindiny upon Canadian
coiu'ts, Imt rests his dissent from tin.' view ()f the majority
upon the ground that u})ou a propei" c-onstruction of the
Quel »ec License Act, it imp(»se<l no ohlii^ation upon aluvMer,
manufacturing' under Dominion license, to take out a ju-o-
vincial license.
A furtiiei' distinction will be found noted in the cases
l>etween the issue of a license to sell by retail and to sell by
wholesale. The point is practically covered by Molson v.
Land)e, l»ut, as indicative of the difi'erence of opinion wliich
may still honestly exist as to certain mattei-s in connection
with the liquor traffic, we may refer to the case of Queen \\
McDou*^all ij>), in wliich the Supreme Court of Nova
Scotia had to c<msidei*, the (juestion of the validity of the
Nova Scotia Litjuor License Act. The defendant was con-
victed of five separate offences, each dealing with a distinct
phase of the question. Tlu-ee out of five judges intinuited
their opinion that Severn v. Tlie Queen (7), nnist be taken to
be overruled, and that a provincial legislature may not
merely regulate the retail traffic in intoxicating li(|U()r, but
may alsij pass laws in relation t<t wholesale licenses, and
licen.ses for brewing and distilling, Mr. Justice Weatherbe,
however, expressed the view that the restriction, re(juiringa
petition from a certain nundier or proportion of the rate-
payei-s in order to obtain a license, M'as iiltr<i rirefi; but, as we
shall see, this view cannot m)W be considered law. The Chief
Justice and Mr. Justice Ritchie considered Severn v. The
Queen to be still an authority binding upon them, and that
therefore the conviction of the defendant as a brewer and
(p) 20N. S. R. 462. (</) 2 S. C. R 70. .
800 THE B. N. A. ACT — SEC. 91, S.-S. 2.
distiller inuHt, upon the authority of that case, he (juashed :
ami the other convictions on the ground that the regulation
of the wholesale trade is nlfnt nlrcs of a provincial leyisla-
ture. Mr. Justice Ritchie intimated that althouuh there is
a ditHculty in drawing- the line between wholesale and
retail, yet as the Act itself defined " wholesale," all restric-
tions as to the sales of the (piantities so defined, are I'lfru
vires. The discussion of the authorities in that case is very
voluminous, hut in view of the sul>se(|uent decision of the
Supreme Court of Canada in Danaher v. Peters [r), uphold-
iny' the Li(pior License Act of New Brunswick, it is
unnecessary to discuss this cas(; further, beyond notini^' that
Mr. Justice \Veath(!rl»e refers to the J)ominion License Act
of bS(S8, as being' substantially itlentical as respects its
wholesale and retail clauses, with the Nova Scotia Act.
Referring to the judgment of theJudicial (committee of the
Privy Council, <leclaring the Dominion Act ultra rhrx, he
treats that decision as conclusive in favor of the vali<litv of
a provincial Act.
Li the two cases about to be noted, involving the (|Ues-
tion of the vali<lity of the New Brunswick Li<|Uor License
Act, 1(S(S7, appeals were lodged by appellants who had l>een
applicants for each of these classes of licenses respectively.
Both appeals, however, were dismissed, thus upholding the
validity of provincial legislation upon both branches of the
traffic.
The ((uestion still remains, however, as we have said,
as to the power of a local legislature to prohibit absolutely
the sale of intoxicating licpiors in the province. In the
cases to which we hav'e just referred — Danaher v. Peters,
and O'Regan v. Petei-s (.s) — it was contended that the New
Brunswick Li(juor License Act of 1(S(S7, could be utilized as
a means for effecting prohibition. The Act provides that
applications for licenses under the Act nuist be endorsed by
the certificate of one-tliird of the rate-payei*s of the district
(r) \7 S. C. R. 44. (») 17 S. C. R. 41.
THE B. N. A. ACT — SEC. 91, S.-S. 2. 367
in which the license is asked ; and it was urj^ed, therefore,
that a majority of more than two-thirds could in any
k»cality witliin tlie province, effect complete prohibition.
As bein«( the last <leliverance of the Supreme Court upon
this (juestion, we venture to (piote somewhat fully from the
judi^nnents. Mr. Justice Taschereau says :
" As to the constitutionality of the Act there can be no doubt.
This ifi not a statute to proliibit, it is a statute to regulate ; to
permit under certain conditions. If these conditions are not ful-
filled, it may be that the consequences are that the sale of liquor
is ^irtually prohibited; but that consequence cannot render the
Act unconstitutional."
Mr. Justice Gwynne says : .
" It was contended that, in effect, the Act operates as a total
prohibition of the sale of liquor in the City of St. John, and that
it was therefore itltru rires and void The argument
based upon this section" — that is, the section requiring the cer-
tificate of one-thu'd of the rate-payers — " was, that it shewed
clearly the intention of the legislature to be, that any number of
rate payers in a polling sub-division, exceeding two-thirds, should
have the power of totally prohibiting the sale of liquor, by refus-
ing to sign the certificates for applicants for licenses. Then it
was contended that section 81 authorizes the majority of the rate-
payers in a city or incorporated town, to prohibit the sale of
liquor by petitioning against the granting of licenses; and for
those reasons it was contended that the Act was, in effect, an Act
for the total prohibition of the sale of liquor in the City of St.
John, and therefore ultni rircs, and void ; but there is nothing in
the language of the Act which would justify us in pronouncing
the intention of the legislature to iiave been to enact a prohibi-
tion of the sale of liquors in a municipality, or in any part there-
of, under color of passing an Act on the subject of municipal
regulations relating to the sale of liquors, which is a subject
clearly within the jurisdiction of a local legislature. The objec-
tions which alone the Act authorizes to be urged by petition
against the granting of a license to a particular person, or for a
particular house, enumerated in section 15, seem to be very
reasonable grounds of objection as affecting the person and place
808 THE n. \. A. ACT — SEC. 91, S.-S. 2.
soufj;lit to 1)0 licensed, as rt'^nrds the rotjiil tnido in li<iuors ; and
although tliesi! objections may sei-ni to be unreasonable if applied
to a person or shop for which a license to sell liquors by whole-
sale is sought to Ije obtained, we cannot for that reason hold the
object of the legislature to have been to effect prohibition of the
trade of dealing in the sale of liquors, under color of an Act
estal)lishing municipal regulations atlecting that trade. . . .
Defects or imperfections in the Act, or provisions therein which
may be, or may appear to some to bo, unreal jiiable, will not
justify us in iirunouucin;/ the trur (ihji'ct mf the Art to hare heen i>ni-
liihition, total or partial, of the trade of dealing in the sale of
liquors, under pretence of establishing mr.nicipal regulations
upon that subject."
IVIr. Justice Patterson says :
" The power of the local legislatures to provide for the
issuing of licenses for the sale of spirituous liquors, either in
large or small quantities, to limit the number of licenses, and
to prohibit, under penalties, the sale of such liquors without
license, cannot now be treated as an open question. The con-
tention for the present appellants is, that the New Brunswick
Liquor License Act, 1887, while professing merely to deal with
the subject of licenses, contains provisions which, from their
inherent tendency or from the way in which they may be acted
on, give the measure the effect of a prohibitory law, either as to
the whole province and for all time, or as to particular localities
and particular calendar years. The larger question of the
power of the province to prohibit the sale of intoxicating liquors
within its own borders, is not presented for discussion, and we
have to deal only with questions which concede that total
prohibition can be decreed only by the Dominion parliament.
The objections are too fanciful and far-fetched
to be seriously discussed without denying to the local legislature
the right to prescribe the conditions on which licenses can be
obtained. They assume a right in every man to demand a
license, ignoring the right of the legislature to limit the
number." - _.
A perusal of these passages discloses that, in the opinion
of the membei'S of the Supreme Court, the question of the
power of a provincial legislature to enact a prohibitory law
THE n. \. A. ACT — SEf". 91, S.-S. 2. 300
i'(»r tlic [)r<>\ iiicc is .still an open one. In the pi-ovincc of
Ontario, the iiiiitter has been under the consideration ol' the
Court of Ai»pi'al for that province — in Jic Local Option Act
(/I. The case is complicated .somewhat hy the fact that in
that ju'ovince at the time of Confederati(»n there was in
existene*' a law which distinctly empowered munici[>al
liodies to })ass hy-laws for the total pi'ohihition of the retail
li(|Uor traftic within the municipality. The.se provisions had
ne\er been repealed by provincial legislation, but, in suit-
sec juent consolidations of provincial statutes, had been
oniitted owing to the existence of .somewhat similar clauses
as to local option in the Canada Temperance Acts of 1804 and
l(S7iS. Tlie particular Act which came under the considera-
tion oi the court was 58 Vic. c. 50. As explained l)y 54 Vic.
c. 4(5, s. 1, that enactment purported to be simply a revival
of tlie provisions which had existed in the laws in force in
tl\e pnjvince prior to Confederation. It appears, however,
that these pre-Confederation provisions had been repealed
by Dominion legislation {u), so that it became necessary for
the court to determine which legislature, Dominion or })ro-
vincial, had power to pass such an enactment. The case waa
submitted for the consideration of the court under the pro-
visions of 53 Vic. c. 13 (Ont.) — "An Act for expediting the
<lecision of constitutional and other provincial (jucstions,"
— and Mr. Justice Osier declined to give any opinion upon
the (|uestions sultmitted. The other members of the court
— Hagarty, C.J.O., Burton and Maclennan, JJ.A. — upheld
the power of the provincial legislature to pass such " local
option" laws: basing their judgment upon the view that
such legislation falls within sub-section 8 of section 92,
" nnmicipal institutions in the ))rovince." So far as Ontario
is concerned, therefore, it must be taken as settled that a
local legislature can empower a municipality to pass a pro-
hibitory by-law, so far, at all events, as relates to the retail
trade in intoxicating liquors, it being held that, upon a
(t) 18 6. A. R. 572. (m) See R. S. C. (1886), p. 2255.
Can. Con.— 24
370 THE H. N. A. ACT — SEC. »1, S.-S. 2.
proper coiiHtrnctioii of the stututos in (nu'stion, they «lo not
cover the wholesale tnule. With I'c^^anl to the eonstrnetii)n
placed upon Huh-section <S ol' section 02, we shall have to
ret'er to this suhject apiin in the notes to that suh-sfction.
It is material, however, to note here that the decision of
the Court of Appeal in n(» way affirms the ri<^ht of a local
legislature to pass a prohihitory law of ^enural application
throughout the province. In fact, Mr. Justice! Hui'ton,
while intimating his own view that such power does exist,
expresses the opinion that the matter is concluded against
the provinces hy the judgment of the Pi-ivy Council in
Russell V. The Queen (r), affirming the judgment of the
Supreme Court of Canada in Fredericton v. The Queen (ic),
(in which the power Ut prohibit was distinctly classified as
coming under sub-section 2 of section 91), without intimat-
ing any dissent from the view upon which that decision
was based. To the like effect, in Griffith v. Rioux (.*•), it
was held by Brooks, J., sitting in the Quebec 8ui>eri(»r
Court, that a provincial legislature cannot repeal those
sections of the Dunkin Act which relate to the prohibition
of the sale of intoxicating lieiuoi-s : the matter of })rohibition
being, in his opinion, covered by the decision of the Supi'eme
Court in Fredericton v. The Queen, as affirmed in Russell
v. The Queen.
The decision of the Court of Appeal for Ontario, in He
Local Option Act (y), leaves the matter in this peculiar
position ; that, by united action on the part of the various
municipalities throughout the province, the total prohil)i-
tion of the retail li(|Uor traffic may possibly V)e effected
but that a provincial legislature has no power to do directly
what it may empower a municipality to do. In Hodge v.
The Queen (z), the Judicial Committee of the Privy Council
expressed the view that the power of a provincial legislature
(v) 7 App. CaB. 829; see ante, p. 358
(w)) 3 S. C. R. 505. \y) 18 O. A. R. 572.
{x) 3 Cart. 348. (^) 9 App. Cas. 117.
THE K \. A. ACT — SEC. 91. S.-.S. 2. 8Tl
ti) |»HSH Acts ill ivoiihition ol' tlic traffic in particular coin-
iiioditicH, cxiHtH uiuh'r Hcctloii })2, H\i1»-H('cti(»n H — " municipal
institutiouH " : 15 — " tlu' inipo-sitiou ol" puiiishnicnt l»y tint',
etc' '; and Ki — " matte r.s of a mcivly local or private nature
in the province." Further than this oeiR-ral statement, tlu^
jud^^ment of that trihunal throws very little Ii<;ht upon the
suhji'ct we are now discussing-. It does not indicate clearly
whether any one of the.se sul (-sections alone supports the
power, or whether the combined force (»f all is reipiired
to uphold such lej^islation. They speak of lice!i.se rej^ula-
tions as seeming- to he mattei's of a merely local nature
in the province, and to be similar to, thouj^h not identical
in all respects with, the power that belon<;s to nnniicipal
institutions under previously existing' laws paH.sed by the
local parliaments.
" Their Lordships consider that the powers intended to be
conferred by the Act in question, when properly understood,
are to make regulations in the nature of police or municipal
regulations, of a merely local character for the good government
of taverns, etc., licensed for the sale of liquors by retail, and
such as are calculated to preserve, in the municipality, peace
and public decency, and repress drunkenness and disorderly and
riotous conduct. As such they cannot be said to interfere with
the general regulation of trade and commerce wiiich belongs to
the Dominion parliament."
No attempt, it will l>e seen, is made to distinguish
between suV)-sections 8 and 10, of section 92. There is
however the distinct expression of opinion that such
matters do not fall within this sub-section of section 91.
The conclusion appears to us unavoidable tluit if a local
legislature has power, under " municipal institutions," to
autliorize a municipal body of its own creation to pro/iibit
the traffic in any conmiodity, the use or abuse of which may
tend to the disturbance of tlie peace of the community, or
to prejudicially afTect its health or morals, the legislature
itself must necessarily have the 'power to pass a general
law prohibiting the traffic in such commodity throughout
M72 THK U. \. A. ACT— SKC. (11. S.-S. 2.
all tli«' niunici|»Hliti«'M of tlic piovinof. If tlu' couclusinn
Itc nusnuml tin' juviniscs imiHt yn, jukI then \v«' must fall
Idiok upiiu Home class cmniicratfd in section !»2, other than
" iimiiici|)al institutions," as supportiiii;' the ])o\vei- to regu-
late, to the ext«'nt of |)i'ohiliiti(»n, the traHic in jtarticular
connnodities within a province. If re;;u!ation, conditionally
pi'ohihitive, he not an infrin^ienient of the })ower of the
Dominion parliament to re;;ulato trade and conunerce,
as those words have heen construed Ity the various judg-
ments, ahove cited, of the Judirial Counnittee of the Privy
Council, it seems difficult to appreciate how the ah.solute
piohil)iti<»n of traffic in such connnodities as above indicated
can he sucii infringement. It cannot l)e hy reason of the
ej'friit of liitcr/rrrnrr with " tra<ie and conunerce" for a
" i-eyuhition " of the traffic in one commodity may cause
•Greater interference than a total prohibition of the traffic
in several others.
Turning now to the traffic in connnodities other than
int<ixicating litpior, no <listinction in principle can be sug-
gested. The fact that the Dominion Inland Revenue and
Excise Acts utilize this latter traffic for purposes of taxation
cannot make any difference, as is now settled by the
principle of the decision of the Privy Council in Bank of
Toronto v. Lambe, applied e conver,<o. This case will be
referred to more at length hereafter. We proceed now to
a short review of the cases dealing with the power of a
provincial legislature to legislate in relation to the traffic
in other connnodities.
In a numb(n- of cases, regulati<.>ns as to the carrying on
of certain clas.ses of lousiness in markets, have been held to
be no infringement of the power of the Dominion parliament
under this sub-section.
In Re Harris and Hamilton {a), the provision in the
Municipal Act of Ontario empowei'ing Municipal Councils
to pass by-laws " for preventing criers and vendors of small
(a) 44 U. C. Q. B. 641.
Tin: M. \. A. Ar'l' — si;( . !(1, S.-s, 2. 87.'{
wiirc IVoiii pruc'tiHiiiy their ciilliiiy' in the Jiuirkct, public
strt'cts and viiciuit l<»tH udjacrut tlicivto" was uphfld as
liitiui rlrt's l»y Mr. .lustice Aniioiir — n<»w (Miief Ju.stio*' of
the (^. H. J). ; and this decision reprcsentH the hiw as it lias
ever since heen reco^in/ed in that province.
In An<(ers v. Montreal (h) and Mallette v. Montreal in,
an Act of the Qiushec le^dsIatnre.authoiizinL;' the imposition
of a license fee on butchers exercisinj^' their c^dlinjj^ in places
other than the puhlic markets of a iinnncij)ality, was held
valid ; and in I'J.i' parfc Pillow (</) it was held that a pro-
vincial lti<^islatnre may authorize nnuiicipal hodies to pass
hy-laws in restraint of nuisances hurtful to puhlic health.
The attack in this last case it should perhaps he remarked
was upon the gi'ound that such legislation conflicts with
the power of the Dominion parliament ovei- "criminal law"
rather than with the power to regulat(! trade and connnerce,
hut the general principle of the case is the same as that in-
volved in the others.
The (juestion has lately come before the Supreme Court
of Canada in Pigeon v. Recorder's Court {('), and the opinion
of the court is contained in a sentence taken from the jndg- '
ment of Mr. Justice Tasciiereau: "As to the constitutionality
of the sections . . there is no room for controver.sy."
In Beimett v. Pharmaceutical Association (/), it was held
by the Court of QueeiiK Bench of Quebec, that the Quebec
Pharmacy Act of 1<S75, recpiiring certain (pialitications on
the })art of persons eiigage<l in the lousiness of selling drugs
and medicines, was valid. Treating of this (juestion, Chief
Justice Dorion says :
" In the present case there is no prohibition to sell drugs or
madicnns in any part of the province of Qaeu-c ; the provision
is merely that drugs and medicines shall only be sold by persons
having the qualifications provided for by the Act.
(b) 24 L. C. Jur. 259 ; 2 Cart. 33,5.
(c) 24 L. C. Jur. 2G3 ; 2 Cart 340.
(d) 27 L. C. Jur. 210 ; 3 Cart. 357. .
(t;) 17 S. C. R. 495. (/) 1 Dor. 336; 2 Cart. 250.
374 THE B. N. A. ACT — SEC. 91, S.-S. 2.
'♦ It is true that incidentally this may be considered as interfer-
ing in some degree with the sale of drugs and medicines in the
province of Quebec, since it limits the -number of persons who
can do that business."
In Beard v. Steele {<j), the prcniHions of the Mercantile
Amendment Act, as to the rights and liabilities of con-
signees and indorsees of bills-of-lading, were held to be
provisions as to property and civil rights in the province,
and therefore within the power of a provincial legislature.
They were held not to l)e regulations of connnerce within
the meaning of this sub-section 2. In Regina v. 'J'aylor (h),
Mr. Justice Wilson — afterwards Chief Justice Sir Adam
Wilson — gives more at length the considerations which had
induced the court to uphold these provisions on the ground
mentioned :
"It did not seem to me, at the time, to be a regulation of
trade, and it does not seem to me to be so now. It does however
({[feet trade and commerce. But what enactment will not, in
some way or other, affect it? If an Act were passed requiring
-every person who instituted a suit to give security for costs, or
still further limiting the time within which to bring an action,
or enacting that no execution should be issued on a judgment
until a demand was first made of the sum recovered on the
person liable to pay it, or giving to the holder of a bill of ex-
change, or promissory note, a lien for the amount due upon it
on the goods of the acceptor or maker, all these provisions, and
many other cases which might be put, would very much affect
trade and commerce, but could they b^ said to be a rei/uhttioit of
it? I certainly think they could not. They would do so only
incidentally ; but not more so in principle than by shutting up a
trader in gaol for debt or for contempt of court, or by closing all
shops at eight o'clock at night, or by the exercise of mere police
powers, or by giving a public holiday. All these are lawful
objects, and if they can be properly adopted they do not become
unlawful, because they cannot be wholly separated from every
other matter, and because they are attended with inevitable
consequences. I think the provincial legislature have the power
(H) 34 U. C. Q. B. 43. (//) 30 U. C. Q. B. 212.
THE B. N. A. ACT — SEC. 91, S.-S. 2. 375
to annex the right of contract to the right of property in the
goods mentioned in a bill of lading although it does affect
trade and commerce."
It sliould be noted, perhaps, that in the same judgment
the view is expressed that the Dominion parliament would
have power to pass a similar law, if it did ho "as a neces-
sary and convenient matter to be dealt with in the reoula-
tion of trade and connnerce." This cjuestion of concurrent
power, however, has been already touched upon (i) and we
need not discuss this point of the case further here.
The principles enunciated in the above cases — e.g., Ex
ixirfc Pillow, Bennett v. Pharmaceutical Assf)ciation, and
Beard v. Steele — support the validity of provincial Acts
such as the Employers Liability Acts and Factory Acts,
which, no doubt, in a sense aft'ect trade and connnerce, but
which in their intended scope relate to the civil rights, of
employers and einploj^ees {;}) — to matters of a merely local
or private nature in the province — and cannot Ije deeme<l
reiiulations of oeneral trade and comiii-rce within the mean-
ino- of this sub-section as defined in the deliverances of the
Privv Council.
Tlie latest authoritative <leliverance as to the meaning
to be attached to this sub-section, is to be found in Bank of
Tor'.'iito V. Lambe {k), in which it was urged that the power
of the Dominion parliament to regulate trade and C( nnmerce
operates to pi-event a provincial legislature from levying
taxes upon a bank. The Judicial Connnittee of the Privy
Council negatived this contention in the following language:
" The words regulation of trade and commerce are indeed very
wide, and in Sn-er)i\s Cose (/), it was the view of the Supreme
Court that they operated to invalidate the license duty which
was there in (question. But, since that case was decided, the
(/) Chapter X. ante, p. 214, et seq.
0) See Monkhouse v. G. T. R., 8 O. A. R. 637, and Can. Southern Ry.
V. Jackson, 17 S. C. R. 31G, both noted undtf sub-section 10 of section 92,
pout.
(A) 12 App. Cas. 576. (/) Severn v. Reg., 2 S. C. R. 70.
876 THE «. N. A. ACT — SEC. 91, H.-S. H. 1.
question has been more completely sifted before tlie Committee,
in I'tirsdH's Cksc {in) and it was found absolutely necessary that
the literal rneanmg of the words should, be restricted in order to
afford scope for powers which are given exclusively to the pro-
vincial legislatures. It was there thrown out that the power of
regulation given to the parliament meant some general or inter-
provinciai regulations. No further attempt to deline the sul)ject
need now be made, because their Lordships are clear chat if they
were to hold that this power of regulation prohibited any pro-
vincial taxation on the persons or things regulated, so far from
restricting the expressions, as was found necessary in I'tirsmi's
Case, they would be strainmg them to their widest conceival)le
extent."
3. The raising of money by any UKxle
or system of taxation.
4. The borrowing of money on the
public credit.
Compare with thi.s sub-section 8, sub-section 2 of section
92 which assigns to provincial legislatures tlie exclusive
power to make laws relating to " direct taxation within the
province." In Bank of Toronto v. Lanjbe (/*)> it is said by
the Judicial Connnittee of the Privy Council, conmienting
upon this provincial power, that the above sub-section 8
" • • • certainly is in literal conflict with it. It is
impossible to give exclusively to the Dominion the whole subject
of raising money by any mode of taxation, and at the same time
to give to the provincial legislature exclusively or at all, the
power of direct taxation for provincial or any other purpose.
This very conflict between the two sections was noticed by way of
illustration in the case of Parsons. Their Lordships there said,
' So, the raising of money by any mode or system of taxation is
enumerated among the classes of subjects in section 91 ; but
though the description is sufficiently large and general to include
direct taxation within the province in order to the raising of a
{m) Citizens v. Parsons, 7 App. Cas. 96.
(h) 12 App. Cas. 675.
FHE B. X. A. ACT — SEC. 1»1, S.-S. 5. 877
revenue for provincial purposes, assigned to the provincial legis-
latures by section 92, it obviously could not have been intended
that, in this instance also, the general power should override the
particular power.' Their Lordships adhere to that view, and
hold that as regards direct taxation within the province to raise
revenue for provincial purposes, that subject falls wholly within
the jurisdiction of the pi'ovincial legislatures."
Mafotis niuhuidis, the views expressed in the above
extract apply to a comparison of tlie above suit-section 4
with sub-section 3 of section 92 "the borrowing- of money
on the sole credit of the province."
Concedin<^ the entire correctness of the view of the
Judicial Committee, this further view deserves considera-
tion, namely, tliat these apparently over-]appini>' powers do
not in fact conflict at all — that the power of either govern-
ment in tiiis connection is limited to raisiny; numev for
purposes connected with its sphere of authority ; the choice
of metliod allowed to tlie Dominion government being of
the widest possible character : tluit of the provincial gov-
ernments being limited to direct taxation within the
province, because, as it is put in this very case, the power
of indirect taxation would be felt all over tlie Dominion.
Perhaps this should not be advanced as a further view ; it
probably represents what was in the mind of the Connnit-
tee in using the expression " ol»viously."
Under these sub-secti(jns have been passed our \arious
Acts relating to Customs and Excise duties — see R. S. C.
c. 32, 33 and 34; — and Acts in relation to Finance — see
R. S. C. c. 2<S and 29. Note also chapter II., ante, p. 3.5,
ei seq., for an account of the practical surrender to colonial
legislatures of full control over their own revenues and
tariff's.
See also the cases collected under section 92, sub-section
2, post.
5. Postal service.
878 THE H. N. A. AC'J' — SEC. 91. S.-8. 6, 7.
6. The Census and Statistics.
We have not found any expression of judicial opinion
as to the scope of this su])-section 0, although a number of
(questions suggest themselves. It must be construed so as
to exclu<le provincial legislation upon whatever mattei-s are
properly included in it ; and it seenis to us that any con-
struction other than "the Census, and Statistics in relation
thereto" wouM land us in difficulties. So construed, it has
reference to the census required to l»e taken every ten yeai's
V»y section tS of the B. N. A. Act, and to the compilation of
statistics in reference to nationality and creed, the increase
or decrease of population, and kindred matters. In the
Quebec Resolutions the words "and statistics" do not
appear. No wider interpretation is needed to enalile the
Dominiim parliament to institute encpiiries and compile
statistics as to any n>atters upon which information is
desired in order to intelligent legislation upon the various
sul>jects connnitted U) its legislative care. Acts authorizing
such proceedings would l)e laws " relating to " such subjects.
Any wider interpretation would have the absurd effect of
condeuniing provincial legislatures to legislate in the dark
upon many very important matters.
7. Militia, IMilitar^/ and Naval Service,
and Defence.
See notes to section 15, onfr, p. 251). This is perhaps
the matter in which, al)ove all others, the Imperial authori-
ties continue to exercise supervision over colonial legisla-
tion, and in respect to which, also, the British parliament
pa.sses Acts of express colonial application. The Com-
mander-in-Chief of the Canadian forces is appointed by the
Imperial authorities. At the same time, the laws relating
to the volunteer forces of Canada are largel}'' of Canadian
enactment, but, as we have said, they are very carefully
scriitinize<l by the Imperial authorities ; the idea being
THE H. X. A. ACT — SEC, 91, S.-S. 7. 879
to luive a uniform sy.stem of defence throughout tlie
Empire.
In Hohnes v. Temple (o), ijt was held (in Quebec) that
the provisions of the Imperial "Army Act, IScSl," <l() not
apply to Canada, so as to make persons not connected with
the active Militia of the Dominion liable in respect of acts
which are offences under the Imperial Act Imt not under
the Militia Act of Canada. The whole subject of Imperial
defence is of such a complicated nature, and so many of the
provisions of Imperial Acts are in force in all portions of
the Empire, that it is not thought desiralile to discuss the
matter at any length here (j)}. We simply note the onl}'
case which has been decided in Canada since Confederation
(q) in reference to the subject, anil in reference to this casi^
it should l)e remarked that, apparently, Mr. Justice Cluun-
eau held the view that the legislative authority of the
Dominion parliament under this sub-section is "exclusive"
as between that parliament and the pai-liament of the
United Kingdom — a view^ which cannot of course l)e main-
tained. He treats the English Army Act of 1881 as appli-
cable iu Canada only to the extent to which it is expressly
made so by the Canadian Militia Act (81 Vic. c. 40). The
proper position is clearly this : so far as Imperial legislation
upon this subject is, within the meaning of the Colonial
Laws Validity Act, 1805, made applicable to tlie colonies
generally, or to Canada in particular, any C^anadian legis-
lation repugnant thereto, in whole or in part, must be held
to lie void and inoperative to the extent of such repug-
nancy, but not otherwise — that is to say, in so far as
Canadian legislation is supplementary to and not inconsis-
tent with Imperial legislation upon the subject, this sub-
section 7 distinctly affirms the authority of the Dominion
parliament, as distinguished from provincial assend)lies, to
pass such legislation.
(<>) 8 Q. L. 11. 351 ; 2 Cart. 3J)0.
(/)) See Todd " Pari. Govt. Brit. Col." 274, et neq.
Ui) See Re^'. v. Schram, 14 U. C. C. P. ;U8 (1864), noted ante, p. 0'».
:}.S() THE If. N. A. ACT — SEC, lii, S.-S. H.
H. The tixin<^' of and providing' for the
sahirics and allowjinces of civil and otlicr
otiiccrs of the CioverniVient of Canada.
Coiiipfiiv section !I2. sul)-st'cti<ni 4.
In Ev.-ins V. HikIou (/■), in the Superior Court of QuoIh.'c,
it wus lu'ld that a ])r()\ineial lejjcislaturt.' has no power tt>
declare huMe to seizure the .salai'ies of employees of the
Federal goverinnent, tlie exemption of such salaries l)ein<(
"a matter of public order,"
Much the same ([Uestion came liefoiv the courts in
Ontario in the case of Leprohon v. Ottawa (s), in which it
was held by the Ccau't of Appeal, reversing the decision of
the Court of Queen's Bench, tliat provincial powers of tax-
ation do n<)t extend over the salaries of the executive staff'
of the Dominion. The decisicai is based, not so much on
the limited efiect of sub-secti<ai 2 of section S)2, as upcai the
broader ynauid that the ])rovincial Iet;islature has no power
to imj)ose a bunlen upon any of the instruments ])y which
the Dominion government is carried on, and cannot invest
a nuuiioipal corporaticai of its own creation with a power
which it cannot itself directly exercise. The arguments in
.support of the contrary view will be found in the opinions
delivered in support of the judgment of the Court of
Queen's Bench. The (juestion has never been further
litigated. This case is noteworthy for the free use, made
by the judges, of the decisions cf the Supreme Court of the
United States upon similar ^juestions which have arisen
there. The wliole matter is one of much interest as indi-
cative of tlie distinct separation of the governmental organ-
ization of the D(aiiinicai and of the provinces respectively,
and of tlieir nuitual independence.
So far as the Dominion government is concerned, the
severance of the tie of territorial connection with one pro-
vince and tlie creation of a distinct, exclusively federal,
territory aa the seat of the Dominion government, would,
(/•) 22 L C. Jur. 268 ; 2 Cart. 346. («) 2 O. A. R. 522.
THE H. X. A. ACT — SKC, !»1, S.-S. <)-ll. -SS 1
t<t soiiic extent, do away with this difficulty. As tlie hiw
now stands, in, at least, Ontario and Quebec, federal officials
are exempt from provincial burdens, while for pi-ovincial
officers theiv is no escape from the burden of federal tariffs.
As dealini;' witli a somewhat kindred t<»pic, see the
notes to section 125. jtosl.
S). Beacons, Buoys, Lighthouses, and
Sable Island.
10. Xavigafcion and Shipping (i).
11. Quarantine and the establishment
and maintenance of Marine Hospitals.
(i) " X(iri(jafiov and Shijiping." — This is one of those
subjects in respect of which colonial lej^islative power is
limited by reason of the existence of Imperial legislation
upon the subject applicable to, and in force in, the different
colonies of the Empire. It is beyond the scope of this
work to attempt any treatment of this large branch of
English jurisprudence ; we must simply note the line of
<livision between the Dominion parliament and the provin-
cial legislature in respect of the vari(jus matters which
may appear in some aspects to fall within this sub-section,
and, in other aspects, within some one or more of the
various sub-sections of section 92.
The line of aro-ument which led the Judicial Committee
of the Privy Council in Citizens v. Parsons {t), to limit sub-
section 2, " the regulation of trade and conunerce," t(j regu-
lations relatino- to yeneral trade and connnerce, would
or? '
appear to be equally applicable to limit this sub-section 10.
See sub-sections 9, 11, and 13, all of which would be un-
necessary if the wider meaning were intended to be given
to this sub- section 10. See also section 92, sub-section 10,
and section 108, and the various cases there noted.
(t) 7 App. Cas. 96.
382 THE H. N. A. ACT — SEC. 91, S.-S. 91 1.
Tn MacMillun v. The South- West Boom Conipnny (''), it
was lit'Id l)y the Suprciiit! Court of New Brunswick tluit a
provincial ciuictnicnt (37 Vic. c. 107) auth(jri>ciui,^ the erec-
tion of hoonis in a navigable river, does* not C(»nHict with
the power of the parliament of Canada with respect to
" navi<^ation and shippin*;' " : tho.se words l»ein<;' used in the
sense in which they are used in the .several Acts of the
Imperial parliament, relating' to navigation and shippinjj;',
in the Act of the Dominion parliament, 31 Vic. c. 5(S,
namely, as {giving the right to prescril>e rules and regula-
tions for ves.sels navigating the waters of the Dominion,
and not excluding, for all purposes, provincial jurisdiction
over navigahle waters. Allan, C.J., says:
" A local legislature, therefore, clearly, has a right to incor-
porate a Boom Company, where its objects, as in this case, are
entirely provincial, and the erection of the booms, piers, etc.,
necessary for giving effect to such Act of incorporation, are
undoubtedly local works, necessary and useful only for this
lumbering business in one section of the province — the river
Miramichi. The Acts then are entirely within the powers given
to the provincial legislature unless the construction of the word,
" navigation," is as has been contended for the plaintiff's
counsel ; for, in that case, the general power over local works
and undertakings must yield to the particular power given to
the Dominion parliament over the subject matter of navigation.
But I think that it is not the proper construction of the term,
and therefore the Acts in question are not iiltni r/rc.s."
It was held in McDougall v. Union Navigation Co. (v),
that the power to incorporate navigation companies, the
operations of which are limited to a particular province,
belongs exclusively to the legislature of such province.
In Normand v. St. Lawrence Navigation Co. (^v), the
grant, by the province of Quebec, of a water lot extending
(it) 1 Pug. & Burb. 715 ; 2 Cart. 542. Such an enactment however
cannot authorize any obtruction to navigation. See pout.
(v) 21 L. C. Jur. G3 ; 2 Cart. 223.
(r) 5 Q. L. R. 215 ; 2 Cart. 231.
THE H. \. A. ACT— SEC. «»1, S.-S. 'J-11. S.S8
into clet'p watei' at tho mouth of the Hiver St. IMuurice wii.s
held to be valid, subjoct to ho iniijlicd ivstriction that the
<;nintee should not use Ills poweis in such a way as to
interfei-e with the re(juireiiientH oF navi^oition.
In Queddy River Diivinn- Boom Co. v. Davidson (,/), .
it was held by the Supreme Court of Canada atKrminn' the
judoinent of the Supreme Court of New Hi-unswick, that a
provincial legislature cannot authorize such an obstruction
of a navigable stream as wcaild create a pul)lic nuisance.
In that case there was no Dominion legislation upon the
subject to alter the law as it existed in New Bnniswick at
the <late of the Union, and the true effect of the decision
would seem to be contained in an observation of ]Mr.
Justice Strong:
"The Queddy river is shown to be a navigable tidal river,
and the appellants have obstructed the navigation and thus
committed an act which is jiriimi Jade a public nuisance, and
which the respondent shows to be especially injurious to him
as a riparian proprietor. The respondent was therefore entitled
to an injunction to restrain the continuance of the obstruction,
unless the appellants were able to show some legal justification
for the interference with the navigation of the river caused by
the construction and maintenance of these booms ; they, how
ever, show nothing but an Act of the provincial legislature
of New Brunswick."
Fijllowdng Bank of Torcmto v. Lambe {y), the Supreme
Court of Canada has held in Longueuil Navigation Co. v.
]\Iontreal {z), that a provincial legislature can impose direct
taxation — e.<j., a fixed annual tax of i?200.00 — upon ferry
men and ferry companies. Ferries plying entirely within one
province would, in any case, fall;| within sub-sectio)\ 10 of
section 92, although no doubt they would have to conform
to the provisions of any Act respecting " navigation and
shipping " passed by the Dominion parliament within the
proper scope of this sub-section.
(.r) 10 S. C. K. 222 ; see notes to section 129, post, and also ante,
p. 200.
((/) 12 App. Cas. 575. {z) 15 S. C. E. 5GG.
884 THE M. N. A. ACT — SEC ftl, S.-S. 12.
In ('t'litral Vmiiout Railway Co. v. St. .)»»!in (f/). tlie
Supmnc Court oi' (niiiuhi ti'catc'i as nliiKist iK'Hcath notice
till' ('(intention tliat the Ixunitlarii's of a iiiuniciitality can
not lif «'\tt'niK'(l hy provincial legislation so as to incluflc
tlierfin jtart oi" a navii^ahlc rixcr.
"If it i.s beyond controver.xy that naviujable rivers are ./'«w
imri'osis iif Hdviiidtioii under the control of the parliament of
Canada, it is not less clearly estahlislud that the provinces have,
upon these same rivers, the ri^dit to exercise all municipal and
police powers, so lon^' as their legislation creates no hindrance to
uavi^'ation." — Per Fournier, J., at p. 21)7.
In "The Picton " (/>), it wa.s held l>y tlie Supreme
Court of Canada that, under section lOl (see /^(W) and this
sub-section 10, the Dominion government was within its
powers in creating- tlie ^laritime Court of Ontario, having
jurisdiction over certain matters relating to naviwition and
shipping'.
In tlie case of " The Farewell " (c), before tlie Vice-
A<biiiralty Court of Que1»ec, it was held by Stuart, J., that
the Dominion parliament can confer upon Vice- Admiralty
Courts existing in Canada under Imperial legislation, juris-
diction in any matter relating to navigation and shipping
within the territorial limits of the Domiiiion, aii<l that any
such Act is to Vie given full effect so far as its provisions
are not repugnant to Imperial legislation {<J).
Compare the cases which have arisen under this sub-
section with tho.se under sub-section 12 ; and see also note
(xi) to the opening clause of section 91, o/iite, p. 850.
12. Sen coast and inland Fisheries.
Note the curious error into which Lord Chancellor Sel-
borne fell, in L'Union St. Jac<|ues v. Belisle (f), in notapply-
(</) 14 S. C. R. 288. ^
(b) 4 S. C. R. 618.
(c) 7 Q. L. R. 380 ; 2 Cart. 378.
(«/) See Chapter XI. ante, p. 230 ; also Todd, " Pari. Govt. Brit, Col.,''
p. 149, et seq.
(e) L. R. 6 P. C. 31.
TffE H. N. A. ACT — HEC. 91, H.-H. 12. 385
in<; the word " tisIu'rieH " to ".sea coast." He speaks of the
wliole of tlie sea coast V)eing put within tlie exchisive cog-
nizance of the Dominion legishiture.
See notes to section lOiS, and cases there cited.
The diti^rent views that may he taken of the scope of
tlie various sub-sections of sections 01 and !)2 are nowhere
I tetter illustrated than in the liti<.;ation (/) whieh arose out
of the fj^rant of a lea.se of a .salmon fishery l)y the Minister
of Marine and Fisheries under authority of a Dominion Act.
The locus In quo included part of the Mirannchi river, in
New Brunswick, above the ebb and flow of the tide, and
the lease in (juestion purported to give an exclusive right
to fish in that part of the river, regardless of the rights of
the riparian proprietor. After much litigation, the inva-
lidity of the lea.se, and of the clause of the Dominion Act
under which it was made, was finally declared by the Su-
preme Court of Canada. On the subject of the rights of
riparian proprietors generally, the opinions expressed by
the different judges are interesting and instructive ; but,
confining our attention to the constitutional point involved,
the Supreme Court held that the scope of this sub-section
1 2 is properly limited to —
"subjects aflfecting the fisheries generally, tending to their regu-
lation, protectiun, and preservation, matters of a national and
general concern and important to the public, such as the forbid-
ding fish to be taken at improper seasons in an improper manner,
or with destructive instruments, laws with reference to the im-
provement and the increase of the fisheries ; in other words, all
such general laws as enure as well to the benefit of the owners
of the fisheries as to the public at large, who are interested in
the fisheries as a source of national or provincial wealth ; "
— that the Dominion parliament could not interfere with
the rights of propei'ty (with all its incidents) vested in the
riparian proprietors — whether the province, or individual
owners — further than laws within the above limits might
(/) Terminating in The Queen v. Robertson, 6 S. C. R. 52.
Can. Con.— 25
.S<S() TIIK II. N. A. ACT — HKC 1)1, S.-S. 18.15.
curtail their exorcise; hikI tlmt, hiiviii^- no power to inter-
feru directly, the Dominioii pinliiuiieiit could not authorize
others to interfere with those i-i^hts. Such h'^islation
wouM he conti.scation, not rennlation.
18. Ft;rrieH between a Province and
any J]ritish or Foreij^n country or between
two provinces.
Such undertakiuL^s, ms heiui;' ol' extra-provincial o]>era-
tion, tall naturally into the classes ot" matters confideil to
the ]>arlianient of Canada. We nee(l not, howevei-, discuss
the suh-section at lenn'th lu-i-e, as tlie whole suhject will
come up For considerati<»n mider suh-section 10 of
secti(»n !)2.
14. Currency and Coinaf.-e.
Se(! R. S. C. (I>SS()) c. 'M), which contains our legislation
upon this subject. In Lynch v. Canada X. W. Land
Co. {()), Patter.son, J. refei's to this find the six followin;^'
classes as relating' " to tlv regulation of the j^eneral com-
mercial and financial system of the country at hii-i^e."
15. 13 inking, incorporation of banks,
and the issue of paper money.
The scope of this suh-section has been under considera-
tion by the Judicial Connnittee of the Privy C<aincil in Bank
of Toronto v. Landte lA). It was there "earnestly contended"
that this sub-section operates to prevent a province; from
levying direct tax.*ition (under section 92, sul)-section 2)
upon a bank; but this view was negatived:
" Their Lordships think that this contention gives far too
wide an extent to the classes in question ; they cannot see how
the power of making banks contribute to the public objects of the
province where they carry on business can interfere at all with
(tj) 19 S. C. R. 204; see notes to s-s. 19, post.
(li) 12 App. Cas. 575 ; see Cliaptar X., ai\(c, p. 21;!.
Tin: U. \. A. ACT— SEC. ill, S.-S. 16. MS7
the power of niiikinf? laws on tlio subject of banking, or with tbe
power of incorporating banks Then it ia suggested
that the legislature may hiy on taxes so heavy as to crush a bank
out of existence, and so to nuUify the power of parhament to
erect banks. ]]ut their Lordsliips cannot conceive that when
the Imperial parliament conferred wide powers of local self-
government on great countries sucii as (Quebec, it intended to
limit them on the speculation that they would be used in an in-
jurious manner. People who are trusted with the great power
of nuvking laws for property and civil rights may well be trusted
to levy taxes. There are obvious reasons for confining their
powers to direct taxes an<I licenses, because the power of indirect
taxation would be felt all over tbe Dominion ; but whatever
power falls within the meaning of class 2 is, in their Lordships'
judgment, what the Imperial parliament intended to give ; and
to place a limit on it, because the power may be used unwisely,
as all powers may, would be an error and would load t ) insuper-
able difficulties in the construction ot the Federation Act."
The provisions of the Dominion Bankinj^' Act (.S4 Vic.
c. 5; R. S. C. c. 120), oinpo\venn<>' banks to hold warelumse
receipts as collateral security for the re-payniont of monies
advanced t(t the holders of such receipts, was held to l>e
liifni rircs, and no interference witli " property and civil
rights" fui'tlier than the fair re(|nirements of a bankint;"
Act would warrant — Merchants Bank v. Smith (/) : with
which compare Beard v. Steele ij), cited in the notes to sub-
section 2, <(iitt', p. ;i74.
In Windsor v. Connnercial Bank (/.), it was held in Now
Brunswick that a pi'ovincial legislature has authority to
enact a law to impose a tax on the Don\inion notes held by
a l)ank, as portiim of its cash reserve, under the Dominion
Act relating to banks and banking. The correctness of this
<lecision wouhl seem to be settled by the judguK'nt of the
Jtidicial Connnittee of the Privy Cimncil in Bank of
Torimto v. Lambe.
(ij 8 S C. R. 512. ■ (/) 34 U. C. Q. B. 43.
(A) 3 Cart. 377; 3 IIusb. ife Geld. 420.
388 THE B. N. A. ACT — SEC. 91, S.-S. 16-20.
Regina v. County of Wellington (0, exhibits the difter-
ence in view which is still possible as to the scope of this
sub-section, the Court of Appeal for Ontario being e([ually
divided in opinion on the constitutional point in\'olved —
the validity of a Dominion Act providing for certain
matters in connection with the winding up of the defunct
Bank of Upper Canada. The facts are sufficiently set forth
in note (xi), (inte, p. 354, and see also notes to section 92,
sub-section 13. In the Supreme Court, Chief Justice
Ritchie was alone in upholding the legislation under this
sub-section.
16. Savings' Banks.
17. Weights and Measures.
18. Bills of Exchange and Promissory
Notes (i).
19. Interest (ii).
20. Legal tender.
(i) " Bills of exchange and 'prom issory notes." — This
sub-section is very frequently noted as limiting the other-
wise wide scope of sub-section 13 of section 92 " property
and civil rights in the province." The law upon this sub-
ject has recently been codified. See 53 Vic. c. 33.
(ii) " Interest." — In Ross v. Torrance (m), it was held
that a provincial legislature has no power to authorize a
municipal corporation to charge a percentage increase on
over-due taxes, the so-called increase being but another
name for interest. The same question came before the
courts of Manitoba in the case of Schultz v. Winnipeg {n),
where a similar provincial Act was also held invalid. It is
difficult, however, to agree with these decisions, as there is
(I) 17 O. A. R. 421; and in Sup.JCt. (sub nom. Quirt v. Reg.) 19
S.C. R. 510.
(m) 2 Cart. 352 ; 2 Legal Newa, 18G. ' (n) 6 Man. L. R. 35
THE B. \. A. ACT — SEC. 91, S.-S. 19. 389
no necessaiy connection between interest and i)ercentage,
and the power to impose a penalty (by whatever name it
may be called) to enforce prompt payment «>f nninicipal
taxes would seem t<> V)e clearly within the power of the
provincial legislature umler section 92, sub-section 15.
See Royal Canadian Insurance Co. v. Montreal Ware-
housing Co. i')), ill wliieh it was lieM that m ])ro\incial
legislature may give a l(»cal corporation authority to lioriow
money at any rate of interest already legalize<l as tit other
persons who have the right to l»orrow. Having reference
to the views of the Privy Council as .'xpressed in Citizens
V. Parsons ( [>), it is submitted that this snl)-section is lim-
itetl tt) the re<>ulation of the leual rate of interest through-
<»ut the Dominion in the absence of spcciol contract, or to the
passing of what are known as usury laws, in case, in the
general interests of the Dominion, it is deemed advisable
to put such laws upon tlu' statute book. The (piestion,
however, is one of some difficulty. Dominion legislation
upon the (piestioii is contained in R. 8. C. c. 127.
Since tlie above was wi'itten, the report of the judgment
of the Supreme Court of Canada in Lynch v. The Canada
North-West Land Co. (q) has appeare<l. The cjfses above
noted are distinctly overruled and local legislatiftn in
reference to the imposition of an additional percentage on
over-due taxes held not to fall within the scoj^e of this sub-
section.
In reference to the general scope of the section Chief
Justice Ritchie says :
" It is obvious that the matter of interest which was intended
to be dealt with by the Dominion parliainent was in connection
with tlebts originating in contract, and tliat it was never intended
in any way to conflict with the right of the local legislature to
deal with niuniciijal institutions in the matter of assessments or
taxation, either in the manner or extent to which the locallegis-
(o) 2 Cart. 361 ; 3 Legal News, 1.55. (p) 7 App.Cas. 9G.
(q) 19 S. C. R. 204.
390 THE H. X. A. ACT — SEC. 91, S.-S. 1<).
lature should authorize such assessments to be made ; but the
intention was to prevent individuals under certain circumstances
from contracting for more than a certain rate of interest and fix-
ing a certain rate when interest was payable by law without a rate
having been named."
Follovving a number of American authorities, (juoted in
the judgment, the Chief Justice points out that municipal
taxes are not, i)cr se, dehts or contractual obligations, and
then proceeds :
" Does not the collocation of No. 19 with the classes of sub-
jects as numbered 18 and 20 afford a strong indication that the
interest referred to was connected in the mind of the legislature
with regulations as to the rate of interest in mercantile transac-
tions and other dealings and contracts between individuals, and
not with taxation under municipal institutions and matters
incident thereto ? The present case does not deal directly or
indirectly with matters of contract. The Dominion Act expressly
deals with interest on contracts and agreements as the first sec-
tion conclusively shews."
Referring to the rule that the true nature and character
of the legislaticm in the particular instance under discussion
must be consi<lered (/■), he points out that the Act there in
controverey had for its " primary matter " municipal taxa-
tion and not " interest." It will be seen that the Chief
Justice founds the jurisdiction of a provincial legislature to
pass the Act in (juestion upon section 92, sub-section 8. He
jpeaks of numicipal matters as " necessarily" embracing the
levying of taxes for municipal purposes. We shall have ^o
refer to this aoain when dealing' with that sul)-section.
Here we have to note that the Chief Justice clearly points
out that the percentage increase is in reality an extra tax
and not " interest." Mr. Justice Taschereau characterizes
the addition as a " penalt}', ' and Mr. Justice Patterson
says :
" We find that article associated with others numbered from
14 to 21, all of which relate to the regulation of the general com-
{>) See ante, p. '21'i.
THE B. N. A. ACT — SEC. 91, S.-H. 21. 391
mercial and financial system of the country at large
We must see what the thing really is. It is clearly something
which the Manitoba tax-payer who does not pay his taxes when
due is made liable to pay as an addition to the amount originally
assessed against him or his property. It is a direct tax within
the province in order to raise a revenue for provincial purposes,
and as such is indisputably within the legislative authority of
the province
• The imposition may, not improperly, be regarded as a
pena^v.y for enforcing the law relative to municipal taxation, and
in that character it comes tlirectly under article 15 of section 92."
The question whether Huch an imposition can in any
sense be properly called interest is referred to and it is
pointed out that under the impugned Act the addition is of
an arbitrary percentage not accruing de die In dievi ; but,
without expressing a decisive opinion upon this point, the
opini(m of the court, Mr. Justice Gvvynne dissenting, was,
that such an imposition does not, at all events, fall within
the scope of this sub-section 19.
21. Bankruptcy and Insolvency.
The extent to which the Dominion parliament, by legis-
lation under this sub-section, is empowered to interfere witii
" property and civil rights in the province," or with " pro-
cedure " in the courts of a province, came up for considera-
tion before the Judicial Connnittee of the Privy Council,
in the case of Gushing v. Dupuy (s), and was disposed of in
the judgment of that tribunal in these words :
" It was contended for the appellant that the provisions of
the Insolvency Act interfered with property and civil rights, and
was therefore ultra vires. This objection was very faintly urged,
but it was strongly contended that the parliament of Canada
could not take away the right of appeal to the Queen from final
judgments of the Court of Queen's Bench, which, it was said,
was part of the procedure in civil matters exclusively assigned to
the legislature of the province. The answer to these objections
(»} 5 Api). Cas. 40J).
392 THE B. N. A. ACT — SEC. 91, S.-S. 21.
is obvious. It would be impossible to advance a step in the
construction of a scheme for he administration of insolvent
estates without interfering with and modifying some of the
ordinary rights of property, and other civil rights, nor without,
providing some special mode of procedure for the vesting, realiza-
tion, and distribution of the estate, and the settlement of the
liabilities of the insolvent. Procedure must necessarily form an
essential part of any law dealing with insolvency. It is there-
fore to be presumed, indeed it is a necessary implication, tha' the
Imperial statute, in assigning to the Dominion parliament the
subjects of bankruptcy and insolvency, intended to confer on it
legislative power to interfere with property, civil rights, and pro-
cedure within the provinces, so j'nr ks a iimcral Imr nhitlii'i tn
those sitlijpcts niiijltt affect them."
The words italicised are important as in<licatin^■ tlie y'ww
of the Committee as to the scope of the siil (-section, as
aiithoi'izino-, namely, a j^eneral insolvency or bankruptcy law.
There is now no such law in existence in Canada, and the
power of a provincial le<;islature, in the absence of Dominion
legislation, to pass laws for the e(iuital>le disti'ilmtion (»f the
estate of a man whose assets are insufRcient to meet his
liabilities, has necessarily arisen, and with this question has
also arisen the larger one as tt) the existence of " concur-
rent " powei"s of legislation in the Dominion parliament
and provincial legislatures; as to which see chapter X.,i'iiff,
p. 21(), and note (xi) to section 91, (ivfc, p. 350. Quirt v.
Reg. (f), in which a spccifil Act in reference to the winding
up of the affairs of a particular bank was upheld by the
Supreme Court of Canada as within the scope of this sub-
section, is sufficiently referred to in the note last mentioned.
The Privy Council had had occasion to consider this
sub-section in an earlier case — L' Union St. Jac<iues \-
Belisle (a) — which came before them in 1<S74. The scope of
tlie sub-section is clearly indicated in the judgment, where,
speaking of the various sul:)-sections of section 91, and of
(/) 19 S. C. R. .510. (») L. R. 6 P. C. 31.
THE B. N. A. ACT — SEC. 01, S.-H. 21. 393
this Hub-8ecti<>n in particular, tlie following language
occurs :
"There is no indication in any instance of anything being
contemplated, except what may be properly described as general
legislation ; such legislation as is well expressed by Mr. Justice
Caron when he speaks of the geiiei-al laws governing Faillite,
bankruptcy and insolvency, all which are well known legal terms
expressing systems of legislation with which the subjects of this
country, and probably of most other civilized countries, are per-
fectly familiar. The words describe in their known legal sense
provisions made by law for the ailministration of the estates of
persons who may become bankrupt or insolvent, ncconliiiii tn nihs
(iwl (h'finitioHs iirr.srribt'd hij Imr, including of course the conditions
on which that law is to be brought into operation, the manner
in which it is to be brought into operation, and tiie elfect of its
operation."
The latter part of this extract supports what has 1»ecu
said in an earlier chapter (>•) in reference to l)ankru])tcy
and insolvency being legal relations, the creation of which
out of any given c<iinl>ination of circumstances, is alone in
the power of the Dominion parliament. In the absence of
any such legislation, it is difficult — in view of the scope at-
triltuted to sub-section 13 of section 92 [rv), " property and
civil rights in the province " — to see on what ground pro-
vincial legislation, making provision for the distribution of
a man's estate among his credit<n's, and for his discharge
from liability upon his contractual obligations, can be im-
pugned. In view, however, of the dirt'erence of opinion
among the judges who have had to consider this (juestion.
this view, we need hardly say, is put forw»ir<l with nmch
diffidence.
In Crombie v. Jackson (r), that was lield to be a valid
provision, in the Instil vent Act in force at that date (1874),
which obliged a person, making claim to any part of tlie
property of an insolvent transferred to the possession of his
(r) See aiitf, p. 215. (w) See the notefl to tliat sub-sectioii.
(.r) M u. c.Q. n.oir-.
894 THE H. N. A. ACT — SEC. 91, S.-S. 21.
H.sHijj;neo under tlie Act, to procee<l, under the Act, by suni-
inary procee(Hn<^'s before a county ju(lt»e. In our view,
these eases involvin*;' en(|uiry as to the validity of indi-
vi(hial sections of former Insovent Acts are not of nnich
practical iinportance : they would assist of course in the
frainino- of a new Act : but the important cases are those in
which provincial Acts or clauses of provincial Acts have
been impugned on the ground that their provisions are in
the nature of insolvency legislation. At the same time, in
the face of the divergence of view which exists ujion the
subject, we should hardly be justified in overlooking the
former class of cases.
In Peak v. Shields (//), was involved the (piestion of the
validity of the 18Gth .section of the Insolvent Act of LSTo,
which provided that a debtor, afterwai'ds becoming an in-
solvent un<ler the Act, who had fraudulently obtained goods
«)n credit knowing him.self unable to meet his engagements,
might be subjected to imprisonment for two yeai-s unless
the debt and costs were .sooner paid. The opinitms delivered
were very conflicting, some of the judges expressing the
view that the clause was legislation regarding procedure in
civil matters, othei-s that it was properly described as ni-
solvency legi-..ition, and others again that it might be up-
held as criminal legislation. The broader <|uestion involved
in the ca.se, namely, the power of a colonial legislature to
legislate respecting wrongs conimitted abroad, was treated
of in chapter IX., dute, p. 189.
In Re EMorado Union Store Company {z), it was held
in Nova Scotia, and again in Shoolbred v. Clark {<(), it was
unanimously held by the Supreme Court of Canada, that
th(j Dominion Winding-up Acts are insolvency legislation,
and are properly made applicable to companies incorporated
under provincial Acts. In Allen v. Hanson (/>), it was held
(y) 8 S. C. 1{. 579; « 0. A. R. 039; 31 U. C. C. P. 1J2.
(z) 6 lius-s. ctGeld., 514.
(./) 17 S. C. R. 'JOo.
(h) IS S. C. li. ()(;7.
THE 15. X. A. ACT — SEt'. 'Jl, S.-S. 21. lV.)r>
that tliL'se Winding-up Acts nUo npply to companies incor-
porated under Imperial Acts, the power in .such case heing
limited, of course, to dealing with the re}dizati(»n and dis-
trihution <d' the assets in Canarla. See the earlier case (»f
Merchants Bank v. (Jillespie {r), in which it was held that
the Winding-up Act then in force, did not, upon the proper
interpretation of it, a])ply to .such an Imperial Company.
In Clark.son v. Ontario Bank {(/) and other cases re-
ported with it, the validity of certain legislation hy the
Ontario legislature (R S. O. c. 124 — '• an Act respecting as-
.signments and preferences hy insolvent pei>;ons ") — was in
(piestion. The court was eipially divided. The opinions of
Hagarty, C.J.O., and Osier, J.A., who held the Act nUvd
r//r.s, proceed up(m the Itroad ground thus exjjressed by the
Chief Justice :
" It is to all intents a law for the Judicial administration of
an insolvent's estate by means unknown to the common law,
and conferring rights on an assignee in addition to, and beyond
all rights assigned to him by the debtor."
On the other hand, Burton and Pattei-son, JJ.A., who
upheld its validity, support their opinions by pcanting
out that the various clauses, examined in detail, deal with
matters within the legislative ccnnpetence of a provincial
legislature under sub-section 18 of section 1)2. property and
civil rights. In view of this difference of opinion it can be
easily understood, therefore, that the view we have
attempted to e.\pre.ss in an earlier chapter is advanced
with nmch mistrust. In all these cases there will
have to be a pronouncement l>y the Jmlicial Connnittee
of the Privy Council or an amendment to the B. N. A. Act,
before the pt>sition of impecunious debtors is satisfactorily
settled.
In Clarkson v. Ontario Bank, Burton and Patterson,
JJ.A., both expressed some doubt as to section 0 of the Act
then in (juestion, which section did not itself come im-
(oj 10 S. C. li. H12. (-/) 15 O. A. R. KKJ.
390 THE H. X. A. ACT — SEC. 1(1. S.-S. 21.
iiit'fliiiti'Iy in ((iiostion in the cn.se. It provide*! that an
assiu'innent, un<ler the Act, t'«»r the general h«'netit of
cri'<Ht(>rH, ,sh<»uM take prece<lence of all jmlniiients and
executions not coni[)U'tely executed hy )>aynient : and
at'terwaj'ds, in Union Dank \-. Neville (f), it was held hy
Chief .Justice Sir Thomas (Jalt, to he ii/lra rlrt-s, as Itrinin'
insolvency leyishition.
•' Tlie question now is wliotlior or not the assi<,'nee is entitled
to take these goods out of the possession of the slierit}". It is
manifest lliat the assi'jfnor himself has no such authority, and
it appears to me that, that bein;,' the case, lie coidd confer no
sucdi right on his assignee. By the words of the statute itself,
it is plain that the provisions are to have effect only in eases of
insolvent debtors or persons on the verge of insolvency ; con-
se<[uently, to attribute to an assignmunt under the statute a
power to remove goods in the hands of the sheriff under execu-
tion against an insolvent, must, in my opinion, he considered as
an Act relating to "bankruptcy and insolvency."
To the .same eflect — from the other standpoint — we
may nttte tlie case of Kinney v. Dndman (/), decided l»y
the Nova Scotia Snpi'enie Ciairt, npholding" the validity <tf
section of) of the In.solvent Act of I<S()f), which provided
that a judgment not completely executed, sliould as against
an assiyinnent undei' that Act, create no lien or privilege
u})on the pi'operty of the insolvent.
In Th(^ Queen v. Chandler (//), it was held by the
Supreme Court of New Brunswick, that tho.se provisions,
in what are conunonly known as Indigent Debtors Acts,
providing for the examination of a confined debtor and for
his discharge from imprisonment upon proof of indigence,
and of the absence of fraudulent dealings witli his property,
cannot be pa,ssed by provincial legislatures. This case
ai'ose in IStJS, and the Judgment of the court was f<ainded
upon views, as to the wi<le .scope of this sub-secti(m, which
cannot in view of the later authorities be now considered
(*-) 21 O. n. 152. (/) 2 Rnss. & dies. ]•• ; 2 Cart. 412.
(/;) 2 Cart. 421 ; 1 Haniiay .'ioO.
THE H. X. A. ACT — SEP. ()1, S.-S. 21. :v.)7
a coiToct expoHition of the law. Tlie vv(»r(ls " Itaiikruptey
and insolvency " were interpreted as coveriny- all le<;isla-
tion as to impecunious <lel)tors even entirely apart from
any system of l>ankru{)tcy and insolvency lej^islation,
and, in this view, the Act in <|Uestion was held t«» he
an insolvent i\.ct (A). In another aspect, however, the
case mav well he referred to, as Iteinn' one of the earliest
decisions emphatically enunciating' the doctrine that,
under the B. N. A. Act, it necessai-ily devolves np<tii
courts of Justice to iiKpiire into the validity of post-C'on-
federation Canadian legislation. The fact that the
Governor-General had not disallowed the provincial Act in
(juestion, was decisively held l»y the court to he immaterial,
upon an iiKpiiry as to its legal validity.
Upon the (juestion as to the scope of this sul)-Hection
21,^The Queen v. Chandler has never heen overruled, but, in
subsequent cases in New Brunswick, the wide view upon
which the decision in the early case proceeded has evidently
and necessarily been modified. Prior to the Union, the
New Brunswick legislature had passe*! an Act extending
the oaol limits — an Act afi'ectinjj contined del)tors. This
Act was not to come into operation until April 1st, 1868,
but before that date, and after Confederation, it was
repealed by a subsequent enactment. The New Brunswick
Supreme Court intimated that there was nothing in the
point that the Act was one relating to insolvency, and that
therefore the provincial legislature was within its powers
in repealing it (i). And, again, in Armstrong v. McCutchin
(J), the Supreme Court of New Brunswick held that an
Act of the legislature of that province abolishing imprison-
ment for debt was not ultra vires, as respects a party not
shown to be a trader, subject to the Dominion Insolvent
Act. Ritchie C.J., says :
{h) See the remarks of Mr. Justice Burton in Clarkson v. Ontario
J3ank, tibi supra ; and see also notes to sec. 92, s.-s. 14, post.
(i) McAlmon v. Pine. 2 Cart. 487 ; 2 Pug 44.
(j) 2 Cart. 494 ; 2 Pug. 381.
.SOH THE n. N. A. ACT.— SKC. !H, S.-S. 21.
" Hut while le^'islation on *,ho subject of iinprisonment for
debt may be, under some circunistancos, involved in lep;islati'in
on bankruptcy and insolvency, and therefore lit matter to be
dealt with l)y the Dominion parliament, it by no means follows
that in no circumstnnces can a local legislature legislate with
reference thereto. On the contrary, there may bo many cases
where the abolition or regulation of imprisonment for debt is in
no way mixed up with or depending on insolvency. In this case,
in which application has been made for discharge under a local
Act, the party does not appear by the affidavits to be in anywise
amenable to the Insolvent Act of IHO!), nor a party who could
be brought within the operation of that Act ; nor, so for as he is
concerned, or as applicable to his case, are the clauses of the
local Act under which he seeks the discharge, in any way in conflict
with that Act. The defendant simply appears in the position of
a person not subject to the Insolvent Act of 1H(;{), and whom
the legislature has declared shall not hv. proceeded against for
recovery of a debt by imprisonment, without reference to any
fjuestion of solvency or insolvency ; therefore there is no reason
why he should not receive the benefit of an Act passed by the
local legislature for regulating the procedure in civil suits in
relation to the civil rights of parties in the recovery of debts.
So far therefore as the defendant is concerned — and we limit
our decision to tlie particular circumstances of this individual
case — there is no reason why the Act should not have full force
and effect. Regina v. Chandler, which was so much pressed on
us, is, wo think, entirely distinguishable from the present case."
See also, Re I)e Vel)er (/.'), in which un Act of the New
Brunswick lei^islatuiv, providing- that as against an assignee
of the grantor under any law relating to insolvency, a bill
of sale slumld only take ctt'oct from the date of its tiling,
was held to be intra rires. The provinces down by the
sea are not at one upon this (juestion. In Johnson v.
Poyntz (1), it was lield by the Nova Scotia Courts that a
provincial legislature could confer upon a newly created
provincial court, jurisdiction to entertain an application for
(Jt) 21 N. B. R. 401 ; 2 Cart. 552.
(/) 2 Cart. 41(j; 2 Ru^s. & Geld. 1!»B.
THE H. N. A. ACT — SKC. <H, S.-S. 21. 890
tilt.' <Hseluii'nt! oF an insolvent (Iclitoi" nndci' a provincial Act
pasHt'tl prior to Oonl'dh-ration, sncli Icj^islation, it was licM,
not coniin;;" within tins .sult-scction : whilf, on the (»tlit'r
lian<l, in tlic case of Mnini v. Mc(-anncll (iii), tlic Suprrnif
Coiu't of Prince K<l\var(l Island held to he nlfni r/'/vx, a
provision in the [ndi^'ent Dehtors Act of that j)rovince,
[)ro\idinjj;' for the tlischarn'c of an insolvent dehtor.
'I'he lant^naj;'!' ahove (piotrMl of Sir Monta^nie Smith in
deliverini;' the Judminent of the I'livy Cianicil inCJushiny' v.
Dnpny {•>) would seem to cover the varicais matters dis-
cussed in the ahovo cases. As relatini;' to "civil rights in
the province" a pi'ovincial legislature has full powe)- to
legislate thereon, subject to the operation of any general
insolvency legislation passed l»y the Dominion parliament.
In Murdoch v. Windsoi- iV Annapolis Railway ('o. (o),
Mr. Justice Ritchie, sitting as Kcpiity Judge, held invali<l,
as an infringement upon the powers of the Dominion par-
liament under this suli-section, an Act of the Nova Scotia
legislature, entitled "An Act to facilitate arrangements
hetween Railway C<)m[)ani(.'s and their creditors." The Act
provided that the company might propose a scheme of
arrangement hetween the company and its creditors, and
tile the same in ciairt, and that thereupon the court might,
on application hy the company, resti'ain any action against
the company, upon such tei-ms as such court might see tit.
The Act also provided that notice of tiling the scheme
sluaild h(^ published, and that thereupon no process should
he enforced against the company without leave of the court.
Mr. Justice Ritchie considered the Act as one which ctaild
have reference oul\^ to a company which was insolvent.
That a company, having hecona; insolvent, should have the
power, in order to settle with all its creditors alike, of de-
claring itself such, and that on such declaration the remedies
of creditors sliould he suspended, would not be unreason-
{m) 2 P. E. K. (h) 5 App. Cas. iO!>.
\0) 3 Cirt. 3(58; Russ. Eq. Rep. 1.S7.
M)0 THK H. N. A. ACT— SEC. !»1, S.-S. 21.
ul)lc: lnit tliJit the k'^nslatun." sliouM yive to »i company,
Molvoiit iiml aide to iiK'ot all its lialtiliti»'H, tlu' power of
stjiyiii;;' all proceetlinoH on the part of their ci'iMlitoix, l)y
merely pivseiitiuj;' an<l tilin;;' a scheme of arran<j;('ment with
them, would he iiicomprehensihlc. The legislation, in his
view, must have heen passed on tin- assumption of the in-
solvency of the company. And. ui»on this view of the Act,
he held it iilfrn rircs. The sam»' Ju<lge held in Hr The
Wallace- Heustis (Irey Stone Company (/>), that the Nova
Scotia Windinm-up Act, was hifni rirc.'i. It made provision
for the winding-up of any comjiany where a I'esolution to
that effect was passed l)y the company, or where the ccmrt
so ordered at the instance of a contrihutor, on it being made
to appear that such order was just and ecpiitahle. Tlie Act
could he enforced, although no dehts were due ))y the com-
pany, but could not be called into operation by a creditor.
Such an Act, it was held, had no necessary relation to
l»ankruptcy and inHolvency, but was an Act respecting pro-
perty and civil rights in the province.
The decision in Murdoch v. Windsor & Annapolis Rail-
way Co. must be considered overruled by the judgment in Re
Windsor & Annapolis Railway {j)j>), in the Nova Scotia
Supreme Court, in which the same Act was upheld so far
as it provided for the confirmation of a scheme, propounded
by the company under the Act, for cancelling certain
debentures, and for the allotment of new stock in lieu
thereof bearing a low rate of interest. The decision, how-
ever, it should be noted, is placed upon the ground that the
Windsor & Annapolis Railway Company was a local w^ork
or undertaking within the meaning of section 92, sub-sec-
tion 10, and that so far as any such local unc'ertaking is
concerned, the impugned Act was within the legislative
competence of the provincial legislature, that the scheme
propounded by the company had no relation whatever to
(p) 3 Cart. 374 ; Russ. Eq. Rep. 461.
(pp) 3 Cart. 387 ; 4 Russ. & Geld. 312.
THE n. N. A. ACT— SEf". ftl, S.-S. 22. 401
the insolvency of the compiiny, and was sini[)ly h Hohenie
For cluiiii'inu' tlu^ t'oi'ni oF the .stock, hi this view of the
case, reliance was phiced up(»n L'Fnion St. Jactjues v. Bt^-
lisle (7), and the Act in its rehition to local undertakings
ii|>held u]ion the authority of that case.
We may also refer to li<' Hriton Medical and General
r^ife Association (/'), cited in notes to section f)l, milr. p.
'U(i as the Act there I'efei'red to might, perhaps, l)e said to
fall within this sub-section 21. The deposit i-equired liy
that Act to l)e made hy all corjxtrations desiring to do
husintss in Canada, was held to he, upon the true construc-
tion of the Act, a special fund a])i)licable in case of insol-
vency for the benefit of Canadian policy holders only.
In McClanaohan v. St. Ann's Mutual Buildino- So-
ciety (.s), it was held that tlic ])ominion parliament has no
power to pass an Act providing for the iitjuidation oi all
building societies, whetlwi' solvent or iiof,\n the province of
Quebec.
In Cote V. Watson (0, it was held by the Superior Court
of Quebec tliat a provincial legislatui-e has no power to
impose a tax on the sum realized from the sale of an insol-
vent's etl'ects,' or to impose upon an assignee under that
Act, or his agent, any penalty for not taking out a license
to sell by auction the goods of the bankrupt. In view of
Hank of Toronto v. Lambe, this easy cannot be considered
law.
22. Patents of invention and dis-
covery.
We have already had occasion to point out that this
sub-section embraces what may now be considered almost
(7) L. R. G P. C. 31. See notes to s. 92, s-s. 1(3.
(r) 12 O. R. in.
(») 2 Cart. 237; 21 L. C. Jur. 162. . ■ •
(t) 2 Cart. 343 ; 3 Q. L. R. 157.
Can. Con.— 26
402 THE H.N. A. ACT — HEC. 91, H.-S. 22.
a (listinot hranch of Jmisprudenco — patent law (v). The
lan^iiaj4(M)f the»iu(licial (joniiiiittee ii; (yUHliiiijjc v. I)upn3' (v),
iiH to the ixicessity for i-e<;uhitinL( "proccchire " in connec-
tion with the handlinj^ of estab^H under bankruptcy an<l
in,solv(!ncy ht^inlation, applies witli ahnost «M|uaI force to
h^uishition uruhu- this Huh-H(!cti(»n 22. At theHanie time we
hav(! to note that coinpai'atively few caHCH have arisen
callinj^' for a decision as to th(! \'\\\v of (Mvi.sion which
projH'rly marks out the sphere of pi'ovincial leoishitive'
authority in connection with ]»at(!nt litigation, hut so far as
the (h'cisions o() thi y •.i[)hohl the; authority of the Dominion
parliament to iH'iridate pi-ocedure in such casiis.
In AitcluHon v. Maim (vc). the Qu<M'n's Bench Divisional
( '(»ui-t held, atlii'ii.in^' the decision of Boyd, ( \, that section 24
of the Patent Act of l<S7l^ which i'e(|uir('s that the trial of an
action for th«^ iid'rin^^ement of a patent nnist Ixi tried in Ihi'
court nearest the defendant's residence ()!• place of business,
was infra aires.
In Mousseau v. Hat«^ (,/), it was held that ])roce»!dinfj;s in
the natuic^ of a >SV'/. Fii. to s(!t asid<^ lettei-s pat«Mit of inven-
tion issued iuid(!r a Dominion statute, cannot be instituted
in the name of a [)i<)vincial Attortiey-Gern^ral, but can
only h^fifally be brought by the Attorney-Cieiunal for Canada.
In connection with this case, rcd'erence should also lie Iind to
Regina v. I'attee (vy), in which the; late Master in (Jluunbei's
(Mr. Dalton, Q.C.), held that the Attoi'ney-(Jenera! of
Ontario was the j)i"oper officer to H;rant a tiat for tlu^ issue
of a wi'it of Scl. Fa. In anothc;)" vitnv, the case is note*-
vvoi'thy as containinj^- one of the earliest ex[)r«NSsions of
o))inion in reference; to the necessary co-e!xt«!nsion of thi;
executivt; and legislative; functions of a pi'ovincial o()vei'n-
ment. So far as ccaicems this sub-section, however, th«'
judgment is expressly limite<l to the case of a suVtjectdomi-
(u) Ante, p. 28(5. (a) 27 L. C. Jiir. 15H ; 3 Cart. Ml.
(v) 6 App. CaB. 40!). (ij) T) P. R. (Ont.) 2<>2.
(w) y P. R. (Out.) 47.4. • .
TIIK U. \. A. A(T — SKC !»1, S,-S. 2H, 408
c\\va\ ii) tlu! proviiic*', HiM'kin^ to uvnil hiiii.solt' ol" the poculiar
privilt'j^t^H of tlui Ci'ovvit, in order to the nssortioii of his own
privat*! iiitcrtJHts, and the MaHtt'i* in Chanihei'H (hisircd that
]u'. should not he undci'stood as H|K'akin<^ ol' a case whert
the ('I'ovvn itscir HtMiks to avoid a [latent.
In lie The Hell Telei.hone Co. (:), it was held to he a
pi-opei* exercisi! ol" the ])o\vers ol' the Dominion pailianient
inidei' this Act, to ])rovide that in casi; ol' dispute arisini«
as to the vali<lityor a [witent, such dispute should he settled
hy th(! Ministei- of Aj^ricultiwe, or his Deputy, whose
decision should he final. it was held that hy the Act a
couj't Ol' Judicial ti'ihunal was constitut«Ml, and that the Do-
minion parliament had j)ower to constitute such a court,
ini<ler section 101 (see imsf). This (piestion has heen aheatly
discusseil t(t some extent in chapter XI., (iiilr, p. 'I'M), and
i'urtluir reference to it will lie found in the not<!s to section
101.
23. ('()pyri;.(lits.
Tliis is hai"<lly the [)lace to discuss the .somewhat peculiai*
position in which, undei* the cond)ine(l o[)ei-ation of Im[)erial
and Canadian le^^islation, (Canada is [>laced in relation t<^
this (|U(!stion A' c )i)y!i^ht. Our [)ower alon|<' this line;
is suhject to liijiitations owin;;' to the existenc*! of Imi)orial
legislation in force in ('anada. Smiles v. Helford [n), in
which the situation is ^•ra})hically d«'scrihed hy Moss, J. A.
(aftei-wai"ds C..I.(). i, is of im|)ortan(;<! to our suhject in
another aspect, Jiamely, as atHrmin^ the Itioal supremacy of
the Imperial parliament, eAcn over colonies posses.sed of le;>is-
Ijitures of their own, and as limiting;' the ti^-m "exclusive '
in this section 01 of the H. X. A. Act, as leferahle merely
to the power of the Dominion i)arliament as distinji;uishe(l
from that of the provincial legislatures (/>}. It is hardly
(z) 7 O. R. (i()5.
{(i) 1 O. A. H. 4i\(\ ; 800 uIho Aiif<lo Canadian Miiwic Publishors v.
Suckliii},', 17 O. U. 23«).
{h) See ante, p. 67, and note (x) to boc. 'Jl, ante, p. 350.
404 THE 15. N. A. ACT — SEC. 91, S.-S. 24.
coiiceivaltle that any (juefstion can arise as botweon tlu^
Dominion and the provinces upon this subject, except,
pei-haps, in vehition to " pi-oce(hire " in copyi'ight litigation,
should the Dominion parliament legislate along this line.
See note to the last sub-section (22).
'24. Indians and lands reserved for the
Indians.
The proclamation {<i) which followed u}!on the Treaty
of Paris contained provisions designed to protect the abo-
rigines " in the possession of such ])arts of our dominions
and territories as, not having been ceded to us, are reserved
to them, or any of them, as their hunting grounds." In the
celebrated case of the 8t. Catharines Milling Co. v. The
Queen (h), it was held by the Judicial Conniiittee of the
Privv Council, that the inteiest of the Indians liiider this
proclamation Avas " a personal and usufructuary light,
dependent upon the good will of the sovereign
There has been all along vested in the Crown a substantial
and paramount estate underlying the Indian title, which
became a plcinnu (lomlnuun whenever that title was sur-
rendered or otherwise extinguished." From time to time
Indian tribes had surrendered their title to portions of this
reserved territory, usually upon tenns wdnch secured to
them a more definite right of occupation of some small sub-
division of it. These smaller tracts were known as "Indian
reserves." In Church v. Fenton (c), it was held by all our
courts that the above sub-secti(m 24 applied only to these^
and not to the larger indefinite areas covere<l by the
proclamation of 1708 ; but this view is distinctly nega-
tived by the Committee in the case above referred to.
Under the holding of that tribunal, the power of the
Dominion government is ^ power of legislation and admin-
(fl) See Houston, " Const. Doc. of Canada," p. 67.
(6) 14 App. Cas. 46.
(c) 5 S. C. R. 239 ; 4 O. A. R. 159 ; 28 U. C. C. P. 384.
THE B. \. A. ACT — SEC. 01, S.-S. 21. 405
istmtioii ill respect of Indians, and the lands reserved for
them over both these hir^er areas and tlie more resti'icted
areas of the " Indian reserves" (so called) until the surren-
der and extinuuishment of the Indian title. The chief
matter in dispute in th(; case was as to the beneficial interest
in these lands after such surrender and extinmiishment.
The Committee gave effect to the contention put forward
on behalf of the province of Ontario, that to the pi'ovinces
accrued the right U) " a beneficial interest in these lands,
available to them as a source of reveinie whenever the
estate of the Ci'own is disencuud)ered of the Indian title."
Upon such surrender they fall into the category of " public
lands belonging to the province," mentioned in sub-secti(m
5 of section 92. It would appear, however, that where,
upon a surrender, certain rights of Hunting and fishing
throughout the surrendered teriitory weie still reserved to
the Indians, "with the excepti<m of those portions of it which
may, from time to time, l)e re(|uired oi" taken up for pur-
poses of settlement, mining, lund)ering, (»• other jnirposes,"
. the ([uestion of "the right to determine to what extent, and
at what periods, the disputed territory, over which tht^
Indians still exei'cise their avocations of huntin<'' and tishinu'.
is to l)e taken up for settlement or othei- })urposes/' is still
an open one. In that case, there was no pretence of a
reservation to the Indians of anv riji'ht to tind)er in the
territory surrendered, and a permit to cut timber issued;
by the Dominion government was held insalid. It
occui's to one, however, that it would be an easy
matter to arrange such terms of conditional surrender,
with such ]'eservati(ms of beneticial interest to the Indians,
as vrouhl practically prevent the provinces from dealing
with the land : but whatever is sin-rendered accrues to the
benefit of the province in which the territory is situated.
Subject to the burden of the Indian title (with whatever
legislative and administrative powers exist in the Dominion
government by reason of the existence of that Indian title)
the beneficial interest in these lands ])assed on Confedera-
400 THE B. X. A. ACT — SEC. 91, S.-S. 25.
tion to the provinces, the fee, of course, remaining in the
Crown. See furtlier notes to section 102. ct xcq.
'25. Natiiralizatioii and aliens.
By the Iniperifil Xnturalizntion Act, 1S70, it is enacted
that " all laws, statutes, and ordinances which may be <luly
made by the IcLdslatui'e of any Biitish jiosscssion foi' im-
])arting to any person the privik'gL's or any of the privileges
of natui-alization to be enjoved bv such i)er.son within the
limits of such possession., shall within such limits have tlu'
authoritv of law. . .
« «
While, therefore, as betweeii the Dominion- and the
provinces, this subject is, by this sul)-section, exclusively
with the former, no legislation by the parliament of Canada
can make an alien a British subject qtK/dd the Em})ire : it
can do no more than give him, within the confines of the
Dominion, the privileges or some of the privileges of natu-
ralization. Where any (juestion arises as to the national
sfdfiis of a pei'.son domiciled in a colony, such (question
nuist be determined b}^ the law of England, whilst the
rights and liabilities incident to tliat sfiifa>< must, in
Canada, be determined l)y laws passed by the parliament
of Canada {(J). The power of a provincial legislature to
make laws i elative to " property and civil rights in the
province " nuist obviously be lead subject to Dominion
legislation under this sub-section. It is for the Dominion
government to say wliether or not, within Canada, an alien
is to lie under any <lisability and that government can
insist that throughout the Dominion an alien may, upon
conforming to the provisions of any Act in that behalf
passed by the parliament of Canada, become, qaoad
Canada, a naturalize<l British subject and enjoy all the
privileges accorded by the laws of the provinces to British
subjects.
(rf) Donegani v. Donegaui, 3 Knapp, P. C. C. 03 ; re Adam, 1 Moo.
P. C. C. 460.
THE B. N. A. ACT — SEC. 91, S.-K. 26, 27. 407
Connected with tlii.s subject is the (luestion of the terri-
torial operation of Canadian legislation dincussed in
chapter IX., antp, p. IcSo, et xcq. Just as Canadian legisla-
tion cannot invest an alien with the character of a British
subject outside Canada, so it cannot visit upon natural born
British subjects resident in Canada any penalty for acts
conniiitted without the Dominion : for, without the
Dominion, they are — qiuxul Canada — British subjects only
and their Ntatas as citizens of Canada is nought. A tor-
Hon, legislation in reference to the acts of aliens al)r<)ad
would be invalid.
•20. Marria<^e and Divorce.
Compare section 92, sub-section 12. No case has arisen
in our courts in reference to the line of division between
the Dominion parliament and the local legislatures on this
subject of marriaye : but this sub-section and sub-section
12 of section 92. will be found frecpiently compared and
C(mtrasted, and inferences drawn therefrom as to the pro-
sper pi'inciples of interpretation to be applied to the various
, other sub-sections of sections 91 and 92 {i>). Judging from
provincial legislation since Confedei"ation, it would appear
to be conceded that the scope of the first branch of this sub-
section is limited to legislation as to the .status merely of
luisband, wife, and issue. So far, the scope of the second
branch has been limited in pi*actice to private bills legisla-
tion. No court for the trial of matrimonial causes has yet
been established.
27. The Cr.uniiial Law, except the.
Constitution of Courts of Criminal Juris-
diction, but including the Procedure in
Criminal Matters.
It will be advisable to defer considemtion of the excep-
tion— the constitution of courts of criminal jurisdiction —
(e) See Citizens v. Parsons, 7 App. Cas. 96 ; City of Fredericton v.
The Queen, 3 S. C. R. 505.
m
40<S THE H. \. A. ACT — SEC. !)1, S.-S. 27.
until we reach sub-.sectioii 14 of section 02, and to confine
our remarks upon this sub-section to "criminal law" and
"procedure in criminal matters." The subject has been
already adverted to in chapter XL, dutc, p. 235, rf wy/., to
which reference shouM Ir' had.
In its widest and strictly le^al sense (/) the term
"criminal law" would include all that class of niatters —
offences against the provisions of provincial law — covered
l»y suV)-section 15 of section f)2, and, the jurisdiction being'
in each case exclusive, the meaning of the term must be
here limited.
It will facilitate our eiKjuiry if we refer shortly to the
sources of our criminal law — using that term in its widest
sense — and to the position at the time the Union took effect.
As the basis we take the connnon law of England. In
cl\apter V. we have endeavored to point out to what extent
English connnon and statutory law was deemecl to be in-
troduced into the various pi-ovinces of British North
America. As to the connnon law of England relatinu' to
ci'imes, their trial and punishment, no discussion was neces-
sary. That law was undoubtedlv in force in the maritime
provinces and in Queljec as then constituted. By the
Quebec Act, 1774 {</), the criminal law of England was to
continue to be administered in the province, and be "oli-
served as law as well in the description and (juality of the
offence as in the method of prosecution and trial, and the
punishments and forfeitures tiierelty inflicted." As was
pointed out, in Upper Canada the (piestion of applicability
seams not to have been considered open in determining
the operation within that province of English criminal law
(/ti, but in the maritime provinces this question had to be
considered in all cases, criminal as well as civil.
But, the "criminal law of England " had become in those
days largely statutory, and no disti nction in principle can
(j) Sea Reg. v. Boardmia and Rag. v. Roddy, post,
(g) 14 Geo. III. c. 83.
(h) See ante, p. 123.
THE H. \. A. ACT — SEP. <)1. S.-S. 27. 409
be pointed out as sepaintiiiy .statutory criminal law from
the old connnon law upon the subject of ci'imes, their trial
and punishment. All .sorts of re«fulations were laid down
to guide the daily conduct of men, and their observance
was enforced by penalties, inflicted in persunnni (n' in reia^
until the severity of English law l)ecame notorious. As Sir
Thomas May points out (/), the criminal code down to the
reform era of the thirties was larj^ely protective of the
rij^hts of property, rei^ardless, in such case, of any (jnestion
of moral turpitude. Such was the law introduced into the
colonies of British North America, and down to Confedera-
tion there existed no necessity for distinguishing the various
parts of the criminal code, whether as passed for the put-
ting dt)wn of pul)lic wrongs or as directed toward the
upholding of private rights. "Crimes" was a most com-
prehensive term, and its definition by Richards, C.J., in
1<SG8 {j) may be taken as a correct exposition of the law
as it stood at the date of Confederation :
" When a party may be punished for an offence against a
public Act of a public nature, for which he may be tried sum-
marily aud a penalty impo.sed, the proceeding to recover such a
penalty is a criminal proceeding, . . . then the offence for
which the penalty was imposed must be a crime.'"
This, as we have said, covers enactments such as those
which, by the express provision of suV)-section 15 of section
92, a provincial legislature may pass " for enforcing any
law of the province made in relation to any matter coming
within any of the classes of subjects enumerated in this
section." So far as concerns legislation since Confedera-
tion, it may l)e now taken as clearly established that pro-
vincial penal laws within the limits defined are not
"criminal law," nor is the })i-ocedure for their enforcement
"procedure in criminal matters" within the meaning of
this sub-section 27. As to the "connnon law" upon the
(/) May's " Const. Hist, of Enf{." Vol. III. p. mii, vt seq.
U) In lie Lucas & M'Glashan, 27 U. C. Q. B. 81 ; see also Reg. v.
Roddy, 41 U. C. Q. B. 291.
410 THE K. N. A. ACT — SEC. 91, S.-S. 27.
Hubjt'ct of criiiioH, tlu'ir trial and puniHhinent, tliere HeeiiiH
to 1)0 a conseiiHUH of judicial opinion that, under this sult-
srotion this hecanie — so far j's still extant in the ditt'erent
provinces — a l)ody of Dominion law. But how about the
j^reat hody of pi'ovincial statutory "criminal" law — as it
would then he properly terme<l — in force in the ditt'erent
provinces at Confedeivition ? Upon tliis question there is
no ex})ressi()n of judiciul opinion, so far as we have Ikh-u
ul»le to find, and yet it seems to us clear that section 1 2!) of
the Yi. X A. Act (see poi^f), makes a definite division of
that whole hody of existing' "ci'iminal" law, and that,
without <loul)t, whatever t'uactments prior to Confederation
could now, were they non-existent, he passed hy a pro-
vincial le^islatui'e nnist, since the Union, hi' deemed to he
a body of " pi-()\incial ' law, and the ])roci'dure for their
enfoi'cement must he reuulattMl hv i)rovincial statutes
a]);)licahle, generally, to prosecutions under ])ost-('i>n-
federation provincial Acts. We may say, also, that much
nuiy he advanced in favor of the view that even the com-
mon law of England upon this subject — so far as still
extant in Cana(hi — is capable of division alont^;' a similai'
line (/•), but judicial opinion is, as we have said, in favor of
the view that this is by the B. N. A. Act assigned in its
entirety to the parliament '/f Canada. We now proceed to
examine the cases which have involve<l consideration of
this sub-section, first, however, remarkinti;' that the notes
to sub-section 15 of section 92 should be read in connection
with what is here laid down, for nearly every case has
involved a comparison between that sub-section and this.
In Reg. V. Boardman (1), Chief Justice Richards,
delivering the judgment of tlie court, refers to a passage
from the judgment of Martin, B., in Attorney-Genei'al \-.
Radlofi' (/>«), in which that judge, speaking of " the intrin-
(k) See per Osier, J. A., in l\et>. v. Wason, 17 O. A. R. 221. at p. 241.
(I) 30 U. C. Q. B. o53.
{Ill) 10 Exch. ilfi.
THE B. N. A. ACT — SEC. 1>1. S.-S. 27. 411
sic und oHsential nntiire of the act itself" — smui-ulinu' —
HjiyH " tluit it cannot be deiKtminated a ' crinic ' according
to the ordinaiy and common usaj>e of lan^'ua^.je, and the
understanding of mankind." Chief Justice Richards says:
" I refer to tliis hinguage . . .as indicating the popular
idea of criminal law, in which view it may have been used in the
statute."
hut, without eidar,i;'ing further U|)on this snu'oestion, lie
held that, at all events, whatever comes [)ro|)erly within
suh-section 1.5 of section i)'2 nnist he excludi'(l fi-om the
" ci'iininal law" contidetl to the ))arliament of C'anada hy
this suh-section 27. A clause in the Li(|Uor License Act of
Ontario directed against any })erson who, havini;' violated
the Act, should com})romise the offence, and ayainst any ])er-
son who should he a l>arty to such compromise, was u})helil.
But in Reyina V. Lawrence {u) it was held that a provision
of the same Act, that any jjcrson who, in a prosecution
umler the Act, tampers with a witness, should lie guilty of
an offence under the Act, and liahle to a penalty, and regu-
lating the mode of enforcing such penalty, was (Ufr<i r//y'.s
of a provincial legislature, because the ofiences dealt with
are offences af comriKHt Itiw. Harrison, C.J., says:
" There are many acts, not being crimes, which are triable
before, and punishable by, magistrates, which, although called
oftences, are not crimes, and which by the proper legislative
authority may be made the subject of summary magisterial
jurisdiction, either with or without appeal, but these are not to
be mistaken for asts in themselves crimes, and the subject of
indictment, and of conviction under indictment, either at the
common law or by statute. Such acts as these may by the pro-
vincial legislature be madfe the subject of punishment by fine,
penalty or imprisonment, when this is done for the purpose of
enforcing any law of the province made in relation to any matter
coming within any of the classes of subjects exclusively assigned
to the provincial legislatures. . . . The constitutionality
of this clause is called in question because it is affirmed that the
(«) 43 U. C. Q. B. 164, affirminr; judgment of Gwynne, J.
412 I'HK 1». X. A. A(T — SKC. !)1. S.-S. 27.
iK'ts with which it <loals are, and each of them is, the siihject of
an indictment l)y the criminal (nic i hiw, and so not the Huhjcct
of tlie exerflise of power hy the provincial le<,'islatnre. If this
contention he well founde I i)i fact wo are of opinion that it ia
a j,'Ood contention in law."
rpoii a review of the authorities it was lield that the
oti'enei' le^'islatiMl a^^'ainst hy the Act in (luestion, was an
offence which mi<;ht Ic' thi^ suhji'ct of an indictment at
eonunon law, and was tiierefore beyond the powei' of a
pr()vincial le;>islatnre. Retina v. Boardman, and He^ina
\'. Lawrence are hard to reconcile. The former can he
upheld only on the view that the compounding of a misde-
meanor is not an offence Ity tlie connnon law, and can,
tiierefore, for the pu)'pose of securing- proper enforcement
of a provincial law, be made punishable by provincial
leufislation.
To the like effect, in Retina v. Shaw (o) it was held by
the Court of Queen's Bench in Manitoba, that keepini;' a
<4aniblin<j;-house is an offence against the connnon law, and
that conse(|uently it can only be dealt with by the pailia-
nu'ut of Canada, jvnd cannot l)e madi; an offence l»y a
provincial Municipal Act or l)y a by-law passed undei' the
Muthority of such Act. Mr. Justice Kilhim says:
" It was an olfenoe at common law to keep a gambling
house. This offence, it appears to me, comes within the snbject
of criminal law referrol to in section Ul, sub-section 27 of the
1). N. A. Act. That term mist, in my opinion, include crei-ij
net (If amission ir/iii li irtis iriianli-)! as criiiiiuid Inj tin' loirs of thi'
in-orinccs when the Vninn Art was //kssciI, and which was not
merely an offence against a by-law of a local authority. If
this were not to be the rule of construction, more diflficnlty
than ever would arise in drawing the line between the jurisdic-
tion of the Dominion and the provincial legislatures. This
gives us one clear line of demarcation which it would be
dangerous to obliterate. I think it must be deemed to be one
line which was intended to exist. How far parliament can ex-
(.») 7 Man. L. R, 518.
TIIK H. \. A. ACT— SMC. !»1, S.-S. -27. 41 M
elude provincial or municipal lt'<,'i«lation hy crealinj,' new crinies
is a (luo.stion.
" This bein^' tho view which I tal<(', I think that the act of
keeping a C()nnn(>n j,'aniin,f,' house cannot he niiitle an oU'enee l)y
provincial statute ov l)y niiniicipal hy law, hut that it can ije
punished only as an ott'ence a<i;ainst the ;jrt'Ht'ial criminal law
by indictment or such other procedure as the parliament of
('ana<la may provide."
It will Ik' noticed that the huimni'-t' of this iudunicnt
jH'oes heyond what was neeesHai'X' to the deeisi(»ii oj" the
case, and the |)art itaHeis«'(l conflicts with see. 12!> of the
IJ. X. A. Act. See ante, p. 41(). On a]»]»eal, howevrr, to
the full Court, Taylor, C'.-i., intimates his entirt" e(»n-
curi'ence with the view exj)i-esMe(l hy Killam, .1. He
sjx'aks of the ort'ence as one which niiyht have heen
<lealt with under the Dominion statute li. S. C c. loS.
Ueferi'iujn' to Re<;ina v. Wason { f>\ Itefoj-e the Court of
Appeal for Ontai'io, he points out that the oli'eneo created
hy the provincial Act there im])u<4ned formed no i)ai't of
the criminal law })revi()usly existing, and that the ap[)arent
object of the Act whs to protect private rights i-ather than
inmisli ])ul)lic wrongs. Mr. Justice Bain, referi-ing to the
same case, says :
" The remarks of all the judges clearly imply that had the
Act in (juestion been one that was punishable as a crime under
the general criminal law of the Dominion, the nuitter would have
been ultni rirt'soi the legislature."
Mr. Justice Duhnc did not dissent from the judgment of
the court, lait expressed his d<ml»ts in these woi'ds :
"It is objected that keeping a gambling house is a criminal
olience over which the Dominion parliament has exclusive juris-
diction. It is, undoubtedly, a criminal offence ; but I am in-
clined to think that such houses might also be regarded as
centres of disorder and immorality in the community, which
municipal corporations have a right and even a duty to suppress."
We might remark, in reference to this case, that the
(p) 17 O. A. R. 221.
414 THK B. N. A. ACT — SEC. 91, S.-S. 27.
ultiiiiiiU' (li'fiHion of tliu point rained by Mr. Justico Duidic
will (K'pond Hoiiiewlmt upon the scopo {.(ivon to section 92,
Huh-section «S — " municipal institution.s in the province."
If the view.s expreHsed l»y the Court of Appt^al for Ontario
in lie Local Option Act (7), receive final sanction, and the
term " municipal iiiHtitutions " he held to cover, in the
newly ac(|uire(l provinces, what the Court of Appeal has
held it to cover in tlu> province of Ontario, then the view
to which Mr. Justice Duhuc inclined would he supported
l»y tln' fact that prior to Confederation, the power t(t i)ut
down such estahlishments was vested in nnniicipal boilies,
in Cp])ei' (^mada at least. If, howevej", the ])owers of a
mujiicii)al hody cannot, so farastho.se powers are conferred
by a provincial legislature, extend heyon<l the limits of tlie
powers directly exerciseahle hy such lej^islature (/•) under
the other sub-sections of section 02, it will have to be con-
sidere<l whether any sub-section does support the <j;Tant to a
nuuiicipal body of wiiat liave been called police powei-s.
This nnist ])e discus.sed later, but, in either view, the. point
raised by Mr. Justice Dubuc would necessitate consideration
of what was said by the Privy Council in Russell v. Reg.,
that, in one aspect, a subject niay fall within section 1)1,
and, in another, within section J)2, and of how far that prin-
ciple can apply to the determination of tlie scope of this
sub-section 27 and sub-section 15 of section 02.
Provincial statutes regulating the killing and possession
of game at certain seasons of the year, were held by the
Court of Queen's Bench in ManitoV»a, not to fall within this
sub-section (.s-). At common law, no prohibition whatever
exists in regard to the taking of game at any season of the
year ; no public general statute of the Dominion purports
('/) 18 O. A. B. 572 ; see notes to s. 91, s-s. 2, ante. p. iiOU and to s. 92,
s-8. 8, post.
(r) See Leprohon v. Ottawa, 2 O. A. R. 522, referred to in the notes to
8-8. 8 of 8. 92, post.
(s) Reg. V. Robertson, 3 Man. L. R. 013; see also notes to s-s. 16 of
8. 92, post.
THE n. N. A. ACT — SFX'. S»l, H.-S. 27. 415
to Miako ciiininal interference with wild iiniiiialH ; and
therefore the matter i.s under the B. N. A. Act, left to bo
dealt with Ity each province as a matter of a merely local
or pi'ivate nature. TIuh view is HUj;'^eHte<l hy the Jud<j^ment
of the c<»urt in that case: that, if by reason of inter-pro-
vincial mi}.,^ration of birds and other nanic, the subject should
liecome one of the Dominion or (piasi-national importance,
it would then be in order for the Dominion government, if
deemed advisable, to enact laws, makiuj^' acts, which mi/^ht
tend to the extermination or undue decrease of game,
criminal.
That provincial legislatures have exclusive authority to
regulate the procedure in prosecutions for offences against
provincial statutes is now recognized as the law in all the
provinces.
In Regina v. Koddy (f), it was held that a provincial
statute could so far create a crime as to make applicable to
the prosecution therefor the rules of evidence, procedure,
etc., laid down by Dominion legislation, to the exclusion of
any provincial law: but this decision has been clearly over-
ruled by Rogina v. Wason {(i\ This case will be found
referred to more at length in the notes to sub-section 15 of
section 92. It is a clear authority that the provincial legis-
latures have full power to regulate procedure in all prose-
cutions arising under provincial Acts. As will be seen, the
authorities in the <;ther provinces are to the same effect.
On the other hand, in Regina v. Lake (v), it was held
that a provincial legislature has no power to enact that an
offence against a Dominion Act (in that case the Canada
Temperance Act), may be treated as, and be proceeded upon,
under a provincial statute ; and in Regina v. Eli (w), also a
prosecution under the Canada Temperance Act, it was held
(t) 41 U. C. Q. B. 291 ; see Reg. v. Bittle, 21 O. R. 60.5.
(u) 17 O.A. R. 221.
(r) 43 U. C. Q. B. 515.
(w) 13 O. A. R. 526.
416 THE H. N. A. ACT — SEC. 91, S.-S. 27.
that all procedure connected with the infliction of punish-
ment f(»r ott'ences against that Act must be fixed l)y tlie
Dominion parliament, and that no appeal lay to the Court
of A})peal undei" the procedure as to appeals laid down hy
})rovincial statutes. To the same eft'ect are many dicta of
judues in the other provinces in cases involving the other
as]»ect of this (piestion of procedure. The latest enuncia-
tiow of the rule is in The Queen v. ])t' Coste (.v), in which the
Supreme Coui't of Nova Scotia held that a provincial k'gis-
latui'e has no power to authorize the removal by cvrt'iorn ri
of a conviction under the Canada Temperance Act. This
agrees with the decision in all the provinces.
We should note, also, that in Ward v. Reid (//), it was
held by the Supreme Court of New Brunswick, that the
Dominion Act, ^^2 t.^ 88 Vic. c. 81, s. 7(S, M'hich provided
that penalties against justices of the peace for the non-
return of C(mvictions, mav be recovered in an action of
debt l)y any pei-son suing for the same m any court of
record, was within the competence of the Dominion parlia-
ment, and that a provincial enactment declaring that
county courts should not have Jurisdiction in such cases,
was thereby overborne. It is submitted that the Dominion
Act can only be held to apply to convictions for offences
under Dominion legislation, and can have no application to
cinivictions for offences against provincial laws.
Although we defer consideration of the excepted matt«n'
of the constitution of courts of criminal jurisdiction, we
should here u) *ke reference to some cases in which ques-
tion has arisen as to the nature of the legislation impugned,
whether relative to the " constitution' of the court or to
procedure.
In Regina v. Bradshaw {z), it was held that trial with
or without jury is a question of procedure, and is not
(r) 21 N. S. R. 21(5.
((/) 22 N. B. Rep. 271) ; a Cart. 405.
i^) as U. C. Q. B. hU.
THE B. N, A. ACT — SEC. 91, S.-S. 27. 417
a matter relating to the " organization " of courts. The
validity of Dominion legislation adopting, for purposes of
criminal trials, provincial law in reference to the selection
of juroi-s was upheld in Reg. v. O'Rourke (a), a case suffi-
ciently referred to in Reg. v. Plante, about to be noted.
In reference to the provision in the Dominion Criminal
Procedure Act (see R. S. C, c. 174, s. 160), adopting the
provincial jury law, this saving clause is inserted : " sub-
ject always to any provision in any Act of the parliament
of Canada, and in so far as such laws are not inconsistent
with any such Act." Section 166 of the same statute
makes provision for a mixed jury, when duly demanded in
the province of Quebec, and section 167 makes a somewhat
similar provision for the province of Manitoba. In the
latter province, prior to 1890, the jury laws were adapted
and conformed to the requirements of the Criminal Pro-
cedure Act. There were provisions for the selecting, sum-
moning and impanelling of French-speaking jurors in case
a mixed jury was required, but in 1890 these provisions
were repealed. In Queen v. Plante {h), the defendant
demanded a mixed jury, or a jury composed of at least six
persons skilled in the language of the defence, as pre-
scribed for in section 167 of the Criminal Procedure Act,
but such a jury could not be obtained. Upon a case
reserved, the majority of the court gave judgment, (juash-
ing the case, upon the ground that, as judgment had been
given on demurrer at the trial upon the point raised, it had
become matter of record and could not therefore be
leserved, a writ of error being the only remedy. Mr.
Justice Dubuc dissented from this view, and therefore
found it necessary to consider the constitutional (juestion
involved. After referring to Regina v. O'Rourke and the
views of Wilson, C.J., and Hagarty, C.J., therein expressed,
his judi ment proceeds :
(a) 1 ). R. 4G5 ; 32 U. C. C. P. 388 ; see note (h) ante, p. 202.
(h) 7 Jan. L. R. 537.
Can. Con.— 27
418 THE B. X. A. ACT — SEC. 91, S.-S. 28, 29.
" I perfectly agree with those views. I think that the jury,
when empanelled and sworn, became part of the constitution of
the court ; but, at the same time, I am of opinion that the
selecting and summoning of jurors are matters of criminal
procedure over which the Dominion parliament has exclusive
jurisdiction. It being so, section 169 of the Criminal Procedure
Act, by which the power to select and summon jurors is
delegated to the province, must be held to bo intra vires. As,
therefore, the provinces exorcise the power of selecting and
summoning jurors only by delegation of the Dominion parlia-
ment, and as, by section 160, the delegation is made * subject
always to any provision in any Act of the parliament of Canada,
and in so far as such laws are not inconsistent with any such
Act,' it follows that section 167 of the Criminal Procedure Act,
by which, in Manitoba, that power, delegated to the province,
of selecting and summoning jurors is qualified in providing for
a mixed jury when duly demanded, is also intra vires.
•* The authority to delegate implies the authority to qualify
and restrict the power delegated. By section 160, in delegating
to the provinces the power of selecting and summoning jurors,
the parliament of Canada reserved to itself the right to make
provisions in regard to the same. . . . The parliament of
Canada, by said section 167, has prescribed and determined
what kind of jury shall, in certain cases, be required for criminal
assize. It follows that any jury summoned to serve at a
criminal assize, and different in its composition from the jury
required by the provisions of section 167, may be, by any
prisoner entitled to the benefit of such provisions, challenged as
not properly and duly summoned " Ic).
28. The Establishment, Maintenance,
and Management of Penitentiaries.
29. Such classes of subjects as are
expressly excepted in the enumeration of
the classes of subjects by this Act as-
signed exclusively to the Legislatures of
the Provinces.
(c) See also Reg. v. Foley, 2 Cart. 653 (n).
THE B. N. A. ACT — SEC. 91, S.-S. 29. 419
Referring to the various sub-sections of Section 92, the
only express exceptions are those mentioned in sub-sections
1 and 10. With reference to the latter we need say noth-
ing here, as the notes to that sub-section discuss the matter
with sufficient fullness. As to the former, it is submitted
that this sub-section 29 does not apply to warrant the
Dominion parliament in amending the provincial constitu-
tions " as regards the office of Lieutenant-Governor." Any
such legislation would be repugnant to the spirit, if not the
express terms, of the B. N. A. Act. The office of the Lieu-
tenant-Governor is, as we have frequently remarked, a
link in the chain of connection between the provinces and
the Empire, and the whole spirit of the B. N. A. Act is that
this is one of those fundamental matters in connection with
the scheme of Canadian political organization, which is
matter of Imperial concern. This is recognized in that
passage of the judgment of the Privy Council in Liquida-
tors of Maritime Bank v. Beceiver-General of New Bruns-
wick (d), in which their Lordships say that the Dominion
government is, in relation to a Lieutenant-Governor, "a
governing body, who have no powers and no functions
except as representatives of the Crown."
And any matter coming within any of
the classes of subjects enumerated in this
section shall not be deemed to come
within the class of matters of a local or
private nature comprised in the enumera-
tion of the classes of subjects by this Act
assigned exclusively to the Legislatures
of the Provinces.
As to the wide effect given to this concluding clause in
the earlier decisions in our courts, see chapter X., (intc, p.
207. Its reference to sub-section 16 of section 92 is now
clearly settled by authority. In L'Union St. Jacques v.
id) Times L. R. Vol. VIII. 677 ; see ante, p. 307.
420 THE B. N. A. ACT — SEC. 92, S.-S. 1.
Belisle (e\ Lord Selborne lays it down that the onus is on
the party who contends that any matter, " being of a private
nature," does also come within the clays of subjects specially
enumerated in the 91st section. Note, too, the way in
wliich the reporter (piotes this clause, putting " matters of
a local or private nature "' in inverted commas as a (juota-
tion from section 92, sub-section 16. See also Dow w
Black (/), and Citizens v. Parsons {(j) where the grammat-
ical connection with sub-section 10 of section 92 is clearly
pointed out. In note (xi) to section 91, (i7}te, p. 352, we
have pointed out the bearing of this clause on the (]uestion
as to the power of the Dominion parliament to pass
"private Acts," and the n(jt's to sub-section 10 of section
92 contain further reference to it.
Exclusive Powers of Provincial Legis-
latures.
fxdSe'pro- 92. In each Province the Legislature
En'^^^'^' may exclusively make laws in relation to
matters coming within the classes of sub-
jects next hereinafter enumerated, that
is to say :—
As to the powei-s, other than legislative, and the privi-
leges and innnunities of provincial legislatu es, see the
notes to section 09, (infe, p. 820. The notes to the openhig
clause of section 91 should be read preparatory to the con-
sideration of the various sub-sections of this section 92.
1. The Amendment from time to time,
notwithstanding anything in this Act, of
the Constitution of the Province, except
as regards the office of Lieutenant-Gov-
ernor.
(e) L. R. (iP. C. 31. (/) L. R. (5 P. C. 272, at p. 282.
(O) 7 App. Crts. 9(i, at p. 108.
THE B. N, A. ACT — SEC. 92, S.-S. 1. 421
When, in the early 'fifties, it was considered desirable to
make the Legislative Council of (Old) Canada elective, it
was thought that nothing short of Imperial legislation
could effect the change ; that any colonial legislation to that
end would be " repugnant " to the provisions of the Union
Act, 1(S40, which prescriljed the form of political organiza-
tion in the province. Accordingly, an Imperial Act (17 &
1(S Vic. c. ILS) was passed (h) authorizing the parliament of
Canada to make the desired change. The Act authorized
further alteration, from time to time, but with the proviso
that any Bill for such purpose shouM be reserved for the
signification of Her Majesty's pleasure thei'eon ; and it also
repealed certain clauses of the Union Act limiting the
power of the Canadian parliament in the matter of making
alteraticai in the mend)ership of the Legislative Assembly
of the Province.
When, in the early 'sixties, the legislature of South
Australia desired to alter the constitution of the Lejiislative
Council and House of Assend)ly of that colony. Imperial
intervention was not sought. Doubts were, in consecpience,
raised as to the validity of the colonial Acts by which the
<lesired change had been enacted, and, to set at rest these
doubts, 26 k 27 Vic. c. (S4 (Imp.) was passed, by which it
was enacted :
" All laws heretofore passed or purporting to have been passed
by any colonial legislature with the object of declaring or alter-
ing the constitution of such legislature, or of any branch thereof,
or the mode of appointing or electing the members of the same,
shall have, and be deemed to have had, from the date at which
the same shall have received the assent of Her Majesty, or of the
Governor of the colony on behalf of Her Majesty, the same force
and effect for all purposes whatever as if the said legislature had
possessed full powers of enacting laws for the objects aforesaid,
and as if all formalities and conditions by Act of parliament or
otherwise prescribed in respect of the passing of such laws had
been duly observed."
[h) See it printed in full in Houston'a " Const. Doc. of Can." at p. 177.
422 THE B. N. A. ACT — SEC. 92, S.-S. 1.
but thi.s Act though applicable to all the colonies of the
Empire was retrospective, merely, in its operation.
In the next year, however, was passed the Colonial Laws
Validity Act, 18(55, to many of the provisions of which we
have already ivferred. The Act is one of such importance,
that, although we have ([uoted nearly every section of it in
various parts of this book, we have given it a place in the
appendix, in order that it may be studied in its entirety.
Upon our present subject, the important clause is the oth.
enacting that —
" Every representative legislature shall, in respect to the
colony under its jurisdiction, have, and be deemed at ull times
to have had, full power to make laws respecting the viDistitntiim.
{Kjirrrs, find //rotw/uyv of such legislature ; provided that such laws
shall have been passed in such manner and form as may from
time to time be required by any Act of parliament, letters patent.
order in council, or colonial law for the time being in force in the
colony."
Such was the position of affairs at the time the B. X. A.
Act, 1<S()7, was passed. What is the effect of this latei-
Imperial Act, in respect of the applicability, to the legisla-
tive bodies now existiny', under it, in Canada, of this clause
of the Colonial Laws Validity Act, l!S()o. We have already
discussed this (juestion, to a slight extent, in reference to
the power of the Dominion parliament — see (ii)f<', p. 2.SU —
and have pointed out that under the words "to make laws
respecting the constitution " no ])()wer is conferred l)y the
clause upon any colonial legislative body to enlarge the
sphere of its legislative authority. ^1 fot'tiori, the fact that
by the B. N. A. Act, the field for the exercise, in Canada, of
colonial legisbitive power is exhaustively divided, into di\i-
sions exclusive each of the other, clearly' prevents any such
enlargement, l)y any one of <au' legislatures, of the sphei'e of
its authority. The W(n'd "constitution," therefore, nnist be
limited to the defining liow, within its allotted spl^^re, the
work of government, legislative and executive, is to be
carried on— what is to be the machinery of government.
THE H. \. A. ACT — SEC. 92, S.-S. ], 423
Of "powei-s" and "procedure" we have already said (/) that,
as to the Dominion parliament and provincial legislatures,
tliis clause of the C<»lonial Laws Validity Act, 1 iS(J5, is still in
f( »rce to enal »le them (save where, as hy section 1 (S, tlie B. N. A.
Act expressly limits its force) to define their powei-s, other
tiian legislative, and to regulate their procedure.
It has at length heen authoritatively enunciated hy the
highest tribunal in the Empire that the form of political
organization in Canada is truly federal; that the B. X. A.
Act had for its ohject "neither to weld tlie provinces into
one, nor to suhoi-dinate provincial governments to a central
authority, hut to create a federal jiovernment in which they
shoidd all be represented, intrusted with the exch.si\e ad-
ministration of afi'airs in which thev had a connnon interest,
each province irfninivrj its independence and autonomy."
The word "federal" can have signilicance only as between
the parties to the federal union, and in no way can it have
any bearing upon our relations to the government of the
Ignited Kingdom, although the agreement entered into by
the provinces recjuired, for its legal validity, to be clothed
in the garb of an Imperial Act. While, however, the "con-
stitution" of the fedei'al government was thus matter of
agreenufjit between the ])rovinces, and while the B. X. A.
Act confers no general power (j) u^wn the parliament of
Canada to make alteration therein, no limitation would
have been proper in regard to the " constitutions ' of the
pi'(»vincial governments — no restriction upon the manner in
which the Avork of fjovernment shoidd be carried on in rela-
tion to tho.se matters in respect of which they retained their
"independence and autonomy" — other than in regard to the
position of the executive head, designed to be the connect-
ing link, binding the provinces, through the Dominion
executive, to the home govei'ument and the Empire. Apart
from this new feature, the provincial " constitutions ' were
(/'I Bee notes to ss. ;<") and til), (uite.
( j) Spacial power is t^iven, for obvious reasons, in relation to elections,
etc. See s. 40, et seq. . /
424 THE B. N. A. ACT — SEC. 92, S.-S. 2.
to continue as before the Union — employed, of course, upon
a small range of matters — and no withdrawal of the powei-s
which had been conferred by the Colonial Laws Validity
Act was contemplated. By way of abundant caution, how-
ever, it was deemed advisable to enact that " notwithstand-
ing anything in tliis Act" the provincial legislatures should
have still the power to amend the provincial constitutions,
save, for the reasons above indicated, "as regards the office
of Lieutenant-Governor."
We have, from time to time, in the notes to the various
sections relating to the provinces and their form of govern-
ment, pointed out alterations and amendments which have
been made under the authority of this sub-section. Under
it IManitoba has aboli.shed her second chamber, and there are
signs of a dispositic^i on the part of some of the other pro-
vinces to follow suit to this lead on the part of our youngest
pi'ovince. 'fhere is no limit, howevei", to the extent to
nvhicli the "amendment" may pi'oceed, save in so far as it
may be restrained l)y the exercise of the power of disallow-
ance. No particular form of provincial government is
"guaranteed" by our charter of government — beyond this,
that it.s executive head nmst be the Queen, represented in
each province by a Lieutenant-Governor, appointed ))y the
federal executive, and through this representative she is
entitled to share in all provincial legislation.
An Act of the Ontario legislature conferring upon the
Lieutenant-Governor power to remit, by order in council,
any tine or penalty, to which any person might have become
liable through breach of any provincial law, was held (/.•)
not to oftend against the exception — not being an amend-
ment of the constitution "as regards the office of Lieutenant-
Qovernor.
2. Direct Taxation within the Pro-
vince in order to the raising of a Revenue
for Provincial purposes.
{k) Atty.-Genl. for Canadi v. Atty.-Genl. (Ont.), 20 O. R. 222 ; 19
0. A. R. 31. See notes to s. 58, aiite, p. 305.
THE B. N. A ACT — SEC. 92, S.-S. i, 3. 425
3. The borrowing of money on the
sole credit of the Province.
As to the other source of provincial revenue, see suh-
Hections 5, 9 and 15 of this section 92, and section 102 cf se(f.,
and notes thereto. See also notes to sub-sections 8 and
4 of section 91, ante, p. 370.
The operation of the power conveyed by sub-section 2
is limited — "in order to the raising" of a revenue for pro-
vincial purposes" — but, in Dow v. Black (^), it was held
that this sub-section authorizes the imposition of " direct
taxation for a local purpose upon a particular localit}'
within the province," and is not to be limited to direct
taxation, " only for the purpose of raising revenue for
general provincial purposes, that is, taxation incident on
the whfde province for the genei'al purposes of the whole
province." In that case the tax necessary to pay a local
}>()!) UK was directly imposed by the Act imi)vigned, but,
bearing in mind the principle of Hodge v. The Queen, as to
the delegation of power (see <nif(', p. 202), the decision in
Dow V. Black is sufficient warrant for the whole system of
nuuiicipal taxation now operative throughout Canada.
Had the construction contended for prevailed, the taxing-
powers of a municipality would have been cut down to
license fees under sub-section 9 ; and direct subsidies from
the provincial governments must have been resorted to {in),
if indeed that method could have been upheld as being for
the general benefit and purposes of the whole province.
What is direct taxation ? This question lias been under
consideration l)y the Judicial Committee of the Privy
Council in several cases, the last being Bank of Toronto v.
Land)e (/?), in which it was held that a tax imposed upon
(/) L. R. G P. C. 272.
(m) See, however, Lynch v. Canada N. W. Land Co.. 19 S. C. R. 204,
in which Chief Justice Ritchie speaks of the power of taxation as being
•essential to " municipal institutions." See the notes to s. 92, s-s. 8,
{ii) 12 App. Caa. 575.
426 THE M. \. A. ACT — SEC. 92, S -S. 2,3.
banks which carry on luiHiness within the province, vary-
ing in amount witli the paid-up capital, and with the nuin-
l»er of its (tffice.s, is direct taxation.
"First, is the tax a direct tax? For the argument of this
(juestion, the opinions of a great many writers on poHtieal
economy have batn cited lint it must iiot bo for-
gotten that the question is a legal one, namely, what tlie words
mean as used in this statute ; whereas the economists are always
seeking to tra?*' the effects of taxation throughout the com-
munity, and are apt to use the words ' direct ' and ' indirect '
according as they find tlie burden of a tax abides more or less
with the person who fii'st pays it. This distinction is illustrated
very clearly by the quotations from a very ahle and clear thinkt-r,
the late Mr. Fawcett, who after giving his tests of direct aiul
indirect taxation, makes remarks to the effect that a tax may be
made direct or indirect by the position of the tax-payers or by
private bargains about its payment. Doubtless such remarks
have their value in an economical discussion. Probably it is wue
of every indirect tax that some persons are both the first ;ind
the final payers of it ; and of every direct tax that it ali'ects
persons other than the first payers; and the excellence of an
economist's definition will be measui'cd by the accuracy with
which it contemplatfs and embraces every incidert of the thing
defined. But that very excellence impairs its value for the pur-
poses of the lawyer. The legislature cannot possibly have meant
to give a power of taxation valid or invalid according to its
actual results in particular cases. It must have contemplated
some tangible dividing line referable to and ascertainable by the
general tendencies of the tax and the common undei'standing of
men as to those tendencies.
"After some consideration, Mr. Kerr chose tlie definition of
John Stuart Mill as the one he would prefer to abide by. The
definition is as follows :
" ' Taxes are either direct or indirect. A direct tax is one
which is demanded from the very persons who it is intended or
desired should pay it. Indirect taxes are those which are de-
manded from one person in the expectation and intention that
he shall indemnify himself at the expense of another. Such are
the excise or customs. The producer or importer of a commod-
THE R \. A. ACT — SEC. 92, S.-S. 2, H. 427
ity is called upon to pay a tax on it, not with tlio intention to
levy a contribution upon hiui, but to tax through hiui the con-
sumers of the commodity, from whom it is supposed he will
recover the amount by means of an advance in price.'
" It is said that Mill adds a term, that, to be strictly direct, a
tax must be f,'eneral, and this condition was nmch pressed at the
bar. . Their Lordships have not thought it necessary to exaniiiic
Mill's works for the purpose of ascertaining precisely what \\v.
does say on this point, nor would they presume to say whether,
for economical purposes, such a condition is sound or unsound,
but they have no hesitation in rejecting it for legal purposes.
It would deny the character of a direct tax to the income tax of
this country, which is always si)oken of as such, and is generally
looked upon as a direct tax of the most obvious kind ; and it
would run counter to the common understanding of men on this
subject, which is one main clue to the meaning of the legisla-
ture.
" Their Lordships, then, take Mill's definition, above quoted,
as a fair basis for testing the character of the tax in question,
not only because it is chosen by the appellants' counsel, nor
only because it is that of an eminent writ^^r, nor witli the inten-
tion that it should be considered a binding legal definition, but
because it seems to them to embody with sufficient accuracy for
this purpose an understanding of the most obvious iiitlicid of
direct and indirect taxation, whicJi is a common understanding,
and is likely to have been present to the minds of those who
passed the Federation Act.
" Now, whether the probabilities of the case or the frame of
the Quebec Act are considered, it appears to theii- Lordships that
the Quebec Legislature must have intended and dusiied that tiie
very corporations from whom the tax is demanded should pay
and finally bear it. It is carefully designed for that purpose.
It is not like a customs' duty, which enters at once into the price
of the taxed commodity. There the tax is demanded of the
importer, while nobody expects or intends that he shall finally
bear it. All scientific economists teach that it is paid, and
scientific financiers intend that it shall be paid, by the consumer ;
and even those who do not accept the conclusions of the econom-
ists maintain that it is paid and intended to bo paid by the
428 THE H. N. A. ACT — HEC. 92, S.-S. 2, 3.
foreign producer. Nobody thinks that it is, or intends that it
shall he, paid by the importer from wiiom it is demanded. . But
the tax now in question is demanded directly of the bank, appar-
ently for the reasonable purpo^^e of getting contributions for
provincial purposes from those who are making profits by pro-
vincial business. It is not a tax on any commodity which the
bank deals in and can sell ut an enhanced price to its customers.
It is not a tax on its profits, nor on its several transactions. It
is a direct lump sum to be assessed by simple reference to its
paid-up capital and its places of business. It may possibly
happen that in the intricacies of mercantile dealings the bank
may find a way to recoup itself out of the pockets of its Quebec
customers. Hut the way must be an obscure and circuitous
one. The amount of recoupment cannot bear any direct relat.on
to tho amount of tax paid, and, if the bank does manage it, the
result will not improbably disappoint the intention and desire of
the (iJuebt'O government. For theso reasons, their Ijordsbips
liold the tax to be ' direct taxation.' "
With this (Inscription of <lii'ect taxation nuiy l»e com-
pared that givun by the same Committee in Attorney-
(leneral (Quebec) v. Reed (o), where Mill's definition was
also relied on in support of the holding that a stamp duty
on "exhibits," filed in the course of judicial proceedings, is
not " direct " taxation, and that the Act imposing such a
<luty was therefore ultra vires of the Quebec legislature :
" Can it be said that a tax of this nature, a stamp duty in
the nature of a foe payable upon a step of a proceeding in the
administration of justice, is one which is demanded from the
very persons who it is intended or desired should pay it ? It
must be paid in the course of the legal proceeding, whether that
is of a friendly or of a litigious nature. It must, unless in the
case of the If^st and final proceeding after judgment, be paid
when the ultimate termination of those proceedings is uncertain ;
and from the very nature of such proceedings until they termi-
nate, as a rule, and speaking generally, the ultimate incidence of
such a payment cannot be ascertained. In many proceedings of
a friendly character, the person who pays it may be a trustee, an
(") 10 App. Chs. 141.
THE B. X. A. ACT — SEC. 91, S.-S. 2, 8. 429
adminiatrator, a person who will have to be indemnified by some-
body else afterwards. In most proceedings of a contentious
character, the person who pays it is a litigant, expecting or
hoping for success in the suit, and whether he or his adversary
will have to pay it in the end must depend on the ultimate
termination of the controversy between them. The legislature
in imposing the tax cannot have in contemplation, one way or
the other, the ultimate determination of the suit, or the final
incidence of the burden, whether upon the person who had to
pay it at the moment when it was exigible, or upon anyone else.
Therefore it cannot be a tax demanded ' from the very persons
who it is intended or desired should pay it '; for, in truth, that is
a matter of absolute indiU'erenco to the intention of the legisla-
ture. And, on the other hand, so far as relates to the knowledge
which it is possible to have in a general way of the position of
things at such a moment of time, it may be assumed that the
person who pays it is in the expectation and intention that he
may be indemnified; and the law wh'ch exacts it cannot assume
that that expectation and intention may not be realized. As in
all other cases of indirect taxation, in particular instances, by
particular bargains and arrangements of individuals, that, which
is the generally presumable incidence may be altered. An im-
porter may Le himself a consumer. Where a stamp duty upon
transactions of purchase and sale is payable, there may be
special arrangements between the parties determining who shall
bear it. The question whether it is a direct or indirect tax can-
not depend upon those special events which may vary in par-
ticular cases ; but the best general rule is to look to the time of
payment ; and if at the time the ultimate incidence is uncertain,
•then, as it appears to their Lordships, it cannot, in this view,
be called direct taxation within the meaning of the second sec-
tion of the ninety-second clause of the Act in question."
The legislature of Quebec passed, in 1875, an Act (89
Vic. c. 7) providing' for the issue of licenses to insurance
companies doing business in the province. Nothing v^as to
be paid on the issue of the license, but, on the issue of any
policy by an insurance company, stamps were to be affixed
to an amount varA^ing with the amount of the premium.
This was held by the Judicial Committee of the Privy
480 THE U. N. A. ACT — SEC, 92, S.-H. 2,3.
Council ill Attoriujy-Otmonil v. The Queen IiiHurance
Company (/>), to be not a license, Imt a stamp duty on
policies. In the latter view it was held to he indirect taxa-
tion. In arrivin;^ at the nKianinj^ to be attributed U) the
wcrds "direct taxation" the Committee point out that
they may have a technical (economical or le<jfal) or popular
meaninj^. No at*^'3mpt is made to decide this (piestion,
because it was held that, by whichever key interpreted, a
stamj) duty, such as was imposed V)y the Act, was not direct
taxation.
The <l»'cisir)n of the Su[)reme Court of Canada, in Sev-
<;rn v. The Queen {(/), must upon this point be considei'e*!
ovei'rtile<l. It was held in that case that a license fee
reipiireil to be paid })y l^rewei-s, under an Act of the legis-
lative asseiidjly of Ontario, was indirect taxation; applying,
however, the considerations dwelt upon by the Privy
Council, particularly in Bank of Toronto v. Lambe (r), such
a license fee nmst be held to be direct taxation. It is
intended to be pai I by the very jjcrson on whom it is
iinposed, and if that person manages to recoup himself, it
must be by some circuitous method, the amount of recoup-
ment on each sale of beer l)earing no relation whatevtsr to
the tax iinposed. Even before Ha.nk of Toronto ' . Lambe
was decided the Judges of the Supi-eme Court seem to hav(}
lecognized that the authoi'ity of S(;vern v. The Quecni had
))een seriously impugned. Se«!, however, th(j o])servations
of (Jwynnc!, J., in Molwon v. Lambe (.s); but, so far as
aj>i)(;arH from the report of this case;, liank of Toronto v^
Lambe was not refei're*! to. Tin; holding, too, of thtj
Supreme Court that such a license fee upon brewers was a
" regulation of tra<ie and connnei'ce" cannot Ix^ su[)[)ort«;d,
t'o/' r<'aHons also set out in Hank of Toronto v. Lambe, as well
as in <!arli<;r cases to which I'cfftrence has alrt^ady becsn
mM<l(' in the notes to sub-section 2 of section 1)1.
(/>):{ A pp. Cap. 1090. (/•) 12 App. Cub. .'575.
(7) 2 '. C. 11. 70. {») ir. S. C. K. at pp. 2HB-9.
THE |{. N. A. ACT — SEC. 92. S.-S. 2,3. 481
In Loiiguouil Navigation (yo. v. Montnjal (f), an Act of
the Quebec le<(iHlature autlioriziiif^- the city of Montreal to
Jinj)ose an animal tax on ferry nnsn and ferry conj[)ani«;H,
was held to lie intra viren. See notes to .section 01, suh-
Hectiofi 10, a/nfe, p. iW-i.
Heferrinfjf to the other sources of provincial revenuis,
an<l to the various institutions which a province has to
niainbiin, the (juestion aris«!S, ai'e tlie powers of provincial
lej^islatures under those suV)-sections limited to "dir«;ct"
taxation ? In Attorney-()(;neral (Quebec) v. Reed (u),
jiViove referred to, the Judicial Connnittee of the Privy
Oouncil declined to determine " whether, if a special fund
liad been created l)y a provincial Act for the maint(inance
of the administration of Justice in the provincial courts,
raised for tliat pui'pose, and not available >is jr»ineral
reveinie for general provincial [)ur]>oses, in that cjise tln^
limitation to <lirect taxation would still luive Ixien applic-
able." The |)oint was considered ))y Mr. Justice (iwynne in
the same case when befoi'e* the Supreme Court of Canada
{v). Th<j contention was, that under sub-section 15 of
section J)2, " the constitutif>n, riw/inlevAinre atid organiza-
tion of [)rovincial courts" indir<;ct taxation might be i-e-
sorted to, an<l that, therefore.', a stamp duty on " exliibits "
might 1)<! im[>os(;d under the authority of a provincial Act.
Mr. Justice Cwynrie says:
" Tlic cxpresH provision made by item 2, which, while it
antliori/0H tlic legislatures to makf; laws in onlcu' to tlie raising
of a rovemie for provincial i)iirpost;H 5)y taxation, limits the cx-
erciso of the authority thus conferred to dii'ect taxation, very
clearly excludes, in my judgment, the power of raising a revenu(!
by any species of taxation other tlian by direct.. . . . That
the maintenance of i)rovincial courts and the administration of
justice are provincial purposes, tlic^recan l)e no doubt. Tbc-y are
therefore comprehended within the purview of it(!m 2 of section
J)2, which in express terms prescribes direct taxation as the mode
(t) Ui S. C. 11. .Wf). («) 10 App. CiiH. 141.
(r) 8 B.C. 11. 40H; at p. 4:Jl.
4S2 THE 15. N. A. ACT — KKC {)2, H.-S. 2, 8.
of taxation to be adopted for raising rcivonue for provincial pur-
poHOH, HO that upon the pTmc\])\eo{ t'.rpn's.sniii ftinin'mnetadfuin,
there can he no Huch implied power involved in thiH item 14, an
is insisted upon ; moreover, if the contention were sound, then
upon the same principle they could equally pass an Act impoHiii<,'
a special tax of an indirect character f»)r the payment of provincial
officers under a power implied under item 4 of this {)2nd section,
and another Act imposing another special tax, also of an indirect
character, to defray the expense attending the estahlishment,
maintenance, and management of public and reformatory prisons,
inider the powers conferred by item 0, and another to defray the
expense attending the establishment, maintenance, and manage-
ment of hospitals, asylums, etc., under the powers conferred by
item 7; and so the effect would be that this im-
plied power of raising n^venue by indirect taxation, which, it is
contended, the legislatures have, being exercised, as it might be
if they have the power, to raise sulKcient revenue to defray all
the expejiaes of the government and legislatures in respect of all
the several mattiirs under their control and jurisdiction, it would
be quite unnecessary for them to exercise the power conferred by
item 2, raising by direct taxation the revenue for provincial pur-
poses, or to draw upon the revenue created by the subsidy paid
by the Dominion, or by sale of the public property, or otluir in-
come arising therefrom, or from the assets asHigned to each
province. Such a contention appears to me to involve so
palpable a ii'diirtio ml (ihsurdniii , as to carry with it its own refu-
tation ; and indeed the judgment of the Privy Council in
Attorney-deneral (Quebec) v. 'Vha Queen Insurance Company,
in effect, d<!cides that the provincial legislatures cannot, by nny
Act of theirs, authorize the raising a revenue by any mode of
taxation other than direct."
That the I'riv}' (Council did not con.sidiir the (juestion
(|('t«!rniiiHMl hy uny })r(!viouH deeiwion of tli«Mi" own is
Hppaient from tlu; Inn^uuf^*! of the jud<^nK;ntof that ti'ihunal
when th(5 cane came before tlK^ni. TIk; (|U(!Htion is touched
ujjon in other Cm twidian antlioiities — for (^xanijde, in lleojtia
V. Taylor (w), where Mr-. .JuKtic*; Wilson — ai'terwardH Chief
JuHticc? Sii* Adam Wilson — sayH :
(wj 'M\ U. C. (^. B. liiH, at p. '201.
rHK 15, N. A. AC'I' — SKC;. 92, S.-S. 2, B. 4liH
" Tli(! power which is vested in Ontario to raise money hy
direct taxation exchidcH, of course, as a general rule, the right
to raise it by indirect taxation. IJut, by means of the powers,
numbers H and 9, relating to licenses and to municipal institu-
lioMS, it is plain that Ontario may, and do<;s, by virtue of these
powers, raise very large sums of money by indirect taxation,
l^ower No. 2 must be read as qualified in its absoluteness, there-
fore, by powers No. 8 and 9."
In L(!pr<>li<»n v. Ottawa (,/;), the late (Jhaneellor S[)ra_n;4«;
(!X[)roHKerl the opinion that a jirovincia! le<^iHlatur(', cannot
confer upon a muni(vipality of its own creation jjower to do
what it cannot itsidf do; and if this he sound law, tiu;
j)owerMof municipal corporations in tlu; matt'-r «)f taxation
mUHt he limited to dir(ict taxation, if th«; pow«!i".M of th(i
province are no limited.
Ah to the pow<!rH under Huh-Hection 0 of HCiction 1)2, it
may he said that thi; jud^^nnent of tlu; l*i'ivy ( Council in
liank of Toronto v. Lamh(! establishes that lic(!ns<; fiies are,
"dir(!(;t" taxation: mo that tin; controviirsy would aj)|)ear
to he limited to thos(; suh-sections of sciction 1)2 (//), which
<j;\vo. j)rovincial le^^islaturc^s powei" to pnjvide for the iintln-
h'lKi lice, of certain institutions, an<l as to t!i(!S(! it is suh-
mitti.'d, th(; same; limitations (^xist. The raisin;^' of money
to maintain theses institutions — coui'ts, pi'isons, hospitals,
(!tc. — would he foi" " j)rovincial ))ur[)ost'S," as int(!i'[)ret<'d in
Dow V. Black {z).
Followin<4' Atty.-CJenl. v. RccmI, tin; (Jourt of Qmsen's
Hetich in Muiiitolta h(dd in IMununer Wa^on (Jo. v. W'ilsou
(a), that the then existing- provincial statutes r('<juirin<4'
[)ayment of fe(!S hy means of law stamps on ])roc('<!din;4S in
that court \vei"e altni vlrrs. Thd'eupon, actiiij^' upon tlu;
distinction su^'"<^ested hy the(Jominitt('<!, the .Manitoba lenis-
(./) 2 (). A. K. .'322; ut p. .^(i.
iy) 8-B8. f», 7 and 14.
(z) L. li. « P. C. 272; hoc ante, p. 42.1.
(a) « Man. L. K. ««.■,•.
Can. Con.— 2H
434 THE B. N. A. ACT — SEC. 92. S.-S. 2, 3.
lature passed an Act creating a special fund "solely for the
maintenance of the administration of justice in the courts
of this province," to which fund the fees payable in stamps
upon legal proceedings were appropriated. This Act was
impugned, and in Dulmage v. Douglas (h), was upheld by
Mr. Justice Dubuc, but, on appeal to the full court, this
decision was reversed and the statute pronounced idtra
vires. In the opinion of the court, the only exception to
the limitation laid down in this sub-section 2 is that
expressed in sub-section 9, but as the judgment of the
Privy Council in Bank -of Toronto v. Lambe (c), in effect
holds that license fees are " direct taxation," no doubt the
Manitoba Court would agree with the view we have ven-
tured to express, that there is no exception to the rule laid
down in this sub-section 2. The Manitoba legislature sur-
mounted the difficulty by 49 Vic. c. 51, declaring law stamps
to be a direct tax, and making good this declaration by en-
acting that such fees, so payable in stamps, are not to foruj
any part of the costs of an action taxable between party
and party, but are, in fact, to be borne once for all by the
party actually paying them in the first instance. This Act
was declared intra vires by the full court in Crawford v.
Duffield {d).
We have ab-eady referred to that part of the judgment
in Bank of Toronto v. Lambe which lays it down that the
powers of taxation vested in the provincial legislatures by
this sub-section are not to be curtailed, because possibly
they may be abused or so exercised as to prejudicially affect
corporations and institutions existing under Dominion
laws (e). See also notes to section 91, sub-section 8, for a
further reference to the case of Leprohon v. Ottawa (/), in
(b) 3 Man. L. B. 562 ; 4 ih, 495.
(c) 12 App. Caa. 575.
(d) 5 Man. L. B. 121.
(e) See notes to s. 91, b-b. 15.
(/; 2 O. A. B. 522 ; see also the note to the next sub-section.
THE B. N. A. ACT — SEC. 92, S.-S. 4. 435
which it was held that provincial legislatures have no
power to tax the salaries of menibei-s of the executive statt'
of the Dominion.
With regard to the meaning of the expression, " within
the province," we may again refer to Bank of Toronto v.
Lanibe, which decides that it is not necessary tlui^ the
persons to be taxed under a provincial law be domiciled, or
even resident, in the province. It was urged in that case
that the Bank of Toronto was an Ontario corporation,
having its domicile in Toronto, and that the taxation must
therefore fall on persons not within the province of
Quebec ; but to this it was answered : — " Any person found
within the province may be legally taxed there. This
Bank is found to be carrying on business there, and on
that ground alone it is taxed."
4. The establishment and tenure of
Provincial offices and the appointment
and payment of Provincial officers.
This sub-section is the guarantee for the continuance of
"responsible government." It covers the entite executive
department of provincial government — with the sole excep-
tion of the Lieutenant-Governor, and of those judges
mentioned in section 96 of the B. N. A. Act — and ensures
tliat the people of the province, through the provincial
assembly, shall always be able to make the members — high
and low — of the provincial executive staff feel responsi-
l)ility. In the third chapter of this book we have
endeavored to make clear, the intimate connection which
exists between " tenure of office " and the power to " with-
hold supplies," and have there pointed out that the grant to
colonial legislatures of the latter power necessarily carried
with it that the tenure of office in the colony should be at
their " pleasure,"
With reference, however, to the existence of dual gov-
ernment in Canada, it has been laid down {g) that the
(r;) 2 O. A. R. 522.
436 THE K. N. A. ACT — SEC. 92, H.-S. 4.
provincial legislatures cannot impose burdens — ('..f/.,ii muni-
cipal income tax — upon the " instruments " by which tlie
Df)minion government is carried on. Whetlier this .judg-
ment can stand in the face of Bank of Toronto v. Land)e (/«,)
is, perhaps, (questionable. The impossibility of applying
the principle, conversely, to relieve provincial officers from
the burden of federal tariffs rather tends to weaken the <ih
inconvenienti argument.
It has been held that a provincial legislature is within
its powers in appointing officers entrusted with the enforce-
ment of The Canada Temperance Acts of lcS64 (/) and bS7S
{]) in nuinicipalities where either of them had Iteen
adopted. In the last case the ground for the decision is
thus put by the present Chancellor of Ontario :
" The general law as to prohibition respecting all Canada,
which can only be enacted by the Dominion, being localized by
municipal suffrages, its enforcement becomes also a matter of
local importance in the province within the meaning of the
B. N. A. Act, section 92, item 16. The enforcement of the Act
in the adopting municipalities involves questions of local police
regulation. For the purpose of ensuring uniformity and efficiency
of action, the prosecution of offenders may be properly relegated
to the hands of provincial officers, for the appointment and pay-
ment and governance of whom laws may be made under the
B. N. A. Act, section 92, item 4. Tlie expense of carrying the
Act into effect within the adopting county is a burden to be
borne by the ratepayers of that locality. So that the legislation
now questioned may also fall within the scope of the 13. N. A.
Act, section 92, item 8, as pertaining to municipal institutions
within the province."
With much misgiving, we venture to (juestion tlie cor-
rectness of these decisitms. The " local option " character
(//) 12 App. Cas. 575.
(j) Licenae Commissioners v. Prince Edward, 26 Gr. 452— per Spra^ge,
C, (1879).
ij) License Commissioners v. Frontenac, 14 O. E. 741 — per Boyd, C,
(1887).
THE B. N. A, ACT — SEC. 92, S.-S. 6. 437
of the Canada Temperance Act — its localization by muni-
cipal Huffrages — was much pressed in argument in Russell
V. The Queen, as shewing the subject matter of that Act to
be within the legislative competence of a provincial legis-
lature only. The argument was rejected by the Privy
Council, and it appears to us that, so long as that decision
stands, the enactment of laws for the enforcement of the
provisions of that Act cannot be said to be a matter of
a merely local or private nature in the province. Laws
" in relation to " any subject matter must come in their
entirety from that legislature to which the subject matter
is committed. It is the question over again of the necessary
connection between legislature and executive. It is, of
course, open to the Dominion parliament to utilize existing
provincial macliinery (/'), or to confer upon "boards" or
bodies of provincial creation powers and authorities in
relation to the enforcement of Dominion laws, Irut, quoad
the duties im})osed by Dominion legislation, the meml)ers
of the nuinicipal bodies or "boards" are not provincial
officers. The above cases, howev^er, did not involve con-
sideration of the power of the Dominion legislature to
delegate its authority or to adopt existing institutions, but
of the power of a provincial legislature to supplement
Dominion legislation upon a matter admittedly within the
exclusive ken of the lattei', by the appointment of an
executive staff to carry it out.
5. The Management and Sale of the
Public Lands belonging to the Province
and of the timber and wood thereon.
" It must always be kept in view that, wherever public land
with its incidents is described as * the property of ' or as ' belong-
ing to' the Dominion or a province, these expressions merely
import that the right to its beneficial use, or to its proceeds, has
(h) See ante, p. 417, as to their adoption of provincial laws as to
jurors; and ante, p. '232, as to the trial of (Dominion) election petitions
by provincial courts. . • . . -
488 THE H. N. A. ACT. — SEC. 92, S.-S. 6, 7.
been appropriated to the Dominion or the province, as the case
may be, and is subject to the control of its legislature, the land
itself being vested in the Crown. — I'er Lord "Watson in St.
Catherines Milling Co. v. The Queen (/).
The case from which the above extract is (juoted is a
decision that the " lands reserved for the Indians " men-
tioned in sub-section 24 of section 91, become, when <lis-
encumbered of the Indian usufructuary interest, " public
lands belonfring to the province," or, perhaps we sliould
say, that they are always such, subject to the encum-
brance of that Indian interest.
The matter, however, of public assets, revenue pro-
ducing and otherwise, will be fully considered in the notes
to the group of clauses of this Act, which deal more fully
therewith — 102, et seq.
As to the position of Manitoba and the North- West
Territories in reference to the public lands within those
areas we shall have to speak in Part IV. of this book.
6. The Establishment, Maintenance
(i) and Management of PubHc and Ee-
formatory Prisons in and for the Pro-
vince.
7. The Establishment, Maintenance
and Management of Hospitals, Asylums,
Charities and Eleemosynary Institutions
in and for the Province, other than Marine
Hospitals.
(i) " Maintenance." — See note to sub-section 2 of sec-
tion 92, where reference is made to the query — suggested
by the Privy Council in Attorney-General of Quebec v.
Reed (ni) — as to the power of a province to maintain
prisons, hospitals, etc., and courts by " indirect taxation."
(0 14 App. Cas. 46. (m) 10 App. Gas. 141.
THE B. N. A. ACT — SEC. 92, S.-S. 8. 439
8. Municipal Institutions in the Pro-
vince.
It must be adinitted that the authorities are in a very
unsatisfactory state as to the precise scope of this sub-sec-
tion, and as to the powers intended to V>e thereby conferred
upon provincial legishitures. The main (juestion is one that
goes to the very root, and it has been brought prominently
into discussion in connection with that most prolific cause
of litigation — the traffic in intoxicating liquor. In one of
the earliest cases (n ) which arose in Ontario in reference to
the power of a provincial legislature to authorize municipal
bodies to restrict the traffic, the late Chief Justice Richards
intimated his opinion that the Imperial parliament, in
passing the B. N. A. Act, "on the suggestion of, and on
conference with the delegates from the various provinces "
must have intended to empower those provinces to establish
municipalities which " would possess the same powers as
those which were then in existence, under the same name,
in the province " — i.e., in that part of (old) Canada, formerly
known as Upper Canada, and now forming the province of
Ontario. To the like effect, the court of final resort in
Quebec held (o), in 1888, that the state of things existing
in the provinces at the time of Confederation, and more
pa.'ticularly that which was recognized by law in all or
most of the provinces, is a useful guide in the interpreta-
tion of the meaning attached by the Imperial parliament to
indefinite expressions employed in the B. N. A. Act. At
the time of Confederation, the right to prohibit the sale of
intoxicating liquoi-s wa^ possessed by municipal authorities
under the laws in force respecting municipal institutions in
both parts of the province of Canada, and in Nova Scotia ;
and the court held that in consequence it should be deemed
to be included within the term " municipal institutions " in
(n) Slavin v. Orillia, 36 U. C. Q. B. 159 ; see ante, p. 359.
(o) Suite V. Three Kivers, 5 Leg. News, 330 ; 2 Cart. 280 ; see ante,
p. 362.
440 THE B. N. A. ACT — SEC. 92, S.-S. 8.
thiH Hul)-section. In the opinion of the Court, the provin-
cial legislatures have the power for the purposes of
" municipal institutions " to pass a proliibitory licjuor law,
applicable to all municipalities M'ithin the province. In
<leli\ erin<»" the judgment of the court Mr. Justice Ramsay
thus deals with the (juestion of the meaning to be given to
the term " municipal institutions " :
" It may be at once conceded that the power to pass pro-
hibitory liquor laws is not essential to the existence of municipal
institutions, and that consequently in a vei'y restricted reading
of sub-section 8, it would not justify the local legislature in pass-
ing a prohibitory liquor law. But, it may fairly be asked,
whether it was the intention of the Imperial parliament in an
enumeration of this sort to confine ' municipal institutions ' to
those matters only which are of the essence of municipal insti-
tutions ? If such was the intention of parliament, a wide field
for speculation was left open, or it was contemplated to restrict
municipal institutions within very narrow limits. It would
seem, however, we have not to determine what institutions are
essential to municipal existence in the absti-act, but the meaning
of the term at the time of Confederation."
Reference is made in the judgment to tlie fact that in
New Brunsv.'ick, prior to Confederation, no statute con-
ferred any such powers upon nmnicipal corporations, but
their existence in " the two great provinces of Confedera-
tion and one of the small ones " was, in the opinion of the
court, sufficient to include them within the powers intended
to be conferred under the expression " municipal institu-
tions " in this sub-section 8.
The Court of Appeal for Ontario has lately had
occasion to review the earlier decision of Chief Justice
Richards, and, as we have before intimated, it was held ( j});
that a provincial legislature can empower a municipal
body to pass a prohibitory by-law, because, at the date of
Confederation, municipalities had that power in Upper
(p) Re Local Option Act, 18 0."A. R, 572: see 2}er Maclennan, J. A.,
at p. 596.
THE l\. N. A. ACT — SEC. 92, S.-S. 8. 441
Canada, now Ontario, thus confirniino- the opinion ox-
prt'Hsed in the earHer case.
In both Ontario and Quebec, therefore, this must be
taken as hiw, that whatever powers nuniicipal V)odies had
been invested with prior to the Union, those powei-s can
now l>e conferred upon them />// a provlvcUd lef/Mlnfii re —
that the term "nuniicipal institutions" must be taken to
cover all such powers.
In the case to which we have last referred, an admis-
sion is made to much the same effect as that made by Mr.
Justice Ramsay in the Quebec case — " that there is no
inlierent connection between the li([Uoi' traffic an<l nuini-
cipal institutions " ; but this is (pialified l)y the statement-
that there is — as to Ontario at least — a constitutional con-
nection, and that, in fact, in all tlie provinces there was the
power to regulate the ti'affic, in some to even prohibit it,
within the bounds of the municipality.
It must not be forgcjtten, liowever, that the })re-Con-
federation provinces had all the powers of colonial self-
government; their legislatures could make laws in relation
to all matters not of Imperial concern, or governed by
Imperial legislation ; there was then no sul)-division of the
field between co-ordinate legislative bodies within the
colony, and upon the principle of The Queen v. Burah, and
subsetjuent cases (g), these pre-Confederation legislatures
could, from time to time, invest nuinicipal bodies with such
of their own powern as to them seemed fit.
The late Mr. Justice Dunkin adverts to this in Cooey v.
Brome (v) in the following terms :
"Nor is there wanting a sense of the woi'cls 'municipal
institutions in the province ' which would extend them also over
ground assigned exclusively to parliament, and notably would
limit its trade and commerce powers. Under legislation not
federally limited in that behalf, all sorts of powers are of course
(f/) See ajite, p. 177, et seq.
{)■) 21 L. C. Jur. 182, 2 Cart. 385 ; see ante, p. 301. '
442 THE B. N. A. ACT — SEC. 92, S.-S. 8.
more or less delegated to municipal bodies whenever convenience
may seem so to require. But for a legislature of strictly limited
jurisdiction, nothirg is clearer than that it can delegate no
powers beyond those ii can directly exercise. Our legislature
can delegate no power of regulation of trade and commerce, nor
over fisheries, nor weights and measures, nor anything else
matter of merely parliamentary legislation. Each provincial
legislature alone can create municipalities properly so-called ;
establish their functionaries, and assign them their proper duties
and their powers — but always within the limits of its own.
Whether or not it can render them incapable of other duties and
powers, to be delegated by parliament, is a question that need
not here be considered. Our legislature, as will presently be
seen, has been careful to declare them not so. And as to all
powers not of provincial competency, so to speak, which they
may hold under antecedent delegation of the unlimited legisla-
ture of the late province of Canada, these can be resumed or
altered by parliament alone. As being exercised by municipali-
ties, they may be styled in a certain sense municipal. But such
sense is not that of the Union Act ; nor even as mere matter of
presumption, pt-ima facie, is it that of provincial legislation under
authority of the Union Act."
and the same view is very clearly put by Mr. Justice Bur-
ton in Re Local Option Act (s) :
" It does not suggest itself to my mind as at all conclusive
in favor of the power of the Local Legislature to deal with the
subject of prohibition under the words * municipal institutions '
that provisions in reference to that subject were, at the time of
the passing of the Confederation Act, to be found in our own
municipal Acts, and had been so for many years. It must not
be forgotten that the legislature of the old province of Canada,
which passed those Acts, had plenary powers of legislation,
. . . in fact, all the powers which are now distributed be*
tween the parliament of the Dominion and the legislatures of
the provinces. Having that power, it was clearly competent to
the legislature to confide to a municipal council or any other
(«) 18 O. A. R. at p. 585. See also per Spragge. C. in Leprohon v.
Ottawa, 2 O. A. R., 522, ante, p. 3S0.
THE B. N. A. ACT — SEC. 92, S.-S. 8. 443
body of its own creation, or to individuals of its selection,
authority to make by-laws or resolutions as to subjects specified
in the enactment with the object of carrying it into effect ";
but, nevertheless, by reason of the constitutional connec-
tion above referred to, he gave the term "municipal insti-
tutions " the wide scope we have mentioned.
As indicated in the above cases in Ontario and Quebec,
the municipal institutions in the various pre-Confederation
provinces were widely dissimilar (t), ranging from the (for
those days) very complete system of Upper Canada to the
very incomplete and primitive methods of local government
in vogue in New Brunswick. In fact, the maritime pro-
vincep can hardly be said to have had any system of muni-
cipal government, and the systems of Upper and Lower
Canada were by no means identical. Now, admitting, for
the sake of the argument, that the term "municipal institu-
tions" is to be construed according to the meaning attached
to it in the minds, not of^ those by whom but of those far
whom it was pissed, it is not conceivable that this Imperial
Act is to receive a construction geographically variable (u).
The decisions above noted, therefore, put the Imperial par-
liament in the peculiar position of having used, as to all the
provinces, a phrase which, at the date of Confederation, had
a different meaning in the different provinces, intending,
without expressly saying so, that the phrase should bear
the meaning attached to it in one particular province, with-
out iTidicating which.
It seems to us that such an interpretation must be put
upon this sub-section as will obviate these difficulties.
"Municipal institutions" is but another form of expression
(t) See Slavin v. Orillia (Ontario), Suite v. Three Rivers (Quebec),
Eeefe v. McLennan (Nova Scotia), and Beg. v. Justices of Kings (New
Brunswick).
(u) " The Act placed the constitutions of all the provinces on the same
level, and what was true with respect to the legislature of Ontario had
equal application to the legislature of New Brunswick." — Per Lord Wat-
son, in Liquidators v. Receiver-General, Times L.R. Vol. VIII.i p. 677.
444 THE B. N. A. ACT — SEC. 92, S.-S. 5.
for local self-government by boards or corporate lx)dies,
entrusted with powers of administration and, to some
extent, of legislation — but delegated pawera merely. Irre-
spective of detail this was a familiar phase of political
organization. The essentials of a municipality would appear
to be, fii-st, territorial limitation ; and, secondly, the organi-
zation therein of the executive and legislative machinery
and staff for the administration of local affaii-s. Under a
'unitarian" form of government power all flows from the
one source, but under a dual government power over
any given subject matter must come from, and the mode of
its exercise be regulated by, that legislature which has
itself power over the particular subject matter. Giv^en the
municipalities "instituted" under provincial legislation, the
Dominion parliament as well as the provincial legislatures'
can confer on such municipalities powei-s of local self-gov-
ernment, each in relation to matters within its own com-
petence (v). The vast mojoritiies of the pbwers exercisable
by municipal bodies throughout Canada are conferred by
the provincial legislatures, because nearly all those matters
which touch the daily life of a man, and regulate his rights
and duties as a citizen of a municipality, are comprehended
within some one or other of the various sub-sections of sec-
tion 92. Very few, if any, of the cases which have arisen
under the B. N. A. Act, touching the powers of municipal
bodies, depend upon a widier scope being given to this sub-
section 8, than we have given it. Sub-sections 2, 7, 9, 10, 13,
14, 15 and 16 of section 92, suffice to sustain the exercise of
municipal powers in all cases in which it has been ques-
tioned (iv) ; but that a provincial legislature cannot delegate
to a municipal or other body created by it, power over any
subject matter not, by the B. N. A. Act allotted to such
provincial legislature, is a view which seems to be forced
(v) The Canada Temperance Act is an example of power conferred
and duties imposed by Dominion legislation.
(uf)* These cases have all been noted under these various sub-sections.
THE B. N. A. ACT — SEC. 92, S.-S. 9. 445
upon us by the exhaustive character of the division effected
by that Act, and the exclusive character of tlie jurisdiction
conferred upon our legislative bodies, Dominion and pro-
provincial.
Under this sub-section we should, perhaps, note the case
of Reg. ex rel. McGuire v. Birkett (x), in which it has lately
been held that a provincial legislature has the exclusive
right to designate the judicial officer by whom controverted
umnicipal election cases are to be determined. This is a
matter clearly relating to municipal organization, and has
no relation to the nature of the powers to be exercised by
municipal bodies or officers thereof. We note it here rather
than under sub-section 14, because of the expression of
opinion by the Privy Council in Valin v. Langlois (y) that
the trial of election cases does not "(|uite plainly" come
within " the administration of justice in the province."
9. Shop, Saloon, Tavern, Auctioneer,
and other Licenses in order to the raising
of a Revenue for Provincial, local, or
municipal purposes.
The scope of this sub-section is limited by the last
clause, in m\ler to the raising, etc. (z), and in Russell v.
The Queen (a), it was held that the Canada Temperance
Act, is not an infringement on the powers of the provincial
legislatures under this sub-section :
" The Act in question is not a fiscal law ; it is not a law for
raising revenue ; on the contrary, the effect of it may be to
destroy or diminish revenue ; indeed, it was a main objection to
the Act, that in the Qity of Fredericton it did, in point of fact,
. (.t) 21 O. R. 162.
(y) 5 App. Gas. at p. 119.
(«) Sae Three Rivers v. Suite, 5 Leg. News 330, 2 Cart. 280. This
does not conflict with the views expressed in earlier cases in Ontario that
this sab-section does not exhaust the powers of a provincial legislature in
relation to the liquor trikffic.
(a) 7 App. Gas. 829.
4.46 THE B. N. A. ACT — SEC. 93, S.-S. 9.
diminish the sources of municipal revenue. It is evident, there-
fore, that the matter of the Act is not within the class of sub-
jects No. 9, and consequently that it could not have been passed
by the provincial legislature by virtue of any authority conferred
upon it by that sub-section."
Referring to what we have aaid in the notes to sub-
section 8, it is to be noticed that in Russell v. The Queen
the effect of sub-section 8 upon the questions there under
consideration is not in any way touched upon (6). The
previous legislation of New Brunywick on the subject of
tavern licenses was looked at merely as the exercise of
power under this sub-section 9 ; and it was held that the
mere fact that Dominion legislation upon any matter
within its legislative competence might prejudicially affect
the revenue derivable from license fees imposed under this
sub-section 9, would in no way invalidate such Dominion
legislation (c).
In the notes to sub-section 2 of section 92 reference
was made to the case of Attorney -General (Quebec) v. The
Queen Insurance Co. (d), in which a license tax (so called)
imposed upon insurance companies, payable not upon the
taking out of the license, but upon the issue of policies,
and to an amount depending upon the amount of premium
payable upon a policy, was held not to be a license tax at
all, but a stamp duty :
" Now, the first point which strikes their Lordships, and will
strike every one as regards this Licensing Act, is that it is a com-
plete novelty. No such Licensing Act has ever been seen before.
It purports to be a Licensing Act, but the licensee is not com-
pelled to pay anything for the license, and, what is more singular,
is not compelled to take out the license because there is no penalty
at all upon the licensee for not taking it up ; and, further than
that, if the policies are issued with the stamp, they appear to be
valid, although no license has been taken out at all. The result,
(b) See Re Local Option Act, 18 O. A. B. 572.
(c) See ante, p. 213, et aeq.
(d) 3 App. Gas. 1090.
THE B. N. A. ACT — SEC. 92, S.-S. 9. 447
therefore, is, that a license is granted which there are no means
of compelling the licensee to take, and which he pays nothing
for if he does take; which is certainly a singular thing to be
stated of a license. They say un the face of the statute, " the price
of each license shall consist," and so on. But it is not a price
to be paid by the licensee. It is a price to be paid by anybody
who wants a policy, because, without that, no policy can be ob-
tained. It may be that the company buys the adhesive stamps,
and affixes them ; or it may be that the assured buys the adhesive
stamps and affixes them, or pays an officer of the company the
money necessary to purchase them and affix them ; but whoever
does it complies with the Act.
Another observation which may be made upon the Act is
this : that, if you leave out the clauses about the license,
the e£fect of the Act remains the same. It is really nothing
more nor less than a stamp Act if you leave out these clauses.
If you leave out every direction for taking out a license, and
everything said about the price of a license, and merely leave
the rest of the Act in, the government of the province of
Quebec obtains exactly the same amount by virtue of the statute
as it does with the license clauses remaining in the statute. The
penalty is on the issuing of the policy, receipt or renewal ; it is
not a penalty for not taking out the license. The result there-
fore is this, that it is not in substance a license Act at all. It
is nothing more or less than a simple stamp Act on policies
with provisions referring to a license, because it must be pre-
sumed, the framers of the statute thought it was necessary in
order to cover the kind of tax in question with legal sanction,
that it should be made in the shape of the price paid for a
license."
In the notes to sub-section 2 {ante, p. 430) will also
be found a reference to the eases involving the question
whether these license fees are to be considered direct or in-
direct taxation. See Pigeon v. The Recorder's Court (e),
where the effect of the decision in Bank of Toronto v.
Lambe (/), seems to have been considered to be, in effect,
that all these license fees are direct taxation. It is to be
(e) 17 S. C. R. 495. (/) 12 App. Cas. 587.
448 THE B. N. A. ACT — SEC. 92, S.-S. 10.
noted, however, that in Bank of Toronto v. Lambe, tlie
Committee speak of " direct taxation and lieensea." The
difference of opinion, therefore, which may very reasonably
exist upon the point would be sufficient warrant for the
insertion, by the framers of the B. N, A. Act, of this sub-
section " by way of abundant caution."
If the decision in Severn v. Reg. (y), that a brewer's
license cannot be imposed by a province, is still law, it can
only be upon the ground that it is " indirect " taxation and
not ejusdem generis with the licenses particularly men-
tioned in this sub-section. If it is " direct " taxation, it
does not matter whether it is or is not ejusdeni generic, for
Bank of Toronto v. Lambe would distinctly uphold it.
10. Local Works and Undertakings,
other than such as are of the following
classes, —
a. Ijines of Steam or other Ships^
Eailways, Canals, Telegraphs,
and other works and under-
takings connecting the Pro-
vince with any other or others
of the Provinces, or extending
beyond the limits of the Pro-
vince :
b. Lines of Steam Ships between the
Province and any British or
Foreign Country :
c. Such works as, although wholly
situate within the Province, are
before or after their execution
declared by the Parliament of
Canada to be for the general
advantage of Cangi^a oy for the
{g) 2 S. C. B. 70 ; see ante, p. 364.
THE B. N. A. ACT — SEC. 92, S.-S. 10, 11. 449
advantage of two or more of the
Provinces.
11, The Incorporation of Companies
with Provincial objects.
Tlie authorities upon these two sub-sections so run into
each other that it will simplify niattei'S if we discuss them
together. ' Their connection is obvious, the " provincial
objects " for which incorporation is sought under sub-sec-
tion 1 1 being, in probably the majority of cases, " local
works and undertakings" falling within sub-section 10.
The power lodged by exception (c) in the hands of the
Dominion government gives that government the anoma-
lous privilege of defining its own sphere of authority, in
reference to these matters, as against the provinces. Much
the same power is vested in Congress in reference to
" internal improvements," and this has been the subject of
much adverse comment from those who view with alarm
the encroachment of the central authority. Witli this
phase of the question, however, we should not perhaps
concern oui*selves in this place, for, at any given moment of
time, the line of division is a legal one, though subject to
be thereafter shifted at the will of the parliament of
Canada.
It has been held by the Court of Queen's Bench of
Quebec (h) that all works which are wholly within one
province, whether the undertaking to which they belong be
for a commercial purpose or otherwise, are within the con-
trol, and subject to the legislation of the province in which
they are situate, unless they are by the parliament of
Canada declared to be for the general advantage of Canada,
or for the advantage of two or more of the provinces. The
Dominion parliament cannot, it was held, without such
declaration, authorize a company to establish in two or
(h) Reg. V. Mohr, 7 Q. L. R. 183, 2 Cart. 257.
Can. Con.— 29
450 THE B. N. A. ACT — SEC. 92, S.-S. 10, 11.
more provinces, works needing special legislative authority^
and which are in their nature local in each province, the
jurisdiction in such case to give the needed authority being
determined by the location and object of the works, and not
by the circumstance that the company is authorized to make
them in several provinces.
Applying the law so laid down, the Dominion Act (43
Vic. c. 67), incorporating the Bell Telephone Company, and
authorizing the establishment by that company of telephone
lines in the several provinces of the Dominion, but which
contained no provision as to utilizing their powei's for the
purpose of connecting two or more provinces, was declared
ultra vires. Dorion, C.J., says:
" If the Dominion cannot incorporate separate companies
for the purpose of establishing separate lines of telegraph in one,
or two, or more of the provinces, unless such lines are to con-
nect two or more provinces, or extend beyond the limits of one
province, or are expressly declared to be for the advantage of
the Dominion, or of two or more provinces, it is because by
their nature these separate telegraph lines are local works and
undertakings, subject to the exclusive control of the piovincial
legislatures.
"And if the Dominion cannot authorize separate companies
to establish such separate lines of telegraph, whence could it
derive its authority to incorporate one company to establish
those several works ? It is evident that the nature and charac-
ter of such undertakings cannot be altered from being local
undertakings to become general by the mere fact that they are
to be established by one company instead of several companies.
Their character is determined by their location and object, or
by an express declaration of the Dominion parliament, and not
by the accident that the same company is authorized to make
them all."
In view, however, of the judgment of the Judicial Com-
mittee of the Privy Council, in the case about to be noted
(i), Regina v. Mohr can no longer be considered a binding
(j) Colonial Bldg. Abb, v. Atty.-Genl. of Quebec, 9 App. Cas. 157.
THE B. N. A. ACT — SEC. 92, H.-S. 10, 11. 451
authority even in Quebec — ho far, at least, as it declared
the entire invalidity of the Act of incorporation. The lar^'cr
(juestion aa to the subjection of such a company to pro-
vincial law — just how far the Dominion parliament can go,
lieyond merely conferringcoi'porate capacity — is not touched
upon in the judf^ment. It should be pointed out, perhaps,
that no doubt was expressed by the court as to the power of
the Dominion parliament to authorize the incorporation of
a company, with power to establish general telephime com-
munication throughout the various provinces of the Do-
minion, or between any two of them. The judgment pro-
ceeded solely upon the ground that the Act in question gave
the company no power to establish such a system, or to make
such connection between two provinces. The work which
\va» actually being carried on, under this statute, was held to
be a local work falling within sub-section 10, and being
such, it could only be authorized by a provincial Act. The
judgment of the Privy Council, however, distinctly enunci-
ates that the territorial extensibility of the power, and not
the extent to which it is actually exercised, is to decide
the (juestion as to which legislature should grant a charter
<>f incorporation.
The power to incorporate companies with powei-s extend-
ing beyond one province, is clearly with the parliament
of Canada, and the fact that a company, so incorporated,
may not see lit to extend its operations beyond one pro-
vince, does not affect its status as a duly incorporated com-
pany, or render its Act of incorporation (if incorporated
by Act of parliament) idtra vires. The difference between
a Dominion and s provincial company is in the territorial
sphere within which the company's powers may be, not
within which they are actually, exercised.
In Clarke v. Union Fire Insurance Co. (j), it was held
by the Master in Ordinary (Mr. Hodgins, Q.C.), that an in-
(j) lOF. B. (Ont.) 313. The affirmance of thi<i jadgment on appeal
does not touch the constitutional point ; see 6 (). B. 223.
452 THE B. N. A. ACT—SEC. 92, H.-S. 10, 11.
surance company incorporated under a provincial statute
can enter into insurance contracts abroad, i.e., insuring pro-
perty situated out of the province. Sed quwre. No doubt
it can validly contract in matters collateral to the objects
for which it was incorporated, but (apart from the view
which might be taken in foreign courts if such contract
were sued upon there) it is Mubmitted that, in respect of
such insurance contracts, thf company must be treated by
the courts of these provinces as an unincorporated associa-
tion of individuals.
In European and N. A. Railway Company v. Thomas
(/•), a provincial legislature was held by the New Bruns-
wick Supreme Court to be entitled to legislate with respect
to a provincial railway running only to the boundaries of the
province, such railway being a focal work and undertaking
within sub-section 10, although, as appeared by the facts of
that case, legislation had been procured in the State of
Maine incorporating an American company to build a rail-
way in that State to connect with the provincial railway
in question.
This sub-section 10 was considered by the Privy Council
in Dow V. Black (I), in which a provincial Act authorizing
a municipality to grant a bonus to a railway company
extending beyond the province, was held to fall within
sub-section 2 of section 92, ante, or, if not under that sub-
section, then under sub-section 16, as to which see post. It
was held not to be touched by sub-section 10 at all. A
question, however, was raised in that case which the Com-
mittee abstained f i*om deciding, namely — does exception (a)
apply to a railway extending from one province, not into
another, but into a foreign country ? The limitation of
exception (b) to steanishi}^ lines was urged in support of
the view that, a provincial legislature has power to enact
laws as to railway 8 extending from one province into a
{k) 1 Pug. 42, 2 Cart. 439.
(I) L. R. 6 P. C. 272.
THE B. N. A. ACT — SEC. 92, S.-S. 10, 11. 463
foreign" country. For reasons which will be found dis-
cussed in chapter IX., ante, p. 185, et mq., it is submitted
that a provincial legislature has no such power, nor indeed
has the Dominion parliament, so far as the operation of the
road without Canada is concerned. So far as the incorpo-
ration of any such company is concerned, sub-section 11
would appear to prevent a provincial legislature from
passing any laws in referenc3 thereto. The question of
the status and rights of a corporation without the limits of
the country under whose laws it is incorporated is not
within the scope of this work, being a matter of inter-
national, rather than of colonial, law.
A number of very interesting cases have arisen involv-
ing consideration of the position occupied by federal
" works and undertakings "and federal companies in refer-
ence to provincial law upon matters within the legisla-
tive competence of a provincial legislature — and vice versa.
In reference to the incorporation of companies with objects
other than provincial and other than those covered by the
exceptions to subsection 10, no difficulty perhaps' should
arise. For the very same reasons which led us to limit the
scope of the term " municipal institutions," we submit that
a company incorporated under Dominion legislation can
exercise no power which its creator could not directly exer-
cise ; its Act of incorporation can confer corporate capacity
merely and powers in relation to matters within the legis-
lative competence of that creator. We have already
touched upon this question (m)and shall refer in a moment
to certain cases which, we think, bear out the view we have
ventured to express. As to works and undertakings falling
within the exceptions to sub-section 10 — wliether carried
on by a company or by individuals — a somewhat different
(juestion arises, namely — what is covered by the term
" works and undertakings " ? — but this question must, it
seems to us, be ultimately decided up« n the very same prin-
(m) See ante, p. 353.
454 THE H. N. A, ACT — SEC. 92, S.-S. 10, 11.
ciple. The difficulty arises from the fact that a work or
un<lertaking may to-day be provincial and to-morrow
federal, and, it may be asked, how can the subject matter of
such work or undertaking' be — as a matter of law — within
the legislative competence of a provincial legislature, one
day, and within that of the parliament of Canada the
next. Without attempting any elaborate discussion we
may venture the opinion that the solution of these ques-
tions will require a freer application of the rule laid down
in Bank of Toronto v. Lambe — that legislation by one legis-
lature may limit the range open to the other (n) — than has
yet been attempted. We now proceed to examine the
cases.
A railway incorporated under a provincial Act was
declared to be a federal railway under clause (c) of sub-
section 10, by an Act of the parliament of Canada. An
Act of the legislative assembly of Quebec amalgamating the
company at its own request with another provincial rail-
way, was held ultra vires by the Judicial Committee of the
Privy Council (o).
Mr. Justice Killam in Manitoba held in Canadian
Pacific Ry. v. North Pacific & Man. Ry. (j)), that it is
within the competence of the Dominion parliament to
enact that no provincial railway shall cross a Dominion
railway without the approval of the Railway Connnittee of
the Piivy Council. He treats the power to legislate in re-
ference to " crossings " as incidental to the power of the
Dominion parliament in relation to general undertakings
as well as to the power of the local legislatures in relation
to local undertakings within this sub-section. It would
seem therefore to depend upon the question — which occu-
pied the ground first ? Unless this is to be the rule for de-
termining these disputes, it must be conceded that, in this
(n; See ante, p. 213, and notes to aab-seotion 16, post,
(o) Bourgoin v. M. O. and O. By., 5 App. Gas. 381.
(/)) Man. L. B.
THE B. N. A. ACT — SEC. 92, S.-S. 10, 11. 455
instance at least, pi-ovincial legislation must be subordinate
to Dominion legislation.
Where it is necessary for a provincial railway in
Ontario to cross a Dominion railway, the company desiring
to effect such crossing, must procure the approval of the
Minister of Public Works for Ontario, as well as the
approval of the Railway Committee of the Frivy Council
for the Dominion, and the railway companies concerned
cannot waive this provision (q).
The power of a provincial legislature to pass laws as to
insurance contracts entered into within the province by a
Dominion or a foreign corporation, was considered in Par-
sons V. Citizens (r), and the view of the Judicial Committee
of the Privy Council is thus expressed :
" It was contended, in the case of the Citizens Insurance
Company of Canada, that the company having been originally in-
corporated by the parliament of the late province of Canada, and
having had its incorporation and corporate rights confirmed by
the Dominion parliament, could not be afifected by an Act of the
Ontario legislature. But the latter Act does not assume to in-
terfere with the constitution or statm of corporations. It deals
with all insurers alike, including corporations and companies,
whatever may be their origin, whether incorporated by British
authority, as in the case of the Queen Insurance Company, or by
foreign or colonial authority, and without touching their statm,
requires that if they chdoso to make contracts of insurance in
Ontario, relating to property in that province, such contract shall
be subject to certain conditions."
and this, it was held, a provincial legislature had full
power to do, under section 92, sub-section 13.
In Colonial Building and Investment Association v.
Attorney-General of Quebec (s), the Judicial Committee of
the Privy Council, referred to the hypothetical case, put by
way of illustration in Citizens v. Paraons, as to the applica-
{q) Credit Valley R. R. Co. v. Great Western Ry. Co., 25 Grant, 507.
(r) 7 App. Caa, 96.
(s) 9 App. Gas. 157.
456 THE B. N. A. ACT — SEC. 92, S.-S. 10, 11.
bility, to a Dominion company, of a provincial mortmain
law, and expressed their continued adherence to the view-
then entertained as to the respective powers of the Do-
minion and provincial legislatures in regard to incorporated
companies. The two cases lay down very clearly that a
Dominion company can only exercise its powei*s subject to
the law of the particular province in which any of its
transactions may be carried on. In the fii-st named case
the matter was merely put by way of illustration in refer-
ence, as we have said, to the operation of provincial mort-
main laws :
"Suppose the Dominion parliament were to incorporate a com-
pany with power, among other things, to purchase and hold lands
throughout Canada in mortmain, it could scarcely be contended
if such a company were to carry on business in a province where
a law against holding land in mortmain prevailed (each province
having exclusive legislative power over 'property and civil lights
in the province') that it could hold land in that province in con-
travention of the provincial legislation ; and, if a company were
incorporated for the sole purpose of purchasing and holding land
in the Dominion, it might happen that it could do no business
in any part of it, by reason of all the provinces having passed
mortmain Acts, though the corporation would still exist and pre-
serve its statiii as a corporate body."
This the Committee explain in the later case by saying
that they had not in view the special law of any one pro-
vince, nor the question whether the prohibition was absolute,
or only in the absence of the Crown's consent ; that their
object had merely been to point out that a corporation
could only exercise its powers, subject to the law of the
province, whatever that may be, in this regard.
In this connection may be mentioned the case of Mc-
Diarmid v. Hughes (t), in which the Divisional Court of
the Queen's Bench Division (Armour, C.J., and Street, J.),
held that the Dominion parliament has power to enact
that a license from the Crown shall not be necessary
(t) 16 O. R. 670.
THE B. N. A. ACT — SEC. 92, S.-S. 10, 11. 457
to enable corporations to hold lands within the Dominion ;
and that a Dominion Act enabling a Quebec corporation to
hold lands in Ontario, would operate as a license ; — a view
difficult to reconcile with the above cases. No doubt, as
put by the Chief Justice, an Imperial Act might be passed,
extending to all Her Majesty's possessions, providing that
thereafter a license from the Crown should not be neces-
sary to enable any corporation to hold lands therein, but it
seems to us a non sequihvr to say that an Act of the
Dominion parliament would have effect throughout the
Dominion in relation to matters over which, as between
the Dominion parliament and the provincial legislatures,
the latter have exclusive jurisdiction. The power of a
corporation to hold land is part of the law relating to real
property, and governed therefore by the lex loci, and the
grant of a license from the Crown to hold lands, non
obstante the Mortmain Acts, must be made by the execu-
tive head of that goveniment whose legislature has power
to pass laws in relation to real property within its terri-
torial limits.
In Monkhouse v. Grand Trunk R. R. (u,). it was held
that a provincial statute which made provision as to
" frog-packing " applicable only " to every railway and
railway company in respect to which the legislature of
Ontario has authority to enact such provisions," did not
apply to the Grand Trunk R. R. Company, which falls
within exception (a) to this sub-section 10. Just what is
the scope of legislation relating to a work or undertaking
such as a railway connecting one province with another,
is left by this case still uncertain. Mr. Justice Pattoi-son
puts his decision on the ground that the statute, there in
(juestion, "which relates to the mrnagement and in some
respects to the construction of railways, and deals only
with railways as such " did not apply to the defendant
company ; and he expressly reserves the question how far
(m) 8 O. A. R. 637.
458 THE B. N. A. ACT — SEC. 92, S.-S. 10, 11.
Huch an undertaking may be affected by provincial legisla-
tion touching property and civil rights or other subjects
within the jurisdiction of the provincial legislatures. In
Canada Southern Railway v. Jackson (v), before the
Supreme Court of Canada, it was held that the Workmen's
Compensation for Injuries Act of Ontario (49 Vic. c. 28),
applied to the appellant company, notwithstanding that it
had been brought under the operation of the Government
Railways Act of the Dominion. Mr. Justice Patterson
says :
" It is not legislation respecting such local works and under-
takings as are excepted from the legislative jurisdiction of the
province by article 10 of section 92 of the B. N. A. Act. It
touches civil rights in the province. The rule of law which it
alters was a rule of common law in no way depending on or
arising out of Dominion legislation, and the measure is strictly
of the same class as Lord Campbell's Act, which, as adopted by
provincial legislation, has been applied without question to all
our railways."
The difference in opinion which is still possible upon
this question is made manifest in McArthur v. N. and P.
Junction Ry. Co. (17 O. A. R. 86) in which the Court of
Appeal was evenly divided upon the question of the
validity of the clause in the Dominion Railway Act limit-
ing the time within which an action may be brought for
injury sustained " by reason of the railway. — R. S. C
c. 109, s. 27. Hagarty, C.J.O. and Osier, J.A. upheld the
enactment as being an almost essential part of railway
legislation, while Burton and Maclennan, JJ.A. considered
it an unnecessary interference with " property and civil
rights in the province." The injury complained of, we
should perhaps state, was trespass to timber in connection
with the construction and operation of the road.
As to the applicability of the Dominion Winding-up
Acts to companies incorporated under provincial legislation,
(r) 17 8. C. R. aiC.
THE B. N. A. ACT — SEC. 92, S.-S. 12. 459
sec Shoolbred v. Clarke (w) and other f ases under section
91, sub-section 21, ante, p. 394.
In like manner, companies incorporated under provincial
legislation, for the purpose of carrying on these " local
works and undertakings," have without hesitation been held
to be subject to the provisions of Dominion law and legisla-
tion upon the subject of "navigation and shipping." See
Qu;?ddy River Boom Co. v. Davidson (x) and other cases
noted under section 91, sub-section 10.
As to the power of a provincial legislature over a cor-
poration existing prior to Confederation, see Dobie v. Tem-
poralities Board (y) cited in the notes to eection 129, 2)08t.
In Jones v. Canada Central (s) it was held that provin-
cial legislation in reference to the bonds of a railway
company falling within this sub-section 10 is operative to
govern bonds held out of the province. Mr. Justice Osier
says :
"I am of opinion that where debts and other obligations
arise out of, or are authorised to be contracted under, a local Act
which is passed in relation to a matter within the powers of the
local legislature, such debts or obligations may be dealt with or
affected by subsequent Acts of the same legislature in relation to
the same matter, and this notwithstanding that by a fiction of
law such debts may be domiciled out of the province."
12. The Solemnization of Marriage in
the Province.
This sub-section will be found noted, so far as is neces-
sary, in the notes to sub-section 26 of section 91. We may
also refer to chapter V., ante, page 116, et neq., as to the ex-
(to) 17 8. C. R|265.
(x) 10 S. C. R. 222.
{y) 7 App. Cas. 133; see ante, p. 200.
(z) 46 U. C. Q. ». 250. See Redfisld v. Corporation of Wickham, Ig
App. Cas. 467, as to the right of an ezecntion creditor to sell under
Ji.fa., a Canadian railway as a whole, and the difference, in this respect,
between English and Canadian law.
460 THE B. N. A. ACT — SEC. 92, .S.-S. 18.
tent to wliich English marriage law is in force in Upper
Canada. Owing to the decided religious convictions of
Roman Catholics upon this question, there has been nc)
general legislation by the Dominion parliament upon the
subject of marriage and divorce ; and its jurisdiction un<ler
sub-section 26 of section 91, has been limited to the passage
of private Divorce Acts.
13. Property and Civil Rights iu the
Province.
In what may be termed the leading case as to the mean-
ing to be attached to this sub-section, and the range of
matters embraced therein — Citizens v. Pai"sons (d) — it .was
contended that "civil riifhts" should be limited to such riohts
only as flowed from the law, e.g., the shttas of pei*sons, an<l
should not be interpreted to cover rights arising from con-
tract. Had this contention prevailed, the provinces would
have been driven out of the largei* part of the field of
activity, which now, by the authoritative deliverance of the
Judicial Committee of the Privy Council in tluit case, they
are undoubtedly entitled to occupy.
" Their Lordships cannot think that the latter construction
is the correct one. They find no sufficient reason in the,
language itself, nor in the other parts of the Act, for giving so
narrow an interpretation to the words 'civil rights.' The word->
are sufficiently large to embrace, in their fair and ordinary mean-
ing, rights arising from contract ; and such rights are not included
in express terms in any of the enumerated classes of subjects in
section 91.
" It becomes obvious, as soon as an attempt is made to con-
strue the general terms in which the classes of subjects in sec-
tions 91 and 92 are described, that both sections and the other
parts of the Act must be looked at to ascertain whether language
of a general nature must not by necessary implication or reason-
able intendment be modified and limited. In looking at section
91, it will be found not only that there is no class including,
(a) 7 App. Cas. 96.
THE B. N. A. ACT — SEC. i2, S.-S. 13. 461
generally, contracts and the rights arising from them, but that
one class of contracts is mentioned and enumerated, viz : * 18.—
bills of exchange, and promissory notes,' which it would have
been unnecessary to specify, if authority over all contracts, and
the rights arising from them, had belonged to the Dominion
parliament.
" The provision found in section 94 of the Act, which is one
of the sections relating to the distribution of legislative powers,
was referred to by the learned counsel on both sides, as throwing
light upon the sense in which the words 'property and civil
rights' are used. By that section, the parliament of Canada is
empowered to make provision for the uniformity of any laws
relative to ' property and civil rights ' in Ontario, Nova Scotia
and New Brunswick, and to the procedure of the courts in these
three provinces, if the provincial legislatures choose to adopt the
provisions so made. The province of Quebec is omitted from
this section for the obvious reason that the law which governs
property and civil rights in Quebec is, in the main, the French
law as it existed at the time of the session of Canada, and not
the English law which prevails in the other provinces. The
words ' property and civil rights ' are, obviously, used in the same
sense in this section as in No. 13 of section 92, and there seems
no reason for presuming that contracts, and the rights arising
from them, were not intended to be included in this provision for
uniformity. If, however, the narrow construction of the words,
' civil rights ' contended for by the appellants were to prevail, the
Dominion parliament could, under its general power, legislate in
regard to contracts in all and each of the provinces, and, as a
consequence of this, the province of Quebec, though now
governed by its own Civil Code, founded on the French law, as
regards contracts and their incidents, would be subject to have
its law on that subject altered by the Dominion legislature, and
brought into uniformity with the English law prevailing in the
other three provinces, notwithstanding that Quebec had been
carefully left out of the uniformity section of the Act.
"It is to be observed that the same words 'civil rights' are
employed in the Act of 14 Geo. Ill, chapter 83, which made
provision for the government of the province of Quebec. Section
8 of that Act enacted ' that His Majesty's Canadian subjects,
462 TKE n. N. A. ACT — SEC. 92, S.-S. 13.
within the province of Quebec, should enjoy their property, usages,
and other civil rights as they had before done, and that in all
matters of controversy relative to prnprttif ami cin'l rii/hts, resort
dhould be had to the laws of Canada, and be determined agree-
ably to the said laws.' In this statute, the words, ' property and
civil rights ' are plainly used in their largest sense ; and there^
is no r6Uson for holding that in the statute under discussion^
tliey are used in a different or narrower one."
The Quebec Act, 1774, referred to in the last paragrapli
of this ({notation, draws a sharp distinction between the
criminal and the civil law (b), the two branches tof^ether
being treated as inclusive of the whole field; and the Com-
mittee, in holding that the same wide meaning must be
given to the term " property and civil rights " in this sub-
section, have, it may be thought, decided that the various
other sub-sections of section 92 are to be treated as
unnecessary surplusage. A reference, however, to those
other sub-sections will show that with one or two excep-
tions, they treat, not of civil rights as between subject and
sul)ject, but of what may be called political rights, as
between the subject, on the one hand, and the provincial
government and bodies organized for the purposes of local
self-government throughout the various sections of the prov-
ince, on the other. The judgment of the Committee does,
however, indicate a very wide range of subjects as included
within this sub-section — a range subject only to the terri-
torial limitation indicated by the words " in the province,"
and subject also, as the cases show, to be cut down to the
extent necessary to give proper play to the powers of the
Dominion parliament under the various sub-sections of
section 91. It would seem as if this sub-section really
throws the largest " residuum " to the provinces.
As to the first limitation, reference may be had to Re
Goodhue (c), in which it was held by some of the judges
(b) See ante, p. 105.
(c) 19 Gr. 366. See Jones v. Canada Central, 46 U. C. Q. B. 250, for
some observations by Osier, J. (now J. A.), upon Re Goodhue.
THE B. N. A. ACT — SEC. 92, H.-S. 13. 463
that a provincial statute cannot prejudicially att'ect the
rightH of a person living out of the province in respect to
pei-sonal property within. If, however, this is to be taken
»i8 more than a decision tus to the proper interpretation to
V)e given to the language of the provincial Act there in
(question, we find it very difficult to agree with it. Al-
though, in a sense, that the law of the domicile governs
as to personal property is a rule of private international
law which has been admitted into the jurisprudence
of many modem states, it is only so in the absence of
express legislation in the c^mntry in which it is sought to
be enforced, and, viewing the matter as a (juestion of
power, it seems to us that provincial legislation altering the
law in this respect would fall within sub-section Ifi of sec
tion 92. It may be thought that this view is inconsistent
with what has been laid down in chapter IX., (nitc. The
({uestion is certainly (me of considerable difficulty, Imt it
seems to us that there is a clear distinction between rights
arising from contract accrued abroad irrespective altogether
of the locality of the property covered by the contract,
and rights to be enjoyed by foreignei-s in respect to
property situate in the pi'ovince. There is no doubt a well
recognized distinction between land and movables, but a
reference to Von Savigny an<l other writers on this (question
of international law, will show that the rule is not by any
means universal ; and that, in the jurisprudence of many
modern states, the le,x loci governs as well in reference to
movables as to land and other immovable property.
We may also refer to the language of the Chancellor of
Ontario, in Re North Perth {(f). The particular passage to
which we refer will be found (pioted at length, mite, p. 287.
What is there said — although spoken in reference to rights
enjoyed by voters as citizens of Canada — accords with the
view above expressed, that this sub-section is not to be
taken as dealinsr with a man's riarhts in relation to the
o
(d) 21 O. R. 538.
464 THE B. N. A. ACT — SEC. 92, H.-S. 18.
organized political institutions of a province, but, na the
Chancellor puts it, " regards mainly the meimi and tmim
as between citizens." See also the language ot* the Judi-
cial Conunittee of the Privy Council in Thfeberge v.
Landry (e).
In reference to the second limitation above noted, that
while this sub-section is to be read in the very wide sense
indicated by the Connnittee in Citizens v. Pai-sons, it is
subject always to be cut down and limited by Dominion
laws passed in relation to matters falling fairly within any
of the sul)-sections of section 01, it may, as we have inti-
mated in the notes to the opening clause of section 91 (/),
be deemed (questionable whether this sub-section 13 can be
limited in its scope l»y anything short of general legisla-
tion by the Dominion parliament in reference to the
various matters comprised in the several sub-sections of
section 91. That question has been fully discussed in
those notes; but we may here mention that, in the various
decisions in which Dominion legislation has been upheld
notwithstanding the provisions of this sub-section, such
legislation has been general legislation. The decision of
the Supreme Court in Quirt v. The Queen ((/), is we think
the only exception. The decision of the Privy Council in
Colonial Building Association v. Attorney-General (Quebec)
(h), while it, in effect, upheld the valid? y of a Dominion
Act incorporating the appellant company, lays down that
the company, so incorporated, is. subject to the local laws
of the province in which its business may be carried on —
such, for instance, as laws limiting the right of a corpora-
tion to hold land. The case of Citizens v. Parsons (i),
affords another instance — the appellant company in that
case being held to be subject to provincial laws as to the
form and effect of contracts entered into by it within the
(e) 2 App. Cas. 102 ; see ante, p. 288. (h) 9 App. Cas. 157.
(/) Ante, ^. 350, et seq. (t) 7 App. Cas. 96; see ante, p. 353.
{g) 19 S. C. R. 510.
THE B. X. A. ACT — SEC. 92, S.-H. 13. 405
province. Upon this (luestioii further reference may Jm)
luvl to tlie notes to Hub-sections 10 and 10 of this sec-
tion 92.
Revei*tin«f, now, to the question of tlie extent to whicli
Dominion legishition of a {general character, in reference to
niattei-s falling' within any of the suh-sections of sectit)n f)l,
may overi'ide provincial hiw as to property and civil
rights, we may refer to Gushing v. Dupuy {J ), in which the
Judicial Conunittee of the Privy Council determined the
scope proper to be given to the terms " bankruptcy and
insolvency," in sub-section 21 of section 91. The passage
will be found quoted in the notes to that sub-section. Wo
may refer also to Doyle v. Bell (k), in which it was held by
the Court of Appeal for Ontario tiiat Dominion legislation
in reference to the conduct of elections of members of the
House of Commons of Canada, does not infringe upon the
powers of a provincial legislature under this sub-section — or,
perhaps we should rather say, that this sub-section must be
read subject to the provisions of any Dominion Act dealing
with that subject. It should be noticed, however, that the
language of the judges in that case recognizes the distinction,
afterwards so clearly pointed out by the Chancellor in Re
North Perth, that the rights of an inhabitant of Ontario in
connection with Dominion elections, is one of his political
rights in Canada, rather than a civil right in any one
province. Hagarty, C.J.O., however, refei-s to a number of
the sub-sections of section 91 ; any legislation upon which
must necessarily deal with rights of property and civil
rights in the different provinces, and to a certain extent
control and modify the provincial law which ordinanly
governs them.
In Russell v. The Queen {I), the Judicial Committee of
the Privy Council held that the Canada Temperance Act is
not an Act in relation to " property and civil rights in the
province " :
(j) 5 App. Cas. 409. (/&) 11 O. A. R. 326.
(I) 7 App. Cas. 829.
Can, Con.-*-30
40() THE B. N. A. ACT — SEC. 92, H.-S. 18,
" Their Lordships cannot think that the Temperance Act in
([uestion properly belongs to the class of subjects, ' property and
civil rights.' It has, in its legal aspect, an obvious and close
similarity to laws which place restriction on the sale or custody
of poisonous drugs, or of dangerously explosive substances.
These things, as well as intoxicating liquors, can, of course, be
held as property, but a law placing restrictions on their sale,
custody, or removal, on the ground that the free sale or use of
them is dangerous to public safety, nnil makmj it tt crinunnl
ojf'enci' punishable by fine or imprisonment to violate these
restrictions cannot properly be deemed a law in relation to
property in the sense in which those words are used in the 91st
section. What parliament is dealing with, in legislation of this
kind, is not a matter in relutiun to property and its rights, but
one relating to public order and safety. That is the primary
matter dealt with, and though incidentally the free use of things
in which men may have property is interfered with, that inci-
dental interference does not alter the character of the law.
Upon the same considerations, the Act in question cannot be
regarded as legislation in regard to civil rights. In however
large a sense these words are used it could not have been
intended to prevent the parliament of Canada from declaring
and enacting certain uses of property, and certain acts in
relation to property, to be criminal and wrongful. Laws which
make it a criminal offence for a man wilfully to set fire to his
own house on the ground that such an act endangers the public
safety, or to overwork his horse on the ground of cruelty to
the animal, though affecting, in some sense, property, and the
right of a man to do as he pleases with his own, cannot properly
be regarded as being legislation in relation to property or to civil
rights. Nor could a law which restricted the sale or exposure of
cattle having a contagious disease, be so regarded. Laws of
this nature, designed for the promotion of public order, safety,
or morals, and which subject those who contravene them
to criminal prosecution and punishment, belong to the subject of
public wrongs rather than to that of civil rights. They are of a
nature which fall within the general authority of parliament to
make laws for the order and good government of Canada, and
hare direct relation to criminal law, which is one of the enumer-
THE B. N. A. ACT — HEC. 92, S.-S. 18. 4(i7
atod classes of subjects assigned exclusively to the parliament of
Canada. It was said in the course of the judgment of this Board
in the case of the Citizens v. Parsons, that the two sections
must be read together and the language of one interpreted, and,
where necessary, modified by that of the other. Few, if any,
laws could be made by parliament for the peace, order, and good
government of Canada, which did not in some incidental way
atlect property and civil rights ; and it could not have been
intended, when assuring to the province exclusive legislative
authority on the subject of property and civil rights, to exclude
the parliament from the exercise of this general power whenever
any such incidental interference would result from it. The true
nature and character of the legislation in the particular instance
under discussion must always be determined in order to ascer-
tain the class of subject to which it really belongs."
There is much in this lanj^uage which supports wliat we
have said in regard to Dominion legislation being limited to
general legislation upon the mattei's entrusted to it, as being
matters of common concern to the whole country.
It would seem, therefore, upon review of these authori-
ties that the words of this sub-section are to be inter-
preted in their largest sense, subject only to the territorial
limit to which we have referred ; and subject, also, to the
abstraction therefrom of so much of the field naturally
covered by them as is necessary to afford scope for the
operation of the powera bestowed upon the Dominion par-
liament by the various sub-sections of section 91. Just to
what extent such withdrawal from provincial jurisdiction
may take place, <iepends upon the construction to be given
to section 91 and its various sub-sections. We may refer
in this connection to what was said in chapter X., ante, p.
213, et seq., as to the possibility of legislation by one legis-
lature, Dominion or provincial, limiting the range open to
the other. In this view it would, appear that this sub-
section 13, is one, the scope of which will, from time to
time, grow narrower as the necessity for general legisla-
tion by the Dominion parliament, upon matters covered by
the various sub-sections of section 91, increases.
468 THE B. N. A. ACT — SEC. 92, S.-S. 14.
In the notes to other sections and sub-sections we have
cited the various cases in which this sub-section 13 of sec-
tion 92 has been invoked, and need here, therefore, merely
indicate the cases and the various sub-sections under whicli
they will be found noted (m).
14. The Administration of Justice in
the Province, including the Constitution,
Maintenance, and Organization of Pro-
vincial Courts, both of Civil and of Crim-
inal Jurisdiction, and including Procedure
in Civil Matters in those Courts.
Our judicial system has already received attention to
the extent of an entire chapter (n), and in the notes to sub-
section 27 of section 91 we have necessarily had to deal
with some phases of the criminal law, for which reasons we
need here deal merely with certain other details of the
general subject and collect those authorities which have not
yet been cited. As, however, we refrained, in commenting
upon sub-section 27 of section 91, from discussing "the con-
stitution of courts of criminal jurisdiction," there excluded,
here included, we may here refer to the difficulties which
have arisen in connection with the administi'ation of
criminal justice, using the word "criminal" in the restricted
sense which, as has been pointed out, it bears in Canadian
jurisprudence. The constitution of courts of criminal juris-
diction is — subject to the provisions of section 101, of which
more anon — with the provincial governments ; the pro-
(m) Re SimmonB and Dalton, 12 O. K. 505, ante, p. 286; Slavin t.
Orillia, 36 U. C. Q. B. 159, a7ite, p. 359 ; Beard v. Steele, 34 U. C. Q. B.
43, ante, p. 374 ; Reg. v. Robertson, 6 S. C. R. 52, ante, p. 385 ; Mer-
chants Bank v. Smith, 8 S. C. R. 512, ante, p. 387 ; Clarkson v. Ontario
Bank, 15 O. A. R. 166, mite, p. 395 ; Re Wallace Heustis Co., 3 Cart.
374, ante, p. 400; McDiarmid v. Hughes, 16 O. R. 570, ante, p. 456-,
Monkhouse v. G. T. R. 8 O. A. R. 637, ante, p. 457 ; C. S. Ry. v. Jackson,
17 S. C. R. 316, ante, p. 458 ; McArthur v. N. & P. June. Ry. 17 O. A. R.
86, ante, p. 458; Reg. v. Wason, 17 O. A. R. 221, post, p. 478; Reg. v.
Robertson, 3 Man. L. R. 613, post, p. 480.
(n) Chapter XI., ante, p. 223.
THE B. N. A. ACT — SEC. 92, S.-S. 14. 469
cedure in criminal matters is exclusively with the Domin-
ion government; and already it is apparent that it is, in
many, if not most, instances, almost impossible to decide
with any reasonable certainty whether a law relates to
"constitution" or "procedure." In this sub-section, it should
be pointed out, the full rounded phrase is used — "constitu-
tion, maintenance, and organization" — and the difficulty
perhaps is rather to decide between "organization" and
"procedure." The authorities which deal with the (juestion
of juroi*s and the position of the jury in relation to the
organization of a court have already been cited (o). A jury,
empanelled and sworn, is part of the "organization" of the
court; the selecting and summoning of the members of the
jury is " procedure " ! Whether a man accused of crime is
to be tried with or without a jury is question of " procedure "
and can only be determined by the parliament of Canada
(p). Consequently, in Reg. v, Toland (q) it ha« just been
held that an Ontario Statute (35 Vic. c. 18, sec. 2) purport-
ing to give to a police magistrate power to try oftences
under the Dominion Act respecting forgery is altra vires,
there being no jury in connection with that tribunal. It
would appear that there is here occasion for "remedial"
legislation by the parliament of Canada; otherwise the
power to constitute courts of criminal jurisdiction is seri-
ously circumscribed. In its organization of those courts, a
province may find it difficult to keep pace with the require-
ments of Dominion laws as to "procedure," unless the par-
liament of Canada delegates to the provinces the regulation
of all procedure in criminal matters, just as it has practically
done in the matter of the selecting and summoning of
jurors. Another course is open to the Dominion govern-
ment, for by section 101 (see post) the parliament of Canada
may, "notwithstanding anything in this Ac^ " constitute
additional courts for the better administration of the laws
of Canada, and whether the jurisdiction of such "additional"
(o) ante, p. 416. et seq. (p) Reg. v. Bradshaw, 38 U. C. Q. B. 564.
iq) Not yet reported ; July, 1892.
470 THE H. N. A. ACT — SEC. 92, S.-S. 14.
CourtH wouM 1)0, or couhl be inmlo to be, excluHive, would
not be of inucli practical inoiiuiiit, as by attention to " pro-
ce«lure" the provincial ^un.s couM be. effectually spiked.
In treating of the <jU(!Htion of tluj juri.s<Hction of courts,
Dominion an<l provincial, wc; ventured to lay it down that
the jurisdictional liiu; in the case of the former is the line
which divides thos«! subject matters over which the Do-
minion parliament has jurisdiction from those committed
to provincial legislatures, while as to provincial couits,
wdiether oM or new, no such jui'isdictional lin«^ exists.
Herein lies the anomaly of our system. The legislative
and e.xecutive departments of the federal govcirnment are,
so far jis reganls the judicial ]>ranch of the latter, and in the
absence of resort to sectioti 101, divorced, and the enforce-
ment of the laws of Canada — /.''., Dominion laws — through
th(! courts is in the hands of tlui provincial governments.
To counterbalance one anomaly by another the appoint-
ment of part of the organization of the provincial courts is
with the Dominion government !
In Regina v. Horner (r), the Court of Queen's Bench
(Quebec), uphehl the Act of that province respecting <lis-
trict magistrates and magistrates' courts, and the power of
the provincial executive to appoint such magistrates. Refer-
ence is made by Mr. Justice Ramsay, in delivering the
judgment of the coiu't, to Regina v. Coote («), decided in
the Privy Council, as expressly recognizing the power of
provincial legislatures to create new courts for the execu-
tion of the criminal law, as also to nominate the magistrates
to sit in such courts. "So much being established almost
all difficulty dLsappeai-s. The Privy C^ouncil recognizes the
general principle that the executive power is derived from
the legislative power unless there be some restraining enact-
ment." It appeal's, we should perhaps say, from the report
of the case, that the Act in question expressly provided for
the appointment of such magistrates by the Lieutenant-
Governor in Council.
(r) 2 Steph. Dig. 450 ; 2 Cart. 317. («) L. R. 4 P. C. 599.
THE n. N. A. ACT— SEC. t)2, S.-S. 14. 471
To Hpcak now of courtH of civil juriHiHctioii, we may
note that in Ganonj»- v. Bayley (t), in tlie New Brunswick
Supn^nie Court, it was held hy the majority of the co»n"t
that an Act of the New Brunswick legislature estahlishinj^
commissioners' courts in that province, and for the appoint-
ment by the Lieutenant-Governer in Council of commis-
sioners to preside therein, was valid. The power of the
local le<(islature to establish coui-ts seems to liave Iwien
treated aH beyond question^ the point more fully discussed
beinj;- as to the valiflity f)f the Act in so far as it con-
ferred on the Lieutenant-Governor of the province power
t<) appoint the jud^(!S who should preside in such courts,
and tlu! case, therefore, should perhaps be noted rather as
an aflirmance of the doctrine that an Act of provincial
legislation in I'eference to the exercise of the prerogatives
of th(! (3rown in relation to matters falling within the
legislative competence of such legislature, is a proper
exercise of its legislative power. The opinions of Chief
Justice Allen and Mr. Justice Dutt", who dissented from the
judgment of the nmjority of the court, are place<l upon the
ground that the exercise of this prerogative is, by the
B. N. A. Act, vested exclusively in the Governor-General
HH Her Majesty's only representative in Canada. But, in
view of the authorities noted under section 58, a7ite, this
view is untenable.
As to the appointment of ju<lges and officei-s connected
with the administration of justice reference nia^ l)e had to
chapter XI. (ante, p. 288, fit se^q.), and to the cases in the
foot note {u).
The ({uestion of the power of a provincial legislature
to regulate procedure affecting penal laws which such
legislature is authorized to enact {v), came before the Que-
(/) 1 Fug & Burb. 821 ; 2 Cart. 609.
(») Reg. V. Reno, 4 P. B. (Ont.) 281 ; Re){. v. Bennett, 1 O. R. 415;
Richardaon v. Ransom, 10 O. R. 887 ; Ex parte Williamaon, 24 N. B. G4 ;
and /Jx j:»'rr(« Perkins, t&. 66. '- ■
(v) Bee 8-B. 15, jpoit.
472 THE B. N. A. ACT — SEC. 92, S.-S, 14. *
bee Courts in three early cases, and was very emphatically
affirmed. In Pope v. Griffith (w), a case arising under the
Quebec License Act, Mr. Justice Ramsay says :
" Appellant at once admits that the local legislature have the
power to attach a fine, penalty, or imprisonment, to the sale or
keeping of spirituous liquors without a license ; but that having
done that, a crime was created, and that all the procedure con-
nected with the infliction of punishment for this crime must
necessarily be fixed by parliament, and could not be fixed by the
legislature of the province. In support of this pretension appel-
lant maintains that every infraction of a public law to which any
penalty is attached is a crime. . . . Whatever may be the
definition of a crime, I would remind those who lean too much
upon definitions, of their danger ; it will not be denied that, in one
sense of the word, the act of which the appellant is accused, is a
crime ; but it is equally plain that it is not a criim in the scnxe of
sub-section 27, section 91 of the B. N. A. Act. Now, if the signifi-
cation attached to the word " criminal " is restricted when re-
ferring to law in this sub-section, why should it be used in a
different sense when applied to procedure? It cannot be pre-
sumed that in one short paragraph, particularly a paragraph of
an enumeration of powers, the legislature should have intended
to apply two different meanings to the same word, especially
when by doing so they would be transferring the legisla-
tion with regard to a purely local matter to parliament. The
rule is all the other way."
In Ex parte Duncan {x), Mr. Justice Dunkin held that
34 Vic. c. 2 (Quebec) taking away the right to certiorari^
to remove proceedings in civil matter's before a district
magistrate, was valid, and that under the term "civil
mattens," a proceeding before a district magisti-ate for the
enforcement of penalties under a license law of the pro-
vince would be included.
" These words ' civil ' and ' criminal ' are used in a sense which
excludes from the idea conveyed by the latter and includes
within that conveyed by the former this matter of ' punishment
(w) 16 L. C. Jar. 169; 2 Cart. 291.
(x) 16 L. C. Jar. 188 ; 2 Cart. 297.
THE B. N. A. ACT — SEC. 92, S.-S. 14. 473
by fine, penalty, or imprisonment, for enforcing any law'
whicb, under this 92nd section, a province alone can legally
enact. Jurisdiction is characterized simply as being civil or else
criminal. Criitu- — of whatever kind or degree — can be created,
its punishment assigned, and procedure relative to it laid down
by parliament alone. No enactment of a local legislature can
give to any Act that quality, or subject it to that punishment, or
bring it within the purview of that procedure. But every local
legislature without let or hindrance from parliament— and
therefore without need of aid from parliament — can impose pun-
ishment by fine, penalty, or imprisonment, for enforcing certain
laws, which it alone can make. . . .
" Whatever infractions of law, whether as to matters of
Dominion or provincial (//) legislation, parliament sees fit to
designate as crimes, it — and it alone — can so declare, and as such
punish, and to that end regulate procedure. Whatever infrac-
tions of any provincial law coming within the purview of this
92nd section, parliament may not see fit thus to deal with, the
interested province may punish by fine, penalty, or imprison-
ment ; but its so doing does not make the ofience to be thus
punished a crime, nor the procedure laid down in order to its
punishment procedure in a criminal matter. On the contrary,
such whole tuatter tmist renmin a civil matter, ivithin what is here
the time meaninfi of these respective terms.
In Page v. GriflSth {z), Mr. Justice Sanborn expresses
the same opinion, intimating that, in his view, the pow^er
to prescribe procedure in criminal mattera refers to " the
general public criminal law comprised in the criminal
statutes of the Dominion and in the common law. This
view is confirmed by the Criminal Procedure Act, which
has no reference whatever to local penal laws, but to laws
in force thi-oughout the Dominion," and in Cote v. Chaveau
(a), the law is laid down to the same effect by Mr. Justice
Casault.
(y) See ante, p. 414.
(2) 17 L. C. Jar. 302; 2 Cart. 808.
(a) 7 Q. L. R. 5>68 ; 2 Cart. 311.
474 THE B. N. A. ACT — SEC. 92, S.-S. 14.
Having held valid the provincial game laws, the full
Court of Queen's Bench of Manitoba, in 1886 (6), adopted
the view which was then practically recognized in all the
other provinces, that procedure In connection with prose-
cutions under such laws is matter of exclusively provincial
jurisdiction. We say practically recognized, although the
([uestion was only in 1890 authoritatively passed upon in
Ontario by the Court of Appeal for that province in Reg. v.
Wason (e), a case which will call for more extended notice
in the notes to sub-section 15, post.
In Reg. V. Bittle (d), the Divisional Court of the Common
Pleas Division, reviewed the decisions upon this question.
MacMahon, J., delivering the judgment of the court, uphold-
ing the validity of R. S. O. c. 61, s. 9, which provides
that, in proceedings under provincial Acts, the defendant
is neither a competent nor compellable witness, refei*s to
the diversity of nomenclature applied to provincial laws
falling within this sub-section — "provincial criminal laws"
(7 App. Cas. 840); "penal laws" (2 Cart. 291); "a civil
matter within the true meaning of these respective terms"
(2 Cart. 297) — adopts the language of Hodge v. Reg., that,
however styled, such laws are "not in conflict with No.
27 of section 91," and concludes:
" It is manifestly clear from the authorities that the pro-
cedure by the tribunals intrusted with adjudicating on the
ofifences so created cannot be prescribed by the Dominion parlia-
ment."
It was held in Manitoba, by Mr. Justice Killam (e), that
the provisions of the Dominon Act (46 Vic. c. 17) (f), for
tlie reception in evidence of certified copies of documents
{h) Reg. V. Robertson, 3 Man. L ^. 618 ; see notes to s-s. 15, post.
(c) 17 O. A. R. 221.
(d) 21 O. R. 605.
te) McKilligan v. Machar, 3 Man. L. R. 418.
(./') See R. S. C. c. 189; see particularly section 10, which makes
applio ible to proceedings under Dominion law, provincial lawa of evi-
dence " subject to the provisions of this and other Acts of the parliament
of Canada."
THE B. N. A. ACT — SEC. 92, S.-S, 14. 475
an<l records in the Dominion Lands Office, were ultra viren,
so far as they might be taken to apply to suits merely for
the cancellation, as clouds upon title, of conveyances regis-
tered under the Lands Registration Act of Manitoba. As
the point is of some importance, and, so far as we are
aware, has not been touched upon in any other case, we
quote somewhat at length from his judgment :
•• It does not appear to me that the Dominion parliament
could make any binding provision as to the nature of the evi-
dence to be received in a case like the present. The suit is one to
determine the right to, or property in, certain lands in this prov-
ince. The decision of the question may involve to a certain
extent the interpretation of statutes of the parliament of Canada,
and of orders of the Governor-General in Council ; but the suit
is not instituted under any authority of the Dominion parlia-
ment. Whether there had been, at a certain date, a grant from
tlie down, represented by the Governor-General, of lands held
for the benefit of the Dominion, must be determined by a consid-
eration of certain statutes and Orders in Council, as well as of
evidence of acts done under them. This court, in interpreting
those statutes and Orders in Council, has to apply the ordinary
rules of interpretation. In so far as the Dominion parliament lays
down rules to show the meaning of its own statutes they will be
used for the purpose, just as any statement in any document of the
meaning of certain phrases or words therein, will be used in the
interpretation of the document. This, however, in no way shows
that the Dominion parliament could lay down rules as to the
method of proving acts done under its statutes, or Orders of the
Governor-General in Council. Whether the registration of an
instrument appearing to show a claim adverse to that of the real
owner of land, forms a cloud upon the title of the owner which
should be removed by a decree of this court, is a matter upon
which the provincial legislature alone could legislate ; though in
such a suit, title may be deduced from the Crown, holding origin-
ally for the Dominion. The provincial legislature has the
authority to regulate the administration of justice in the province,
including procedure in civil matters in the courts ; though it
has in some cases been held that the Dominion parliament could
establish courts for the determination of matters arising under
470 THE W. N. A. ACT — SEC. 92, S.-S. 14.
statutes within its powers, or, perhaps, reguhite to some extent,
procedure in the ordinary courts, in suits upon subjects within
its legislative authority."
Whittier v. DiMee (if), is simply a qiuvre whether the
Dominion Act, 82 k 88 Vic. c. 89, relatinj^ to costs
aj^ainst justices is not ultra viren of the federal parliament
as relating to procedure in a civil matter. It is difficult to
suggest any principle in denial of the right of the Dominion
parliament, as part of general legislation in regard to a
criminal law, to pass an Act protecting magistrates in the
exercise of their criminal jurisdiction in the proper sense
of that term.
We have already noted some cases which deal with the
(|uestion of the position of iinpnsoned debtoi-s, and may
here refer to some othera dealing with the same topic.
Prior to Confederation, there were no county courts in
Nova Scotia. By an Act in force in the Province of Nova
Scotia at the Union, every debtor imprisoned under process
in any court, was entitled to apply for and, on certain con-
diti(ms, to obtain his discharge. Doubts having been
expressed as to the jurisdiction of the county courts estaV)-
lished after Confederation to entertain such application, an
Act of the provincial legislature was passed making tlie
above provisions applical>le to persons imprisoned by ct)unty
courts ; and this Act was held {h) to be valid, as being a
matter relating to procedure in " civil " matters in provin-
cial courts. With this case should be compared the Queen
V. Chandler (i), an earlier decision of the New Bininswick
Supreme Court, which with other cases will be found noted
more fully in sub-section 21 of section 91.
The Supreme Court of New Brunswick, in Ex parte
Ellis {j), upheld the validity of a provincial Act for the
(g) 2Pag. 'J43; 2 Cart. 492.
{h) Johnston v. Poyntz, 2 Riss. & Geld. IftJ ; 2 C:\rt. 416.
(/) 1 Hannay, 556; 2 Cart. 421.
(j) 1 Pug. and Burb. 593 ; 2 Cart. 527.
THE H. N. A. ACT — SEC, 92, S.-S. 14. 477
iiiiprisoninent of a perHon making- default in payment of a
HUm of money due on a judgment in cei'tm i cases as being
a matter relating to proceeding in " civil " matters and
not falling within the criminal law, or the law relating to
b.mkruptcy and insolvency. Allen, C.J., says :
" Now surely the enforcing the payment of a judgment is a
civil right, and the mode of enforcing it a part of the adminis-
tration of justice, and procedure in civil matters in the province;
all of which are expressly within the jurisdiction of the provin-
cial legislature. Having therefore the right to legislate on these
subjects, the 15th sub-section gives them power to enforce any
such laws by imposing iinpiisonmeiit. It would seem, therefore,
that the powers conferred by this Act are directly within the
92nd section of the B. N. A. Act."
Mr. Justice Weldon dissented from the judgment of the
majority of the court, the legislation impugned being, in
liis opinion, legislation relating to the criminal law.
Other cases in which reference 1ms been made to thia
sub-section will be found in the foot note {k). Those sub-
sections of section 91 which involve " procedure " as an
essential part of any legislation thereon are treated of
generally in chapter XI, (t?«<e, p. 236, and more particularly
in the notes to the sub-sections themselves,
(fc) Wilaon v. McGuire, 2 O. R. 118, ante, p. 232 ; Peak v. Shiehis.
8 S. C. R. 591, ante, p. 236 ; Reg. v. Bush, 15 O. R. 398, ante, p. 239 ; Re
N. Perth, 21 O. R. 638, ante, p. 240 ; Valin v. Langlois, 5 App. Cas. 115,
ante, p. 287 ; Re Wetherell and Jones, 4 O. R. 713, ante, p. 346 ; Gushing
V. Dupuy, 5 App. Cas. 409, ante, p. 391 ; Crombie v. Jackson, 34 U. C.
Q. B. 675, ante, p. 393 ; Armstrong v. McCutchin, 2 Cart. 494, ante,
p. 397 ; Reg. v. Boardman, 30 U. C. Q. B. 553, ante, p. 410 ; Reg. v.
Lawrence, 43 U. C. Q. B. 164, ante, p. 411 ; Reg. v. Roddy, 41 U. C.Q. B.
291, ante, p. 415; Ward v. Reid, 3 Cart. 405, ante. p. 416; Atty.-Genl.
of Quebec v. Reed, 10 App. Cas. 141, ante, p. 431 ; Piummer Wagon Co.
V. Wilson, 3 Man. L. R. 68, ante, p. 433 ; Dulmage v. Douglas, 3 Man.
L. R. 562, ante, p. 434 ; Crawford v. Duffield, 5 Man. L. R. 121, ante,
p. 434 ; Keg. ex rel. McGuire v. Birkett, 21 O. R. 162, ante, p. 445 ;
McArthur v. N. & P. June. Ry. 17 O. A. R. 86, ante, p. 458 ; Reg. v.
Amer, 42 IT. C. Q. B. 391, ante, p. 259 ; Lenoir v. Ritchie, 3 S. C. R. 675,
ante, p. 317 ; Re Squier, 46 U. C. Q. B. 474 ; see notes to section 96,
post.
478 THE H. N. A. ACT — SEC. 92, S.-S. 18.
15. The imposition of punishment by
fine, penalty, or imprisonment for enforc-
ing any lav/ of the Province made in
relation to any matter coming within any
of the classes of subjects enumerated in
this section.
This Hul)-secti«)n was recjuired in order to rouiul up the
.sphere of authority of the provinces and make the le^is-
hitive and executive departments, beyond doubt, co-
terminous. By it, moreover, that power to " sanction " its
enactments without which hiw is but a brutuin fidiitcn, is
phiced within the hands of provincial legislatures. Subject
to the anomaly perpetrated by section 96, the provinces
have control to the fartliest bounds over the execution of
provincial laws.
In the notes to the last sub-section (14), the authorities
were collected which have now clearly established that the
matters covered by this sub-section are not " criminal " in
the sense of sub-section 27 of section 91, but "must remain
civil matter's within what is here the true meaning of
these respective terms"; and the procedure necessarj'^ to
enforce punishment for breach of any provincial law is
procedure in a " civil " matter.
But, by whatever name called, the body of laws passed
under the authority of this sub-section nuist necessarily
present features closely resembling the ordinary criminal
law as it is to be found in the Dominion statute books, and
because this fact is the one most prominent in Reg. v.
Wason {I), we have left that case to be noted here rather
than under sub-section 13, although, as will appear, the
decision of the Court of Appeal for Ontario was unani-
mously to the effect that the provincial legislation there
impugned was legislation as to "property and civil rights."
The statute in question w^as entitled " An Act to protect
(0 17 O. A. R. 221.
THE n. N. A. ACT — SEC. 92, H.-S. 15. 479
agaiiiHt frauclH in the Hupplyinj,^ of milk to cheeHc or Imtter
manufactorieH," and by itH fii-st section it provided that
" no person shall knowingly ami wilfully " supply diluted,
adulterated, or skininied milked to a cheese or butter
manufactory without notifyinj^ the owner or manager of
such dilution, etc., under a penalty as provide<l in the Act.
The Divisional Court of the Queen's Bench Division de-
clared the Act ultrd vires, on the ground, as put by
Armour, C.J., that "the primary object of the Act is to
create new offences and to punish them by tine, and, in de-
fault of payment, by imprisonment, and this is its true
nature and character." Mr. Justice Street dissented, and
his view was adopted by the Court of Appeal. He says in
his judgment :
" Is it an Act constituting a new crime for the purpose of
punishing that crime in the interest of i>Miv niomUty .' Or is it an
Act for the regulation of the dealings and rights of cheesemakers
and their patrons, with punishments imposed for the protection
of the former ? If it is found to come under the former head, I
think it is bad as dealing with criminal law ; if under the latter,
I think it is good as an exercise of the rights conferred on the
province by the 92nd section of the B. N. A. Act. An examina-
tion of the Act satisfies me that the latter is '^is true object, in-
tention and character."
It may now, therefore, be taken, ao far as the courts of
Ontario are concerned, that the criterion here suggested is to
be our guide in determining this question in any given
case. As will have been noticed, the difference in opinion
which existed in the Queen's Bench was as to the primary
object of the Act there impugned, the majority of the
court answering Mr. Justice Street's questions in the
reverse way. It would appear, therefore, that, as Mr.
Justice Osier puts it, " Thou shalt not " is not necessarily
" criminal " legislation within the meaning of the B. N. A.
Act.
'♦ The legislature when really dealing with property and civil
rights must have power to say * thou shalt ' or * thou shalt not,'
480 THE H. N. A. ACT — SEC. 92, H.-S. 15.
and, as the breaclt of the legislative command is always, in one
sense, an offence, the line between what may, and what may not
be lawfully prescribed without touchijig upon ' criminal ' law is
sometimes difticult to ascertain, and may shift according to cir-
cumstances The criminal law, so far as regards
human legislation, in its ultimate object, even when dealing
with public order, safety, or morals, is chiefly concerned with
preventing and punishing the violation of personal rights and
rights respecting property, and hence, in a very wide sen^e, with
property and civil rights. But while in this sense, and in making
provisions applicable to the community at large, whether we
speak of all the confederated provinces or of one, the right to
legislate rests with parliament, I do not see how the right can be
denied to the provincial assemblies to legislate for the better pro-
tection of the rights of property by preventing fraud in relation
to contracts or dealings in a particular business or trade, or upon
other subjects coming within section 02, and to punish the infrac-
tion of the law in a 3uitable manner, so long, at all events, as
parliament has not occupied the precise field ; for I suppose it
will not be denied that the latter may draw into the domain of
criminal law an act which has hitherto been punishable only
under a provincial statute : Hodge v. The Q< een, 9 App. Gas. at
p. 181. But if a particular species of fraud has not been con-
verted into a crime by Dominion legislation, I think that the
local legislature must be at liberty to deal with it for the better
protection of the class of persons immediately afifected by it."
We have quoted this passage at length, because it ex-
presses views in relation to the question of "concurrent"
powers which go far to support what we have ventured to
lay down in chapter X. (ante, p. 213, et seq.) upon this vexed
question.
Having held the Act intra vires, the Court of Appeal
decided without hesitation that the procedure laid down for
its enforcement was procedure in a civil matter within the
meaning of sub-section 14 of section 92.
To the like effect, the full Court of Queen's Bench, in Man-
itoba, in Queen v. Robertson (m), held that laws relating to
(ffl) 3 Man. L. B. 613. This case is noted more fully under the next
s-B. 16.
THE n. N. A. ACT — SEC. 02, H.-S. 15. 481
tlio killing junl poHHession of {^ame at certain seasons of the
year, are laws relating- to property and civil rights. Re-
ference is made to the works of Blackstone and other old
writei-H as showing that the taking of animals /Wvt' ntitiinv
is an ordinary right which, in the absence of legislation,
any citizen possesses; and therefore that laws curtailing
such rights are laws relating to civil rights in the province,
within the meaning of this suh-section.
The (juery in Regina v. Boardman {n), as to the power
of a provincial assembly to pass a general law in reference
to the punishment to be meted out for v'iolation of pro-
vincial laws, is now answered in favor of the power — so
far at all events as the authority of the Court of Appeal
for Ontario extends — by the decision of that trilmnal in
Attoniey-General (Canada) v. Attorney-General (Ont.) (o).
It w(nild seem also to be covered \)y the principle of Hodge
V. The Queen (p), applied a fortiori.
However, as late as July, 1890, Mr. Justice Wurtele, of
the Quebec Superior Court, held, in Tarte v. B<^ique (g),
that a provincial legislature, for enforcing a law made by
it, must enact a special line or imprisonment, and cannot
confer the power on any pei*son or body of pei^sons to
determine what penalty shall be incurred by a violation of
such law. But this seems to be qualified by a remark,
made later, that the legislature has no power to decree that
the punishment of an offender shall be at the discretion of
the court before which he may be tried. No reference is
made in the judgment to the doctrine enunciated in Queen
V. Burah, and the other cases, particularly Hodge v. The
(w) 30 U. C. Q. B. 553 ; see ante, p. 410.
(o) 19 O. A. R. 31.
{p) 9 App. Cas. 117.
(q) 6 Mont. L. K. 289. It was also held in this case that a commis-
sion of inquiry issued by a Lieutenant-Governor in Council, under a
provincial statute, is not a judicial tribunal, and does not possess any in-
herent power to commit for contempt.
Can. Con.— 31 ■
482 THE B. N. A. ACT — SEC. 92, S.-S. 15.
Queen (r), which support the doctrine of "plenary powers" ;
and it is difficult in view of these authorities to acquiesce
in the correctness of this decision. •
In Bennett v. The Pharmaceutical Association (s), it was
held by Chief Justice Dorion, that the provisions of the
Quebec Pharmacy Act, 1875, appropriating fines imposed
for breaches of that Act to the respondent corporation, was
intra vires :
" It can direct that a portion or the whole of it shall be for
the benefit of the prosecutor, or of a municipal or other corpora-
tion, just as it distributes the provincial revenue, in any manner
it may choose to direct. It had the same power to enact that
the fines levied under the Act should be for the benefit of the
society respondent as it would have, after receiving the fines as
part of the provincial revenue, to order that the amount should
be paid back to the society for the objects of its incorporation."
a decision which is in agreement with the later decision
of the Court of Appeal for Ontario in the case above noted
(t), in which general legislation authorizing the Lieutenant-
Governor in Council to remit fines, etc., if thought proper,
was upheld.
In the province of Quebec conflicting decisions were
given in certain cases which came before the Courts of that
province in 1871-3. Mr. Justice Drummond held (u) that
the local legislature could not authorize punishment by both
fine and imprisonment, and in this view he was followed
by Mr. Justice Torrance (v). In Paige v. Griffith (w), Mr.
Justice Sanborn declined to follow the earlier cases, and
construed the word "or" as being cumulative. In Blouin v.
Quebec (x), Chief Justice Meredith intimated his agree-
(r) See ante, p. 177, et seq.
(s) 1 Dor. 336 ; 2 Cr, ^t. 250.
(t) Atty.-Gen. (Can.) v. Atty.-Gen. (Ont.), 19 O. A. R. 31.
(«) Ex parte Papin, 15 L. C. Jur. 334 ; 2 Cart. 320.
(v) Ex parte Papin, 16 L. 0. Jur. 319 ; 2 Cart. 322.
(w) 18 L. 0. Jur. 119; 2 Cart. 324.
(x) 7 Q. L. R. 18 ; 2 Cart. 368.
THE B. N. A. ACT — SEC. 92, S.-S. 16. 483
ment with the View w^hich had also been expressed in
earUer cases in that province that a local legislature has no
power to impose hard labor as a term of imprisonment
under this sub-section 15 ; but the contrary has now been
distinctly held by the Judicial Committee of the Privy
Council in Hodge v. The Queen, which also supports the
•cumulative reading of the word "or" (xx).
16. Generally all matters of a merely
local or private nature in the Province.
This sub-section must be read in connection with — per-
liaps we should sa}^ subject to — the concluding paragraph
of section 91 : —
" And any matter coming within any of the classes of sub-
jects enumerated in this section shall not be deemed to come
witliin the class of matters of a local or private nature comprised
in the enumeration of the classes of subjects by this Act assigned
exclusively to the legislatures of the provinces."
As has been pointed out, the grammatical connection of
this concluding paragraph of section 91 with this sub-section
16 is now clearly established by authority. In note (xi) to
the opening paragraph of section 91 we referred to the con-
cluding paragraph of that section as weakening somewhat
the argument that the legislative power conferred on the
Dominion parliament should be limited to the passing of
general laws, to operate throughout Canada or for the
general benefit of Canada as a whole ; because it would
seem to be implied that matters would come before the
Dominion parliament for legislative action which upon
(xx) For other cases in which this sub- section has received attention,
see:
Reg. V. Lawrence, 43 U. C. Q. B. 104, ante, p. 411 ;
Reg. V. Shaw, 7 Man. L. R. 518, ante, p. 412 ;
Reg. V. Roddy, 41 U. C. Q. B. 291, ante, p. 415 ;
Reg. V. Lake, 43 U. C. Q. B. 615, ante, p. 415 ;
Pope V. Griffith, 2 Cart. 291, ante, p. 472 ;
Ex parte Duncan, 2 Cart. 297, ante, p. 472 ;
-Page V. Griffith, 2 Cart. 308, ante, p. 473.
484 THE B. N. A. ACT— SEC. 92, S.-S. 16.
their face, so to speak, would appear to be matters of a.
merely local or private concern in one province. It may be
argued, however, that what is meant by the concluding
paragraph of section 91 is simply this : that if a Dominion
law, ex hypothcsi of a general character, should affect
local and private interests in one province in a particular
manner, or to a degree peculiar to such province, such law
must not on that account be deemed to be a law relating to a
matter of a merely local or private nature in such province,
and therefore invalid. For example, a general law in rela-
tion to sea-coast fisheries might peculiarly or even exclu-
sively affect one province — and so as to the establishment
of lighthouses, inter-provincial or international ferries, and
other mattei-s which might be named. We have already
discussed various aspects of this question {y). It is
involved in the larger question as to " concurrent " powers
(so-called), and as to the difference in the range of mattei-s
open to one legislature in the absence or presence of legis-
lation enacted by the other. If the powers of the parlia-
ment of Canada are, in every instance, powers of genera]
legislation only, it would appear that all laws for the peace,
order, and good government of a province as a self-govern-
ing unit, passed in relation to matters not covered by
general legislation by the parliament of Canada upon those
matters of common concern committed to it, would be laws
of a " merely local or private nature in the province." In
this view no difficulty would arise from the limitation upon
the scope of the term " municipal institutions " ; for as a
province could itself pass, so it could delegate to a muni-
cipal body power to pass, any laws in relation to local self-
government not overborne by general laws passed by the
parliament of Canada in the interests of the Dominion as
a whole. In this connection we may refer to what was
laid down by Lord Selborne in L' Union St. Jacques v.
B^lisle {z)'.
(y) See ante, p. 213, c^ seq.; and note (xi) to sec. 91, ante, p. 350.
(x) L. R. 6 P. C. 31.
THE B. N. a; act — SEC. 92, S.-S. IG. 485
*'The omts is on tlie respondent to show that this, being of
itself of a local or private nature, does also come within one or
more of the classes of subjects specially enumerated in the 91st
section."
a passage which is immediately followed by that other
which we have already (luoted, to the effect that, in the
various sub-set -as of section 91, there is no indication in
any instance of anything Ijeing contemplated beyond what
may be properly described as general legislation.
The main difficulty about the whole matter is that the
" residuum " of subject matters is assigned to the parlia-
ment of Canada. But here again it may be argued that
the legislation must be general, for the peace, order and
good government of Canada as a federal Dominion, and
that, in truth, the '• residuum," at any given moment, must
be with the provinces, the matters comprised in such " resi-
duum " being deemed matters of a local or private nature
in each province as would be evidenced by the absence of
general federal legislation thereon.
The whole subject is one upon which much may be
said, but, confining our attention now to this sub-section
16, we proceed to indicate what particular provincial legis-
lative Acts have been held to fall within it.
In L'Union St. Jacques v. Belisle, above referred to, an
Act of the Quebec legislature, passed in aid of a society
which was in financial straiis, forcing comnmtation upon
certain annuitants, was held to be an Act relating to a
matter of a merely local or private concern in the pro-
vince. It was contended — held in the judgment appealed
from — that the legislation was insolvency legislation, and
the Judicial Committee intimated that if a Dominion Act
had been in existence making such acts on the part of the
society as were authorized by the statute in question, acts
of insolvency rendering all societies who committed them
liable to be wound up under insolvency proceedings, it
might be that the statute in question would have been
486 THE B. N. A, ACT — SEC. 92, S.-S. 16.
lUtra vires; but that, as no such general Dominion legis-
hition was in existence, the Quebec statute was intra vires
as relating to a matter which, as the law stood, must be
taken to be a matter of local concern in Quebec.
In Dow V. Black (a), an Act of the New Brunswick
legislature authorizing a levy to pay a " bonus " to a rail-
way extending beyond the boundaries of the province waa
upheld under this sub-section.
In Hodge v. The Queen {h), the regulation of taverns,,
etc., was held to fall within this 8ul)-section, although in
the earlier ctise of Russell v. The Queen (c), the " local
option " character of the Canada Temperance Act did not^
in the opinion of the Connnittee, make that Act other than
one for the peace, order and good government of Canada,,
falling within the residuary clause of section 91 :
** The Act as soon as it was passed became a law for the whole
Dominion, and the enactment of the first part, relating to the
machinery for bringing the second part into force, took effect, and
might be put in motion at once and everywhere within it. . .
The manner of bringing the prohibitions and penalties into force,
which parliament has thought fit to adopt, does not alter its-
general and uniform character. Parliament deals with the sub-
ject as one of general concern to the Dominion, upon which
uniformity of legidation is desirable, and the parliament alone
can so deal with it."
In Hodge v. The Queen the regulations there supported
were said not to conflict with the Canada Temperance Act,
"which was not locally adopted." In a number of the
cases which dealt with the question of the power of a pro-
vincial legislature to deal with certain phases of the liquor
traffic, (Uda are to be found to the effect that the exercise
of regulative power falls within this sub-section as a.
(a) L. R. 6 P. C. 272.
(fc) 9 App. Cas. 117.
(c) 7 App. Gaa. 829.
THE B. N. A. ACT — SEC. 92, S.-S. 16. 487
matter of "police" {d), for the repression of disorderly and
riotous conduct such as would injuriously affect local
morals and local good government ; but there can be no
doubt that upon the adoption of the Canada Temperance
Act all such provincial powers in relation to that traffic
would be overborne.
And so as to "nuisances," it was held in Ex ixirte
Pillow (e), that the power of a provincial legislature to
pass, or to authorize a municipal body to pass, laws for
their abatement as being injurious to the public health of
the community, was not in conflict with the power of the
parliament of Canada to pass, as part of the criminal law
of the Dominion, a general law as to nuisances.
In Bennett v. The Pharmaceutical Association (/), it
was held by Chief Justice Dorion :
" The determining of the age or other qualifications, required
by those residing in the province of Quebec, to manage their own
business, or to exercise certain professions or certain branches of
business attended with danger or risk for the public, are local
subjects in the nature of internal police regulations; and in pass-
ing laws upon those subjects, even if those laws incidentally
affect trade and commerce, it must be held that this incidental
power is included in the right to deal with the subjects placed
especially under their control, the exercise of which can not be
considered to be unconstitutional. The Pharmacy Act of 1875>
in so far as this case is concerned, does not regulate trade and
commerce. It merely determined the status of persons exercising
the business of chemist and druggist. This is a civil right
coming clearly within the powers of the local legislature."
(d) See the cases collected in the notes to s. 01, b-s. 2, ante, p. 359,
et seq. In Slavin v. Orillia, the late Sir Wm. Richards colleclis a num-
ber of American authorities as to " police " powers.
(e) 27 L. C. Jur. 216 ; 3 Cart. 357. See also Reg. v. Wason, noted
under s-s. 15 ; it would support laws as to " nuisances " as being for the
protection of property and civil rights.
(/) 1 Dor. 336 ; 2 Cart. 250.
488 THE B. N. A. ACT — SEC. 92, S.-S. 16.
It has been held (g), by the full Court of Queen's Bench
of Manitoba that provincial Acts, regulatini^ the killing- and
possession of game at certain seasons of the year, are
intra vires. Mr. Justice Killani, in delivering the judg-
ment of the court, refers to the action of the Dominion
parliament in not assuming to pass any such laws, and to
their action in placing among the subjects <^)f legislation V»y
the Council of the North-West Territories the subject
'' Game and wild animals, and the protection thereof " ;
venturing the opinion that the Dominion parliament wouM
not be likely to give to the North-West Council powers of
legislation more extended than those possessed by pro-
vincial legislatures. Apart from this consideration, the
statutes were held to fall within both sub-sections 13 and
16 of section 92. The object of such Acts is 8ai<l to be
" essentially local." " It is to secure the increase, or to pre-
vent at any rate as far as possible the decrease of the
supply of game within the province." Hodge v. The
Queen is spoken of as showing that a law is considered
to be local within the meaning of this sub-section,
nlthough having operation throughout the whole of the
province, and although the subject with which it deals
may be an important subj'ect of legislation in other pro-
vinces also ; and further, that the sub-section cannot be
confined in its operation to local and private, as dis-
tinguished from public Acts. The judgment discusses these
various matters in a most instructive and interesting way.
The difficulty we have to contend with in all these cases is
that formerly noted in reference to Hodge v. The Queen,
namely, that in scarcely any of them is the legislation up-
held under this sub-section alone. This is, of courae, to be
expected, but at the same time it increases the difficulty
{(j) Reg. V. Robertson, 3 Man. L. R. 613. See also, ante, p. 414 and
p. 480.
THE B. N. A. ACT — SEC. 93. 489
one finds in attempting to asHign a limit to the scope of
the sub-section {(/fj).
Education.
93. In and for each Province the ,^et^;'Si^^^^^
Legislature may exclusively make laws '"^"*'**'°"-
in relation to Education, subject and
according to the following provisions : —
(1) Nothing in any such law shall
prejudicially affect any right
or privilege with respect to
denominational schools which
any class of persons have by
law in the Province at the
Union :
(2) All the powers, privileges, and
duties at the Union by law
conferred and imposed in Upper
Canada on the separate schools
and school trustees of the
Queen's Eoman Catholic sub-
jects shall be and the same are
hereby extended to the dis-
{gg) For other cases, see Cleveland v. Melbourne, 4 Le^al News, 2 Cart.
241, in which an Act of the Quebec Legislature authorizing the Lieut-
Oovernor in Council to revoke the right to exact tolls on a toll-bridge
(for default in making repairs) and to transfer the bridge to others; was
upheld. Note this case in connection with Atty.-Gen. of Can. v. Atty.-
Gen. of Ont., 19 O. A. R. 31. See also :—
Reg. V. Mohr, 2 Cart. 257, ante, p. 351 ;
Quirt V. Reg., 19 S. (J. R. 510, atite, p. 354 ;
lie Windsor and Annapolis Ry. 3 Cart. 387, ante. p. 400;
And see also the cases under section 92, sub-sections 8, 10 and 11,
•ante.
490 THE B. N. A. ACT.— SEC. 98.
sentient schools of the Queen's-
Protestant and Roman Catho-
lic subjects in Quebec:
(3) Where in any Province a sys-
tem of separate or dissentient
schools exists by law at the
Union, or is thereafter estab-
lished by the Legislature of
the Province, an appeal shall
lie to the Governor-General in
Council from any Act or de-
cision of any Provincial author-
ity affecting any right or privi-
lege of the Protestant or Roman
Catholic minority of the Queen's
subjects in relation to Edu-
cation.
(4) In case any such Provincial law
as from time to time seems to
the Governor- General in Coun-
cil requisite for the due execu-
tion of the provisions of this
section is not made, or in case
any decision of the Governor-
General in Council on any ap-
peal under this section is not
duly executed by the proper
Provincial authority in that
behalf, then and in every such
case, and as far only as the
circumstances of each case re-
quire, the Parliament of Canada.
THE B. X. A. ACT — SEC. 93. 49T
may make remedial laws for
the due execution of the pro-
visions of this section and of
any decision of the Governor-
General in Council under this
section.
In reference to the poHition of what are known as
" separate " or denoniinational achooLs, it will be advisable
to treat the entire sulyeet in one place, for althou<,^h the
position of the provinces and territories acquiretl since
Confederation is somewhat different from that of the pro-
vinces, orij^inal parties to the Union, there is so nuich
ground connnon to all the provinces in connection with
tiiis question that it nnght lead to undue repetition were
we to divide the discussion.
This section 92 with its sub-sections, was somewhat
modified in the case of Manitoba, but, as we shall have
occasion to show, upon the admission of Prince Edward
Island and British Columbia, this section as it stands was,
w^ith other parts of the B. N. A. Act, made applicable to
those provinces as if they had been originally parties to
the Union. The North- West Territories are in a somewhat
peculiar position with regard to this question, owing to
the legislative supremacy exercised over these territories
by the Dominion parliament. Although, therefore, we
deem it advisable to treat the whole subject in this place,
it will be equally advisable to consider the matter by
provinces.
Ontario and Quebec.
At the date of Confederation that part of the then
province of Canada known as Upper Canada had a Roman
Catholic separate school system established by law — 26
Vic. c. 5: "An Act to restore to Roman Catholics in Upper
492 THE H. N. A. ACT — SEC. 93.
CanHilrt certain rigliis in respect to separate Hchools."
With the political agitation which resulted in tlie passage
of this Act, anil the subsequent agitations for its repeal,
we have of coui*ae nothing- to do here. There was also
upon the statute hook of (old) Canada an Act conferring-
rights and privileges upon Protestants and "coloured
peo[)le " in regard t() the establishment of separate schools.
The separate schools of the " coloured people," not being
denominational, are not protected by the B. N, A. Act. Im-
mediately prior to Confederation it was in contemplation
to pass an Act placing the denominational minorities of
what is now the province of Quebec in the same position
as the Roman Catholic minority of the Upper Province, but
no Canadian legislation took place upon the subject, the
end aimed at being secured by sub-section 2 of this section
93, which sub-section, as it is applicable to only the one
province of Quebec, we need not further consider, beyond
noting that it puts the two provinces of Quebec and
Ontario upon so much the same footing that we are
justified in dealing- with these two provinces together.
Pi-ior to Confedei'ation the position of the Roman
Catholic minority in Upper Canada, under the Roman
Catholic Separate School Act, had been considered in the
courts of that part of the province, and the view taken
by those courts is summed up in the following extract
from the judgment of Hagarty, C.J., in Free v. Mc-
Hugh {h):
" As Burns, J., remarked in /.V Ridsdale & Brash, 22 U. C.
Q. B. 124 : ' The legislature intended the provisions creating the
common school system, and for working and carrying that out,
were to be the rult, and that all the provisions for the separate
schools were only exceptions to the rule, and carved out of it for
the convenience of such separatists as availed themselves of the
provisions in their favor' ; and my brother Gwynne, commenting
(h) 24 U. C. C. P. at p. 20.
THE B. N. A, ACT — SEC. 93. 401^
on these words in Harding v. Mayville, says, at p. 511 of 21
U. C. C. P., that < it lies on the plaintiff claiming exemption as
a separatist to aver and prove all those exceptional matters,
taking him out of the general rule.' "
These exceptional and speciul rights — privile^^eH enjoyed
by religious minorities in the different «liHtrietH of the pro-
vinces over and above those rights enjoyed at connnon law
or under statutory enactment by the inhabitants of the
province at large — are the rights and privileges pn^tected
by this 93rd section, and we may conclude our remarks as
to the provinces of Ontario and Quebec, so far as the posi-
tion of those provinces re(|uires separate treatment, by
saying that, having in view what is laid down by the
Judicial Committee of the Privy Council in Winnipeg v.
Barrett (i), the rights and privileges referred to, and pro-
tected by the various sub-sections of section 93, may be
shortly stated as follows:
1. The right to establish denominational schools ;
2. The right to invoke state aid in the collection of taxes
necessary for the support of such schools from the sup-
porters thereof ;
3. The privilege of exemption from taxation for the
support of the public schools of the province ;
4. The privilege of having taught in such separate
schools the religious tenets of their denomination;
to which we should perhaps add the right or privilege which
any member of any denomination has to choose, as between
the separate schools of his denomination and the public
schools of the province, which he will support. Any legisla-
tion of a compulsory character would be unconstitutional as
prejudicially affecting the right or privilege which such per-
sons had by law at the date of Confederation.
(t) See post.
494 THE B. N. A. ACT — SEC. 93.
In Boanl of School TruHtees v. Orainj,'er (j), Vice-
Chuncellor Blake had to coiiHidor the genoral effect of this
section Oli and its varioUH sub-sections. Shortly stated, his
tleeision was that provincial le«ifislatures have full power of
leii;islation in relation to education and educational systems
in the province, including' the separate school system tliere-
in, so lonjr as such legislation does not offend a<^ainst the
provisions of sub-section I, that is to say, does not prejadi-
cialhj afi'ect any right or privilege thereby protected; and
he refers to sub-sections 3 and 4 as indicative of the expect-
ations of the framers of the B. N. A. Act that there would
be legislation by provincial legishitures in relation to
denominational schools. The validity of such legislation is,
in a sense, recognized by the deliverance by the Divisional
Court of the Chancery Divisi(m of an opinion (/i) on certain
questions submitted to that tribunal as to the ett'ect to l)e
fifiven to certain clauses of the Assessment Act of Ontario
working amendment of the separate school laAV as it
existed at the Union by making more elaborate pro-
vision for classifying ratepayers into two classes : supporter
of public, and supporters of separate, schools ; although, we
should note, no discussion seems to have taken place, and
no expression of opinion is to be found in the judgment,
upon this constituti(jnal question. The matter however
appears so clearly upon the construction of the statute that,
so far as we are aware, no doubt has ever been expressed as
to the correctness of the views enunciated by Vice-Chan-
cellor Blake. As put by him in the case w^e have cited:
" It would be a most unfortunate result of this enactment, if it
were found that it precluded the remedying defects in, or im-
proving the machinery for, working out the separate school
system. ... It is therefore clear that the provincial legis-
(j) 25 Grant, 570.
{k) In re B. C. Sep. Schools, 18 O. B. 606. See also Trustees of B. C.
Sep. School V. Arthur, 21 O. B. 60.
THE H. N. A. ACT — HEC. 93. 495
lature has some power to legislate as to denominational schools;
and it is scarcely possible to conceive a case in which it could,
and should, more properly interfere than where, as here, it is
asked to remove an ambiguity in the working of the Act, and to
give to separate schools the same class of machinery for carrying
on its work, as is given to the public schools — a machinery
which, after much thought and many years experience, is found
to be the best and simplest we have yet had."
It has been contended that owing to the appeal provided
for by sub-section 3, and the power given to ihe parliament
of Canada to pais remedial laws in certain cases, under
sub-section 4, the question of the validity of separate school
legislation has been entirely withdrawn from the courts^
but this has been decisively negatived hy the judgment of
the Judicial Connnittee of the Privy Council in Winnipeg
V, Barrett (/), which we shall have occasion to note more
at length when we come to deal with the position of
Manitoba in reference to this matter of separate schools.
In reference to this question of appeal, and its effect upon
the jurisdiction of the ordinary tribunals, Lord Macnagh-
ten in delivering the judgment of the Connnittee, says:
" At the commencement of the argument a doubt was sug-
gested as to the competency of the present appeal in consequence
of the so-called appeal to the Governor-General in Council pro-
vided by the Act. But their Lordships are satisfied that the
provisions of sub-sections 2 and 3 (m) do not operate to with-
draw such a question as that involved in the present case from
the jurisdiction of the ordinary tribunals of the country."
It devolves upon the courts, therefore, in any given case,
to decide whether or not any provincial legislation regarding
denominational schools does, or does not, "prejudicially
affect any right or privilege with respect to denominational
schools which any class of persons have by law in the pro-
vinces at the Union."
(I) 0 Times L. R. 746.
(m) Sections 3 and 4 of the B. N. A. Act.
496 THE B. N. A. ACT — SEC. 93.
Nova Scotia, New Brnnsivick, Prince Edward Island^
and British Columbia.
The affirmance by the Privy Council (n) of the judg-
ment of the Supreme Court of New Brunswick, in Ex 2'>arte
Renantl (o), places the provinces above named in the same
position upon this (juestion. All are governed by the pro-
visions of section 93 and its sub-sections, and only in the
event of the future establish i:c;ic of a system of separate
or dissentient schools by any one of these provinces, can
their full autonomy in relation to educational mattera be
interfered with by the parliament of Canada. In none,
of these provinces other than New Brunswick could the
claim to a " right or privilege " existing at the time of
the Union be as strongly supported as it was in the last-
named province ; and the position of aifairs there is so
clearly disclosed and the legal question so exhaustively
treated by the judgment of Chief Justice Ritchie — now Sir
\Vm. Ritchie, Chief Justice of the Supreme Court of Canada
— that we venture to quote somewhat fully from it :
"It is contended that the rights and privileges of the Roman
Catholic inhabitants of this province, as a class of persons, have
been prejudicially affected by the Common Schools Act, 1871,
contrary to the provisions of sub-section 1 of section 93 of the
B. N. A. Act. We have now to determine whether any class of
persons had, by law in this province, any right or privilege
with respect to denominational schools at the Union, which are
prejudicially affected by the Common Schools Act of 1871. This
renders it necessary that we should, with accuracy and precision,
ascertain exactly what the state of the law was with reference to
denominational schools, and the rights of classes of persons in
respect thereto, at the Union. At that time, what may fairly
and legitimately be called the common school system of the
province was carried on under an Act passed in 21 Vic. (c. 9)
(n) Seei^ost.
(o) 1 Pug. 273; 2 Cart. 445. For the political turmoil raised by thia-
decision, see Dom. Seas. Pap., 1877, No. 89.
THE B. N. A. ACT — SEC. 93. 497
entitled " An Act relating to Parish Schools." There were, no
doubt, at the same time in existence, in addition to the schools
established under the Parish School Act, schools of an unques-
tionably denominational character, belonging to and under the
immediate government and control of particular denominations,
and in which there can be no doubt, or it may reasonably be
inferred, the peculiar doctrines and tenets of the denominations
to which they respectively belonged were exclusively taught, and
therefore had, what may rightly be esteemed, all the characteris-
tics of denominational schools, pure and simple It
is obvious that there were in existence at the time of the Union,
and have been ever since in this province, apart from schools
established under the Parish School Act, denominational schools,
recognized by the legislature, and aided from the public revenues.
" But as it is not contended that the Common Schools Act
prejudicially affects any right or privilege with respect to thc.si'
schools which any class of persons had by law at the Union, it
will be necessary to examine minutely and critically the Parish
School Act of 1858, under which, it is contended, 'rights and
privileges ' existed, which, it is alleged, have been so affected. . .
The Parish School Act, 1658, clearly contemplated the estab-
lishment throughout the province of public common schools for
the benefit of the inhabitants of the province generally ; and it
cannot, we think, be disputed that the governing bodies under
that Act were not, in any one respect or particular, ' denomina-
tional.' . . . The schools established under this Act were,
then, public parish or district schools, not belonging to or under
the control of any particular denomination ; neither had any class
of persons, nor any one denomination — whether Protestant or
Catholic — any rights or privileges in the government or control
of the schools, that did not belong to every other class or denom-
ination, in fact, to every other inhabitant of the parish or dis-
trict; neither had any one class of persons or denomination, nor
any individual, any right or privilege to have any peculiar
religious doctrines or tenets exclusively taught or taught at all,
in any such school. What is there, then, in this Act to make a
school established under it a denominational school, or to give it
a denominational character ? ... It has been said that
Can. Con.— 32
498 THE B. N. A. ACT — SEC. 93.
under the Parish School Act, schools were in fact established in
certain localities where all, or a large majority, of the ratepayers
happened to belong to one particular persuasion in which the
catechisms of particular churches were taught, prayers peculiar
to a particular religious body were used, and books inculcating
the doctrines, views, and practices of a particular denomination
were used as class-books ; and that these schools were therefore
denominational, and consequently the class of persons belonging
to any such denomination had a legal right or privilege with
respect to denominational schools. Assuming Avhat has been
alleged to have been the case — though on this point we have no
information before us of which we can take judicial notice — surely
it is begging the whole question. How can the mere fact that,
in exceptional cases, certain schools under the Parish tSchool
Act, drawing provincial aid, may have been made, for the timp
being, with or without the knowledge or sanction of the Board of
» Education, denominational, by reason of the teacher instructing
the children exclusively in doctrines of a particular denomination,
or using the prayers or books, or daily teaching the catechism
peculiar to such denomination, confer an / legal right or privilege
on any class of persons with respect to denominational schools,
or give the denomination whose tenets may have been so taught
in any such schools, rights and privileges other than those pos-
sessed by all and every the humblest inhabitant of the parish in
which such schools existed free and independent of all denomina-
tional connection ? It is not by what the Board of Education,
Superintendent, Inspectors, or Trustees may have done, or
allowed to be done under the Act, nor is it from the mode in
which the principles of Chistianity may have been actually
taught in one or a hundred schools which may have drawn pub-
lic money under the Parish School Act, that the question in a
legal view must be determined ; we must look to the law as it
was at the time of the Union, and by that, and that alone, be
governed. Where, then, do we find any legal exclusive right or
privilege conferred on any denomination to any school estab-
lished, or that might be established under that Act ; or any right
or privilege conferred on any class of persons to deal with such a
school as belonging to such persons as a class or denomination ;
or as being under their control as such ; or that, as a class, they
THE B. N. A. ACT — SEC. 93. 499
liad any right to have taught therein the peculiar doctrines of
their denomination ? . . . If, then, the estabhshment of
denominational schools, or the teaching of denominational doc-
trines, was not recognized or provided for by the Ant, and the
Eoman Catholics had therefore no legal rights, as a class, to
claim any control over, or to insist that the doctrines of their
church should be taught in all or any schools under the Parish
School Act, how can it be said (though, as a matter of fact, such
doctrines may have been taught in numbers of such schools) that
as a class of persons they have been prejudicially affected in any
legal right or privilege with respect to ' denominational schools,' —
construing those words in their ordinary meaning — because under
the Common Schools Act, 1871, it is provided that the schools
shall be non-sectarian. . . . But it is contended, that the
section declaring * that all schools conducted under the provisions
of this Act shall be non-sectarian,' prejudicially aflects the
rights and privileges which the Roman Catholics, as a class, had
in the parish schools at the time of the Union. It cannot be
denied that to the provincial legislatures is confided the exclusive
right of making laws in relation to education ; and that they,
and they only, have the right to establish a general system of
education applicable to the whole province and all classes and
denominations, provided always they have due regard to the
rights and privileges protected by section 93 of the B. N. A. Act.
Now, what, in this case, is the right or privilege claimed to have
been prejudicially affected? Is it a legal right or privilege that
could have been put forward and enforced by the Roman Catho-
lics, as a class, under all circumstances, and in every parish or
common school ; or is it a legal right confined to the Roman
Catholics as a body ; or does it belong equally to all and every
of the other denominations of Christians in this province, and
capable by them of enforcement; or, on the contrary, was it not
the mere possible chance of having religious denominational
teaching in certain schools, depending entirely upon accidental
circumstances ; as, on what might happen to be the religious
views of the majority in a parish, and then on the accidental
result of the election of trustees and school committees, and on
the views of the parties so elected as to religious denominational
leaching, and their willingness to permit it in the schools
500 THE B. N. A. ACT — SEC. 93.
(admitting that the trustees or committee had any discretion in
the matter, which is more than doubtful) ; was it not also
dependent on the Board of Education who had the general con-
trolling power ? If depending on circumstances such as these,
how can it be considered such a legal right as could have been
contemplated by the Imperial parliament in passing the 93rd
section of the B. N. A. Act *? Where is there anything that can,
with any propriety, be termed a legal right ? Surely the legisla-
ture must have intended to deal with legal rights and privileges.
How is it to be defined ? — How enforced ? "
It should be noted that all the members of the court
concurred in upholding the constitutionality of the Act,
and this judgment was upheld (in another case) upon
appeal to the Judicial Committee of the Privy Council —
Maher v. Portland {/>) — the judgment of the Committee
being delivered without calling upon the respondents. It
simply expressed concurrence in the views of the New
Brunswick Supreme Court.
Mmiitolni.
This province became part of the Dominion in 1870,
and by what is popularly known as the Manitoba Act
(83 Vic. c. 8, Dom.), the power of the provincial legislature
in reference to education is defined :
Legislation 22. In and for the Province, the said Legislature
Bchoois 8ub- ji^ay exclusively make Laws in relation to Education,
)ect to certatn •' •' _ ...
provisioua subject and according to the following provisions : —
(1) Nothing in any such Law shall prejudicially
affect any right or privilege with respect to Denomi-
national Schools which any class of persons have by
Law or pnicticc in the Province at the Union :
(2) An appeal shall lie to the Governor-General
in Council from any Act or decision of the Legisla- .
ture of the Province, or of any Provincial Authority
affecting any right or privilege of the Protestant or
Eoman Catholic minority of the Queen's subjects in
relation to Education :
{!>) 2 Cart. 486 (n).
THE R. N. A. ACT — SEC. 93. 501
(8) In case any such Provincial Law, as from Power
''''_'' ' vosorvcd to
time to time seems to the Governor-General in Coun- Parliament,
cil requisite for the due execution of the provisions
of this section, is not made, or in case any decision
of the Governor-General in Council on any appeal
under this section is not duly executed by the
proper Provincial Authority in that behalf, then, and
in every such case, and as far only as the circum-
stances of each case reqnire, the Parliament of Can-
r.da may make remedial Laws for the due execution
of the provisions of this section, and of any decision
of the Governor-General in Council under this
suction.
So fjir as affects the genoral (inestion, we need here only
point out that one important ilistinctioii (q) to he drawn
1 lotween this section and section 93 of the B. N. A. Act, and
its sub-sections, is in the insertion of the words "or prdcficc,"
after the word "law" in sub-section L The insertion of
these words rendered necessary an incpiiry into the nature
of the school system existing in the province of Manitoba
at the time when that province l)ecame part of the Domin-
ion. The whole njatter is thus discussed, and disposed of
by the Judicial Committee of the Privy Council in the two
cases of Winnipeg v. Barrett, and Winnipeg v. Logan, before
referred to :
" These two appeals were heard together. In the one case
the City of Winnipeg appeals from a judgment of the Supreme
Court of Canada (r), reversing a judgment of the Court of Queen's
Bench for Manitoba, and in the other from a subsequent judg-
ment of the Court of Queen's Bench for Manitoba, following the
judgment of the Supreme Court. The judgments under appeal
quashed certain by-laws of the City of Winnipeg, which author-
ized assessments for school purposes in pursuance of the Public
Schools Act, 1890, a statute of Manitoba to which Roman
Catholics and members of the Church of England alike take
exception.
{q) Another equally^mportant one will be found noted post.
(»•) 19 S. C. R. 374.
502 THE B. N. A. ACT — SEC. 93.
" Sub-sections 1, 2 and 3 of section 22 of the Manitoba Act,
1870, differ but slightly from the corresponding sub-sections of
section 93 of the British North America Act, 18G7. The only
important difference is that in the Manitoba Act, in sub-section
1, the words 'bylaw' are followed by the words 'or practice,'
which do not occur in the corresponding passage in the British
North America Act, 1867. These words were no doubt intro-
duced to meet the special case of a country which had not as yet
enjoyed the security of laws properly so called. It is not, per-
haps, very easy to define precisely the meaning of such an expres-
sion as ' having a right or privilege by practice.' But the object of
the enactment is tolerably clear. Evidently the word ' practice '
is not to be construed as equivalent to ' custom having the force
of law.' Their Lordships are convinced that it must have been
the intention of the legislature to preserve every legal right or
privilege and every benefit or advantage in the nature of a right
or privilege, with respect to denominational schools which any
class of persons practically enjoyed at the time of the Union.
" What, then, was the state of things when Manitoba was
admitted to the Union ? On this point there is no dispute. It
is agreed that there was no laAv or regulation or ordinance with
respect to education in force at the time. There were therefore
no rights or privileges with respect to denominational schools
existing by law. The practice which prevailed in Manitoba
before the Union is also a matter on which all parties are agreed.
The statement on the subject by Archbishop Tache, the Eoman
Catholic archbishop of St. Boniface, who has given evidence m
Barrett's case, has been accepted as accurate and complete.
• There existed,' he says, ' in the territory now constituting the
province of Manitoba a number of effective schools for children.
These schools were denominational schools, some of them being
regulated and controlled by the Roman Catholic Church, and
others by various Protestant denominations. The means neces-
sary for the support of Roman Catholic schools were supplied, to
some extent, by school fees, paid by some of the parents of the
children who attended the schools, and the rest were paid out of
the funds of the church contributed by its members. During
the period referred to Roman Catholics had no interest in or
control over the schools of the Protestant denominations, and
THE n. N. A. ACT — SEC. 93. 503
the members of the Protestant denominations had no interest in
or control over the schools of the Roman Catholics. There were
no public schools in the sense of state schools. The members of
the Roman Catholic Chm'ch supported the schools of their own
Church for the benefit of the Roman Catholic children and were
not under obligation to and did not contribute to the support of
any other schools.' Now, if the state of things which the arch-
bishop describes as existing before tlie Union had been a system
established by law, what would have been the rights and privi-
leges of the Roman Catholics with respect to denominational
schools ■? They would have had by law the right to establish
schools at their own expense, to maintain their schools by school
fees or voluntary contributions, and to conduct them in accord-
ance with their own religious tenets. Every other reUgious
body which was engaged in a similar work at the time of the
Union would have had precisely the same right with respect to
their denominational schools. Possibly this right, if it had
been defined or recognized by positive enactment, might have
had attached to it, as a necessary or appropriate incident, the
right of exemption from any contribution under any circum-
stances to schools of a different denomination. But, in their
Lordships' opinion, it would be going much too far to hold that
the establishment of a national system of education upon an
unsectarian basis is so inconsistent with the right to set up and
maintain denominational schools that the two things cannot
exist together, or that the existence of the one necessarily
implies or involves immunity from taxation for the purpose of
the other. It has been objected that if the rights of Roman
Catholics, and of other religious bodies, in respect of their de-
nominational schools, are to be so strictly measured and limited
by the practice which actually prevailed at the time of the Union >
they will be reduced to the condition of a ' natural right ' which
'does not want any legislation to protect it.' Such a right, it
was said, cannot be called a privilege in any proper sense of the
word. If that be so, the only result is that the protection which
the Act purports to extend to rights and privileges existing ' by
practice' has no more operation than the protection which it
purports to afford to rights and privileges existing ' by-
law.' It can hardly be contended that, in order to give a sub-
504 THE B. \. A. ACT — SEC. 93.
stantial operation and effect to a saving clause expressed in
general terms, it is incumbent upon the court to discover privi-
leges which are not apparent of thauiselves, oi to ascribe dis-
tinctive and peculiar features to rights which seem to be of such
11 common type as not to deserve special notice or require
special protection.
" Manitoba having been constituted a province of the Dominion
in 1870, the provincial legislature lost no time in dealing with
the question of education. In 1H71 a law was passed which
established a system of denominational education in the connnon
schools, as they were then called. A board of education was
formed, which was to be divided into two sections, Protestant
and Roman Catholic. Each section was to have under its con-
trol and management the discipline of the schools of the section.
Under the Manitoba Act the province had been divided into
twenty-four electoral divisions, for the purpose of electing mem-
bers to serve in the Legislative Assembly. By the Act of 1871
each electoral division was constituted a school district, in tJie
first instance. Twelve electoral divisions, ' comprising mainly
a Protestant population,' were to be considered Protestant school
districts ; twelve, ' comprising mainly a Roman Catholic popu-
lation,' were to be considered Roman Catholic school districts.
Without the special sanction of the section there was not to be
more tlian one school in any school district. The male inhabi-
tants of each school district, ass^jmbled at an annual meeting,
were to decide in what manner tney should raise their contribu-
tions towards the support of the school, in addition to what was
derived from public funds. It is, perhaps, not out of place to
observe that one of the modes prescribed was ' assessment on
the property of the school district,' which must have involved,
in some cases at any rate, an assessment on Roman Catholics
for the support of a Protestant school, and an assessment on Pro-
testants for the support of a Roman Catholic school. In the
event of an assessment there was no provision for exception,
except in the case of the father or guardian of a school child — a
Protestant in a Roman Catholic school district or a Roman
Catholic in a Protestant school district — who might escape by
sending the child to the school of the nearest district of the other
section and contributing to it an amount equal to what he would
THE M. X. A. ACT — SEC. 93. 505
liavo paid if he had belonged to that district. The laws relating
to education were niodifietl from time to time, but the system of
denominational education was maintained in full vigor until
1H90. An Act passed in 1881, following an Act of 187o, pro-
vided among other things that the establishment of a school
district of one denomination should not prevent the establish-
ment of a school district of the other denomination in the same
place, and that a Protestant and a Roman Catholic district might
include the same territory in whole or in part. From the year
1H7(5 until 1890 enactments were in force declaring that in no
case should a Protestant ratepayer be obliged to pay for a Roman
Catholic school or a Roman Catholic ratepayer for a Protestant
school. In 1890 the policy of the last nineteen years was re-
versed, and the denominational system of public education was
entirely swept away. Two Acts in relation to education were
passed. The first (53 Vic. c. 87) established a department of
education and a board consisting of seven members, known as
the 'Advisory Board.' Four members of the board were to be
appointed by the department of education, two were to be elected
by the public and high school teachers, and the seventh member
was to be appointed by the University Council. One of the
powers of the Advisory Board was to prescribe the forms of
religious exercises to be used in the schools. The Public Schools
Act, 1890 (53 Vic. c. 38), enacted that all Protestant and Roman
Catholic school districts should be subje'jted to" the provisions of
the Act, and that all public schools should be free schools. The
provisions of the Aei with reg;;rd to religious exercises are as
follows : — * (6) Religious exercises in the public schools shall be
conducted according to the regulations of the Advisory Board.
The time for such religious exercises shall be just before the
closing hour in the afternoon. In case the parent or guardian
of any pupil notifies the teacher that he does not wish such pupil
to attend such religious exercises, then such pupil shall be dis-
missed before such religious exercises shall take place. (7) Re-
ligious exercises shall be held in a public school entirely at the
option of the school trustees for the district, and, upon receiving
authority from the trustees, it shall be the duty of the teachers
to hold such religious exercises. (8) The public schools shall
be entirely non-sectarian, and no religious exercises shall be
506 THE B. N. A. ACT — SEC. 93.
allowed therein except ag above provided.' The Act then pro-
vides for the formation, alteration, and union of school districts,
for the election of school trustees, and for levying a rate on the
taxable property in each school district for school purposes. In
cities the municipal council is required to levy and collect upon
the taxable property within the municipality such sums as the
school trustees may require for school purposes. A portion of
the legislative grant for educational purposes is allotted to public
schools ; but it is provided that any school not conducted accord-
ing to all the provisions of the Act, or any Act in force for the
time being, or the regulations of the Department of Education, or
the Advisory Board, shall not be deemed a public school within
the meaning of the law and shall not participate in the legisla-
tive grant. Section 141 provides that no teacher shall use or
permit to be used as text books any books except such as are
authorised by the Advisory Hoard, and that no portion of the
legislative grant shall be paid to any school in which unauthor-
ised books are used. Then there are two sections (178 and 179)
which call for a passing notice, because, owing apparently to
some misapprehension, they are spoken of in one of the judg-
ments under appeal as if their effect was to confiscate Roman
Catholic property. They apply io cases where the same territory
was covered by a Protestant school district and by a Roman
Catholic school district. In such a case Roman Catholics were
really placed in a better position than Protestants. Certain ex-
emptions were to be made in their favor if the assets of their
district exceeded its liabilities, or if the liabilities of the Pro-
testant school district exceeded its assets. But no corresponding
exemptions were to be made in the case of Protestants.
" Such being the main provisions of the Public Schools Act^
1890, their Lordships have to determine whether that Act pre-
judicially affects any right or privilege with respect to denomi-
national schools which any class of persons had by law or prac-
tice in the province at the Union. NotnithatnndirKj the Iiblic
Schools Act, 1890, lioman Catholics and members of every other
religiom body in Manitoba are free to establish schools throughout the
province; tJiey are free to maintain their schools by school fees or
voluntary subscriptio}is ; they are free to conduct their schools accord-
ing to their own religious tenets without molestation or interference^
THE B. N. A. ACT — SEC. 98. 50T
No child is niiniH'llt'd to attend a jiuldir .v/idoI. No special advan-
tage other than the advantage of a free education in schools con-
ducted under puhlic management is held out to those who do
attend. Ikit then it is said that it is impossible for Roman
Catholics or for members of the Church of England (if their
views are correctly represented by the bisliop of Rupert's Land,
who has given evidence in Logan's case) to send their children
to public schools where the education is not superintended and
directed by the authorities of their church, and that therefore
Roman Catholics and members of the Church of England who
are taxed for public schools, and at the same time feel the.aselves
compelled to support their own schools, are in a less favourable
position than those who can take advantrge of the free education
provided by the Act of 1890. That may be so. But what right
or privilege is violated or prejudicially aftected by the law? It
is not the law that is in fault ; it is owing to religious convictions,
which everybody must respect, and to the teaching of their
church, that Roman Catholics and the members of the Church
of England find themselves unable to partake of advantages
which the law offers to all alike.
" Their Lordships are sensible of the weight which must,
attach to the unanimous decision of the Supreme Court. They
have anxiously considered the able and elaborate judgments by
which that decision has been supported. But they are unable to
agree \^ith the opinion which the learned Judges of the Supreme
Coui't have expressed as to the rights and privileges of Roman
Catholics in Manitoba at the time of the Union. They doubt
whether it is permi'^sible to refer to the course of legislation
between 1871 and 1890, as a means of throwing light on the
previous practice or on the construction of the saving clause in
the Manitoba Act. They cannot assent to the view, which
seems to be indicated by one of the members of the Supreme
Court, that public schools under the Act of 1890 are in reality
Protestant schools. The legislature has declared in so many
words that the public schools shall be entirely unsectarian, and
that is carried out throughout the Act."
In a sense this decision has no reference to the other
provinces or to the North-West Territories. So far as Man-
itoba alone is concerned, it decisively disposes of the ques-
508 THE IJ. X. A. ACT — SFX'. 03.
tion. Till' Manitolia Act, l.S7(), whh jit'tcrwiudM coiiiirincd
l»y Inipci'iiil K';^isliiti(>ii, ami put l.jyoiid the h'<j;islative coni-
pi'tenci! of tlio Doinitiion parliaiiicnt to alter it in any
particular; and the tiuK' within which the Manitoba School
Act niii^ht have leen disallowed hy the Govenior-Cleneral
in Council han lon<ji' .since ex})ired.
In view, however, of this decision nuich discussion has
taken place in reference to the powers of the (iovernor-
(ieneral in Council under suh-section 3, a.id of the parlia-
ment of Canaila inider suh-section 4. So far as the province
of IVIanitoha is concerned, it is to he noticed, that the open-
inu' clause of suh-section 3 of section 93 of the B. N. A. Act
is not contained in the correspondino- suh-section of the
]\Ianitoha Act, LSTO, and, therefoi-e, the fact that, since its
adnnssion to the Dominion, there has been legislation in
that province which might 1»e contended to liave established
a system of separate schools there, can have no ])earing
upon this (juestion. As to that province the pronoiuice-
ment of the Privy Council is decisive, that the Manitoba
Public Schools Act tloea not affect, prejudicially or other-
wise, any right or privilege protected l)y secti(jn 22 of the
Manitoba Act, 1870.
It may not, however, be out of place to consid'er the
position of all the provinces in reference to this matter of
an appeal to the Governor-General in Council, and of the
power of the Dominion parliament to pass "remedial" laws.
The provision as to an appeal to the Governor-General in
■Council is a very peculiar one, because no provision
whatever is made for the enforcement of the decision of the
Dominion executive, otherwise than by legislation by the
Dominion parliament under sub-section 4. The language
of the Committee, in Barrett v, Winnipeg, leads one to infer
that, in their opinion, the functions of the Governor-Generpl
in Council are not of a judicial character, that is to say,
that it does not properly devolve upon the Dominion execu-
tive to consider the constitutionality of provincial enact-
THE «. N. A. ACT— HEC. 98. 500
inonts, or of tho deciHion ot' tlie "provincial authority"
(whatovor tliat may be taken to mean) mentioned in the Huh-
Hection. Tile ap])eal, therefore, would .seem to be limited
to HUpervising and HUj^gesting alterations to provincial
enactments, "affecting any right or privilege of the Pro-
testant or Ronuin Catholic minority of the Queen's subjects,
in relation to education." In the event of the ruling,
decision, or whatever it may be called, of the Douiinion
executive not being duly executed by the provincial
authorities, the provisions of sub-section 4, may be invoked.
But as a condition precedent to any right to interfere with
provincial legislation, one must be able to predicate that in
the province concerned there exists any "right or privilege''
enjoyed by the Protestant or Roman Catholic minority in
such province, and that the provincial legislation com-
plained of aft'cota such right or privilege. It is to be noted
that the word ' prejudicially ' does not occur in this sub-
section, and this bears out the view for which we have
been contending, that interference on the part of the
Dominion authorities can properly take place only in con-
nection with valid provincial legislation. Legislation
prejadicially affecting such right or privilege is void.
Legislation affecting it otherwise than prejudicially is valid,
but may be clumsy and unworkable. Such defects the
parliament of Canada can remedy.
We have attempted in a former place to summarize the
rights and privileges enjoyed by the religious minorities of
Ontario and Quebec, and, as to the other provinces, the posi-
tion would seem to be, at best — from the separatist stand-
point— that indicated in the judgment of the Piivy Council
in Winnipeg v. Barrett, although, perhaps, it is matter of
doubt whether the rights and privileges there enumerated
as to Manitoba, exist to their full extent in the other pro-
vinces. In fact, the judgment in Ex iiarte Renaud
(affirmed, as we have seen, in the Privy Council) seems to
indicate that in the provinces other than Ontario, Quebec,
and Manitoba, religious denominations have no "right or
.310 THE B. N. A. ACT — SEC. 93.
privilege" hy latv in respect to education, within the mean-
ing of, and requiring the protection of, the various sub-
sections of section 93. The question which suggests itself
as doubtful is as to the power to entirely prohibit denom-
inational schools, or, in other words, to compel universal
attendance at state schools.
The Nortli-West Territories.
The parliament of Canada having power (subject always
to the paramount legislative supremacy of the Imperial
parliament) to pass laws for the " peace, order and good
government" of these territories, not as yet elevated to pro-
vincial dignity (.s), the position of affairs there is as yet
embryonic. In respect to educational matters, the powers
of the Legislative Assembl}^ are at present circumscribed,
as will appear from the following section of the North-West
Territories Act— R. S. C, c. 50.
14. The Lieutenant-Governor in Council {t) shall pass all
necessary oi'dinances in respect to education ; but it shall
therein always be provided, that a majority of the ratepayers of
any district or portion of the Territories, or of any less portion
or sub-division thereof, by whatever name the same is known,
may establish such schools therein as they think fit, and make
the necessary assessment and collection of rates therefor ; and
also that the minority of the ratepayers therein, whether Protes-
tant or Roman Catholic, riay establish separate schools thereui
— and in such case, the ratepayers establishing such Protestant
or Roman Catholic separate schools shall be liable only to
assessments of such rates as they impose upon themselves in
respect thereof :
2. The power to pass ordinances, conferred upon the Lieu-
tenant-Governor by this section is hereby declared to have been
vested in him from the seventh day of May, 1880.
(s) See ante, p. 347. The position of these Territories will be dealt
with more at length in Part IV.
{t) Now the Legislative Assembly. See post.
THE B. N. A. ACT — SEC. 94. 511
It is much to be hoped that when (as will doubtless
soon be the ease) new provinces are erected in these Terri-
tories, they will be given full control of educational
matters. In expressing this hope we perhaps " travel
beyond the record."
Uniformity of Laivs in Ontario, Nova
Scotia and New BrunsivicJi.
94. Notwithstanding anything in this KSm-
Act, the Parliament of Canada may make un-ecPio-^*"
provision for the uniformity of all or any
of the laws relative to property and civil
rights in Ontario, Nova Scotia and New
Brunswick, and of the procedure of all
or any of the Courts in those three Pro-
vinces ; and from and after the passing
of any Act in that behalf the power of
the Parliament of Canada to make laws
in relation to any matter comprised in
any such Act shall, notwithstanding any-
thing in this Act, be unrestricted; but any
Act of the Parliament of Canada making
provision for such uniformity shall not
have effect in any Province unless and
until it is adopted and enacted as law
by the Legislature thereof.
Nothing has ever been done toward carrying out this
idea. The only use to which the section has been put has
been in utilizing the expression "property and civil rights"
which occurs ii it as a key to the interpretation of the
same term in si b-section 13 of section 92. The passage in
Citizens v. Par, ons is quoted at length in the notes to that
sub-section.
512
THE B. N. A. ACT — SECS. 95-7.
Concurrent
iiowors of
LeRislntion
resiiecting
Af!i-iculture,
&c.
Agriculture and Immigration.
95. In each Province the Legislature
may make laws in relation to Agriculture
in the Province, and to Immigration into
the Province ; and it is hereby declared
that the Parliament of Canada may from
time to time make laws in relation to
Agriculture in all or any of the Provinces,
and to Immigration into all or any of the
Provinces ; and any law of the Legislature
of a Province relative to Agriculture or to
Immigration shall have effect in and for
the Province as long and as far only as it
is not repugnant to any Act of the Parlia-
ment of Canada.
See ante, p. 215, as to the bearing of this section on the
general (juestion of " concurrent " powers.
Appointment
of Juilges.
Selection of
JudKer, in
Ontario, «&c.
VII. — Judicature.
96. The Governor- General shall ap-
point the Judges of the Superior, District,
and County Courts in each Province, ex-
cept those of the Courts of Probate in
Nova Scotia and New Brunswick.
97. Until the laws relative to pro-
perty and civil rights in Ontario, Nova
Scotia, and New Brunswick, and the pro-
cedure of the Courts in those Provinces,
are made uniform, the Judges of the
Courts of those Provinces appointed by
the Governor-General shall be selected
THE B. X. A. ACT — SECS. 98-100. 513
from the respective Burs of those Pro-
vinces.
98. The Judges of the Courts offf^lgTr'
Quebec shall be selected from the Bar of
that Province.
t(JO!
Quobec.
Tenure of
ottleo of
99. The Judges of the Superior
Courts shall hold office during good Jedor'^cmuts.
behaviour, but shall be removable by the
Governor-General on address of the Sen-
ate and House of Commons.
100. The salaries, allowances, and ^f'/Jgg**=
pensions of the Judges of the Superior,
District, and County Courts (except the
Courts of Probate in Nova Scotia and
New Brunswick), and of the Admiralty
Courts in cases where th(^ Judges thereof
are for the time being paid by salary,
shall be lixed and provided by the Parlia-
ment of Canada.
" JadicaAare." — We have alreudy deviated a cliapter to
a (liKCUHsion of t)ur judicial system (a), and it remains now
merely to refer to the (|uestion of the " tenur*^ of office " of
those judges wliose appointment under the 9Gth section is
with the Dominion government. The B. N. A. Act con-
tains no express provision beyond section 99, which applies
only to the Superior Court judges, and beyond what may
he inferred from the provision in section 100 that the
salaries of all these judges are to be " fixed and provided "
by the parliament of Canada.
Does the power to appoint carry with it the power to
remove ? It is submitted that it does, and that, not with -
(«) See chapter XI. and notes to s. 92, s-s. 14.
Can. Con.— 33
514 THE B. N. A. ACT — SEC. 101.
standing sub-section 14 of section 92 by which "the
administration of justice in the. province" is assigned to
provincial legislatures, the parliament of Canada alone can
legislate (subject, as to Superior Court judges, to section 99)
as to the qualifications and nature of tenure (including, of
coui*se, provisions as to removal from office) of the judges
mentioned in section 96. In Re Squier (v) the validity of
a commission of enquiry issued by the Governor-General
purporting to be under the Imperial Act (22 Geo. III. c. 75)
relating to the removal of colonial officers, was in question.
It seems to have been admitted on the argument and held
by the court that the legislative assembly of Ontario,
had no power to abolish the old Court of Impeachment
established before Confederation by the parliament of (old)
Canada for trying complaints against County Court
judges — C. S. U. C. c. 14. The precise ground is not stated,
but as a proceeding under the Consolidated Statute is
enumerated as one of the methods of attack then open, the
decision could not have been based on the ground of the
"repugnancy" of such provincial legislation to Imperial
enactment. Such ground would equally affirm the inval-
idity of the original Act, and the decision therefore nmst
be taken to be that legislation in reference to the remo^- \
of those judges mentioned in section 96 must come from
the Dominion parliament.
of'AweaWc' lOl- The Parliament of Canada may,
notwithstanding anything in this Act,
from time to time, provide for the con-
stitution, maintenance, and organization
of a general Court of Appeal for Canada,
and for the establishment of any addi-
tional Courts for the better administra-
tion of the Laws of Canada.
{v) 46 U. C. Q. B. 474.
THE B. N. A. ACT — SEC. 101. 415
This section, too, has ah'eady been fully discussed. In
chapter XI. we have endeavored to make clear that the
jurisdiction of any " additional courts " established by the
Dominion parliament under this section must be limited to
the administration of laws passed by that parliament, or
in relation to mattei*s falling within the purview of its
powers.
The particular line of division adopted to secure the
administration of justice throughout Canada is a very
illogical one, so far as relates to provincial courts. While
power to constitute courts, with such jurisdiction, civil or
criminal, as may be deemed expedient, is with the provin-
cial legislatures, the judges in the most important of them
must be appointed by the Dominion government, and the
" procedure " in criminal matters in any of them which
have jurisdiction over such matters — as well as procedure
in all those branches of jurisprudence which are wrapped
up in the various sub-sections of section 91 {iv) — is matter
to be regulated exclusively by the parliament of Canada.
As to any additional courts to be established by the
Dominion parliament under this section, the position is
entirely different. The provinces should, on any logical
division, have been given full control of provincial courts.
Then if Dominion laws were found to be unsatisfactorily
administered in those courts, the reserve power of this
section 101 could be invoked. As has been before inti-
mated, a duly constituted court of law, no matter by what
authority constituted, must give effect to the law which
governs the "legal relations" arising out of the facts in
((uestion in any litigation, by whatsoever duly constituted
authority those legal relations are determined ; and there-
fore the appointment of the judges by the Dominion gov-
ernment was in no way necessary for the administration of
Dominion law ; if appointed by the provincial governments,
they would be equally bound by their oaths of office to
(w
,) See ante, p. 235, et seq.
516 THE K. N. A. ACT — SECS. 102, 103.
jidiiiinister that law wlien applicable to the tacts <tf the
case. Ill any event, thi« section 101 would siitHciently pro-
tect the federal government in the administration of federal
law.
Under the authority conferred l»y this section was
eHtal)lislied the Supreme Court of Canada as a general
court of appeal for the Dominion. Wiiat its jurisdiction
shall l)e is of couivse for the parliament of Canada to detei-
mine. In Clarkson v. Ryan {,e) it was held that a provin-
cial legislature has no power to aHi\ conditions oi-
limitations upon appeals to the Supreme Court. That is
entirely for the federal parliament.
YIII. — Eevenues; Debts; Assets; Tax-
ation (/y).
Soikuted 102. All duties and revenues over
.HevonueFuiid.^^^j^.^j^ thc respcctlve LegislRtnres of Can-
ada, Nova Scotia, and New Brnnswicd^
before and at the Union had and have
power of appropriation, except such por-
tions thereof as are by this Act reserved
to the respective Legislatures of the Pro-
vinces, or are raised by them in accord-
ance wdth the special powers conferred on
them by this Act, shall form one Consoli-
dated Revenue Fund, to be appropriated
for the public service of Canada in the
manner and subject to the charges in this
Act provided.
SFe'S.&c. 103 The Consolidated Revenue Fund
of Canada shall be permanently charged
(x) 17S. C.R. 251.
{y) It is thought advisable to note this group together. See the
general discussion in note (i) following section 120. The matter of the
other notes sufficiently appears in their italicized head-lines.
THE H. \. A. ACT — SECS. lOi-107. 517
with the costs, charges, and expenses
incident to the collection, management,
and receipt thereof, and the same shall
form the first charge thereon, snbject to
be reviewed and audited in such manner
as shall be ordered by the Governor-
General in Council, until the Parliament
otherwise provides.
104. The annual interest of the public p'Sfciaf
debts of the several Provinces of Canada, ''"''"' ''"'"'■
Nova Scotia, and New Brunswick at the
Union shall form the second charge on
the Consolidated Revenue Fund of Can-
ada.
105. Unless altered by the Parlia- f^^^l^.^:^^-
ment of Canada, the salary of the Gover- '^''"'"■'''
nor- General shall be ten thousand pounds
Stirling money of the United Kingdom of
Great Britain and Ireland, payable out of
the Consolidated lie venue Fund of Can-
ada, and the same shall form the third
charge thereon.
106. Subject to the several payments S'Sto"
by this Act charged on the Consolidated
Revenue Fund of Canada, the same shall
be appropriated by the Parliament of
Canada for the pubhc service.
107. All stocks, cash, banker's bal- ^S&c°'
^nces, and securities for money belonging
to each Province at the time of the
Union, except as in this Act mentioned,
518 THE B. N. A. ACT — SECS. 108, 109.
shall be the property of Canada, and shall
be taken in reduction of the amount of
the respective debts of the Provinces at
the Union.
propStyil 108. The public works and property
schedule. ^j QQ^ch Provincc, enumerated in the third
Schedule to this Act, shall be the pro-
perty of Canada.
THE THIED SCHEDULE.
Provincial Public Works and Property to be the Property of Canadd.
1. Canals, with Land and Water Power connected there-
with.
2. Public Harbours (z).
3. Lighthouses and Piers, and Sable Island.
4. Steamboats, Dredges, and public Vessels.
5. Rivers and Lake Improvements (a).
6. Railways and Railway Stocks, Mortgages, and other
Debts due by Railway Companies (b).
7. Military Roads.
8. Custom Houses, Post Offices and all other Public Build-
ings, except such as the Government of Canada appro-
priate for the use of the Provincial Legislatures and
Governments.
9. Property transferred by the Imperial Government, and
known as Ordnance Property (c).
10. Armouries, Drill Sheds, Mihtary Clothing, and Muni-
tions of War, and Lands set apart for general public
purposes.
unlsTmiiTes. 109. All lauds, miucs, minerals, and
**'■ royalties belonging to the several Pro-
vinces of Canada, Nova Scotia and New
{z) See note (ii) following sec. 126, post.
(a)
ki
(iii)
(b)
tt
(iv)
(c)
ti
(V)
THE B. N. A. ACT — SECS. 110-118. 519
Brunswick at the Union, and all sums
then due or payable for such lands, mines,
minerals, or royalties, shall belong to the
several Provinces of Ontario, Quebec,
Nova Scotia, and New Brunswick in
which the same are situate or arise, sub-
ject to any trusts existing in respect
thereof, and to any interest other than
that of the Province in the same.
110. AH assets connected with such ^^741^1?^"
portions of the public debt of each Prov- '""''"' ^ ^^
ince as are assumed by that Province
shall belong to that Province.
• 111. Canada shall be liable for the ,fawe^,^r° ""^
debts and liabilities of., each Province dobtB.""**'
existing at the Union.
112. Ontario and Quebec conjointly ?aS'aud°°*
shall be liable to Canada for the amount '^"®^^*'
(if any) by which the debt of the Province
of Canada exceeds at the Union sixty-two
million five hundred thousand dollars, and
shall be charged with interest at the rate
of five per centum per annum thereon.
113. The assets enumerated in the oaTario an*
fourth Schedule to this Act belonging at ^"^^®''-
the Union to the Province of Canada
shall be the property of Ontario and Que-
bec conjointly.
THE FOURTH SCHEDULE.
Assets to be the Property of Ontario and Quebec conjointly.
Upper Canada Building Fund.
Lunatic Asylums.
Lower Canada.
520 THE a X. A.' ACT — SECS. 114, Ho.
Normal School.
Court Houses,"
in
Aylmer.
Montreal.
Kamouraska.
Law Society, Upper Canada.
Montreal Turnpike Trust.
University Permanent Fund.
Royal Institution.
Consolidated Municipal Loan Fund, Upper Canada.
Consolidated Municipal Loan Fund, Lower Canada.
Agricultural Society, Upper Canada.
Lower Canada Legislative Grant.
Quebec Fire Loan.
Tamiscouata Advance Account.
Quebec Turnpike Trust.
Education — East.
Building and Jury Fund, Lower Canada.
Municipalities Fund.
Lower Canada Superior Education Licome Fund.'
scttia"'^''"''' 114. Nova Scotia shall be liable to
Canada for the amount (if any) hy which
its public debt exceeds at the Union eight
million dollars, and shall be charged with
interest at the rate of five per centum per
annum thereon.
Kswicr 115. New Brunswick shall be liable
to Canada for the amount (if any) by
which its public debt exceeds at the
Union seven million dollars, and shall be
charged with interest at the rate of five
per centum per annum thereon.
THE H. X. A. A< T — SECS. lUMlH. 5-21
116. In c-asc the public debts of Nova K^t't,?'
Nova Scotiii
and Ni'W
lU'iiiiHwiuk.
Scotia and New Brunswick do not at the in.i Niw"'"
Union amount to ei^ht million and seven
million dollars respectively, they shall
respectively receive by half-yearly pay-
ments in advance from the Government
of Canada interest at live per centum per
annum on the difference between the
actual amounts of their respective debts
and such stipulated amounts.
Provincitil
117- "file several Provinces shall re- pubuc i.ro-
tain all their respective public property ''*"' ^'
not otherwise disposed of in this Act, sub-
ject to the right of Canada to assume any
lands or public property required for for-
tifications or for the defence of the coun-
try.
118. The following sums shall be ?™;^^,t°.
paid yearly by Canada to the several Pro-
vinces for the support of their Govern-
ments and Legislatures :
Dollars.
Ontario - - - - Eighty thousand.
Quebec - - - - Seventy thousand.
Nova Scotia - - - SixLy thousand.
New Brunswick - - Fifty thousand.
Two hundred and sixty thousand ;
and an annual grant in aid of each Pro-
vince shall be made, equal to eighty cents
per head of the population as ascertained
by the Census of one thousand eight hun-
522
THE B. N. A. ACT— SECS. 119, 120.
Further grant
to New
Brunswick.
Form of
payments.
dred and sixty-one, and in the case of
Nova Scotia and New Brunswick, by each
subsequent decennial Census until the
population of each of those two Provinces
amounts to four hundred thousand souls,
at which rate such grant shall thereafter
remain. Such grants shall be in full
settlement of all future demands on Can-
ada, and shall be paid half-yearly in
advance to each Province ; but the Gov-
ernment of Canada shall deduct from such
grants, as against any Province, all sums
chargeable as interest on the Public Debt
of that Province in excess of the several
amounts stipulated in this Act.
119. New Brunswick shall receive
by half-yearly payments in advance from
Canada for the period of ten years from
the Union an additional allowance of
sixty-three thousand dollars per annum ;
but as long as the Public Debt of that
Province remains under seven million
dollars, a deduction equal to the interest
at five per centum per annum on such
deficiency shall be made from that, allow-
ance of sixty-three thousand dollars.
120- All payments to be made under
this Act, or in discharge of liabilities
created under any Act of the Provinces of
Canada, Nova Scotia, and New Bruns-
wick respectively, and assumed by Can-
ada, sha.ll, until the Parliament of Can-
THE B. N. A. ACT— SECS. 121.124. 523
ada otherwise directs, be made in such
form and manner as may from time to
time be ordered by the Governor-General
in Council.
121. AH articles of the growth, pro- ,SrmffiureB.
duce, or manufacture of any one of the*""
Provinces shall, from and after the Union,
be admitted free into each of the other
Provinces.
122. The Customs and Excise Laws ^t^cuZm^
of each Province shall, subject to the Lawf'"*''^^
provisions of this Act, continue in force
until altered by the Parliament of Canada.
123. Where Customs duties are, at ^n^Hmnona-
ii TT 'I'll 1 tioii as b«-
the Union, leviable on any goods, wares, tweentwo
' _. . -r^ ■ Provinces.
or merchandises in any two Provinces,
those goods, wares, and merchandises
may, from and after the Union, be im-
ported from one of those Provinces into
the other of them on proof of payment of
the Customs duty leviable thereon in
the Province of exportation, and on pay-
ment of such further amount (if any) of
Customs duty as is leviable thereon in the
Province of importation.
124. Nothing in this Act shall affect li.Tew'; '^"''
the right of New Brunswick to levy ^^g ^'""^^'*=''<'*>-
lumber dues provided in chapter fifteen of
title three of the Eevised Statutes of New
Brunswick, or in any Act amending that
(d) See note (vi) following section 12(5, post.
524 THE H. N. A. ACT — SECS. 125, 120.
• Act before or after the Union, and not
increasing the amount of such dues ; but
the himber of any of the Provinces other
than New Brunswick shall not be subject
to such dues.
■Rxoinption of
|)ublic lands,
Ac.
Vroviucial
Consoliclatccl
125- ^0 lands or property belonging
to Canada or any Province shall be liable
to taxation (e).
126- Such portions of the duties and
Fund""*' revenues over which the respective Legis-
latures of Canada, Nova Scotia, and New
Brunswick had before the Union power of
appropriation a^ are by this Act reserved
to the respective Governments or Legis-
latures of the Provinces, and all duties
and revenues raised by them in accord-
ance with the special powers conferred
upon them by this Act, shall in each Pro-
vince form one Consolidated Revenue
Fund to be appropriated for the public
service of the Province.
(i) " Rereuues, etc." — In amving at a determination of
tlu' line ot;' div'ision of revenues, etc., effected by this group
of clauses we must bear in mind what is said by Lord
Watson in delivering the judgment of the Judicial Com-
mittee of the Privy Council in a case to wliich we liave
already had occasion to refer — St. Catharines' Milling Co.
V. The Queen (/):
" There can be no f/j;r.?fi;7 probability that the British Legis-
lature, in a branch of the statute which professes to deal only
(«') See note (vii) following section 120, post.
(/') 14 App. Gas. 46, at p. 59. See notes to sec. 91, s-s. 24, ante.
THE B. N. A. ACT — SEC. 126. 525
with the distribution of legislative power, intended to deprive the
provinces of rights which are expressly given them in that
In-anch of it which relates to the distribution of revenues and
assets."
hy way of application of which rule to the case then in
liand, he says :
" The fact that the power of legislating for Indians, and for
lands which are reserved to their use, has been entrusted to the
parliament of the Dominion is not in the least degree inconsistent
with the right of the provinces to a beneficial interest in those
lands, available to them as a source of revenue whenever the
estate of the Crown is disencumbered of the Indian title."
It is matter for remark, too, that in construing- these
sections, the Conunittee has taken into consideration the
" high political nature " of the B. N. A. Act. In Attorney-
(Jeneral of Ontario v. Mercer ((j), they speak of "the attri-
liution of royal territorial nghts for purposes of revenue
and government." Their reference in the later case to a
jtr'iorl prol)abilities indicates the usu of aids to the inter-
prt lation of these sections somewhat wider than those
wliich they h we felt free to use in construing the various
sub-sections of sections 91 and 92, which provide for the
division of the field of subject matters proper for legisla-
tive action between the Dominion and the provinces.
Owing to the reference made in these sections to the
power of appropriation over the duties and revenues arising
in tlie pre-Con federation provinces we may refer to what
has l)cen already said in chapter II. (A)- Taking up the
thread at the date of the Union Act, IH-iO, the Committee
thus characterize its provisions upon this head (i) :
" By an Imperial statute passed in the year 1840 (3 & 4 Vic.
c. 35) the provinces of Ontario and Quebec, then known as Upper
and Lower Canada, were united under the name of the Province
of Canada, and it was, inter alio, enacted that in consideration
of certain annual payments which Her Majesty had agreed to
(/if) 8 App. Cas. 767. ('0 Ante, p. 35, e.t seq.
(i) 14 App. Cas. at p. 55.
526 THE B. N. A. ACT — SEC. 126.
accept by way of 'civil list,' the produce of all territorial and
other revenues at the disposal of the Crown arising in either of
the united provinces should be paid into the Consolidated
Revenue Fund of the said province. There was no transfer to
the province of any legal estate in the Crown lands, which con-
tinued to be vested in the Sovereign ; but all monies realized by
sales or in any other manner became the property of the
province. In other words, all beneficial interest in such lands
within the provincial boundaries belonging to the Queen, and
either producing or capable of producing revenue, passed to the
province, the title still remaining in the Crown. That continued
to be the right of the province until the passing of the British
North America Act, 1867."
The Conbolidated Revenue Fund created by this Act
was to be appropriated — subject to the payment of the
" civil list " charges — by the Canadian parliament " for the
public service in such manner as they shall think proper."
We should, perhaps, point out that the 42nd section of the
Union Act, 1840, limited the right of the then province to
dispose of the " w^aste lands of the Crown," but this section
was repealed by 17 & 18 Vic. c. 118, s. 6. We may
refer also to the Imperial Act, 10 & 11 Vic. c. 71, which
handed over to the province the control of the civil list.
Prior to Confederation, therefore, the parliament of (old)
Canada had the fullest power of appropriation over these
territorial and other revenues, as had also the assemblies
of the Maritime Provinces over the revenues therein
arising ( j).
The scheme of division of assets, etc., effected by the
B. N. A. Act has been the subject of exhaustive examination
by the Judicial Committee of the Privy Council in the two
cases to which we have above referred. We quote from
the judgment in the later case {k) :
Bee note (b), ante, p. 40.
(k) St. Catharines' Milling Co. v. The Queen, 14 App. Cas. at p. 56
et seq.
THE B. N. A. ACT — SEC. 126. 527
*' The Act also contains careful provisions for the distribu-
tion of legislative powers and of revenues and assets between
the respective provinces included in the Union, on the one hand,
and the Dominion on the other. The conflicting claims to the
ceded territory maintained by the Dominion and the province of
Ontario are wholly dependent upon these statutory provisions.
In construing these enactments it must be always kept in view
that, wherever public land with its incidents is described as
' the property of ' or as * belonging to ' the Dominion or a pro-
vince, these expressions merely import that the right to its
beneficial use, or to its proceeds, has been appropriated to the
Dominion or the province, as the case may be, and is subject to
the control of its legislature, the land itself being vested in the
Crown.
*' Section 108 enacts that the public works and undertakings
enumei ,ted in Schedule 3 shall be the property of Canada. As
specified in the Schedule, these consist of public undertakings
which might be fairly considered to exist for the benefit of all
the provinces federally united, of lands and buildings necessary
for carrying on the customs or postal service of the Dominion,
or required for the purpose of national defence, and of * lands
set apart for general public purposes.' It is obvious that the
enumeration cannot be reasonably held to include Crown lands
which are reserved for Indian use. The only other clause in the
Act by which a share of what previously constituted provincial
revenues and assets is directly assigned to the Dominion is sec-
tion 102. It enacts that all ' duties and revenues ' over which
the respective legislatures of the united provinces had and have
power of appropriation, * except such portions thereof as are by
this Act reserved to the respective legislatures of the provinces,
or are raised by them in accordance with the special powers con-
ferred upon them by this Act,' shall form one consolidated
fund, to be appropriated for the public service of Canada. The
extent to which duties and revenues arising within the limits of
Ontario, and over which the legislature of the old province of
Canada possessed the power of appropriation before the passing
of the Act, have been transferred to the Dominion by this
clause, can only be ascertained by reference to the two excep-
tions which it makes in favor of the new provincial legislatures.
52S THE B. X. A. ACT — KEC. 126.
"The second of thetje exceptions has really no bearing on
the present case, because it comprises nothing beyond the
revenues which provincial legislatures are empowered to raise by
means of direct taxation for provincial purposes in terms of sec-
tion 92 (2). The first of them, uliich diipcars to riDiiiin'iieiiil tin'
ir/iiile soio'ces of rcrenw reserved to the iirociwes In/ seetion 109, is
of material consequence." After quoting this section at length,
the judgment proceeds: "In connection with this clause it
may be observed that by section 117 it is declared that the pro-
vinces shall retain their respective public property not otherwise
disposed of in the Act, subject to the right of Canada to assume
any lands or public property required for fortifications or for the
defence of the country. A different form of expression is used
to define the subject matter of the first exception, and the pro-
perty which is directly appropriated to the provinces ; but it
hardly admits of doubt that the interests in laml, niinen, uiinenils,
and royalties, lehieh hij seetion 109 ore ileehired to heloni/ to the j)ri>-
vinees, inelude, if thei/ are not identieol irith, the ' duties and
revenues ' /irst excepted in scetinn 102.
" The enactments of section 109 are, in the opinion of theii-
Lordships, sufficient to give to each province, subject to the
administration and control of its own legislature, the entire hene-
liciai i)iterest of the Croirn in all lands within its houndaries, which
at the time of the Union were vested in the Crown, with the ex-
ception of such lands as the Dominion acquired right to under
section 108, or might assume for the purposes specified in section
117. Its legal eft'ect is to exclude from the 'duties and reve-
nues ' appropriated to the Dominion all the ordinary territorial
revenues of the Crown arising within the provinces. That con-
struction of the statute was accepted by this Board in deciding
Attorney -General of Ontario v. Mercer, where the controversy
related to land granted in fee simple to a subject before 1867,
which became escheat to the Crown in 1871. The Lord Chan-
cellor (Earl Selborne) in delivering judgment in that case said :
' It was not disputed in the argument for the Dominion at the
bar, that all territorial revenues arising within each province
from lands (in which term must be comprehended all estates m
land) which at the time of the Union belonged to the Crov/n,
were reserved to the respective provinces by section 109; and it
THE B. N. A. ACT — SEC. 126. 529
"\vas admitted that no distinction could, in that respect, be made
between lauds then ungranted, and lands which had previously
reverted to the Crown by escheat. But it was insisted that a
line was drawn at the date of the Union, and that the words were
not sufficient to reserve any lands afterwards escheated which at
the time of the Union were in private hands, and did not then
belong to the Crown.' Their Lordships indicated an opinion to
the effect that the escheat would not, in the special circumstances
of that case, have passed to the province as 'lands'; but they
held that it fell within the class of rights reserved to the prov-
ince as ' royalties ' by section 109.
" . . . The ceded territory was at the time of the Union
land vested in the Crown, subject to ' an interest other than that
of the province in the same,' within the meaning of section 109 ;
and must now belong to Ontario in terms of that clause, unless
its rights have been taken away by some provision of the Act
of 1867 other than those already noticed."
Any controlling effect which might be claimed in respect
of " lands reserved for the Indians " by reason of the legis-
lative power of the Dominion in respect thereof is
negatived in the passage already quoted (I).
In Attorney-General of Ontario v. Mercer (m) the
meaning of the word " royalties " was discussed and without
deciding whether it does or does not cover royal rights
other than those connected with lands, mines, and minerals,
it was held that it does cover all royal rights — jt^ra regalia
omnia ad Jiscum spectantia — connected with those three
subjects, and escheats within a province were adjudged to
belong to such province and not to the Dominion.
In the case of The Liquidators of the Maritime Bank v.
The Receiver-General of New Brunswick {n) it has just
been held that the prerogative right of the Crown to claim
priority for debts due the Crown over the claims of private
(I) Ante, p. 525.
(m) 8 App. Cas. 767. See Church v. Blake, 2 Q. L. R. 236.
in) 8 Times L. R. 677.
Can. Con.— 34
530 THE B. N, A. ACT — SEC. 126.
creditors, is a prerogative right vested in the Lieutenant-
Governor of a province so far as relates to debts due the
Crown as representing such province — a decision which
would appear to show that it was not necessary to rely
solely upon the word " royalties " as vesting in the provinces
(or in the Lieutenant-Governors as chief executive officers
thereof) the Crown's prerogative rights in connection with
lands escheated for want of heirs. See, however, Attorney-
General of British Columbia v. Attorney-General of Can-
ada (o), in which the Committee held that a conveyance by
the province to the Dominion of "public lantls" was, in sub-
stance, an assignment merely of its right to appropriate the
territorial revenues arising therefrom, and could not with-
out express evidence of intention in that behalf, be con-
strued as a transfer of the precious metals in, upon and
under such lands, the revenues derivable therefrom not
being incident to the land (as are mines of baser metal),
but arising from the prerogative rights of the Crown,
which, under the word " royalties," passed to the provinces
by force of section 109.
In reference to those sections of this group VIII. which
deal with the financial arrangements agreed upon by the
provinces as the basis of the federal Union, we deem it
unnecessary to say anything here. " Better terms " hav^e
been sought and granted in the case of a number of the
provinces {p). The whole policy of provincial " subsidies "
has been the subject of much adverse comment, but, in any
case, these financial arrangements are hardly matter for
discussion in a work of this kind. The same may be said
of the " interprovincial free trade," section (121).
(ii) "Pahlic Harbours." — It was held in Holman v.
Green (q) by the Supreme Court of Canada that this in-
(o) 14 App. Cas. 295. See post, Part IV, Chap. XV.
(p) See a short resrnn^ of them in Houston, " Const. Doc. of Canada,''
p, 237.
{q) 6 S. C. R. 707.
THE B. N. A. ACT — SEC. 126. 531
eludes all harbours, together with the bed and soil thereof,
which the public have the right to use, and is not limited
to such as at the date of the Union had bean artificially
constructed or improved at the public expense; and whore
a grant of the foreshore of a natural harbour used as such
by the public was made by a provincial government, tlm
grant was held invalid.
(iii) "Rivers and Lake Improvements" — "Rivers" is a
mistake. River improvements are clearly intended. See
per Gwynne, J., in Reg. v. Robertson (>). In the Quebec
Resolutions it appears as "River and Lake Improvements."
(iv) " Riiilivays, etc." — In Western Counties Ry. Co. v.
Windsor ^ Annapolis Ry. Co. (.s) it was held by the Judicial
Committee of the Privy Council that the Dominion govern-
ment acquired provincial railways — i.e., government rail-
ways— subject to all claims against them, or, in other words,
for no larger interest than the province had in them. It was
a qiuare with the Committee whether the parliament of
Canada could afterwards looislate in derogation of claims
against, or obligations incurred by, the province in respect
of such railways.
(v) " Ordnance property ." — See Kennedy v. Toronto (<).
(vi) "Liunher Dues in New Brunswick" — The right to
levy these duties was surrendered in 1871, upon certain
terms as set out in 36 Vic. c. 41 (Dom.).
(vii) "Exemption of piiblic lands, etc." — See Church v.
Fenton (h), and Reg. v. Wellington (?j). In Attorney-
General of Canada v. Montreal {w) it was held by the
Supreme Court of Canada that lands under lease to the Do-
(r) 6 S. C. R. at pp. 98-99.
(s) 7 App. Caa. 178.
(«) 12 O. R. 201.
(if) 5 S. G. R. 239 ; see notes to sec. 91, s-s. 24.
{v) 17 O. A. R. 421 ; snh mm. Quirt v. Reg. 19 S. C. R. -510.
(w) 13 S. C. R. 352.
53;2 THE B. N. A. ACT — SECS. 127, 128.
minion government for military purposes cannot be taxed
for municipal purposes ; on the other hand, in Attorney-
General of Canada v. Toronto (x) the Dominion govern-
ment was held liable to pay water rates as being the price
charged for a connnodity furnished.
IX. — Miscellaneous Provisions.
General.
faifve^lSn- 127- If ^.iiy persoii being at the pass-
viucel becom- ing of this Act a Member of the Legisla-
iiig Senators.
tive Council of Canada, Nova Scotia, or
New Brunswick, to whom a place in the
Senate is offered, does not within thirty
days thereafter, by writing under his hand
addressed to the Governor-General of the
Province of Canada or to the Lieutenant-
Governor of Nova Scotia or New Bruns-
wick (as the case may be), accept the
same, he shall be deemed to have declined
the same; and any person who, being at
the passing of this Act a member of the
Legislative Council of Nova Scotia or
Nev/ Brunswick, accepts a place in the
Senate shall thereby vacate his seat in
such Legislative Council.
Sa?ce*&"^' 128- Every member of the Senate or
House of Commons of Canada shall be-
fore taking his seat therein take and sub-
scribe before the Governor- General or
some person authorized by him, and every
member of a Legislative Council or Legis-
(x) 18 O. A. R. 622.
THE B. N. A. ACT — SEC. 128. 53S
lative Assembly of any Province shall
before taking his seat therein take and
subscribe before the Lieutenant-Governor
of the Province or some person authorized
by him, the oath of allegiance contained
in the fifth Schedule to this Act ; and
every member of the Senate of Canada
and every member of the Legislative
Council of Quebec shall also, before taking
his seat therein, take and subscribe be-
fore the Governor- General, or some person
authorized by him, the declaration of
qualification contained in the same
Schedule.
THE FIFTH SCHEDULE.
Oath op Allegiance,
1,A. B. do swear, That I will be faithful and bear true Alle-
giance to Her Majesty Queen Victoria.
Xote. — llie name of the Kin;/ or Queen of the United Kingdom
of Great Britain and Ireland for the time heimj is to be sid)stitute(l
from time to time, with proper terms of reference thereto.
Declaration of Qualification.
I, A.B. do declare and testify, That I am by law duly quali-
fied to be appointed a member of the Senate of Canada [or as the
case may Af] , and that I am legally or equitably seised as of free-
hold for my own use and benefit of lands and tenements held in
free and common socage [or seised or possessed for my own uSi§
and benefit of lands or tenements held in franc-alleu or in roture
534 THE B. X. A. ACT — SEC. 129.
(or (IS the case tnnij /;<•),] in the province of Nova Scotia [ar <is the
ctise iiKii/ he] of tlie value of foui" thousand dollars over and above
all rents, dues, debts, mortgages, charges, and incumbrances due or
payable out of or charged on or affecting the same, and that I have
not coUusively or colourably obtained a title to or become possessed
of the said lands and tenements or any part thereof for the pur-
pose of enabling rae to become a member of the Senate of Canada
[('/• tiH the case mai/ he], and that my real and personal property
are together worth four thousand dollars over and above my
debts and liabilities.
orexi"tinr° 129. Except RS otlienvise provided
oSrsSc.^'by this Act, all laws in force in Canada,
Nova Scotia, or New Brunswick at the
Union, and all Courts of civil and criminal
jurisdiction, and all legal commissions,
powers and authorities, and all officers,
judicial, administrative and ministerial,
> existing therein at the Union, shall con-
tinue in Ontario, Quebec, Nova Scotia,
and New Brunswick respectively, as if
the Union had not been made; subject
nevertheless (except with respect to such
as are enacted by or exist under Acts of
the Parliament of Great Britain or of the
Parliament of the United Kingdom of
Great Britain and Ireland), to be repealed,
abolished, or altered by the Parliament of
Canada, or by the Legislature of the re-
spective Province, according to the
authority of the Parliament or of that
Legislature under this Act.
We have already had such frequent occasion to i-efer to
this section (?/), that we need here only sum up what has
(y) See particularly p. 49, et seq, and p. 200.
THE n. N. A. ACT— SEC. 129. 535
heen already said and refer to some of the more important
decisionH whicli deal with the (|uestion of its construction
and eti'ect.
The leoishitive bodies which were, after the Union, to
make hiw for tiie Dominion and for the respective pro-
vinces liave their " constitution " and powers provided for
in other secti(jns of the Act. The different splieres of
authority are defined. But, apart from these necessary
provisions, account had to be taken of the body of laws
and legal institutions — the executive staff', administrative
and judicial — existing in the provinces at the Union, and
this is done by the section in (question.
Tlie whole body of laws — conmion law and statutory
enactments — was continued, but with a clear line of divi-
sion drawn through it l»y this section. Any alteration of
that law, any Act in amendment of it, can now l)e enacted
only by that legislature which, if the law which it is
desired to repeal or alter were non-existent, could now
enact it. As an example of the application of this rule to
provisions of the connnon law in force in any province at
the date of Confederation w^e may refer to the decision of
the Supreme Court of Canada in Queddy River Boom
Co. V. Davidson (z), in which a provincial Act was held
inoperative to authorize the obstruction of a navigable
river. The cases in reference to the amendment or repeal
of provincial Acts of date prior to 1867 are numerous.
We have from time to time referred to many of them.
Dobie V. Temporalities Board («), is the leading case.
Upon the secularization of the "Clergy Reserves," a
statutory commutation of the claims of the then Presby-
terian clergy upon the revenues derivable from these
" Reserves " was effected, and by an Act of the province of
Canada a Board was incorporated for the management of
the fund so created. After Confederation, in contempla-
(z) 10 S. C. R. 222 ; see ante, p. 383.
(a) 7 App. Caa. 136 ; see ante, p. 319.
536 THE B. N. A. ACT — SEC. 129.
tion of the union of the various Presbyterian bodies
throughout Canada, the Quebec legislature p> .ssed sla Act
(38 Vic. c. 64), providing for the future disposal of thia
fund in the event of the union taking place. Somewhat
similar legislation had taken place in Ontario (b). In the
view of the Committee, the corporation and the corporate
funds were not capable of division according to the limits
of provincial authority, and the Quebec Act was therefore
held invalid :
•* The Act of the parliament of the province of Canada was,
after the passing of the B. N. A. Act, 1867, continued in fores'
within the provinces of Ontario and Quebec by virtue of section
129 of the latter statute. . . . The powers conferred by
this section upon the provincial legislatures of Ontario and
Quebec to repeal and alter the statutes of the old parliament of
the province of Canada, are made precisely co- extensive with
the powers of direct legislation with Avliich these bodies are in-
vested by the other clauses of the Act of 1867. In order,
therefore, to ascertain how far the provincial legislature of
Quebec had power to alter and amend the Act of 1858, incor-
^ porating the Board for the^ management of the Temporalities
Fund, it becomes necessary to revert to sections 91 and 92 of the
B. N. A. Act, which enumerate and define the various matters
which are within the exclusive legislative authority of the par-
liament of Canada, as well as those in relation to which the
legislatures of the rcdpective provinces have the exclusive right,
of making laws. If it could be established that, in the absence
of all previous legislation on the subject, the legislature of Que-
bec would have been authorized by section 92 to pass an Act
identical in its terms with the Act of 1858, then it would follow-
that that Act has been validly amended by the 38 Vic. c. 64..
On the other hand, if the legislature of Quebec has not derived
such power of enactment from section 92, the necessary infer-
ence is that the legislative authority required in terms of section
129 to sustain its right to repeal or alter an old law of the par-
11 iment of the province of Canada is in this case wanting,"
(b) See Cowan v. Wright, 23 Grant 616.
THE B. N. A. ACT — SEC. 130. 537
Upon an examination of the Act of 1858, the Committee
was of opinion that it could not have been validly
passed by the Quebec legislature and could not therefore
after the Union be altered or amended by provincial legis-
lation (c).
In reference to the continuation of existing courts we
need add nothing to what was said in chapter XI. (d),
beyond drawing attention to the fact that the determina-
tion of the line between " the authority of the parliament
or of that legislature under this Act " in relation to courts^
their organization and procedure, is one of the most difficult
tasks set by the B. N. A. Act,
In reference to the executive staff, this section should
be read in connection with sections 130 and 131, and (as ta
Ontario and Quebec) 134 and 135. We need here do no
more than refer to previous pages on which the question ia
discussed (e).
130. Until the Parliament of Canada otofflSsto
otherwise provides, all officers of the
several Provinces having duties to dis-
charge in relation to matters other than
those coming within the classes of sub-
jects by this Act assigned exclusively to
the Legislatures of the Provinces shall
be officers of Canada, and shall continue
to discharge the duties of their respective
offices under the same liabilities, respon-
(c) See also Willett v. DeGrosbois {aJtte, p. 285) ; Noel v. Richmond
(ante, p. 362) ; Cooey v. Brorae (ante, p. 361) ; Hart v. Missiasquoi (ante,
p. 361) ; Munn v. McCannell, 2 P. E. R. 148 ; Keefe v. McLennan, 2 Russ.
6i Ches. 5 ; 2 Cart. 400 ; Reed v. Mousseau, 8 S. C. R. 408 ; Peak v. Shields^
6 O. A. R. 639. Note also e. 137, post.
(d) Ante, p. 227, et seq. See also notes to s. 91, s-s. 27, B. 92, s-s. 14,
and s. 101.
(e) Ante, p. 49, et seq.; Reg. v. Reno, 4 P. R. (Ont.) 294.
538 THE B. N. A. ACT — SEC. 131, 132.
sibilities, and penalties as if the Union
had not been made.
In Regina v. Horner (/), Mr. Justice Ramsay, delivering
the judgment of the Court of Queen's Bench of Quebec,
says :
" In saying they are federal officers, the statute must be
■understood quoad their federal duties, for the parliament of
Canada could not legislate for their local duties."
Xw^offlcera 131. Until the Parliament of Canada
otherwise provides, the Governor- General
in Council may from time to time appoint
such officers as the Governor- General in
Council deems necessary or proper for the
effectual execution of this Act.
Treaty obiiga- -^22, The ParHameut and Govern-
ment of Canada shall have all powers
necessary or proper for performing the
obligations of Canada or of any Province
thereof, as part of the British Empire,
towards foreign countries, arising under
treaties between the Empire and such
foreign countries.
In Ex parte Worms, before Chief Justice Dorion {z), it
was argued that the Imperial Extradition Act of 1870
could not apply to Canada, because of the express power
conveyed by this section. Tht, Chief Justice however held
that the two provisions are in no way inconsistent, and
that, if they were, the Extradition Act, being an Imperial
Act of later date, must govern in all matters relating to the
extradition of fugitive criminals. The overruling legisla-
(/) 2 Steph. Dig. 450 ; 2 Cart. .317. See ante, p. .
(2) 22 L. C. Jur. 109 ; 2 Cart. 315. See also In re Williams, 7 P. K.
(Ont.)275.
THE B. N. A. ACT — SECS. 133, 134. 539
tidn of the Imperial parliament prevents us from utilizing
the power conferred by this section.
While we may legislate in aid of British treaties affect-
ing us, we have as yet no power to make treaties with for-
eign countries («).
133. Either the EngHsh or the^rarrfni'^
French language may be used by any ^^"*'"^^^^"
person in the debates of the Houses of
the Parliament of Canada and of the
Houses of the Legislature of Quebec ; and
both those languages shall be used in the
respective Kecords and Tournals of those
Houses; and either of those languages
may be used by any person or in any
pleading or process m or issuing from any
Court of Canada established under this
Act, and in or from all or any of the
Courts of Quebec.
The Acts of the Parliament of Canada
and of the Legislature of Quebec shall be
printed and published in both those
languages.
Ontario and Quebec.
134. Until the Legislature of Ontario fctS*
or of Quebec otherwise provides, the Lieu- ouSaud
Quebec.
tenant-Governors of Ontario and Quebec
may each appoint under the Great Seal
of the Province the following officers, to
hold office during pleasure, that is to say
— the Attorney-General, the Secretary
(e) See Todd, " Pari. Govt. Brit. Col.," 192.
540 THE B. N. A. ACT — SEC. 135.
and Eegistrar of the Province, the Trea-
surer of the Province, the Commissioner
of Crown Lands, and the Commissioner
of Agriculture and Public Works, and in
the case of Quebec the Solicitor-General;
and may, by order of the Lieutenant-
Governor in Council, from time to time
prescribe the duties of those officers and
of the several departments over which
they shall preside, or to which they shall
belong, and of the officers and clerks
thereof ; and may also appoint other and
additional officers to hold office during
pleasure, and may from time to time pre-
scribe the duties of those officers, and of
the several departments over which they
shall preside or to which they shall be-
long, and of the officers and clerks
thereof.
Kr-of*" 135. Until the Legislature of Ontario
executive /^i j.i • • i ^^ ' ^ i.
officers. or Qucbec otherwise provides, all rights,
powers, duties, functions, responsibilities,
or authorities at the passing of this Act
vested in or imposed on the Attorney-
General, Solicitor-General, Secretary and
Eegistrar of the Province of Canada,
Minister of Finance, Commissioner of
Crown Lands, Commissioner of Public
Works, and Minister of Agriculture and
Receiver-General, by any law, statute or
ordinance of Upper Canada, Lower Can-
ada, or Canada, and not repugnant to
THE B. N. A. ACT — SECS. 136, 137. 541
this Act, shall be vested in or imposed on
any officer to be appointed by the Lieu-
tenant-Governor for the discharge of the
same or any of them; and the Commis-
sioner of Agriculture and Public Works
shall perform the duties and functions of
the office of Minister of Agriculture at the
passing of this Act imposed by the law
of the Province of Canada, as well as
those of tha Commissioner of Public
Works.
136- Until altered by the Lieutenant- ^'■''^* ^«^'-
Governor in Council, the Great Seals of
Ontario and Quebec respectively shall be
the same, or of the same design, as those
used in the Provinces of Upper Canada
and Lower Canada respectively before
their Union as the Province of Canada.
137- The words ''and from thence to XmJSraiT
the end of the then next ensuing Session ^^^^'
of the Legislature," or words to the same
effect, used in any temporary Act of the
Province of Canada not expired before
the Union, shall be construed to extend
and apply to the next Session of the
Parliament of Canada, if the subject
matter of the Act is within the powers of
the same, as defined by this Act, or to
the next Sessions of the Legislatures of
Ontario and Quebec respectively, if the
subject matter of the Act is within the
542 THE B. N. A. ACT — SEC. 138-140.
powers of the same as defined by this
Act.
hf uameT' 138. From and after the Union, the
use of the words " Upper Canada "
instead of " Ontario," or " Lower Can-
ada" instead of " Quebec," in any deed,
writ, process, pleading, document, matter,
or thing, shall not invalidate the same.
prVcunr°* 139. Any Proclamation under the
Union fo com- Great Seal of the Province of Canada
uuion. issued before the Union to take effect at
a time which is subsequent to the Union,
whether relating to that Province, or to
Upper Canada, or to Lower Canada, and
the several matters and things therein
proclaimed shall be and continue of like
force and effect as if the Union had not
been made.
As to issuG of
Proclama-
tions after
140. Any Proclamation which is au-
uonsaiter thoHzed by ally Act of the Legislature of
the Province of Canada to be issued under
the Great Seal of the Province of Canada,
whether relating to that Province, or to
Upper Canada, or to Lower Canada, and
which is now issued before the Union,
may be issued by the Lieutenant-Governor
of Ontario, or of Quebec, as its subject
matter requires, under the Great Seal
thereof ; and from and after the issue of
such Proclamation the same and the
several matters and things therein pro-
THE B. N. A. ACT — SECS. l-tl-143. 543"
claimed shall be and continue of the lilie •
force and effect in Ontario or Quebec as if
the Union had not been made.
141. The Penitentiary of the Pro- ^^"^^^'^"^"^y-
vince of Canada shall, until the Parlia-
ment of Canada otherwise provides, be
and continue the Penitentiary of Ontario
and Quebec.
142. The division and adjustment of ^JspSr
the debts, credits, liabilities, properties ^ ^^' ° *'^
and assets of Upper Canada and Lower
Canada shall be referred to the arbitra-
ment of three arbitrators, one chosen by
the Government of Ontario, one by the
Government of Quebec, and one by the
Government of Canada; and the selection
of the arbitrators shall not be made until
the Parliament of Canada and the Legis-
latures of Ontario and Quebec have met ;
and the arbitrator chosen by the Govern-
ment of Canada shall not be a resident
either in Ontario or in Quebec.
(i) See In re Arbitration between Ontario and Quebec (h)'
143. The Governor-General in Coun- Sdr^*
cil may from time to time order that such
and so many of the records, books, and
documents of the Province of Canada as
he thinks fit shall be appropriated and
delivered either to Ontario or to Quebec,
and the same shall thenceforth be the
(6) 6 L. J. N. S. 212 ; 4 Cart. 712. >
544 THE B. N. A. ACT — SECS. 144, 145.
property of that Province ; and any copy
thereof or extract therefrom, duly certi-
fied by the officer having charge of the
original thereof shall be admitted as
evidence.
^f"iow\*8hrir8 144. The Lieutenant-Governor of
an Quebec. QQgbec may from time to time, by Pro-
clamation under the Great Seal of the
Province, to take effect from a day to be
appointed therein, constitute townships
in those parts of the Province of Quebec
in which townships are not then already
constituted, and fix the metes and bounds
thereof.
X. — Intercolonial Kailway.
mument^a°7d 145. Inasiiiuch as the Provinces of
■cumdX°* °' Canada, Nova Scotia, and New Bruns-
iiiake railway .,1 ..,. t, .. n,
herein de- WICK havc lomed lu a declaration that
scribed. " ^
the construction of the Intercolonial Rail-
way is essential to the consolidation of
the Union of British North America, and
to the assent thereto of Nova Scotia and
New Brunswick, and have consequently
agreed that provision should be made for
its immediate construction by the Govr
ernment of Canada: Therefore, in order
to give effect to that agreement, it shall
he the duty of the trovernment and Par-
liament of Canada to provide for the com-
mencement within six months after t;he
THE B. N. A. ACT — SEC. 146. 545
Union, of a railway connecting the Eiver
St. Lawrence with City of Halifax in
Nova Scotia, and for the construction
thereof without intermission, and the
completion thereof with all practicable
speed.
XI. — Admission op other Colonies (i).
146- It shall be lawful for the Queen, SirNew-*'*'
by and with the advice of Her Majesty's &nto the
Most Honourable Privy Council, on Ad-
dresses from the Houses of Parliament of
Canada, and from the Houses of the
respective Legislatures of the Colonies
or Provinces of Newfoundland, Prince
Edward Island, and British Columbia, to
admit those Colonies or Provinces, or any
of them, into the Union, and on Address
from the Houses of the Parliament in
Canada to admit Rupert's Land and the
North-western Territory, or either of
them, into the Union, on such terms and
conditions in each case as are in the Ad-
dresses expressed and as the Queen thinks
fit to approve, subject to the provisions
of this Act; and the provisions of any
Order in Council in that behalf shall
have effect as if they had been enacted by
the Parliament of the United Kingdom of
Great Britain and Ireland.
(i) See Part IV, post.
Can. Con. — 86
£46
THE B. N. A. ACT — SEC. 147.
147- In case of the admission of
As to repre-
sentation of
laud and ' Newfoundlaiid and Prince Edward Island,
Prince Ert- ri iini "i-i
h^sen^t*""* or either of them, each shall be entitled
to a representation in the Senate of Can-
ada of four members, and (notwithstand-
ing anything in this Act) in case of the
admission of Newfoundland the normal
number of Senators shall be seventy-six
and their maximum number shall be
eighty-two ; but Prince Edward Island
when admitted shall be deemed to be
comprised in the third of the three
divisions into which Canada is, in rela-
tion to the constitution of the Senate,
divided by this Act, and accordingly, after
the admission of Prince Edward Island,
whether Newfoundland is admitted or
not, the representation of Nova Scotia
and New Brunswick in the Senate shall,
as vacancies occur, be reduced from
twelve to ten members respectively, and
the representation of each of those Pro-
vinces shall not be increased at any time
beyond ten, except under the provisions of
this Act for the appointment of three or
six additional Senators under the direc-
tion of the Queen.
PAET IV.
SUBSEQUENT GEOWTH.
CHAPTER XIII.
THE NORTH-WEST TERRITORIES.
The future extension of the Dominion of Canada, ho as
ultimately to enihrace the whole of British North America
from ocean to ocean, was anticipated, as appears hy sections
14G and 147 of the B. N. A. Act, 18G7. We need here <lraw
attention to the former section only (d), hy which provision
was made.for the admission of the other British territories,
organized and unorganized. The important point to he
noted is that hy virtue of the hist clause of this section, the
various orders in council sul)se(|uently promulgated effect-
ing the admission to the Union of Rupert's Land and the
North-western Territory, and of British Columl)ia and
Prince Edward Island are, in ett'ect, Imperial Acts, and are,
to those new portions of the Dominion, their constitutional
charters, amended, however, in certain particular hy subse-
quent Imperial legislation.
The Dominion government lost no time in setting to
work to secure control of the vast territories lying between
Ontario and British Columl)ia. At the very first session of
the parliament of Canada, an address (h) wtis passed by both
Houses representing the expediency, both from a Canadian
and an Imperial point of view, of an early extension of the
Dominion to the shores of the Pacific. This address pointed
out the necessity for a "stable government" and the estab-
(a) Bee aN(«, p, 645. .
(b) See Dom. Btat. 1872, p. Ixiii., et teq.
550 THE CANADIAN CONSTITUTION.
lishment of institutions analogous to those of the older pro-
vinces, in order to the development of the agricultural,
mineral, and commercial resources of the Great Lone Land,
and prayed that Her Majesty might be pleased (pursuant
to section 146 of the B. N. A. Act) " to unite Rupert's Land
and the North- Western Territory with this Dominion, and
to grant to the parliament of Canada authority to legislate
for their future welfare and good government."
That part of these territories (c) known as Rupert's Land
had been under the control of the Hudson's Bay Company
ever since, in 1G70, King Charles II. granted his charter to
those "adventurers trading into Hudson's Bay," and as lords-
proprietors they had full right of government and adminis-
tration therein subject to the sovereignty of England. The
boundaries of Rupert's Land were never accurately deter-
mined. Speaking roughly, the country known by that
name comprised the territory watered by streams flowing
into Hudson's Bay; but the company had extended their
operations and assumed jurisdiction (d) over other parts of
the North- Western Territory. We note this distinction
between the North- Western Territory proper and Rupert's
Land, because, as we shall see, the authority of the Domin-
ion parliament to legislate for these two portions respect-
ively of this great country flowed, in the first instance, from
different Imperial Acts.
The existence of the Hudson Bay Company's charter
rendered it necessary, in the view of the home government,
that terms should first be settled with that company for a
surrender of "all the rights of government" and other
rights, privileges, etc., in Rupert's Land enjoyed by the
company under their charter, other than their trading and
commercial privileges. To this end, the Rupeii's Land Act,..
(c) See a very interesting article in WeBtern Law Times, Vol. I., June,
1890, which contains in brief an account of the early organization of these
territories under the H. B. Co.
(d) Bee post.
THE NORTH-WEST TERRITORIES. 551
1868, was passerl by the Imperial parliament, empowering
Her Majesty to accept such surrender on terms to be agreed
upon — " subject to the approval of Her Majesty in council
of the terms and conditions to be proposed by tlie Domin-
ion parliament for the admission of Rupert's Land ..nd
embodied in an address." The 5th section of this Act pro-
vides :
"5. It shall be competent to Her Majesty by any such order
or orders in council as aforesaid on address from the Houses of
the parliament of Canada to declare that Rupert's Land shall
from a date to be therein mentioned, be admitted into and be-
come part of the Dominion of Canada ; and thereupon it shall be
lawful for the parliament of Canada from the date aforesaid to
make, ordain, and establish within the land and territory so ad-
mitted as aforesaid all such laws, institutions, and ordinances,
and to constitute such courts and officers as may be necessary
for the peace, order and good gcvernment of Her Majesty's sub-
jects and others therein ; provided that unti) otherwise enacted
by the said parliament of Canada all the powers, authorities and
jurisdiction of the several co''irts of justice now established in
Rupert's Land and of the several officers thereof and of all
magistrates and justices now acting within the said limits shall
continue in full force and effect therein."
This Act, it will be noticed, is confined to Rupert's Land,
but, under tlie terms agreed upon by the Hudson Bay Com-
pany and the Canadian delegates, the Company surrendered
all their rights of government and other riglits, privileges,
etc., etc., not only in Rupert's Land but also in any other
part of British North America (other than Canada and
British Columbia) and all lands and territories therein, save
some 50,000 acres reserved to them by the agreement. We
need not refer further to the terms of surrender as embodied
in the Imperial order in council finally passed, because those
terms were simply the price paid by the Dominion for the
surrender, and do not in any way touch our subject. The
order in council — 23rd June, 1870 — which finally admitted
Rupert's Land and the North-Westem Territory to the
552 THE CANADIAN CONSTITUTION.
Union provided that from and after the 15th day of July,
1870, those vast areas should form part of Canada, and that
as to the North- Western Territory "the parliament of
Canada shall from the day aforesaid have full power and
authority to legislate for the future welfare and good gov-
ernment " thereof ; but it made no further provision as to
legislation for Rupert's I^and, because that was pro^dded for
by the section of the Rupert's Land Act, 1868, which we
have already quoted. As to the North- Western Territory
proper, therefore, the legislative power was conferred by
the order in council operating as an Imperial Act by virtue
of section 146 of the B. N. A. Act; while as to Rupert's Land
the legislative power was conferred by the Rupert's Land Act,
1868. Nothing, however, turns upon this distinction, for, as
we shall see, after the province of Manitoba was formed,
full legislative power was given to the parliament of Canada
over all territories not included within the boundaries of
any province, so that any possible distinction which might
have been urged as arising from the difference in the
phraseology of the two earlier enactments is entirely oblit-
erated.
Anticipating the admission of these territories, the
Dominion parliament in 1869 passed " An Act for the tem-
porary government of Rupert's Land and the North-
western Territory, when united with Canada " (32-33 Vic.
c. 3), providing for the appointment of a Lieutenant-Gov-
ernor to administer the government of these territories
under instnictions from the Governor-General in Council
and that by Order in Council the Lieutenant-Governor
might be empowered (subject to such conditions and restric-
tions as might be imposed by such Order in Council), "to
make provision for the administration of justice therein,
and generally to make, ordain, and establish all such laws,
institutions, and ordinances as may be necessary for the
peace, order, and good government of Her Majesty's sub-
jects and others therein." The Lieutenant-Governor was to
THE NORTH-WEST TERRITORIES. 553
be aided by a Council, not exceeding fifteen, nor less than
seven persons, to be appointed by the Governor-General
in Council. The powers of this Council were to be from
time to time as defined by Order in Council, i.e., by the
Dominion government. By the 5th and 6th sections of
this Act it was provided :
"5. All the laws in force in Rupert's Land and the North-
western Territory at the time of their admission to the Union
shall so far as they are consistent with "the British North
America Act, 1867," — with the terms and conditions of such ad-
mission approved of by the Queen under the 146th section
thereof — and with this Act — remain in force until altered by the
parliament of Canada, or by the Lieutenant-Governor under the
authority of this Act.
"6. All public officers and functionaries holding office in
Rupert's Land and the North-Western Territory at the time of
their admission into the Union, excepting the public officer or
functionary at the head of the administration of affairs, shall
continue to be public officers and functionaries of the North-
West Territories with the same duties and powers as before,
until otherwise ordered by the Lieutenant-Governor under the
authority of this Act."
to which clauses we shall shortly have occasion again to
refer.
Again, in 1870 (the admission not having yet taken
place) the parliament of Canada passed " An Act to amend
and continue the Act 32-33 Vic. c. 3 ; and to establish and
provide for the government of the province of Manitoba "
— 33 Vic. c. 3. The provisions of this Act as to Manitoba
will be dealt with later. As to the remaining portions of
the territories about to become part of the Dominion, the
only amendment of the Act of the previous session was
in the provision that the Lieutenant-Governor of Manitoba
should also be commissioned as Lieutenant-Governor of
the North- West Territories — as such remaining portions
were now to be called. With this amendment the Act of
1869 was continued to the end of the session of 1871.
554 THE CANADIAN CONSTITUTION.
Confining our attention, then, to the Nortli-West Terri-
tories ; wlien next the parliament of Canada met, these
territories were part of the Dominion, and much of the
legishition of that session applied to them ecjually with the
other parts of Canada. From that time to the present the
Dominion pai'liament has had the power to hi^islate for the
North-West Teriitories in reference to all matters within
the ken of a colcmial legislature (e); and although large-
powei-s of local self-governnient have l)een conceded to the
inhahitants of these Territories they are held at the will of
the pailiam(!nt of Canada. To what extent that parliament
will interpose in reference to inattens over which legislative^
power has been conferred on the North-West assembly,
depend." on "conventions" not capable of accurate definition.
No doubt before very long a new province or provinces
will be formed out of these territories. The position,
therefore, is so evidently temporary that we feel some diflS-
culty in deciding to what extent of detail we should go in
discussing the present position of the North-West Terri-
tories. What we write will in all probability be in a very
short time of historical interest merely. Present useful-
ness therefore must be our guide, leaving the future to
take care of itself. Because, however, cases may arise in
which the rights of litigants will depend on the law as it
stood at some particular time since liS70, we deem it advis-
able before discussing the Acts which are to-day the
constitiiticmal charters of the North-West Territories, to
state shortly the changes which have been iriade from time
to iime up to the present, in order that the proper sources
of legislation at any given period, and in relation to any
given matter, may be consulted.
On the 15th of July, 1(S70, these Territories became part
of Canada. The Acts of the two previous sessions expiring
at the end of the session of 1871, a permanent Act was
passed (34 Vic. c. 16), containing the same provisions as had
(<?) See chapter IX., «ntc. ,
THE N<JHTH-WE.ST TERIirrORIEH. 555
been mafle by tlioso Acts. We sliould note here the B. N. A.
Act, 1871 (34-85 Vic. c. 28), which will be printed in full
when we come to deal with ManitoVm. So far as conceniH
the North-WcHt Territories, it merely validated the pre-
vious Canadian legislation (32-83 Vic. c. 3, and 83 Vic. c. 3),
and made the general provision al)ove noted that "the par-
liament of Canada may from time to time make provision
for the a(hninistration, peace, order, and good govern-
ment (/) of any territory not for the time being included
in any territory."
Per iod from Jo July, 1.S70, to 1 November, 187o.
During this period, then, legislative authority over the
North-West Territ<')ries was exercised or exerciseal)le — in
the order of efficacy —
(a) By the Imperial Parliament :
(b) By the Parliament of Canada :
(c) By the Lieutenant-Govei-nor of Manitol)a in relation
only to such matters as were designated by order (jf the
Governor-General in Council. By 8() Vic. c. 5, the ninnber
of the council of the North- West Territories was increased
to a maxinmm of 21, instead of 15, the mininnim remaining
at 7. Nothing, however, was done toward the government,
by local authority, of the North-West Territories until
Decendjcr, 1872, when Lieutenant-Governor Morris of Mani-
toba was commissioned to act as Lieutenant-Governor of
these Territories, with a council of eleven mendjers to aid
him in the administration of affairs there. By Order in
Council of date 12th February, 1873, it was ordered:
" 1. That tiie Lieutenant-Governor of the North-West Terri-
tories, hj) and with the advitr of the said Council shall be, and he is
hereby authorized to make provision for the administration of jus-
tice in the said territories, and generally to make and establish such
ordinances as may be necessary for the peace, order, and good
government of the said North-West Territories and of Her
(f) Sea Riel v. Il'*cj;na, 10 App. Cas. 075, fully noted, (iiite, p. 347.
556 THE CANADIAN CONSTITUTION.
Majesty's subjects and others therein. Provided, first, that no
:snch ordinance shall deal with or affect any subjects which are
beyond the jurisdiction of a provincial legislature, under the
♦ British North America Act, 1807,' and provided, second, that
all such ordinances shall be made to come into force only after
they have been approved by the Governor-General in Council,
unless in case of urgency, and in that case the urgency shall be
stated on the face of the ordinance."
with further provision for the transmission of all ordi-
nances to the Governor-General, who should be at liberty
to disallow any of them at any time within two years from
their passB^e.
Perwd from 1 November, 1873. to 7 October, 1876.
On the 1st of November, 1873, the Act 36 Vic. c. 34,
came into force. It provided — probably to remove doubts
— that the local lecfislation on the various subjects whicli
by Order in Council to that date had been committed
to the legislative ken of the Lieutenant-Governor and his
Council, should thereafter be passed by the Lieutenant-
Governor, by and with the advice and consent of the
Council. In relation to all mattei*s not so committed,
legislative power was by the Act conferred on the Gov-
ernor-General in Council. The legislative power of both
the Dominion cabinet and the Lieutenant-Governor in
Council — each within its respective sphere — might be ex-
ercised in the way of extending to the Territories general
Acts of the parliament of Canada with such modification
a,s might be thought desirable, or in the way of repealing
such general Acts so far as they might apply to the terri-
tories; with this proviso, however, that no law to be
passed by either of these bodies should (1) be inconsistent
with any Act of the parliament of Canada of express ap-
plication to the Territories ; (2) alter the punishment pro-
vided for any crime or the legal description or character of
the crime itself ; (3) impose any tax or any duty of
customs or excise or any penalty exceeding one hundred
THE NORTH-WEST TERRITORIES. 557
dollars ; or (4) appropriate any monies or property of the
Dominion without the authority of the Dominion parlia-
ment. All local legislation was to be subject to disallow-
ance within two yeara after its passage.
During this period, therefore, legislative power was
exercisable — in the order of its efficacy —
(a) By the Imperial Parliament :
(b) By the Parliament of Canada :
(c) By the Governor-General in Council in relation to
all matters not committed to the Lieutenant-Governor and
his Council ; which in reality placed the entire legislative
power (subject to the foregoing) in the hands of the
Dominion government, if it had chosen to exercise it, for
the powers of the Lieutenant-Governor were themselves
defined by the Order in Council to which we have
referred, and could of course be at any time curtailed :
(d) By the Lieutenant-Governor in Council in relation
to all matters from time to time committed to them for
legislative action.
During this period, however, no further Orders in
Council were passed relative to the powers of the Lieuten-
ant-Governor in Council, nor was the legislative power of
the Governor-General in Council exercised, so that this and
the earlier period are practically one. Dominion legisla-
tion of a general character passed during this period w^ould
prima facie apply to the North- West Territories, and in
addition we may note 36 Vic. c. 35, which made special
provision for the administration of justice therein.
Period from 7 October, 1876, to 28 April, 1877.
In 1875 was passed " The North- West Territories Act,
1875," which came into force, however, only on the 7th
of October, 1876. It amended and consolidated previous
legislation, and under it the first resident Lieutenant-Gov-
ernor was appointed, and the first legislative session took
558 THE CANADIAN CONSTITUTION.
place in the Territories. The Council was reduced in num-
ber— so far as appointed nieudiers were concerned — to five
persons, with powers as defined in the Act, and with such
further powers not inconsistent therewith as might from
time to time be conferred by Order in Council. As, how-
ever, the section of the Act defining the legislative powers
of the Lieutenant-Governor in Council (g), was in force for
only some six mcmths, and as a reference to the ordinances
passed at the session held while it was so in ft)rce discloses
that nothing was done in the way of legislation which was
not fully justified l)y the powera conferred by the Act, we
have not thought it necessary to quote the section. By
the Oth section of this Act all laws and ordinances then in
force in the Territories were to continue until altered or re-
pealed by competent authority. The Governor-General in
Council was empowered (h) to apply any Act, or part of
any Act of the Dominion parliament to the Territories
generally or to any part thereof. The Lieutenant-Governor
was empowered to establish, as population increased, elec-
toral districts, and it was provided that so soon as the
number of elected members of the Council should reach
21, the Council should cease to exist and a Legislative
Assembly take its place. In the electoral districts the
Lieutenant-Governor in Council might impose direct tax-
ation and license fees for raising a revenue for the local and
municipal purposes of each district. Power was also given
to establish inunicipalities in the electoral districts, with
powers of municipal taxation to be prescnbed by ordinance
of the Lieutenant-Governor in Council. In reference to
education, it was provided that any legislation upon the
subject should be subject to the right of the minority in
any district, whether Protestant or Roman Catholic, to es-
tablish separate schools, the supporters of which should be
exempt from taxation for the support of the schools estab-
{g) 38 Vic. 0. 49, s. 7 ; repealed by 40 Vic. c. 7.
(h) Sec. 8.
THE NOHTH-WEST TEI?RIT()IUEH. 55!)
lished by the majority. The Act also contained much
lej^islation upon Huch j:feneral topicH as real estate and ita
descent, wills, married women, re<,nstrati<)n of deeds, etc.
Provision was made for the administration of justice
through the medium of local courts presided over hy
stipendiary magistrates, who in more serious criminal cases
were to be associated with the chief justice or one of the
judges of the Court of Queen's Bench of Manitoba. In
capital cases an appeal lay to the full Court of Queen's
Bench of that province.
Period from 28 ^pvi7, 1877, to R S. C. (1886).
The North-West Territories Act, lcS75, was, as we have
intimated, amended in a most important particular by
40 Vic. c. 7, passed about six months after the Act of 1875
came into operation. The section defining the legislative
powers of the Lieutenant-Governor in Council was repealed
and the following section substituted therefor :
" T. The Lieutenant-Governor in Council, or the Lieutenant-
Governor by and with the advice and consent of the Legislative
Assembly, as the case may be, shall have such powers to make
ordinances for the Government of the North-West Territories as
the Governor in Council may, from time to time confer upon
him ; Provided always that such powers shall not at any time
be in excess of those conferred by the ninety-second section of
' The British North America Act, 1867," upon the Legislatures
of the several Provinces of the Dominion :
" 2. Provided that no ordinance to be so made shall, — (1) be
inconsistent with or alter or repeal any provision of any Act
of the Parliament of Canada in Schedule B. of this Act, or of
any Act of the parliament of Canada, which may now, or at any
time hereafter, expressly refer to the said Territories or which or
any part of which may be at any time made by the Governor in
Council, applicable to or declared to be in force, in the said Ter-
ritories, or, — (2) impose any fine or penalty exceeding one
hundred dollars:
" 3. And provided that a copy of every such ordinance shall
be mailed for transmission to the Secretary of State, within ten
560 THE CANADIAN CONSTITUTION.
days after its passing, and it may be disallowed by the Governor
in Council at any time within two years after its receipt by the
Secretary of State ; Provided, also, that all ordinances so made,
and all Orders in Council disallowing any ordinances so made,
shall be laid before both Houses of Parliament, as soon as con-
veniently may be after the making and enactment thereof
respectively."
On the 11th of May, 1877, an Order in Council was
pasHed which, after reciting the statutes of 1875 and 1877,
ran thus :
Now, in pursuance of the powers by the said statute
conferred, his Excellency, by and with the advice of the
Privy Council, has been pleased further to order, and it is
hereby ordered, that the Lieutenant-Governor in Council
shall be and he is hereby empowered to make ordinances in
relation to the following subjects, that is to say :
1. The establishment and tenure of territorial offices,
and the appointment and payment of territorial officera ;
2. The establishment, maintenance and management of
prisons in and for the North- West Territories ;
3. The establishment of municipal institutions in the
Territories, in accordance with the provisions of the
"North- West Territories Acts, 1875 and 1877 " (i);
4. The issue of shop, auctioneer and other licenses, in
order to the raising of a revenue for territorial or munici-
pal purposes (i) ;
5. The solemnization of marriage in the Territories ;
6. The administration of justice, including the consti-
tution, organization and maintenance of territorial courts
of civil jurisdiction ;
7. The imposition of punishment by fine, penalty or
imprisonment for enforcing any territorial ordinance ;
8. Property and civil rights in the Territories, subject
to any legislation by the parliament of Canada upon these
subjects, and —
(t) Somewhat amended in 1883 ; see pott.
THE NOHTH-WEHT TEIIUITOHIES. 501
9. Oenerally on matters of a merely local or private
nature in the Territories.
These Acts were from time to time ameniled, connoli-
<late(l an<l revised, as wo shall indicate, but, substantially,
the le^dslative power of the Lieutenant-Governor in
Council continued to Ite governed by the above section an<l
the Order in Council we have quoted until 18(S8 — indtjed,
we may say, until IHOl, ff)r, upon the establishment of a
legislative assendily in the former year, its powers of legis-
lation were not increased beyond those exerciseable before
its creation by the Lieutenant-Governor in Council.
Li 18(S0, by 43 Vic. c. 25, previous Acts were amended
and consolidated. The time for disallowing t'srritorial
ordinances was shortened to one year, and the clauses of the
Act of 1875 relating to municipalities eliminated, being-
deemed, no doubt, to l)e covered by the Order in Council
above quoted (j). The participation of Manitoba judges in
the administration of justice in the Territories wavS
abolished except in the matter of appeals in capital cases.
We may mention also 47 Vic. c. 23, and 48-49 Vic. c. 51,
making amendments of details not material to be further
noted here.
On June 26th, 1883, a new Order in Council was
promulgated defining the powers of the Lieutenant-Gov-
ernor, whether acting in Council or by and with the ad-
vice and consent of the legislative assembly (/.) ; the only
amendment, however, of the Order in Council of 1877
above quoted being in items 3 and 4, which were made to
read as follows : '
" 8. Municipal Institutions in the Territories, subject to any
legislation by the Parliament of Canada heretofore or hereafter
enacted :
** 4. The issue of shop, auctioneer, and other licenses, except
{j ) See 45 Vic. c. 28, and 47 Vic. c. 23, s. 10.
(k) No assembly was constituted until 1888 ; see post.
Can. Con.— 36 "
562 THE CANADIAN CONSTITUTION.
licenses fur the sale of intoxicating liquors, in order to the
raising of a revenue for territorial or municipal purposes."
In 1886, important legislation was enacted (49 Vic. c. 25),
but as it was carried at once into the Revised Statutes of
that year we need not stay to consider its provisions (I).
At the present time the position of these territories is
defined by "The North- West Territories Act" (R. S. C-
c. 50), and amendments thereto as follows :
A. D. 1886. ^^ ^Q^ respecting the North-West Ter-
ritories.
TTER Majesty, by and with the advice an<l
-*~^ consent of the Senate and House of Com-
mons of Canada enacts as follows: —
SHORT TITLE.
Short title. |. This Act may be cited as "The North-
West Territories Act"
INTERPRETATION.
2. In this Act, unless the context otherwise
requires, —
iiiterpretation u(\ The expression " Territories " means the
' Territoried." ^ ' *■
North- West Territories, as defined in this Act;
'Lieutenant- (h) The expression "The Lieutenant-Gover-
Oovernor." .
nor" means the Lieutenant-Governor of the
North-West Territories ;
Go!ernor^n* (^^ ^^^® expression " Lieutcnant-Govemor in
Council." Council " means the Lieutenant-Governor of the
Territories in Council, or the Lieutenant-Gover-
nor by and wi*h the advice and consent of the
Legislative Assembly of the Territories, as the
case may be;
(I) It was proclaimed 18th February, 1887 ; the R. S. O. took effect
l8t Mircb, 1887.
THE NORTH-WEST TEUIIITOIUES. 563
{(l) The expression " Supreme Court" means court"'"*
the Supreme Court of the Nortli-West Terri-
tories.
[(e) (ind (/) define "intoxicating liquor"
and " intoxicant." It is not thoiujht necessary
to 2>rint the sections dejdlmj with that subject.
Only those parts of the Act which imiy be rea-
sonably considered of constitiUionful impor-
tance arc here inserted.']
GOVERNMENT AND LEGISLATION.
S. The Territories formerly i^nown as " Ru- Territories
r T 1 ,. 1 1 XT 1 iir ny • deflUOd.
[)erts Land and the JNorth-VVest lerritory
shall, with the exception of such portions thereof
jia form the Province of Manitoba and the Dis-
trict of Keewatin (m), continue to he called and
known as the North-West Territ<jries.
4. There shall be for the Territories, an offi- Lioutenant-
cer called the Lieutenant Governor, appointed by
the Governor in Council, by instrument under
the Great Seal of Canada, who shall hold office •
during; pleasure :
2. The Lieutenant-Governor shall administer Kis powers
the Government, under instructions, from time to
time, given him by the Governor in Council, or
by the Secretary of State of Canada.
Si. The Governor in Council may, from time AdminiBtrator
to time, appoint an Administrator to execute the
offi.ce and functions of the Lieutenant-Governor
during his absence, illness or other inability.
O. Every Lieutenant-Governor or Adminis- ^j^*^';^^^" ''^
trator so appointed shall, before assuming the
duties of his office, take and subscribe, before the
Governor-General, or before some pereon duly
(m) Keewatin is in a still more embryonic state, and it is not thought
necessary to deal with it here. See R. S. C. c. 53.
564
THE CANADIAN CONSTITUTION.
Legislative
Assembly.
Electoral
districts,
Duration of
the Assembly.
Limit of time
for session.
Proceedings
on bills.
authorized to administer such oaths, an oath of
allegiance and an oath of office similar to those
reijuired to be t iken by a Lieutenant-Governor
under " The British North America Act, 1807."
[Sections 7 and S were repealed hy 51 Vic,
c. 19, s. 1, and provision onade for a Legislative
Assernhbj (section i?). This latter section was
itself repmled hy 54.-55 Vic. c. 22, the provision
now stand in fj :
3. There shall be a Legislative Asseinl>ly for
the Territories, which shall be composed of
twenty-six members elected to represent the
electoral districts set forth in the schedule (a) to
this Act.
2. The Assembly shall have power to alter
the boundaries of the electoral districts from
time to time. — 54-55 Vic. c. 22, s. 2.
SJ. Every Legislative Assembly shall con-
tinue for three years from the date of the
return of the writs for choosing the same : but
the Lieutenant-Governor may, at any time, dis-
solve the Asseml)ly and cause a new one to l>e
chosen. — 54-55 Vic. c. 22, s. 3.
4. There shall be a session of the Lefjislative
Assembly convened by the Lieutenant-Governor
at least once in every year, so that twelve
months shall not intervene between the last
sitting of the Assembly in one session and its
first sitting in another session; and such Assem-
bly shall sit separately from the Lieutenant-
Governor, and shall present Bills passed by it to
the Lieutenant-Governor for his assent, who may
approve or reserve the same for the assent of
the Governor-General. — 54-55 Vic. c. 22, s. 4.]
(n) Not printed.
THE NORTH-WEST TERRITORIES. 565
[With respect to elections provision is m<i(Je
by 51 Vic. c. 19, amended to some extent by
54-00 Vic. c. 22. We indicate after each section
by what Act enacted:
5. Until the Legialature of the Nortli-West Proceedings
o at elections.
Territories otherwise provides, as it may do, the
law in force therein at the time of the passing of
this Act relating to the election of membei's of
the Council of the North-West Territories shall,
subject to the provisions of this Act, apply to
the election of membei's of the Legislative As-
sembly.— 51 Vic. c. 19, s. 5.
O. Whenever it is necessary to call a new issue of writs
X . 1 .. » 11 1 for elections-
Legislative Assembly, or whenever a vacancy
occurs by reason of death, resignation, or other-
wise, of an elected member, the Lieutenant-Gov-
ernor shall cause a writ or writs of election, as
the case may be, to be issued by the Clerk of the
Legislative Assembly, in such form and ad-
dressed to such returning officer or officers as he
approves of until otherwise provided by the
Assembly :
2. Until the Legislative Assembly otherwise Euies for
provides, the Lieutenant-Governor shall, by pro-
clamation, prescribe and declare, for use at all or
any elections, niles for —
(a) The mode of providing voters' lists;
(b) The oaths to be taken by votei-s ;
(c) The appointment, powers and duties of
returning and deputy returning officers, election
and poll clerks and their oaths of office ;
(d) The proceedings to .be observed at elec-
tions ;
(e) The periods during which such elections
may be continued ; =, - ■
566
THE CANADIAN CONSTITUTION.
(f) Such other provisions
such elections as he thinks fit.-
8. 5.
Who may
vote.
Who eligible
for election.
Deposit at
nomination.
How applied.
M'ith respect to
-54-55 Vic. c. 22,
T. The persons qualified to vote at an elec-
tion for the Legislative Assembly shall be the
male British subjects by birth or naturalization
(other than unenfranchised Indians), who have
attained the full age of twenty-one years, who
have resided in the North-West Territories for
at least the twelve months, and in the electoral
district for 'at least the three months respec-
tively, immediately preceding the time of voting.
—51 Vic. c. 19, s. 7.
H. Any British subject by birth or natural-
ization shall be eligible for nomination and
election.
2. No nomination at any election shall be
valid and acted upon unless at or before the
time of nomination a sum of one hundred dollars
is deposited in the hands of the returning
officer ; and the receipt of the returning officer
shall in every case be sufficient evidence of the
payment herein mentioned :
3. The sum so deposited shall be returned to
the person by whom the deposit was made in
the event of the candidate, by or on whose
behalf it was so deposited, being elected, or of
his obtaining a number of votes at least equal to
one-half the number of votes polled in favor of
the candidate elected, otherwise it shall belong to
Her Majesty for the public uses of the Terri-
tories ; and the sum so paid and not returned as
herein provided shall be applied by the return-
ing officer towards the payment of the election
expenses, and an account thereof shall be ren-
THE NORTH-WEST TERRITORIES. 5G7
•tiered by him to the Lieutenant-Governor. —
51 Vic. c. 19, 8. 8.
tt. Elected membera of the Legislative As-^athtobe
senibly shall take and subscribe before the members.
Lieutenant-Governor or before such person as is
designated by the Governor in Council, the fol-
lowing oath of allegiance : —
" I, A. B., do swear that I will be faithful and
bear true allegiance to Her Majesty, her heii-s
and successors." — 51 Vic. c. 19, s. 9.
10. A majority of the members of the Legis- Quorum
lative Assembly, including the members ap-
pointed by the Governor in Council, shall form
a quorum for the transaction of business. — 51
Vic. c. 19, s. 10.
11. The Legislative A.ssembly, on its tii-st Election of
jxssembling after a general election, shall proceed
with all practicable speed to elect one of its
elected members to be Speaker:
2. In case of a vacancy happening in the vacancy in
office of Speaker by death, resignation or other- speaker,
wise, the Legislative Assembly shall proceed
with all practicable speed to elect another of its
elected members to be Speaker :
3. The Speaker shall preside at all meetings speaker to
, . preside.
of the Legislative Assembly :
4. Until the Legislative Assembly otherwise case of ab-
. 1 . p ii 1 n sence pro-
provides, in case or the absence tor any reason vided for.
of the Speaker from the chair of the Assembly
for forty-eight consecutive hours, the Assembly
may elect another of its membei's to act as
Speaker, and the member so elected shall, during
the continuance of such absence of the Speaker,
have and execute all the powei-s, privileges and
duties of Speaker. — 51 Vic. c. 19, s. 11.
568
THE CANADIAN CONSTITUTION.
Advisory
Council to be
appointed.
decide!*^*" 12. Questions arising in the Legislative As-
sembly shall be decided by a majority of voices
other than that of the Speaker, and when the
voices are equal, but not otherwise, the Speaker
shall have a vote. — 51 Vic. c. 19, s. 12.
13. The Lieutenant-Governor shall select
from amonof the elected members of the Lejjisla-
tive Assembly four pei'sons to act as an advisory
council on m.itters of finance, who shall severally
hold office during pleasure; and the Lieutenant-
Governor shall preside at all sittings of such
advisory council and have a right to vote as a
member thereof, and shall also have a casting
vote in case of a tie. — 51 Vic. c. 19, s. 13.
t^'be^flr^f^' 14. The Legislative Assembly shall not adopt
recommended ^^ pass any vote, resolution, address, or bill for
the appropriation of any part of the public
revenue, or of any tax or impost to any purpose
that has not been fii'st recommended to the
Assembly by message of the Lieutenant-Gover-
nor in the session in which such vote, resolution^
address or bill is proposed. — 51 Vic. c. 19, s. 14.
15. The Speaker of the Legislative Assembl}''
shall receive a salary of five hundred dollars per
annum, payable out of the Consolidated Revenue
Fund of Canada. — 51 Vic. c. 19, s. 15.
Clerk of As- 1 c The GoveiTior-in-Council may appoint a
sembly, ins •' ^ ^
saiar *"^ clerk of the Legislative Assembly, who shall act
as, and perform tl ^ duties of secretary to the
Lieutenant-Governor, and who shall take before
the Lieutenant-Governor the oath of allegiance?
and such oath of office as the Govemor-in-Coun-
cil prescribes, and who shall receive a salary of
two thousand dollars per annum, and such salary
shall be paid out of the Consolidated Revenue
Fund of Canada.— 51 Vic. c. 19, s. 16.]
Salary of
Speaker.
THE NORTH-WEST TEUIirrOUIES. 569
». The seat of Government of the Territories ^^^^^ °i!t.*^°''"
shall be fixed, and may, from time to time, be
changed by the Governor in Council.
[Section 10 made iwovwion for the Lieut. -
Governor presiding over o/nd voting at meetings
of the Council. See now 51 Vic. c. 19, s. IJ ;
and 5^-55 Vic. e. 23, s. 4, sihirra.']
11. Subject to the provisions of this Act, the J^nYoSVuiy^'
laws of England relating to civil and criminal Jorce'h'/"
matters, as the same existed on the fifteenth day ^fth certafn
of July, in the year of our Lord one thousand ^^'^^^^^ons.w
eight hundred and seventy, shall be in force in
the Territories, in so far as the same are appli-
cable t/O the Territories, and in so far as the same
have not been, or are not hereafter repealed,
altered, varied, modified, or afiected by any Act
of the Parliament of the United Kingdom appli-
cable to the Territories, or of the Parliament of
Canada, or by any ordinance of the Lieutenant-
Governor in Council.
12. All laws and ordinances in force in the J^nTfnSid^'of
Territories, and not repealed by or inconsistent
with this Act, shall remain in force until it is
otherwise ordered by the Parliament of Canada,
by the Governor in Council, or by the Lieuten-
ant-Governor in Council, under the authority of
this Act.
[Section 13, defining the powers of the Lieut.-
Governor in Council was repealed by 54--5o Vic.
(o) For convenience we have collected the authorities upon the mat-
ters referred to in sections 11 and 12, and they will be found, post. In the
Revised Statutes of Canada are a number of Acts specially dealing with
different subjects of legislation as to the North-West Territories, — e. g.,
" The N. W. T. Representation Act," " The Territories Real Property
Act," " The Homestead Exemption Act," "The Dominion Lands Act,"
etc., etc.
570 THE CANADIAN CONSTITUTION.
c. 22, s.G, which avMstitutes there fm' the folio w-
mg :
aSw? ■*• The Lejrislative Assembly shall, subject
to the provisions of this Act, or of any other Act
of the Parliament of Canada, at any time in force
in the Territories, have power to make ordi-
nances for the government of the Territories in
relation to the classes of subjects next herein-
after mentioned, that is to say : —
(1) The mode of providing voters' lists, the
oaths to be ttiken by voters, the appointment,
powers and duties of returning officers and
deputy returning officers, election and poll clerks,
and their oaths of office, the proceedings to be
observed at elections, the periods during which
such elections may be continued, and such other
provisions with respect to such elections as may
be thought fit ;
(2) Direct taxation within the Territories in
order to raise a revenue for territorial or muni-
cipal or local purposes ;
(3) The establishment and tenure of terri-
torial offices, and the appointment and payment
of territorial officers out of territorial revenues ;
(4) The establishment, maintenance, and
management of prisons in and for the Terri-
tories,— the expense thereof being payable out
of territorial revenues ;
(5) Municipal institutions in the Territories ;
(6) Shop, saloon, tavern, auctioneer and
other licenses, in order to raise a revenue for
territorial or municipal purposes ;
(7) Tlie incorporation of companies with ter-
ritorial objects, with the following exceptions: —
THE NORTH-WEST TERRITORIES. 671
(a) Such companies aa cannot be incorpor-
ated by a provincial legislature ;
(b) Railway, Hteanil)oat, canal, transportation,
telegraph and irrigation companies ;
(c) Insurance companies ;
(8) The solenniization of marriage in the
Territories ;
(9) Property and civil rights in the Terri-
tories ;
(10) The administration of justice in the
Territories, including the constitution, organi-
zation, and maintenance of territorial courts of
civil jurisdiction, including procedure therein ;
but not including the power of appointing anj'
judicial officers;
(11) The imposition of punishment by fine,
penalty, or imprisonment, for enforcing any ter-
ritorial ordinances;
(12) The expenditure of territorial funds and
such portion of any moneys appropriated by
Parliament foi' the Territories as the Lieutenant-
Governor is authorized to expend by and with
the advice of the Legislative Assembly or of any
Committee thereof ;
(13) Generally, all matters of a merely local
or private nature in the Territories :
2. Nothing in this section contained gives, or Limitation.
shall be construed to give to the Legislative
Assembly any greater powers with respect to
the subjects therein mentioned than are given to
Provincial Legislatures under the provisions of
section 92 of " The British North America Act,
1867," with respect to the similar objects therein
mentioned.]
572
THE CANADIAN TONS! I CTTON.
Onlinancea
rcapoccing
education.
Majority
Bchoolu. ' p)
Minority
scboola,
Declaratory
as to ordiuan-
Ordinances
respecting
admin .stra-
tiou of justice
14 The Lieutenant-Governor in Council
shall pjiHH nil neceHHary ortlinances in respect to
education ; but it shall therein always be pro-
vided, that a majority of the ratepayei's of any
district or portion of the Territories, or of any
less poi'tion or subdivision thereof, by whatever
name the same is known, may establish such
schools therein as they think tit, and make the
necessary assessment and collection of rates
therefor ; and also that the minoiity of the rate-
paj'ors therein, whether Protestant or Roman
Catholic, may establish separate schools therein,
— and in such case, the ratepayers estaljlishin^
such Protestant or Roman Catholic separate
schools shall be liable only to assessments of such
rates as they impose upon themselves in respect
thereof :
2. The power to pass ordinances, conferretl
upon the Lieutenant-Governor by this section is
hereby declared to have been vested in him from
the seventh day of May, one thousand eight
hundred and eighty.
1S%. The Lieutenant-Governor in Council
may, from time to time, but subject to the pro-
visions of this Act, make ordinances in relation
to the administration of justice in the Territories,
and to the constitution, maintenance and organ-
ization of the Suprenie Court, including proce-
dure therein in civil mattei*s, in as full and ample
a manner as the Legislature of any Province of
(p) See ante, p. 489 and p. 510.
(q) See, however, 54-55 Vic. c. 22, s. 6, enacting a new section 13 to the
main Act and giving to the Legislative Assembly the powers defined
as above. By some oversight, probably, this section wAs not repealed,
and it would appear that the Lieutenant-Governor in Council has con-
current power, in this connection, with the Assembly.
THE NORTH-WEST TERRITORIES. 57:i
Canada couhl, under the- fourteenth para^a-aph of
the ninety-second section of " The British Xorth
America Act, 1867," or otherwise, make laws in
reUition to the administration of justice in the
Province, and to the constitution maintenance
and organization of a provincial court, l)oth of
civil and criminal jui'isdiction, including proce-
dure in civil matters in such court.
16. The Lieutenant-Goveinor in Council ordinances
renpectinu
may, from time to time, make ordmances in ju"«s.
respect tc the mode of calling jutiei, other than
grand jur*.es, in criminal as well as civil cases,
and when and by whom and the n^anner in
which they may be sum<Kioned or taken, and in
respect to all matters relating to the same.
IT. An authentic copy of every ordinance Disallowance
•■ "^ ^ "^ of ordiuaueos.
shall be transmitted by mail to the Secretary of
State within thirty days after its passing; and
if the Govei'nor in Council, at any time within
one year after its receipt by the Secretary of
State, thinks fit to disallow the ordinance, such
disallowance, w^hen signified by the Secretary of
State to the Lieutenant-Governor, shall annul parhame°u.'°
the ordinance from and after the date of such
signification ; and all ordinances so made, and all
Orders in Council disallowing any ordinances so
made, shall be laid before both Houses of Parlia-
ment as soon as conveniently may be after
the making and enactment thereof respectively.
[Sect 10718 18 to 25, both inclusive, ivere rc-
pealecl by 51 Vic. c. 19. Sections 36 to Jfi, both,
inclusive, relate to "wills" and "married wo-
men," and by 54-55 Vic. c. 22, the Assembly of
the Territories is empowered to repeal them and
make other jyrovision.]
574 THE CANADIAN CONSTITUTION.
ADMINIHTHATION OF JUSTICE.
Supreme 4 1 . The Supreme Court of record of oriirinal
court oontinu- .... .
•*• and appellate jurisdiction now existing under the
name of "The Supreme Court of the North- West
Territories" is hereby continued under the name
aforesaid.
conBtitution 42. Tho Supreme Court shall consist of live
of court. . . *
puisnd judges, who shall be appointed by the
Governor in Council by letters patent under the
Great Seal.
Who may 4SI. Any person may be appointed a judge
he appointed "^ * "^ '■ *■ . J o
judge. of the court who is or has been a judge of a
Superior Court of any Province of Canada, a
stipendiary magistrate of the Territories, or a
barrister or advocate of at least ten yeai's' stand-
ing at the bar of any such Province, or of the
Territories.
o°emoium®nt 4^- ^o judge of the court shall hold any
to be held, other office of emolument under the Government
of Canada, or of any Province the'reof, or of the
Territories.
uesidence. 45. Each judge of the court shall reside at
such place in the Territories as the Governor in
Council, in the commission to such judge, or by
Order in Council, directs.
Ifflce'® °' '*®- "^^^ ju^g^s of the court shall hold office
during good behavior, but shall be removable by
the Governor-General, on address of the Senate
and House of Commons of Canada.
talt^V*' *** '^'^' ^v^^y j^^ig® shall, previously to enter-
ing upon the duties of his office as such judge,
take an oath in the fonn following : —
THE NORTH-WEST TERRITORIES. 575
" I, , do Holemnly and Hinceroly ^°"''" '^' °'''^-
" promise and Hwetir that I will duly and faith-
" fully, and to the best of my skill and know-
" ledge, execute the powei-s and trusts reposed in
" me as one of the judges of the Supreme Court
" of the North- West Territones. So help me
" God."
2. Such oaths shall be administered by the How adminis-
Lieutenant-Governor or by a judge of the court.
48. The court shall, within the Territories, ^Ifi^iJ'^J/^"
and for the administration of the laws for the dv'uudorim-
time being in force within the Territories, pos- '"*'•
sess all such powei-s and authorities as by the
law of England are incident to a superior
court of civil and criminal jurisdiction ; and shall
have, use and exercise all the rigiits, incidents
and privileges of a court of record and all other
rights, incidents and privileges, as fully to all
intents and purposes as the same were on the
fifteenth day of July, one thousand eight hun-
dred and seventy, used, exercised and enjoyed
by any of Her Majesty's superior courts of com-
mon law, or by the Court of Chancery, or by the
Court of Probate in England, — and shall hold
pleas in all and all manner of actions, causes and"
suits as well criminal as civil, real, personal
and mixed, — and shall proceed in such actions,
causes and suits by such process and coui-se as
are provided by law, and as tend with justice
and despatch to determine the same, — and shall
hear and determine all issues of law, and shall
also hear and (with or without a jury as pro-
vided by law) determine all issues of fact joined
in any such action, cause or suit, and give judg-
ment thereon and award execution thereof in as
full and as ample a manner as might at the said
576
THE CANADIAN CONSTITUTION.
Sittings in
banc.
Quorum.
Jurisdiction
in banc.
date be done in Her Majesty's Court of Queen's
Bench, Common Bench, or in matters which
regard the Queen's revenue (including the con-
demnation of contraband or smuggled goods) l)}-
the Court of Exchequer, or by the Court of
Chancery or the Court of Probate in England.
40. The court shall sit in banc at the seat of
government of the Territories at such time as the
Lieutenant-Governor in Council appoints : the
senior judge present shall preside and any three
judges of the court shall constitute a quorum.
50. The court sitting in banc shall hear and
determine all applications for new trials, all
questions or issues of law, all questions or points
in civil or criminal cases reserved for the opinion
of the court, all appeals or motions in the nature
of appeals, all petitions and all other motions,
matters or things whatsoever which are lawfully'
brought before it.
51. The Governor in Council may, at any
time, by proclamation divide the Territories into
judicial districts, and give to each such district
an appropriate name, and in like manner, from
time to time, alte.i' the limits and extent of such
districts.
[Sectio7i 52 ivas repealed by o^-oo Vic. c. ;?,?,
.s. 7, and the folloiuiiig substituted:
Territorial 52. Everv Judge of the Court shall have
jurisdiction of . ^ o
Judges. jurisdiction throughout the Territories, but shall
usually exercise the same within the judicial
district to which he is assigned by the Governor
in Council, and in all causes, matters, and pro-
ceedings, other than such as are usually cogniz-
able by a court sitting in banc, and not by a
single judge of the said court, shall have and
Appeals.
Judicial
districts.
THE NORTH-WEST TERRITORIES. 577
«xercise all the powera, authorities and jurisdic-
tion of the court :
2. Subject to any statute prohibitino- or re-Writs of
'' '^ A '^ _ certiorari.
stricting proceedings by way of certiorari, a
single judge shall, in addition to his other
powera, have all the powers of the court as to
proceedings by way of certiordrl over the pro-
ceedings, orders, convictions, .and adjudications
had, taken, and made by justices of the peace)
and in addition thereto shall have the power of
revising, amending, modifying, or otherwise
dealing with the same; and writs of certiorari
may, upon the order of a judge, be issued by the
clerk of the court mentioned in such order
returnable as therein directed. — 54-55 Vic. c. 22,
s. 7.]
53. Whenever, under any Act in force in the Powers of
' "^ _ single judge.
Territories, any power or authority is to be exer-
cised, or anything is to be done by a judge of a
court, such power or authority shall, in the Ter-
ritories, be exercised or such thing shall be done
by a judge of the Supreme Court, unless any
other provision is made in that behalf by such
Act.
54. The judtfes of the Supreme Court shall Judges to
o o ^ X ... replace
have all the powers, authority and jurisdiction gti^,^°*^"a^/.
vested in the stipendiary magistrates of the Ter- uiasistrates.
ritories on the second day of June, one thousand
eight hundred and eighty-six; and wherever in
any Act of the Parliament of Canada relating to
the Territories the words "stipendiary magis-
trate " or " stipendiary magistrates " are used, the
same shall mean a judge or the judges of the
Supreme Court, as the case may be.
55. Sittings of the Supreme Court, which ^^^^^e^Seid
«hall be presided over by a judge of the court,
Can. Con.— 87
578 THE CANADIAN CONSTITUTION.
Hhall be held in each judicial district at isuch
times and places as the Lieutenant-Governor of
the Territories appoints.
[Sections oG to G.i, hotlt inclusive, relote to
slicriffH (111(1 clerkf, their (luties, etc.]
Disposal of OS. The Lieutenant-Governor may, yubiect
North-west . i , ,,. n •
Mounted to auV ordeix made ni tliat behali, rrom time to
Police Force. ^ "^ . ^ . .
C) time, by the Governor in Council, issue ordei*s to
the North-West Mounted Police force, in aid of
the administration of civil and criminal justice,
an<l for the general peace, order and good govern-
ment of the Territories.
Justices of the OJ:. The Lieutenant-Governor may appoint
peace. _ ^ . .
justices of the peace for the Territories, who shall
have jurisdiction as such throughout the same.
[Sectio7i8 Go to 81, both inclitsive, relate to
the (ulnimistration of criminal justice ; 82 to
87 to coroners and inquests; 88 to 91 to the ad-
ministration of civil justice; 92 to 100 to in-
toxicants, and 101 to 108 contain miscellaneous
provisions which ive need not farther notice.
Awendnients have been made to some of the sec-
tions by 51 Vice. 19, and 5 4^-55 Vic. c. 22. By
section 19 of the latter, power to repeal and
idter the law as to intoxicants is given to the
Assembly so far as relates to territory covered
by electa nd districts.]
(GENERAL PROVISIONS.
Piovisiou lOO. Whenever in any Act of the Parlia-
when there •'
offloera'as' are "^^"^ ^^ Canada in foi'ce in the Territories, any
Act'of Pariia" o^cer is designated for carrying on any duty
™®°*' therein mentioned, and there is no such officer in
(r) See R. S. C. c. 45, as to this Force.
THE NORTH-WEST TERIUTOIUES. 57 [I
the Territories, the Lieutenant-Governor in
Council may order by what other peraon or
officer such duty shall be performed, — and any-
tliing done by such person or officer, under such
order, shall be valid and lawful in the premises ;
or if it is in anv suci '\ ct ordered that anv <locu-
ment or thintj shall be transmitted to any officer,
court, territorial division or place, and there is
then in the Territories no such officer, court or
territorial division or place, the Lieutenant-Gov-
ernor in Council may order to what officer, court
or place such transmission shall be made, or may
dispense with the transmission thereof.
[Sertion 110 relate)^ to the a>^e of the Eufjlish
or French hniffiKiffe in the delxiten of the Asf^em-
hbj. By oJ^-oo Vic, c. '^2, .s*. 19, the Lefjinhitive
Axsemhlfj hds now fall control of the question.]
111-. Any copy of any proclamation or order ^®^*fe^co i s
made by the Governor in Council, or onlinance, tobe'ev*""'
proclamaticm or order made by the Lieutenant- **«"°®-
Governor in Council, or by the Lieutenant-Gov-
ernor by and with the advice and consent of the
Legislative Assembly of the North- West Terri-
tories, as the case may be, printed in the Canada
Gazette, or purporting to be printed by the
Queen's Printer for Canada, or by the printer to
the Government of Manitoba at Winnipeg, or by
the printer to the Government of the North- West
Territories, shall Ije prima facie evidence of such
proclamati<m or order, and of the fact that it is
in force.
APPLICATION OF ACTS TO TERRITORIES.
11». Every Act of the Parliament of Can- Jfft^i?"
ada, except in so far as otherwise provided in any Canada,
such Act, and except in so far as the same is, by
580
THE CANADIAN CONSTITUTION.
Governorlin
Council may
extend Acts
to the Terri-
tories.
its terms, applicable only to one or more of the
Provinces of Canada, or in so far as any such Act
is, for any reason, inapplicable to the Territories,
shall, subject to the provisions of this Act, apply
and be in force in the Territories :
2. The Governor in Council may, l)y procla-
mation, from time to time, direct that any Act of
the Parliament of Canada, or any part or parts
thereof, or any one or more of the sections of any
one or more of any such Acts not then in force in
the Territories, shall be in force in the Terri-
tories generally, or in any part or parts thereof
mentioned in such proclamation.
Introduction of English Law.
As we have already noted (.s), the first Act of the par-
liament of Canada relating to Kupert's Land and the
North- Western Territory — 82-33 Vic. c. 3 — continued all
the laws then in existence therein, and this provision runs
through all the legislation until the passage of 40 Vic. c. 25,
which came into operation on the 18th day of February,
1887 (0- By this Act— see R. S. C. c. 50, s. 11— the Eng-
lish law, civil and criminal, in force on the 15th July, 1870,
was introduced into the North-West Territories, subject, of
course, to any amendment by Imperial, Dominion, or terri-
torial legislation since that date. We need not elaborate
this question here. Applicability is made the test of intro-
duction, and the authorities we have collected and reviewed
in chapter V. of this work should be of much assistance to
those who have now, in the North-West Territories, to
decicie similar questions.
The only reported decision of the Supreme Court of the
Territories is Reg. v. Nan-e-quis-a Ka (u), in which doubt
was expressed as to the applicability of the English Mar-
(«) Ante, p. 553.
(t) Dom. Stat., 1887, p. clvi.
lu) 1 N. W. T. Rep. 21.
THE NORTH-WEST TERRITORIES. 581
riage Acts (v) to the Territories. It was hekl that at all
events they are not in force quoad Indians. Reference is
made to the decision of Mr. Justice Monk in Connolly v.
Wool rich (iv), in which a marriage according to Indian
custom, which had taken place in the Athabasca region,
was held valid.
But this question remains : What was the law in force
in these Territories down to February, 1887 ? Upon this
(juestion we may refer to Re Calder (x), in which the late
Recorder Adam Thom gave at length his reasons for hold-
incf that the Court of the Governor and Council of Assini-
boia had jurisdiction to try a person for homicide com-
mitted on Peace River beyond Great Slave Lake. In his
view the territory over which the Hudson Bay Co. had,
under its charter, powers of government (?/), and into which
therefore the law of England was carried by that charter,
comprised e^'en more than all the country now known as
the North- West Territories. Against this view of the
Recorder may be cited the judgment, above referred to, of
Mr. Justice Monk in Connolly v. Woolrich, in which it was
held that the jurisdiction of the Hudson's Bay Co. under
its charter did not extend westward beyond the navig-
able watera of the streams flowing into Hudson's Bay ;
that in these territories the law in force was the English
common law of date 1670 ; and that no alteration in this
respect had been made since the acquisition of these terri-
tories down to 1867. The view, however, of Recorder
Thorn is the one recognized in the Territories. According
to the construction put upon the or«linance of the Council
of Assiniboia, of date 1862, by the Court of Queen's Bench
of Manitoba in Sinclair v. Mulligan (z), the law in force in
the Territories prior to Febi'uary, 1887, wtis English law of -
date 1670 so far as applicable, and so far as unaltered by
Dominion and territorial legislation prior to 1887.
(i;) See ante, p. 110. (ij) See ante, p. 550.
(»/•) 11 L. C. Jur. 197; see post. {z) 5 Man. L. li. 17; see post.
(x) 2 Western Law Times 1.
582 THE CANADIAN CONSTITUTION.
We should also note that in Re Claxton (r/), one of the
Revised Ordinances (LSHJS) — exeniptino- 1()0 acres of land
from seizure under execution — was held invalid as repug-
nant to the l)()nuni<>n "Homestead Exemption Act": and
this (juestion is one which, as matters now stand, will fre-
(juently arise, and what is said in chapter V., a nte, may be
of assistance in determinin*^ the general princi])les upon
which this (juestion must he solved.
In Reg-. V. Keefe (/>) another ordinance was held invalid
as being essentially a criminal enactment, the view of the
Court of Appeal for Ontario in Reg. v. Wason (r) being
avowedly adopted. It is thus put by the Supreme Court
of the Territories :
*' There is no doubt in our minds that tlie real object and the
true nature and character of this legislation . . was in the
interest of public morals to create an offence, and not for the
protection of private rights."
Fed end Con vectUni.
POW'EB TO GIVE THE TEKRITOHIES PAUT IN THE DKTEHMISATION OK
federal affairs 18 coxfehued hy the following :
49-50 Victoria (Imp.), Chapter 35.
A.D. 1886. ^n Act respecting the Representation in the
Parliament of Canada of Territories which
for the time l)eing form part of the Dominion
of Canada, but are not included in anv
Province.
[J5th Jime, 1.S8G.]
WHEREAS it is expedient to empower the
Parliament of Canada to provide for the
representation in the Senate and House of Com-
mons of Canada, or either of them, of any
(a) 1 N. W. T. Eep. 88. {h) lb. 86.
(c) See ante, p. 479.
THE XOHTH-WEST TEKUrnuiIES. 583
teiTitoiy whicli for the time being fonns part of
tlie Dominion of Cnnada, l»ut is not inclu«le<l in
any Province :
Be it therefore enacted ]iy the Queen's most
Excellent IMaie.stv, Itv and with the advice and
consent of the Lords Spiritual and Temporal,
and Conn. ions, in this present Parliament assem-
bled, and by the authority of the same, as
follows : —
1. The Parliament of Canrnhx may, from j;'ovi«i'>» by
•/ ' rarliameiit of
time to time, make provision for the representa- re*,"^sont?v'-
tion in the Senate and House of Conunons <>f tcnies!'*""
Canada, or in either of them, of any territories
which for the time being form part of the
Dominion of Canada, but are not included iu
any pro\ince tliereof.
S. Any Act passed i)y the Parliament of KftectofActs
•^ _ ' ... . "* Parliament
Cana(hi before the passing of this Act for the ^f Canada,
purpose mentioned in this Act shall, if not dis-
allowed by the Queen, be, and shall be deemed
to liave been, valid and ettectual from tlie <hite
at which it received the assent, in Her Majesty's
name, of the Governor-General of Canada.
It is hereby declared that any Act passed liy
the Parliament of Canada, whether before or
after the passing of this Act, for the purpose
mentioned in this Act or in the British North
America Act, 1871, has effect, notwithstanding
anything in the British North America Act,
18G7,and the number of Senators or the numl)er
of Members of the House of Commons specified
in the last-mentioned Act is increased by the
number of Senators or of Membei's, as the case
may be, provided by any such Act of the Par-
584 THE CANADIAN CONSTITUTION.
1 lament of Canada for the representation of any
provinces or territories of Canada (d).
Short title 3. This Act may be cited as the British
and construe- ^^ i » • i , r /i
tion. rsorth America Act, 1886.
This Act and the British North America
Act, 1867, and the British North America Act,
1871, shall be construed together, and may be
cited together as the British North America
Acts, 1867 to 1886.
{d) The general effect of this section is discussed, ante, p. 271 \c.i to
the Senate), and ante, p. 282 (as to the House of Commons).
CHAPTER XIV.
MANITOBA.
The events leading up to the admission of Rupert V
Land and the North- Western Territory to the Dominion of
Canada have been shortly sketched in the preceding-
chapter. Taking up the thread now in reference to Mani-
toba, we have to point out that the Act 33 Vic. c. 3, by
which that province was established, was validated by
Imperial legislation :
34-35 Vic, Cap. 28.
An Act respecting the establishment of Provinces in
the Dominion of Canada.
[29th Jane, 187 1\
WHEREAS doubts have been entertained
respecting the powers of the Parliament
of Canada to establish Provinces in Territories
admitted, or which may hereafter be admitted
into the Dominion of Canada, and to provide
for the representation of such Provinces in the
said Parliament, and it is expedient to remove
such doubts, and to vest such powers in tlie said
Parliament :
Be it enacted by the Queen's most excellent
Majesty, by and with the advice and consent of
5S(i THK CANADIAN' ('(»\STITITI(»N.
the Lords Spiritunl iind Temporal, iin<l Coin-
iiioiiH, ill this pivsfiit Parliiiniont Hss(!nilik'(l, and
Ity the authority of thu same, as follows: —
Short title. 1 '["\uH Act may hu cito<l for all imrposes as
"Th(! Hritish North America Act, 1H71."
I'-vriiaiiiont of *^. The Pai'Iiament of Canada may from
Caiinda may ...
ostaijiiHii now time to time establish new Provinces in any
I'roviiicos and i'
riiocmtstitii- territories forming' for the time heinm' P'^''^ "'^ t''*'
ti'i'ei'uof ' Dominion of Canada, Imt not included in any
Pi'ovince theivof, and may, at the time of such
estahlishment, make provision for the constitu-
tion arid Hflministration of any such Province,
and for the passin<;' of hiws for the peace, order,
and n()()d government of such Pi'ovince, and for
its representation in the said Parliauient.
Aitirationnf ;|. -"I'l,,. Pai'liameut of ('anada may from
liiiiita of Pro- >'
viiices. time to time, with the consent of the Leyislature
of any Pi'ovince of the said Dominion, increase,
diminish, or otherwise alter the limits of such
l^rovince, upon such t(irms an<l conditions as
may he agreed to hy the said Legislature, and
may, with the like consent, make provision
respecting the eti'ect and operation of any such
increase or diminution or alteration of territory
in relation to any Province afiected thereby.
pariianiont of Jt. The Parliament of Canada may from
Ciiiada may '^
ioKisir.te for tiiuc to time iiwike provision for the administra-
aiiy territory i
iira Prov/nce t/iou, pcacc, order and good government of any
territory not for the time being included in any
Province.
couflrmation ii. The followiui'' Acts imssed by the said
of ActH of Par- _, , . ,. /-m i i • • i i
liament of Parliament or Canada, and intituled respec-
Caiiada. 82 & , , '-
33 Vict., (Can), tively : "An Act for the temporary ifovernment
cap. 3, 33 Vict. "^ 1 J P>
€an). cap. 3. yf Rupert's Land and the Nortli- Western Terri-
tory when united with Canada," and "An Act to
MAN'ITOHA. ')S7
Hinond Hiul contimu' tlu: Act thirty-two iin<l
thirty-tliivc Victoriu, clinpti'i' tlirec, and t(t
(•Htultli.sl) and ])r()vi<U' For tlu- 'jiovcnmicnt of
tlio Provinc*.' of Manitoba,'" .shall Ik- and Ik'
det'iiu'd to have hooii valid and t'H'cetual for all
|)ur|)()H('K whatsoi^vor from the dat«' at wliich
tlu'y respcctivt'ly jvceiviMl tlu; assent, in the
(Queen's nanii', of the ( Jovornor-Ciunoral of the
said Dominion of Canada.
€*. Exc(n)t as providcil hv tliu thii-d section I'lmitiiiion -f
of this Act, it shall not he competent foi- the |i;[;;;^';{;^\;'/,^„.
Parliament of Canada to alter the P'''>^'i^'<>'>^ rsuu^'iiHiu""
of the last mentioned Act of the said Pallia- ''''"^""=^"
ment, in so far as it relates to tin; Province of
Manitoha, or of any other Act hereafter estah-
lishinj>' new Proxinces in the said Dominion,
snhject always to the I'ij^ht of the Le<^islature of
the Province of Manitoba to alter from time to
tinie the provisions of any law respectinn' the
(inalification of electors an<l niemhers of the
Legislative Assemldy, and to make laws respect-
ing elections in the said Province.
Under tlie 8rd section of this Act, the limits of 3Iani-
toba were in 1(S77 {<i), and again in 18.S1 (h), altered and
its territory considei'al)ly increased. The ()th section is
the all-important one, not merely to ]\^anitol)a l)ut to an}'
province to be hereafter created. It will tend to retard
the creation of new provinces until the Territories are so
well settled and oi'ganized as to be entitled to the same
powers of self-government as are now enjoyed by the older
provinces. It would l)e unfortunate to give the name of a
province to any division of the Territories, unless at the
same time full provincial autonomy were given. In fact it
(n) See 40 Vic. c. « (Dom.).
(b) See44 Vic. c. 14 (Dom.).
588 THE CANADIAN CONSTri'lTION.
iiuiy 1)0 doultted if, under the above Act, a province could
l»e created with leHH power than the provinces named in
the B. N. A. Act. However this may be, any Act of the
parliament of Canada creative of a new province becomcH
at once, in effect, an Imperial Act — at all events an Act
which can be altered by nothing short of Imperial legisla-
tion. Such is the position of Manitoba to-day. Her
charter is :
33 Vic, Cap. 3.
An Act to amend and contiiuie the Act 32 and 83 Victoria,,
chapter 3 ; and to establish and provide for the Govern-
ment of the Province of Manitoba.
[Ammted to IJth Mny, JS70.]
Preamble. TT7HEREAS it is probable that Her Majesty
* * The Queen may, pui-suant to the British
North Amenca Act, 18G7, be pleased to admit
Rupert's Land and the North-Western Territory
into the Union or Dominion of Canada, before
the next Session of the Parliament of Canada :
And Whereas it is expedient to prepare for
the transfer of the said Territories to the Gov-
ernment of Canada at the time appointed by the
Queen for such admission :
And Whereas it is expedient also to provide
for the organization of part of the said Terri-
tories as a Province, and for the establishment,
of a Government therefor, and to make provision
for the Civil Government of the remaining part
of the said Territories not included within the
limits of the Province : '
Therefore Her Majesty, by and with the
advice and consent of the Senate and House of
Commons of Canada, enacts as follows :
MaNITOHA. 5S!>
1. On, from and after the day upon whicli Do'Jormoa"
the Queen liy and witli tlie advice and consent "g'^^.j"^;'^'- ^^■
of Her Maje.sty'H MoHt Hc^norahle Privy Council, Toc^Zu'''^
under the autliority of the IKith Hection of the
BvitiHli North America Act, 1<S()7, hIuiU, by
Order in Council in that hehalf (<•), admit Ru-
pertH Land and the North-We.stern Territory
into the Union or Dominion of Cana<hi, there
shall l)e formed out of the same a Province,
which shall be one of the Provinces of the Do-
minion of Canada, and which shall l)e called the J,oundaWuT'^
Province of Manitoba, and be bounded as
follows ;
[The Jmundaries as here defined were ofter-
wa r<1s altered, and the area of the Province en-
larged. /S'ee ante, j). 537 ; also R. S. C. c. yf.7.]
2. On, from and after the said day on which certain i)io-
the Order of the Queen in Council shall take b.n.a. Act,
effect as aforesaid, the provisions of the British to Manitoba.
North Amei'ica Act, 18G7, shall, except those
parts thereof which are in terms made, or by
reasonable intendment, may be held to be
specially applicable to, or only to affect one or
more, but not the whole of the Provinces now .
composing the Dominion, and except so far as the
same may be varied by this Act, be applicable • •
to the Province of Manitoba, in the same w^a}^
and to the like extent as they apply to the sev-
eral Provinces of Canada, and as if the Pro\ ince
of Manitoba had been one of the Provinces
originally united by the said Act.
8. The said Province shall be represented in fio^^n® he''"
the Senate of Canada by two Members, until senate. «i).
(c) The Order in Council bears date 23 June, 1870, and provides for
admission on 15 July, 1870.
(d) Now 3. See B. S. C. c. 12 ; also ante, p. 268, et seq.
590
THE CANADIAN CONSTITUTION.
Representa-
tion in the
House of
Commons (c).
it Hliall have, according to decennial cenHUH, a
population of tif ty ' thousand souls, and from
thencefoi'th it shall be represented therein l»y
three Members, until it shall have, according to
decennial census, a population of seventy-tive
tiiousand souls, and from thenceforth it shall
be represented therein by iV/ar Membei-s,
4. The said Province shall be represented, in
the first instance, in the House of Commons of
Canada, by four Membei-s, and for that purpose
shall be divided by proclamation of the Gover-
noi'-General, into four Electoral Districts, each
of which shall be represented by one Member :
Provided that on the completion of the census in
the year 1881, and of each decennial census
afterwards, the representation of the said Prov-
ince shall be re-adjusted according to the pro-
visions of the lifty-lirst section of the British
North Amercia Act, 1867.
Qualification 5. Until the Parliament of Canada otherwise
ot voters and
members (/). provides, the qualification of votei*s at Elections
of Members of the House of Commons shall be
the same as for the Legislative Assembly here-
inafter mentioned : And no person shall be
(j[ualified to be elected, or to sit and vote as a
Member for any Electoral District, unless he is
a duly qualified voter within the said Province.
C For the said Province there shall be an
officer styled the Lieutenant-Governor, appointed
by the Governor-General in Council by instru-
ment under the Great Seal of Canada.
Lieutenant-
Governor (.'/).
(e) Now 7. See 55-56 Vic. c. 11 (Dom.) ; also ante, p. 282, et seq.
{ f) See ante, p. 285, et neq. The restriction imposed by the latter part
of the section has been removed.
(g) See tinte, p. 300, et seq.
MANITOBA. 591
7. The Executive Council of the Province ^^^^^'^|i'[^),
shall be composed of such persons, and under
such designations, as the Lieutenant-Governor
shall, from time to time, think fit ; and, in the
first instance, of not more than five pei*sons.
S. Unless and until the Executive Govern- |o*vern.
ment of the Province otherwise directs, the seat "^*"* **'•
of Government of the same shall be at Fort
Garry, or Avithin one mile thereof.
tt. There shall be a Legislature for the Prov- Lf^isiature.
ince, consisting of the Lieutenant-Governor,
and of two Houses (j), styled respectively, the
Legislative Council of Manitoba, and the Legis-
lative Assembly of Manitoba.
[Sections 10- Li relit te to the defunct Legisla-
tive Coancil.]
14. The Legislative Assembly shall be com- Legislative
° "^ Assembly.
posed of twenty-f5ur Members, to be elected to
represent the Electoral Divisions into which the
said Province may be divided by the Lieutenant-
Governor, as hereinafter mentioned.
15. The presence of a majority of the Mem- Quorum,
bei-s of the Legislative Assembly shall be neces-
sary to constitute a meeting of the House for
the exercise of its powers ; and for that purpose
the Speaker shall be reckoned as a Member.
(/() The provisions of this and the following sections, relating to the
provincial constitution, have all been the subject of provincial legislation*
See B. S. Man. (1888) ; and see also notes to B. N. A. Act, 1867, s. 92, s-s. 1,
ante, p. 420, et seq.
(i) Now " Winnipeg."
(j) Now only one. The Legislative Council was abolished by 39 Vic.
c. 29 (Man.) ; see ante, p. 326.
592
THE CANADIAN CONSTITUTION.
Durption of
LeRislative
Absembly (k).
Sessions at
least once a
year (I).
Certain pro-
visions of
B. X. A. Act,
1.S67, to
apply (m).
Legislation
touchiuR
schools sub-
ject to certain
provisions (n).
[Sections 16 to IS relate to first elections,
electoral districts, and qiudifications of voters.
They are long since efete.^
lO. Every Legislative Assembly shall con-
tinue for four years from the date of the return
of the writs for returning the same (subject
nevertheless to being sooner dissolved by the
Lieutenant-Governor), and no longer; and the
first Session thereof shall be called at such time
as the Lieutenant-Governor shall appoint.
20. There shall be a Session of the Legisla-
ture once at least in every year, so that twelve
months shall not intervene between the last
sitting' of the Legislature in one Session and its
first sitting in the next Session.
21. The following provisions of the British
Noi'th America Act, 1867, re. pecting the House
of Commons of Canada, shall extend and apjDl}'
to the Legislati ve Assembly, that is to say : —
Provisions relating to the election of a Speaker,
originally, and on vacancies, — the duties of the
Speaker, the absence of the Speaker and the
mode of voting, as if those provisions were here
re-enacted and made applicable in terms to the
Legislative Assembly.
22. In and for the Province, the said Legis-
lature may exclusively make Laws in relation
to Education, subiect and according to the fol-
lowing provisions : —
(1) Nothing in any such law shall prejudi-
cially aff*ect any right or privilege with respect
(fe) See ante, p. .336.
{I) See ante, p. 337.
(m) Compare B. N. A. Act, 1867, s. 87, ante, p. 337. .
(n) This matter is fully dealt with ; ante, p. 489, et seq.
MANITOBA. 593
to Denominational Scliools wliich an}' class of
persons have l)y Law or practice in the Province
at the Union : —
(2) An appeal shall lie to the Governor-
General in Council tVon\ any Act or decision of
the Legislature of the Pnjvince, or of any Pro-
vincial Authority affecting any right or privilege
of the Protestant or Roman Catholic nnnoritvoi'
the Queen's suhjects in relation to Education:
(8) Li case any such Provincial Law, as from ^'o^^^ev
^ _ "^ ' lesei'ved to
time to time seems to the Governor-General iu I'^'ii'^uiei't-
Council recjuisite for the due execution of the
provisions of this section, is not made, or in case
any decision of the Governor-General in Council
on any apjieal under this section is not duly
executed by the proper Provincial Authority in
that behalf, then, an<l in every such case, and as
far onlv as the circumstances of each case
require, the Parliament of Canada may make
remedial Laws f(jr the due execution of the pro-
visions of this section, and of an}' decision of the
Governor-General in Council under tliis section.
S3. Either the Enolish or the French Ian- KnsHshaiui
11 -111 l-'reiifh
guage may l»e used by any person m the tlebates lan^^nases to
of the Houses of the Legislature, and both those
languages shall be usetl in the respective Records
and Journals of those Houses ; and either of
those languages may l)e used by any person, or
in any Pleading or Process, in or issuing from
any Court of Canada established under the
British North America Act, 18G7, or in or from
all or any of the Courts of the Province, The
Acts of the Legislature shall be printed and pub-
lished in both those languages.
Can. Cos.— 38
594 THE CANADIAN CONSTITUTION.
Interest g»4. Ina«:r.uch as the Pi'ovince is not in debt,
allowed to '
m?a^certain* ^^^ ^^^^ Province shall be entitled to be paid,
deb°t'of* °' ^'^^ *"^^ ^^ receive from the Government of Canada,
Canada. ^yy half-yearly payments in advance, interest at
the rate of live per centum per annum on the sum
of four hundred and seventy-two thousand and
ninety dollara.
Subsidy to 25. The sum of thirty thousand dollars shall
the Province "^
for support of \)q paid vearlv by Canada to the Province, for
Government, tr *> >/ ^ *^
*ortion''toit8 ^^^ support of its GoveiTiment and Legislature,
population, ^nd an annual grant, in aid of the said Province,
shall be made, equal to eighty cents per head of
the population, estimated at seventeen thousand
souls ; and such grant of eighty cents per head
shall be augmented in proportion to the increase
of population, as may be shown by the census
that shall be taken thereof in the year one thou-
sand eight hundred and eighty-one, and by each
subsequent decennial census, until its population
amounts to four hundred thousand souls, at
which amount such grant shall remain there-
after, and such sum shall be in full settlement of
all future demands on Canada, and shall be paid
half-yearly, in advance, to the said Province.
Canada og Canada will assume and defray the
assumes cer- *'
tain expenses, charges for the following services : —
1. Salary of the Lieutenant-Governor.
2. Salaries and allowances of the Judges of
the Superior and District or County Courts.
3. Charges in respect of the Department of
the Customs.
4. Postal Department.
5. Protection of Fisheries.
C. Militia.
7. Geological Survey.
MANITOBA. 595
8. The Penitentiary.
9. And such further charges as may be pjovutou
incident to, and connected with the services
which, by the British North America Act, 1867,
appertain to the General Government, and as
are or may be allowed to the other Provinces.
[Sections 27-29 relate to customs and inland
revenue and are effete.']
80. All unffranted or waste lands in the ynpranted
" laiidB vested
Province shall be, from and after the date i" ^Jl® crown
' for Dominion
of the said transfer, vested in the Crown, and P"'Po»e8 (»)•
administered by the Government of Canada for
the purposes of the Dominion, subject to, and
except and so far as the same may be affected
by, the conditions and stipulations contained in
the agreement for the surrender of Rupert's
Land by the Hudson's Bay Company to Her
Majesty.
31. And whereas, it is expedient, towards P'o^isions as
the extinguishment of the Indian Title to the *'*'^-
lands in the Province, to appropriate a portion
of such ungranted lands, to the extent of one
million four hundred thousand acres thereof, for
the benefit of the families of the half-breed oraut for half
residents, it is hereby enacted, that, under regu- '°^ ^ *'*'■
lations to be from time to time made by the
Governor-General in Council, the Lieutenant-
Governor shall select such lots or tracts in such
parts of the Province as he may deem expedient,
to the extent aforesaid, and divide the same
among the children of the half-breed heads of
(o) See post, for some observations on the position of Manitoba in
relation to lands within her borders.
(p) There has been much legislation by the parliament of Canada in
reference to the adjustment of the claims of half-breeds and squatters,
but the subject is hardly within our range.
596
THE CANADIAN CONSTITUTION.
QuiotiuR
titles.
Grants by
H. 13. Com-
I'any.
The same.
Titles being
occupancy
with per-
mission ;
By peaceable
possession.
families reHiding' in tlio Province at tlie time of
the Haid transfer to Canada, and tlie same shall
be granted to the said children respectively, in
such mode and on .such conditions as to settle-
ment and otlierwise, as the Governor-General in
Council may from time to time determine.
JJ2. For the quieting of titles, and assuring
to the settlers in tlie Province the peaceable
possession of the lands now held by them, it is
enacted as follows : —
1. All grants of land in freelujld made by the
Hudson's Bay Company up to the eighth day of
March, in the year 18(39, shall, if re<juired by the
owner, T)e confirmed by grant from the Crown.
2. All grants of estates less than freehold in
land made by the Hudson's Bay Company up to
the eighth day of March, aforesaid, shall, if
required by the owner, be converted into an
estate in freehold by grant from the Crown.
3. All titles by occupanc}^ with the sanction
and under the license and authority of the Hud-
son's Bay Company up to the eighth day of
]\iarcli, aforesaid, of land in that part of the
Province in which the Indian Title has been
extinguished, shall, if required by the owner, be
converted into an estate in freehold by grant
from the Crown.
4. All persons in peaceable possession of
tracts of land at the time of the transfer to
Canada, in those parts of the Province in which
the Indian Title has not been extinguished, shall
have the right of pre-emption of the same, on
such terms and conditions as may be determined
by the Governor in Council.
MANITOBA. 597
5. The Lieutenant-Governor is hereby author- Lieutenant-
i' Lrovernor to
ized, under reoulations to be made from time to "J**'^ •"?,,„,
time by the Governor-General in Council, to counoir
make all such provisions for ascertaining and
adjusting-, on fair and equitable terms, the rights
(){ cutting Hay held and enjoyed by the settlei-s
in the Province, and for the connnutation of the
same by grants of land from the Crown.
33. The Governor-General in Council shall go°unc?Ho'°
from time to time settle and appoint the mode &c!!°o?6raut8!
and f(n'm of Grants of Land fr<^m the Crown,
and any Order in Council for that purpose when
puljlished in the Ca.nada Gazette, shall have the
same force and effect as if it were a portion of
this Act.
34. Nothing in this Act shall in any way Eights of
prejudice or affect the rights or properties of the pany not
Hudson's Bay Company, as contained in the con-
ditions under which that Company surrendered
Rupert's Land to Her Majesty.
\_Hcctio'as 35 and 36 are lomj since efete.']
EiKjlish Laiv in Manitoba, -
We have already (q) had occasion to refer to the pro-
vision of the first Dominion Statute (32-33 Vic. c. 3), deal-
ing with Rupert's Land and the North-Western Territory,
which continued in force in that country the laws then in
force there. We have also referred (r) to the question as,
to what those laws then in force were. This question has
been much discussed in Manitoba. Its position in thia
{q) Ante,]).bo3: (r) ^H<e, p. 581.
598 THE CANADIAN CONSTITUTION.
matter — both (1) as to the date upon which such introduc-
tion took place, (2) the extent of such introduction, (3) the
effect to be given to that ordinance of the old Assiniboia
Council, to which we shall have to refer, as well as (4)
the extent of the introduction subsequently eftected ])y
provincial Acts — was considered by the Court of Queen's
Bench (s) upon an appeal from the judgment of Killam, J.
(/), in Sinclair v. Mulligan. The first three (|uesti()ns are
exhaustively discussed in the latter judgment, and the
opinions expressed therein were adopted by the full Court,
Mr. Justice Dubuc, however, expressing some doubt as to
the correctness of the construction placed by the other
judges upon the Assiniboia ordinance. The holding of the
Court may be summed up in the language of Taylor, C.J. :
" Until 1870, the law of England, at the date of the Hudson's
Bay Company's charter, 1670, was the law in force here, and
indeed, except as to matters which have been dealt with by the
Dominion parliament, or xvhivh are ivithin the jiiri.sdietion of thr
Provinciid h'ffislatnre and have been dealt icith by it, that is the law
of this province at the present day."
In his judgment, Mr. Justice Killam adopts the view,
upon which enough has been said in chapter V., ante, that
the question of applicability is one proper for consideration.
The ordinance of 1862 (u) he construed as a law regulative
of practice and procedure merely, and not as a law bringing
forward the date as of which English law, in the general
sense of that term, was to be deemed to be introduced into
those Territories — a question as to which the doubt ex-
pressed by Mr. Justice Dubuc seems to have much to sup-
port it. In the result, the Statute of Uses was held to be in
force, the Statute of Enrolment was held inapplicable, and
the Statute of Frauds not to be in force because of date
(s) 5 Man. L. R. 17.
(t) 3 Man. L. B. 481.
(u) The language of this ordinance was very much the same as that
of s. 38 of 34 Vic. c. 2 (Man.), quoted post.
MANITOBA. 51)9
Hubsequent to the H. B. Co.'s charter; and a verbal bar*(ain
as to land was given effect to under the Statute of Uses.
One of the fii-st Acts of the Manitoba Legislature
(34 Vic. c. 2), was to establiHli a Supreme Court for the
province, having the jurisdiction distributed in England
between the Superior Courts of Law and E(|uity and of
Probate. By sections 3S, 51 and 52 of this Act it was
provided:
•* 88. As far as possible consistently with the circumstances
of the country the laws of evidence and the principles which
govern the administration of justice in England shall obtain in
the Supreme Coui't of Manitoba.
" 51. So much of the laws of the Governor and Council of
Assiniboia as may be inconsistent with tliis Act, is hereby
repealed.
" 52. So much of the laws of the Governor and Council of
Assiniboia as are not repealed by the preceding section, or are
not inconsistent with this Act, or with any other Act to be
passed during this session, shall be extended to the whole of the
province of Manitoba."
Section 38 would no doubt receive the same construc-
tion as the oidinance of 1802 afterwards received in Sin-
clair v. Mulligan (see ante), and be limited to the regulation '
of practice and procedure, and this statute therefore is of
importance upon this question only as putting aside any
doubt as to the extent of the territorial operation of the
laws of the Assiniboia Council.
In 1874, by 38 Vic. c. 12 (see Con. Stat. Man., 1880,
c. 31), it was enacted :
" The Court of Queen's Bench (<•) shall decide and determine
all matters of controversy relative to property and civil rights
according to the laws existing, or established and being in
England, as such were, existed and stood on the 15th day of
July, 1870, so far as the same can be made applicable to matters
relating to property and civil rights in this province. . . ."
{v) "The Supreme Court of Manitoba" was given this name by 35
Vic. c. 3.
000 THE CANADIAN CnNSTITUTION.
with n clause a.s to evidence, and practice and procc.'dure, to
the same ett'ect. Were it not for tlie sharp distinction
drawn between hiw and practice in this enactment, it
might be contended that, so far as the general adoption of
Enj;lish law is concerne<l, it should receive tJie same con-
struction as the Assiniboia ordinance of 1802, and be
limited to the introduction of Enj;lish practice and
procedure. It has, however, been uniforndy treated as
intnxlucinj^ general English lav/ as it stood on the 15th of
July, 1<S70, and there can be little doubt that such is its
proper construction.
In reference to the limited operation of any provincial
statute introducing English law, it seems impossible to
escape from the result indicated by Taylor, C.J., in the
passage of his judgment which we have italicized (ii^).
From time to time the parliament of Canada has passed
statutes introducing certain portions of the statute law t)f
the Dominion, passed prior to 1870, into Manitoba. Statutes
since 1870 are of courae in force there unless expressly
excepted. But there had been no general provision made
as to those niattei's which are within the legislative
competence of the Dominion parliament, so that the law in
Manitoba as to all such matters was, until 1888, the
English law of 1070. As to matters within the legislative
competence of the provincial legislature there has been, as
we have seen, such general legislation — not, indeed, in
terms so confined, but judicially determined to be so
limited. In Canadian Bank of Commerce v. Adamson (.r)
it had been held that the English Bill of Exchange Act
(18 & 19 Vic. c. 07), was in force in Manitoba, but this
decision was based upon a construction of the ordinance of
1802, which was not followed in Sinclair v. Mulligan.
How^ever, by 51 Vic. c. 33 (Dom.) — for the removal of
doubts — the difficulty suggested in reference to the intro-
duction of English law in relation to matters other than
(tv) Ante, p. 598. (x) 1 Man. L. K. 3.
MAN'ITOMA. 001
those within the le^i.slative competence of a provincial
k-jj^ishiture was removed, ami it was enacted that:
" The laws of England relating to matters within the juris-
diction of the parliament of Canada, as the same existed on tho
15th July, 1870, were from the said day and are in force in tho
province of Manitoba, in'so far as the same are applicable to the
said province, and in so far as the same have not been and are
not hereafter repealed, altered, varied, modified, or aftected by
liny Act .f tho parliament of the United Kin/^'dom applicable to
the said province, or of the parliament of Canada."
the lejjfal rate of interest, however, beinj,^ placed at six per
cent., as in the other provinces.
The same principle in reference to the intioduction ot*
Kn^lish statntory law of local ap])lication in England has
Iteen invoked in ^lanitoha, as in the oMer provinces (//),
In AttonKy-Oeneral v. Richard (z), it was held by Chief
Justice Wallbridge, that the Imperial statute LS <li: 11)
Vic. c. 90, under which costs may be ordered against the
Crown in England, was not introduced into JManitfdta by
the provincial Act to which we have above referred :
" That Act is local as to England, and required a special
Act to make it applioable to the Isle of Man ; besides, the manner
of obtaining costs pointed out under it could not apply here.
We have not the officers, or the means territorially of enforcing
a demand for costs, and the court will not make a decree which
it cannot enforce."
Pahllc Lumh in Mduitoba.
Upon the i^ormation -of the pro\ince of Manitoba (((),
provision was made for the administration by the Governor
in Council of the pultlic lands of that province as a federal
asset. Statutes have from time to time been passed
making' provision for the issue of Letters Patent granting
such lands to purchasers from the Hudson's Bay Co., to-
(y) Ante, p. 120. (z) 4. Man. L. R. 33G.
(fl) See 33 Vic. c. 3, s. 30, mite, p. 595.
002 THE CANADIAN CONSTITUTION.
lialf-l»ree(lH, Htiuatteix, and suUsequent Hettlei'H (b). A \tn'i>;o
pcn'tion liHH been granted to the Cana<lian Pacific Railway
Co., under the tenuH of its charter, and up to the preHont
time the only conccHHion to the province is that containetl
in R. S. C. c. 47, under which swamp lands are to be trans-
ferred to the province, and an endowment of 150,000 acres
is provided for the University of Manitoba. The addi-
tional territory since annexed to the province is in the
Hame position, l)eing subject moreover to interests acquired
therein, prior to such annexatior^, under Dominion lejjis-
lation.
A very interesting (|uestioii came before the Court of
Queen's Bench in Manitoba, in 1891, in reference to the
]>ower of the Canadian Pacific Railway Co. to hohl land in
that province without taking out the license recpiired by
provincial statutes (e). In delivering the judgment of the
Court, Mr. Justice Killam says :
"By the Act, 49 Vic. c. 11, s. 4 (Man.), 'No company,
corporation, or other institution not incorporated under the
provisions of the statutes of this province, shall be capable of
taking, holding, or acquiring any real estate within this province
unless under license from the Lieutenant-Governor in Council,
under any statute of this province.* Several statutes have, from
time to time, been passed by the provincial legislature, author-
izing the issue of licenses to corporations, permitting them to
take and hold lands or securities upon lands in Manitoba. These
have been repealed and consolidated and to some extent
iimended by the Act, 53 Vic. c. 23, s. 15 (Man.). The C. P. R.
Co. has taken out no license under any of these statutes.
By the Act, 44 Vic. c. 14 (Dom.), provision was made for the
extension of Manitoba by including within it certain territory,
formerly a portion of the North-West Territories. One term of
this extension was, as provided by section 2, sub-section (1) :
■* The said increased limit and territory thereby added to the
province of Manitoba shall be subject to all such provisions as
(b) Seen. S. C c. 48.
(c) 7 Man. L. R. 389. Ee C. P. R. Co.
MAxrroHA. (jO.S
may have been, or shall hereafter be enacted res^jecting the
G. P« Bm and the lands to be granted in aid thereof.' The
assent of the Legislature of Manitoba to this extension and its
terms was given by the Acts 44 Vic. (8rd session) c. 1 and G,
assented to respectively the 4th March and 21st May, 1881. The
extension took eifect the 1st July, 1881. . . . Before the
territory in question was included in Manitoba, and when the
Act 44 Vic. c. 1 (Dom.) was passed, that territory was not in-
cluded in any pvQvince, and was subject fully to the legislative
authority of the parliament of Canada in all matters. ^Vhat-
ever, then, might be the position in the provinces, that parlia-
ment could authorize any corporation to take and hold lands in
the North-West Territories. It is difficult to conceive any more
effectual mode of conferring such a power than is exhibited in
the statute 44 Vic. c. 1 (Dom.), the contract and the charter.
And, to wind up the transaction, the lands are to be granted to
the Company by the letters patent of the Crown."
Ah an indemnity, however, for the want of public lands,
the province receives, in addition to other subsidy, a sul)-
sidy of .<i^lOO,000 per annum from the federal government.
CHAPTER XV.
BRITISH COLUMBIA.
Tlie proceedings which cuhiiinated in the achnission of
British Columbia to the Union sufficiently appear in the
following: —
ORDER IN COUNCIL *
RESPKCTINO
THE PROVINCE OF BRITISH COLUMBIA {>!).
\ T the Court at Wiwhor, the IGth day of May, 1871.
A
PRESENT.
The QUEEN'S MOST Excellent Majesty.
His Royal Highness Prince ARTHUR.
Lord Privy Seal. Lord Cliand)erlain,
Earl Cowper. Mr. Secretary Cardwell.
Earl of Kiniberley. Mr. Ayrton.
WHEREAS by the "British North America Act, 1867,"
provision was made for the Union of the Provinces
of Canada, Nova Scotia and New Brunswick into the
((0 Bee Dom. Stat., 1872, p. Ixxxiv. See aho B. N. A. Act, 9. 146.
BRITISH COLUMBIA. 605
Dominion of Canada, and it was (aniongHt other things)
v'tacted that it should be hiwful for the Queen, by and with
the advice of Her Majesty's Most Honourable Privy Coun-
cil, on Addresses from the Houses of Parliament of Canada,
and of the Lc-gislature of the Colony of British Columbia,
to admit that Colony into the; said Union, on such terms
and conditi(ms as should be in the Addresses expressed, and
as the Queen should think fit to approve, sul>ject to the
provisions of the said Act ; And it was further enacted
that the provisions of any Order in Council in that l>ehalf
should have effect as if they had been enacted by the Par-
liament of the United Kingdom of Great Britain and
Ireland :
And whereas by Addresses from the Houses of the Par-
liament of Canada, and from the Legislative Council of
British Columbia respectively, of which Addresses copies
are contained in the Schedule to this Order annexed. Her
Majesty was prayed, by and with the advice of Her Most
Honourable Privy Council, under the one hundred and
forty-sixth section of the hereinljefore recited Act, to admit
British Columbia into the Dominion of Canada, on the
terms and conditions set forth in the said Addresses :
And whereas Her Majesty has thought fit to approve of
the said tei'uis and conditions, it is hereby declared b}" Her
Majesty, by and with the advice of Her Privy Council, in
pursuance and exercise of the powers vested in Her
Majesty by the said Act of Parliament, that from und
ufter the tiveniieth day of July, one thousavd eUjld
hundred and. seventy-one, the said Colony of British
Colwmhia shall he admitted into and become i^ari of the
Dominion of Canada, ipon the terms and conditions set
forth in the hereinbe^ ore recited Addresses. And, in
accordance with the te ms of the said Addresses relating
to the Electoral Distri ts of British Columbia, for which
the first election of members to serve in the House of Com-
mons of the said Dominion shall take place, it is hereby
600 THE CANADIAN CONSTITUTION.
further ordered and declared that such electoral districts
shall be as follows : —
[Here followm an enuiiuration oftheJie electoral districts.']
And the Right Honorable Earl of Kimberley, one of
Her Majesty's Principal Secretaries of State, is to give the
necessary directions therein accordingly.
ARTHUR HELPS.
SCHEDULE.
Address of the Senate of Canada (e ).
To the Queen's Most Excellent Majesty.
Most (iraeiouH Sorerev/n,
We, Your Majesty's most dutiful and loyal subjects, the
Senate of Canada in Parliament assembled, humbly
approach Your Majesty for the purpose of representing : —
That by a despatch from the Governor of British
Columbia, dated 23rd January, 1871, with other papers
laid before this House, by message from His Excellency
the Governor-General, of the 27th February last, this
House learns that the Legislative Council of that colony,
in council assembled, adopted, in January last, an Address
representing to Your Majesty that British Columbia was
prepared to enter into Union with the Dominion of
Canada, upon the terms and conditions mentioned in the
said Address, which is as follows :
To the Queen's Most Excellent Majesty.
Most Gmcioiis Sorereiijn,
We, Your Majesty's most dutiful and loyal subjects, the
Members of the Legislative Council of British Columbia,
(e) The address of the House of Commons is identical in its terms.
BRITISH COLUMBIA. 60T
in council assembled, humbly approach Your Majesty for
the purpose of representing : —
That, during the last session of the late Legislative
Council, the subject of the admission of the Colony of
British Columbia into the Union or Dominion of Canada,
was taken into consideration, and a resolution on the
subject was agreed to, embodying the terms upon which it
was proposed that this colony should enter the Union ;
That after the close of the session, Delegates were
sent by the Government of this Colony to Canada to
confer with the Government of the Dominion with respect
to the admission of British Columbia into the Union upon
the terms proposed ;
That after considerable discussion by the Delegates
with the Members of the Government of the Dominion of
Canada, the terms and conditions hereinafter specified
were adopted by a Committee of the Privy Council of
Canada, and were by them reported to the Governor-
General for his approval ;
That such terms were communicated to the Govern-
ment of this Colony by the Governor-General of Canada,
in a despatch dated July 7th, 1870, and are as follows : —
1. Canada shall be liable for the debts and liabilities of
British Columbia existing at the time of the Union.
2. British Columbia not having incurred debts equal to
those of the other Provinces now constituting the Dominion,
shall be entitled to receive, by half-yearly payments in
advance, from the General Government, interest at the rate
of live per cent, per annum on the difference between the
actual amount of its indebtedness at the date of the
Union, and the indebtedness per head of the population of
Nova Scotia and New Brunswick (27.77 dollars), the popu-
lation of British Columbia being taken at 60,000.
3. The following sums shall be paid by Canada to
British Columbia for the support of its Government and
C08 THE CANADIAN CONSTITUTION.
Lygifslature, to wit, an annual subsidy of 35,000 dollars,
and an annual ^rant equal to 80 cents per head f)t* the said
population of 60,000, l>oth half-yearl}' in advance, such
grant of 80 cents per head to be augmented in proportion
to the increase of population, as may be shown l»y eacli
subse(|uent decennial census, until the population amounts
to 400,000, at which rate such grant shall thereafter
remain, it being understood that the lirst census be taken
in the year 1881.
4. The Dominion will provide an efficient mail service,
fortnightly, by steam comnumication between Victoria and
San Francisco, and twice a week Itetween Victm-ia and
Olympia; the vessels to be adapted f(jr the C(mveyance of
freight and passengers.
5. Canada will assume and defray tlie charu'es for the
following services :
A. Salary of the Lieutenant-Governor :
B. Salaries and allowances of the Judges of the Supe-
rior Courts and the County or Disti'ict C<3urts :
C. The charges in respect to the Department of
Customs ;
D. The Postal and Telegraph Services ;
E. Protection and encouragement of Fisheries ;
F. Provision for the Militia ;
G. Lighthouses, Buoys and Beacons, Shipwrecked Crews,
Quarantine and Marine Hospitals, including a
Marine Hospital at Victoria :
H. The Geological Survey ;
I. The Penitentiary ;
And such further charges as may be incident to and con-
nected with the services which by the "British North
America Act, 1867," appertain to the General Govennnent,
and as are or may be allowed to the other Provinces.
6. Suitable pensions, such as shall be approved of by
Her Majesty's Government, shall be provided by the Gov-
BRITISH COLUMBIA. 609
ernment of the Dominion for those of Her Majesty's
servants in the Colony who.se position and emoluments
derived therefrom would be affected by political changes
on the admission of British Columbia into the Dominion of
Canada.
7. It is agreed that the existing Customs tariff and
Excise duties shall continue in force in British Columbia
until the railway from the Pacific coast and the system of
railways in Canada are connected, unless the Legislature of
British Columbia should sooner decide to accept the Tariff
and Excise Laws of Canada (/). When Customs and
Excise duties are, at the time of the union of British
Columbia with Canada, leviable on any goods, wares or
merchandise in British Columbia, or in the other Provinces
of the Dominion, those goods, wares and merchandise may,
from and after the Union, be imported into British Colum-
bia from the Provinces now composing* the Dominion, or
into either of those Provinces from British Columbia on
proof of payment of the Customs or Excise duties leviable
thereon in the Province of exportation and on payment of
such further amount (if any) of Customs or Excise duties
as are leviable thereon in the Province of importation.
This arrangement to have no force or effect after the assim-
ilation of the Tariff and Excise duties of British Columbia
with those of the Dominion.
8. British Columbia shall be entitled to be represented
in the Senate by threemembers, and by six members in the
House of Commons- The representation to be increased
under the provisions of " British North America Act,
1867."
9. The influence of the Dominion Government will be
used to secure the continued maintenance of the naval
station at Esquimalt.
(/) See 36 V. c. 37. On 27th March, 1872, British Columbia decided
to accept the Canadian tariff, hence the enactment.
Cam. Con.— 39
610 THE CANADIAN CONSTITUTION.
10. 'The jy^o visional of the "British North America Act,
1807," shall (except those 2'xiTts thereof ivhich ai'e in terms
made, or hy reasonable intendment may he held to he
specially applicable to and only effect one and not the
ivhole of the Provinces comprisinrf the Dominion, and
except so far as the same may be varied by this Minute)
he ap>plicable to British Goluinbia in the same way and to
the like extent as they apply to the other Provinces of the
Dominion, and as if the Colony of British Columbia had
been one of the Provinces originally united by the said
Act.
11. The Government of the Dominion undertake to
secure tlie commencement simultaneously, within two years
from the date of the Union, of the construction of a railway
from the Pacific towards the Rocky Mountains, and from
imch point as may be selected east of the Rocky Mountains,
towards the Pacific, to connect the seaboard of British
Columbia with the railway system of Canada ; and furtlier,
to secure the completion of such railway within ten years
from the date of the Union.
And the Government of British Columbia agree to
convey to the Dominion Government in trust, to be appro-
priated in such maimer as the Dominion Government may
deem advisable in furtherance of the construction of the
said railway, a similar extent of public lands {y) along the
line of railway throughout its entire length in British
Columbia (not to exceed, however, twenty (20) miles on
each side of said line,) as may be appropriated for the same
purpose by the Dominion Government from the public
lands of the North- West Territories and the Province of
Manitoba : Provided that the quantity of land which may
be held under pre-emption right or by Crown grant
within the limits of the tract of land in British Columbia
to be so conveyed to the Dominion Government shall be
(g) See Attorney-General of British Columbia v. Attorney -General
of Canada, 14 App. Cas. 295 ; noted, ante, p. 530.
BRITISH COLUMBIA. 611
made good to tlie Dominion from contiguous public lands;
and provided further, tliat until the commencement, within
two years, as aforesaid, from the date of the Union, of the
construction of the said railway, the Government of British
Columbia shall not sell f)r alienate any further portions of
the public lands of British Columbia in any other way than
under right of pre-emption requiring actual residence of the
pre-emptor on the land claimed by him. In consideration of
the land to be so conveyed in aid of the constrrction of the
said railway, the Dominion Government agi-ee to pay
to British Columbia from the date of the Union, the sum
of 100,000 dollars per annum, in half-yearly payments in
advance.
12. The Dominion Government shall guarantee the
interest for ten years from the date of the completion of
the works, at the rate of five per centum per annum, on
such sum, not exceeding iJ 100,000 sterling, as may be
required for the construction of a first-class graving dock
at Esquimalt.
13. The charge of the Indians, and the trusteeship and
management of the lands reserved for their use and benefit,
shall be assumed by the Dominion Government, and a
policy as liberal as that hitherto pursued by the British
Columbia Government shall be continued by the Dominion
Government after the Union.
To carry out such policy, tracts of land of such extent
as it has hitherto been the practice of the British Columbia
Government to appropriate for that purpose, shall from
time to time be conveyed by the Local Government to the
Dominion Government in trust for the use and benefit of
the Indians on application of the Dominion Government ;
^nd in case of disagreement between the two Govern-
ments respecting the quantity of such tracts of land to be
so granted, the matter shall be referred for the decision of
the Secretary of State for the Colonies.
012 THE CANADIAN CONSTITUTION.
14. The Constitution of the Executive Authority aiul
of the Legidature of British Columbia shall, .mhject to the
provisions of the "British North America Act, 1807," con-
tinue as existing at the time of the Union until altered
under the authority of the said Act, it being at the same
time understood that the Government of the Dominion
will readily consent to the introduction of responsible
government when desired by the inhabitants of British
Columbia, and it being likewise understood that it is the
intention of the Governor of British Columbia, under the
authority of the Secretary of State for the Colonies, to
amend the existing Constitution of the Legislature by
providing that a majority of its Members shall be elective.
The Union shall take effect accordinof to the foregfoins:
terms and conditions on such day as Her Majesty by and
with the advice of Her Most Honorable Pi-ivy Council
may appoint (on addresses from the Legislature of the
Colony of British Columbia and of the Houses of Parlia-
ment of Canada in the terms of the 146th section of the
"British North America Act, 1867,") and British Columbia
may in its address specify the electoral districts for which
the first election of Members to serve in the House of
Commons shall take place.
That such terms have proved generally acceptable to
the people of this Colony.
That this Council is, therefore, willing to enter into
Union with the Dominion of Canada upon such terms, and
humbly submit that, under the circumstances, it is expedient
that the admission of this Colony into such Union, as
aforesaid, should be effected at as early a date as may be
found practicable under the provisions of the 146th section
of the " British North America Act, 1867.
We, therefore, humbly pray that Your Majesty will be
graciously pleased, by and with the advice of Your
Majesty's Most Honorable Privy Council, under the pro-
visions of the 146th section of "British North America
BRITISH COLUMBIA. 613
Act, 1807," to admit British Columbia into the Union or
Dominion of Canada, on the ImHis of the terms and condi-
tions offered to this Colony by the Government of the
Dominion of Canada, hereinbefore set forth; and inasmuch
as by the said terms British Columbia is empowered in its
address to specify the electoral districts for which the first
election of membei*s to serve in the House of Connnons
sliall take place, we humbly pray that such electoral
districts may be declared, under the Order in Council, to be
as follows : {Here follows an enumeration of such districts.
See mnv R. H. C. c. G).
We further humbly represent, that the proposed terms
and conditions of Union of British Columbia with Canada,
as stated in the said Address, are in conformity with those
preliminarily agreed upon between delegates from British
Columbia and the Members of the Government of the
Dominion of Canada, and endxxlied in a Report of a Com-
mittee of the Privy Council, approved by His Excellency
the Governor-General in Council, on the 1st July, 1870,
which approved Report is as follows :
Gi>py of a Report of a Committee of the Honorable the
Privy Council, appi^oved by His Excellency the
Governor-General in Council, on the 1st of July,
1870.
The Committee of the Privy -Council have had under
consideration a Despatch, dated the 7th May, 1870, from
the Governor of British Columbia, together with certain
Resolutions submitted by the Government of that colony
to the Legislative Council thereof — both hereunto annexed
— on the subject of the proposed Union of British
Columbia with the Dominion of Canada; and after several
interviews between them and the Honorable Messrs.
Trutch, Helmcken and Carrall, the Delegates from British
Columbia, and full discussion with them of the various
questions connected with that important subject, the Com-
mittee now respectfully submit for Your Excellency's
014 THE CANADIAN CONSTITUTION.
upproval, the following terms and conditions to form the
basis of a political miion between British Columbia and
the Dominion of Canada: {Setting oat such terms as
before).
(Certified.) Wm. H. Lee,
Clerk Privy Council.
We further humbly represent that we concur in the
terms and conditions of Union set forth in the said
Address, and approved Report of the Connnittee of the
Privy Council above mentioned; and most respectfully
pray that your Majesty will be graciously, pleased, by and
with the advice of your Majesty's most Honorable Privy
Council, under the 14Gth clause of "The British North
America Act, 18G7," to unite British Colmnbia with the
Dominion of Canada, on the terms and conditions above
set forth.
The Senate, Wednesday, April 5th, 1871.
(Signed.) Joseph Cauchon, Speaker.
Provincia I Con d itut ion.
Before the Union took effect, British Columbia had
made the intended alteration referred to in item 14, above —
by Act of the colonial legislature (No. 147 of 34 Vic.) This
statute recites an Imperial Order in Council of 9tli August,
1870, which established in the colony a legislative council,
consisting of nine elective and six non-elective members,,
and which gave power to the Governor of the colony, with
the advice and consent of the legislative council, to make
laws for the peace, order, and good government of the
colony ; it recites also the Colonial Laws Validity Act,
1865 (h), as sufficient warrant for the contemplated change
in the colonial constitution ; and then proceeds to abolish
the legislative council and to establish in its stead a legis-
(/j) See ante, p. 422. See the Act in Appendix.
HIUTISH COLUMBIA. G15
lative assembly of wholly elective iiiembei's. The pre.senfc
provincial constitution can he studied in the Consolidated
Statutes of the province (1888) chapter 22.
Introduction of Ev(/Ush Lmv.
In the same session (by Act No. 70 of 34 Vic.) it was
provided that —
"The civil and criminal laws of England, as the same existed
on the 19th day of November, 1858, and so far as the same are
not from local circumstances inapplicable, are and shall be in
force in all parts of the colony of British Columbia."
This statute was held {%) to introduce the English
" Matrimonial Causes / "t, 1857," Chief Justice Begbie,
however, dissenting from the judgment of the majority,
the local circumstances of the colony precluding, in his
opinion, its opei'ation therein.
In Reynolds v. Vaughan {j), it was held that under this
statute Imperial Orders in Council, even though passed
pursuant to Imperial statutes which were themselves in
force in the colony, would not operate therein, unless made
specially applicable by subsequent Imperial or colonial
enactment.
We may note also the case of Sproule v. Reg. (/i), in
which is discussed the (|uestion as to the operation of pro-
vincial jury laws in criminal cases. It includes in " organi-
zation " some matters in reference to the procurement of a
jury, which in Ontario were deemed matters of " procedure,"
and in this view upholds provincial legislation even apart
from the Dominion Criminal Procedure Act.
Reference to the decisions of the British Columbia
courts — particularly those of date closely following the
admission of the province — discloses that very extreme
(t) M. falsely called S. v. S., 1 B. C. Rep. 25.
( j) 1 B. C. Rep. 3.
[k) 2 B. C. Rep. 219 ; see ante, p. 417.
(Jl(> TIIK CAXAIUAN' CONSTniTlOV.
views were ei/terkained as to tlie pivdominancy <»l' the
])arliainent of Canada over tlie provincial lej^islatures. The
fctnnula (/) enunciated in Fredericton v. Hejjf. was adopted,
and in the "Thrasher " Case (tti) carried to lenj^ths which
in view of the latei* decisions cannot be maintained. We
sliould, liowever, note tliat in British Cohiinhia have arisen
the only cases in reference to the pcnver of a provincial
legislature to legislate in regard to aliens. The " Chinese
Ta.v Act, liS7iS," was held (n) ultra rircs as an infrin<(enient
upon the power of the Dominion parlianu lit over trade and
connnerce and over aliens, and as inconsistent with the
provisions of section 132 of the B. N. A. Act, vesting in
that parliauient power to pass laws in aid of the treaty
obligations of the Eanpire so far as they affect Canada.
In two later cases (o) the same principle was applied, and a
provincial Act imposing a differential tax upon Chinese
miners was also held invalid.
By R. S. C. c. 144, s. 2, it is provided :
2. The criminal law of England as it stood on the 19th day
of November, in the year 1858, and as the same has since been
repealed, altered, varied, modified or affected by any ordinance
or Act (still having the force of law) of the colony of British
Columbia, or of the colony of Vancouver Island before the Union
of such colonies, or of the colony of British Columbia passed
since such Union, or by any Act of the parliament of Canada,
shall be the criminal law of the province of British Columbia.
In view^ of the recent codification of our criminal law, it
is not worth while to discuss the effect of this enactment
on the Colonial Act which made "applicability" the test{j)),
of the introduction into the colony of English law.
(I) See ante, p. 206.
(m) 1 B. C. Rep. 153.
(n) Tai Sing v. Maguire, 1 B. C. Rep. 101 —Mr. Justice Gray.
(o) Reg. V. Wing Chong, 2 B. C. Rep. 150 ; Reg. v. Gold Commis-
sioners of Victoria, ib. 260— Sup. Ct. B. C.; see also notes to s. 91, s-s. 25.
( jd) See ante, p.' 615 ; see also Chapter V. upon the general question.
CHAPTER X\ I.
PRINCE EDWARD ISLAND.
Tlie adniiasion of Prince Edward Island to the Dominion
waH effected by the following Order in Council :
At the Coui*t. at Windsor, the 26th day of June, 1873.
PRESENT :
The QUEEN'S Most Excellent Majesty.
Lord President. Earl of Kiniberlev.
Earl Granville. Lord Chamberlain.
Mr. Gladstone.
WHEREAS by the "British North America Act, 1807,"
provision was made for the Union of the Provinces
of Canada, Nova Scotia and New Brunswick into the
Dominion of Canada, and it was (amongst other things)
enacted that it should be lawful for the Queen, b}'' and
with tlie advice of Her Majesty's Most Honorable Privy
Council, on Addresses from the Houses of the Parliament
of Canada, and of the Legislature of the Colony of Prince
Edward Island, to adnnt that Colony into the said Union
on such terms and conditions as should be in the Addresses
expressed, and as the Queen should think fit to approve,
subject to the provisions of the said Act;* and it was
further enacted that the provisions of any Order in
()18 THE CANADIAN CONSTITUTION.
Council in that behalf, should liave effect as if they had
been enacted by the Parliament of the United Kingdom of
Great Britain and Ireland.
And whereas by Addresses from the Houses of the
Parliament of Canada, and from the Legislative Council
and House of Assembly of Prince Edward Island respec-
tively, of which Addresses, copies are contained in the
Schedule to this Order annexed, Her Majesty was prayed,
by and with the advice of Her Most Honorable Privy
Council, under the one hundred and forty-sixth section of
the hereinbefore recited Act, to admit Prince Edward
Island into the Dominion of Canada, on the terms and
conditions set forth in the said Addresses.
And whereas Her Majesty has thought fit to approve of
the said terms and conditions, it is hereby ordered and
declared by Her Majesty, by and with the advice of Her
Privy Council, in pursuance and exercise of the powers
vested in Her Majesty, by the said Act of Parliament, that
from and after the first day of July, one thousand eight
hundred and seventy-three, the said Colony of Prince
Edward Island shall be admitted into and become part of
the Dominion of Canada, upon the terms and conditions
set forth in the hereinbefore cited Addresses.
And in accordance with the terms of the said Addresses
relating to the Electoral Districts for which, the time
within which, and the laws and provisions under which
the first election of members to serve in the House of
Commons of Canada, for such Electoral Districts shall be
held, it is hereby further ordered and declared that
" Prince County " shall constitute one district, to be
designated " Prince County District," and return two
members ; that " Queen's County " shall constitute one
district, to be designated " Queen's County District," and
return two members ; that " King's County " shall consti-
tute one district, to be designated "King's County District,"
and return two members ; that the election of members to
PRINCE EDWARD ISLAND. 61 9*
serve in the House of Commons of Canada, for such Elec-
toral Districts shall be held within three calendar months
from the day of the admission of the said Island into the
Union or Dominion of Canada ; that all laws which at the
date of this Order in Council relating to the qualification
of any person to be elected or sit or vote as a member of
the House of Assembly of the said Island, and relating ta
the qualifications or disqualifications of voters, and to the
oaths to be taken by voters, and to Returning Officers and
Poll Clerks, and their powers and duties, and relating to
Polling Divisions within the said Island, and relating to
the proceedings at elections, and to the period during
which such elections may be continued, and relating to
the trial of controverted elections, and the proceedings
incidental thereto, and relating to the vacating of seats of
the members, and to the execution of new writs, in case of
any seat being vacated otherwise than by a dissolution,
and to fiU other matters connected with or incidental to
elections of members to serve in the House of Assembly of
the said Island, shall apply to elections of members to
serve in the House of Commons for the Electoral Districts
situate in the said Island of Prince Edward.
And the Right Honorable Earl of Kimberle}^ one of
Her Majesty's Principal Secretaries of State, is to give the
necessary directions herein, accordingly.
ARTHUR HELPS.
SCHEDULE.
To the Queen's Most Excellent Majesty.
Most GracioKs Sorereiijn,
We, Your Majesty's most dutiful and loyal subjects,,
the Commons of the Dominion of Canada in Parliament
assembled, humbly approach Your Majesty for the purpose
of representing : —
620 THE CANADIAN CONSTITUTION.
Tluit during the present Session of Parliament we have
taken into consideration the subject of the admission of
the Colony of Prince Edward Island into the Union or
])oiuinion of Canada, and have resolved that it is expedient
that such admission should be effected at as early a date as
may be found practicable, under the one hundred and
forty-sixth section of the "Britisli North America Act,
1867," on the conditions hereinafter set forth, which
having been agreed upon with the Delegates from the said
Colony ; that is to say : —
That Canada shall be liable for the debts and liabilities
of Prince Edward Island at the time of the Union ;
That in consideration of the large expenditure author-
ized by the Parliament of Canada for the construction of
railways and canals, and in view of a possibility of a re-ad-
justment of the financial arrangements between Canada and
the several Provinces now embraced in the Dominion, as
well as the isolated and exceptional condition* of Prince
Edward Island, that Colony shall, on entering the Union,
be entitled to incur a debt equal to fifty dollars per head
of its population, as shewn by the Census Returns of 1871,
that is to say : four millions seven hundred and one thou-
sand and fifty dollars ;
That Prince Edward Island not having incurred debts
eijual to the sum mentioned in the next preceding Resolu-
tion, shall be entitled to receive, by half-yearly payments,
in advance, from the General Government, interest at the
rate of five per cent, per annum on the difference, from
time to time, between the actual amount of its indebted-
ness and the amount of indebtedness authorized as aforesaid,
viz., four millions seven hundred and one thousand and
fifty dollars ;
1 hat Prince Edward Island shall be liable to C -nada for
the amount (if any) by which its public debt and liabilities
at the date of the Union, may exceed four millions seven
hundred and one thousand and fifty dollais and shall be
PRINCE EDWARD ISLAND. 621
chargeable with interest at the rate of five per cent, per
annum on sucli excess;
That as the Government of Prince Edward Island holds
no land from the Crown, and consequently enjoys no
revenue from that source for the construction and main-
tenance of local works, the Dominion Government shall pay
by half-yearly instalments, in advance, to the Government
of Prince Edward Island, forty live thousand dollars per
annum, less interest at five per cent, per annum, upon any
sum not exceeding eight hundred thousand dollars which
the Dominion Government may advance to the Prince
Edward Island Government for the purchase of lands now
held by large proprietors ;
That in con. -'deration of the transfer to the Parliament
of Canada of the powers of taxation, the following sums
shall be paid yearly by Canada to Prince Edward Island, for
the support of its Government and Legislature, that is to
say, thirty thousand dollars and an annual grant ecjual to
eighty cents per head of the population, as shown by the
Census returns of 1871, viz., 94,021, both by half-yearly
payments in advance, such grant of eighty cents per head
to be augmented in proportion to the increase of population
of the Island as may be showm by each subsequent decen-
nial Census, until the population amounts to four hundred
thousand, at which rate such grant shall thereafter remain
it being understood that the next Census shall be taken in
the year 1881 ;
That the Dominion Government shall assume and defray
all the charges for the following services, viz.: —
The salary of the Lieutenant Governor ;
The salaries of the Judges of the Superior Court and
of the District or County Courts when established ;
The charges in respect of the Depai-tment of Customs ;
The Postal Department ;
The protection of Fisheries ;
622 THE CANADIAN CONSTITUTION.
The provision for the Militia ;
The Lighthouses, Shipwrecked Crews, Quarantine, and
Marine Hospitals ;
The Geological Survey ;
The Penitentiary ;
Efficient Steam Service for the conveyance of mails and
passengers, to be established and maintained between the
Island and the mainland of the Dominion, Winter and
Summer, thus placing the Island in continuous communi-
cation with the Intercolonial Railway and the railway
system of the Dominion ;
The maintenance of telegraphic connnunication between
the Island and the mainland of the Dominion ;
And such other charges as may be incident to, and
connected with, the services which by the " British North
America Act, 1867," appertain to the General Government,
and as are or may be allowed to the other Provinces ;
That the railways under contract and in course of con-
struction for the Government of the Island, shall be the
property of Canada ;
That the new building in which are held the Law
Courts, Registry Office, etc., shall be transferred to Canada,
on the payment of sixty-nine thousand dollars. The pur-
chase to include the land on which the building stands, and
a suitable space of ground in addition, for yard room, &c.;
That the Steam Dredge Boat in course of construction,
shall be taken by the Dominion, at a cost not exceeding
twenty-two thousand dollars ;
That the Steam Ferry Boat owned by the Goverment
of the Island, and used as such, shall remain the property
of the Island ;
That the population of Prince Edward Island having
been increased by fifteen thousand or upwards since the
year 1861, the Island shall be represented in the House of
Commons of Canada by six Members ; the representation
PRINCE EDWARD ISLAND. 623
to be re-adjusted, from time to time, under the provisions
oi the " British North America Act, 1867 " ;
That the constifiUion of the Executive Aufhority and
of the Leg islat lire of Prince Edward Island, shall, subject
to the provisions of the " British North America Act, 1807,"
continue, as at the time <f the Union, until altered undev
the authority of the said Act, and the House of Assembly
of Prince Edward Island existing at the date of the Union
shall, unless sooner dissolved, continue for the period for
which it was elected ;
That the Provisions in the "British North America
Act, 1807" shall, except those payis thereof which are iu
terms made, or hy reasonable intendment, may be lield to
he especially appliccdde to, and only to ((feet one and not
the whole of the Provinces noiv composing the Dominion,
and except so far as the same may he varied by these reso-
lutions, he applicable to Prince Edivard Island, in thf
same ivay and to the same extent as they apply to the other
Provinces of the Dominion, and as if the Colony of Prince
Edward Island had been one of the Provinces originally
united hy the said Act.
That the Union shall take place on .such day as Her
Majesty may direct by Order in Council, on Addresses to
that effect from the Houses of Parliament of Canada and
of the Legislature of the Colony of Prince Edward Island,
under the one hundred and forty-sixth section of the
" British North America Act, 1867," and that the Electoral
Districts for which, the time within which, and the laws
and provisions under which, the first Election of Members
to serve in the House of Commons of Canada for such
Electoral Districts shall be held, shall be such as tlie said
Houses of the Legislature of the said Colony of Prince
Edward Island may specify in their said Addresses.
We, therefore, humbly pray that Your Majesty will be
graciously pleased, by and with the advice of Your Majesty's
Most Honourable Privy Council, under the provisions of the
624 THE CANADIAN CONSTITUTION.
one hundred and forty-sixth section of the " British North
America Act, 1867," to admit Prince Edward Island into
the Union or Dominion of Canada, on the terms and condi-
tions hereinbefore set forth.
(Signed) JAMES COCKBURN,
Speaker.
House of Commons,
20th May, 1873.
A similar address was voted by the Senate of the
Dominion, and by the two Houses of the Prince Edward
Island Legislatures the latter specifying the electoral dis-
tricts as set out in the Order in Council.
APPENDICES.
1 COLONIAL LAWS VALIDITY ACT, 1865.
2. LETTERS PATENT CONSTITUTING THE OFFICE OF
GOVERNOR GENERAL OF CANADA.
;j. INSTRUCTIONS TO ACCOMPANY SAME
4. QUEBEC RESOLUTIONS.
Can. Con.~40
APPENDIX I.
COLONIAL LAWS VALIDITY ACT, 18G5.
28-29 Vic, Cap. 63, (Imp.)
An Act to remove Donhts as to the ValhUtij of Colonial Lairs.
[29th June, 18G5.
Whereas doubts have been entertained respecting? the
■validity of divers laws enacted, or purporting to be enacted
by the Legislatures of certain of Her Majesty's Colonies,
and respecting the powers of such Legislatures ; and it is
expedient that such doubts should be removed :
Be it hereby enacted by the Queen's Most Excellent
Majesty, by and with the advice and consent of the Lords
Spiritual and Temporal, and Commons, in this present
Parliament assembled, and by the authority of the same, as
follows : —
I. The term "colony" shall in this Act include all of Definitions
Her Majesty's Possessions abroad, in which there shall ^olo">-
exist a legislature as hereinafter defined, except the Channel
Islaiids, the Isle of Man, and such territories as may for the
time being be vested in Her Majesty, under or by virtue of
•any Act of Parliament for the government of India ;
The terms "Legislature" and "Colonial Legislature" "Legislat-
shall severally signify the authority (other than the Imperial njai Legisla-
Parliament or Her Majesty in Council), competent to make *"*'^ " '<
laws for any colony ;
The term " Representative Legislature " shall signify " Kepresenta-
any Colonial Legislature which shall comprise a legislative tiue";
body of which one-half are elected by inhabitants of the
colony ;
The term " Colonial Law" shall include laws made for "Colonial
■any colony, either by such Legislature as aforesaid or by '''^'
Her Majesty in Council ; ..
G28 APPENDIX.
Act of Parlia. An Act of Parliament, or any provision thereof, shall, im
when to ex- construing this Act, be said to extend to any colony when it
tend to jf, made applicable to such colony by the express words or
necessary intendment of any Act of Parliament ;
"Governor"; The term "Governor" shall mean the officer lawfully
administering the Government of any colony ;
"Letters Pa- The term "Letters Patent" shall mean letters patent
tent." under the Great Seal of the United Kingdom of Great Britain
and Ireland.
Colonial Law 9. Any colonial law, which is or shall be repugnant to
rL'i?,'J,«o.l«,!°' the provisions of any Act of Parliament extending to the
colony to which such law may relate, or repugnant to any
order or regulation made under authority of such Act of
Parliament, or having in the colony the force or effect of
such Act, shall be read subject to such Act, order, or
regulation, and shall, to the extent of such repugnancy,
but not otherw^ise, be and remain absolutely void and in-
operative.
Colonial Law -S* No colonial law shall be, or be deemed to have been»
for^repuc-^"''^ ^°^^ °^ inoperative on the ground of repugnancy to the law
uavicy. of England, unless the same shall be repugnant to the pro.
visions of some such Act of Parliament, order, or regula-
tion, as aforesaid.
Colonial Law 4. No colonial law, passed with the concurrence of or
liiconBiste'ricy assented to by the Governor of any colony, or to be here-
with iustruc- after so passed or assented to, shall be, or be deemed to
t»0"S. , . T . ,
have been, void or inoperative by reason only of any in-
structions witli reference to such law, or the subject thereof,
which may have been given to such Governor, by or on
behalf of Her Majesty, by any instrument other than the
letters patent or instrument authorizing such Governor tO'
concur in passing or to assent to laws for the peace, order,
and good government of such colony, even though such in-
structions may be referred to in such letters patent, or last-
mentioned instrument.
Colonial Leg- 3. Every colonial Legislature shall have, and be deemed'
establish, &c^ ** **^ times to have had, full power within its jurisdiction
Courts of law. to establish courts of judicature, and to abolish and re-
constitute the same, and to alter the constitution thereof,
and to make provision for the administration of justice
Representa- therein ; and every representative Legislature shall, in re-
tiveLegisla- x j. ai. , i .,..,... , , ,
turemayal- spect to the colony under its jurisdiction, have, and be
tfou'^"^*^*" deemed at all times to have had, full power to make lavs
respecting the constitution, powers, and procedure of such
Legislature; provided that such laws shall have been
APPENDIX. 020
passed in such manner end form as may from time to time
be required, by any Act of Parliament, letters patent, Order
in Council, or colonial law for the time being in force in
the colony.
O. The certificate of the clerk or other proper officer of a Certiflodco-
iaj^islative body in any colony to the efftct that the docu- Ee^ev^dence '"
nient to which it is attached is a true copy of any colonial *''** '''^>' "■'"^
properly pas-
law assented to by the Governor of such colony, or of any sed.
bill reserved for the signification of Her Majesty's pleasure
by the said Governor, shall be prima facie evidence that the
document so certified is a true copy of such law or bill, and,
as the case may be, that such law has been duly and
properly passed and assented to, or that such bill has been
duly and properly passed and presented to the Governor ;
and any proclamation, purporting to be published by F(f?,*''evi^^'*^'^
authority of the Governor, in any newspaper in the colony deuce of as-
to which such law or bill shall relate, and signifying Her allowance.
Majesty's disallowance of any such colonial law, or Her
Majesty's assent to any such reserved bill as aforesaid,
shall be prima facie evidence of such disallowance or assent.
And whereas doubts are entertained respecting the vali-
dity of certain Acts enacted, or reputed to be enacted, by
the liCgislature of South Australia : Be it further enacted
as follows :
•y. All laws or reputed laws enacted or purporting to certain Acts
have been enacted by the said Legislature, or by persons or °j south "aus-"
bodies of persons for the time being acting as such Legis- ^^^^'^9- ^oha
lature, which have received the assent of Her Majesty in
Council, or which have received the assent of the Governor
of the said Colony in the name and on behalf of Her
Majesty, shall be and be deemed to have been valid and
eifectual from the date of such assent for all purposes what-
ever ; provided that nothing herein contained shall be
deemed to give effect to any law or reputed law which has
been disallowed by Her Majesty, or has expired, or has been
lawfully repealed, or to prevent the lawful disallowance or
repeal of any law.
APPENDIX II.
DRAFT OF LETTERS-PATENT! PASSED UNDER
THE GREAT SEAL OF THE UNITED KINGDOM,
Comtitutimj the Office of Govcrnor-Gemral of the Doiiiinion of
Canada.
Letters-Patent, ]
Dated 5th October, 1878. ]"
VicTOKiA, by the Grace of God, of the United Kingdom of Great Britain
and Ireland, Queen, Defender of the Faith, Empress of India ;
• To all to whom these Presents shall come, Greeting :
Wherkas We did, by certain Letters-Patent under the Great Seal of
Our United Kingdom of Great Britain and Ireland, bearing date at
Westminster the Twenty-second day of May, 1872, in the Thirty-fifth
Year of Our Eeign, constitute and appoint Our Right Trusty and Riglit
Well-beloved Cousin and Councillor, Frederick Temple, Earl of DuiYerin,
Knight of Our Most Illustrious Order of Saint Patrick, Knight Com-
mander of Our Most Honorable Order of the Bath (now Knight Grand
Cross of Our Most Distinguished Order of Saint Michael and Saint
George), to be Our Governor- General in and over Our Dominion of
Canada for and during Our will and pleasure :
And whereas by the 12th section of "The British North America Act,
1867," certain powers, authorities, and functions were declared to be
vested in the Governor-General :
And whereas We are desirous of making effectual and permanent
provision for the office of Governor-General in and over Our naid
Dominion of Canada, without making new Letters-Patent on each demise
of the said Office :
Now know ye that We have revoked and determined, and by these
presents do revoke and determine, the said recited Letters-Patent of
the Twenty-seoond day of May, 1872, and every clause, article and thing
therein contained :
And further know ye that We, of our special grace, certain know-
ledge, and mere motion, have thought tit to constitute, order, and
APPENDIX. 631
declare, and do by these presents constitute, order, and declare that
there shall be a Governor- General (hereinafter called Our said Gover-
nor-General) in and over Our Dominion of Canada (hereinafter called
Our said Dominion), and that the person who phall fill the said
Office of the Governor-General shall be from time to time appointed
by Commission under our Sign-Manual and Signet. And we do hereby
authorize and command Our said Governor-General to do and execute,
in due manner, all things that shall belong to his said command, and to
the trust We have reposed in him. according to the several powers and
authorities granted or appointed him by virtue of " The British North
America Act, 18G7," and of these present Letters-Patent, and of such Com-
mission as may be issued to him under Our Sign-Manual and Signet,
and according to such Instructions as may from time to time be given to
him, under Our Sign-Manual and Signet, or by Our Order in Our Privy
Council, or by us through one of Our Principal Secretaries of State, and
to such Laws as are or shall hereafter be in force in Our said Dominion.
II. And We do hereby authorize and empower Our said Governor-
General to keep and use the Great Seal of Our said Dominion for sealing
all things whatsoever that shall pass the said Great Seal.
III. And We do further authorize and empower Our said Governor-
General to constitute and appoint, in Our name and on Our behalf, all
such Judges, Commissioners, Justices of the Peace, and other necessary
Officers and Ministers of Our said Dominion, as may be lawfully con-
stituted or appointed by Us.
IV. And We do further authorize and empower Our taid Governor-
General, so far as we lawfully may, upon sufficient cause to him appear-
ing, to remove from his office, or to suspend from the exercise of the
same, any person exercising any office within Oui said Dominion, under
or by virtue of any Commission or Warrant granted, or which may be
granted, by Us in Our name or under Our authority.
V. And We do further authorize and empower Our said Governor-
General to exercise all powers lawfully belonging to Us in respect of the
summoning, proroguing, or dissolving the Parliament of Our said Do-
minion.
VI. And whereas by "The British North America Act, 18G7," it is
amongst other things enacted, that it shall be lawful for Us, if We think
fit, to authorize the Governor-General of Our Dominion of Canada to
appoint any person or persons, jointly or severally, to be his Deputy or
Deputies within any part or parts of Our said Dominion, and in that
capacity to exercise, during the pleasure of Our said Governor-General,
such of the powers, authorities, and functions of Our said Governor-
General as he may deem it necessary or expedient to assign to such
Deputy or Deputies, subject to any limitations or directions from time to
time expressed or given by Us : Now We do hereby authorize and emi.
632 APPENDIX.
power Oar said Governor-General, subject to such limitations and direc-
tions as aforesaid, to appoint any person or persons, jointly or severally,
to be his Deputy or Deputies within any part or parts of Our said
Dominion of Canada, and in that capacity to exercise, during his pleasure,
such of his powers, functions, and authorities as he may deem it neces-
sary or expedient to assign to him or them : Provided always, that the
appointment of such a Deputy or Deputies shall not affect the exercise
of any such power, authority or function by Our said Governor-General
in person.
VII. And We do hereby declare Our pleasure to be that, in the event
of the death, incapacity, removal, or absence of Our said Governor-
General out of Our said Dominion, all and every the powers and
authorities herein granted to him shall, until our further pleasure is
signified therein, be vested in such person as may be appointed by Us
under our Sign-Manual and Signet to be Our Lieutenant-Governor of
Our said Dominion ; or if there shall be no such Lieutenant-Governor in
Our said Dominion, then in such person or persons as may be appointed
by Us under our Sign-Manual and Signet to administer the Government
of the same ; and in case there shall be no person or persons within Our
said Dominion so appointed by Us, then in the Senior Officer for the time
being in command of our regular troops in our said Dominion : Pro-
vided that no such powers or authorities shall vest in such Lieutenant-
Governor, or such other person or persons, until he or they shall have
taken the oaths appointed to be taken by the Governor-General of Our
said Dominion, and in the manner provided by the Instructions accom-
panying these Our Letters-Patent.
VIII. And We do hereby require and command all Our Officers and
Ministers, Civil and Military, and all other the inhabitants of Our said
Dominion, to be obedient, aiding and assisting unto our said Governor-
General, or, in the event of his death, incapacity, or absence, to such
person or persons as may, from time to time, under the provisions of
these, Our Letters-Patent, administer the Government of Our said
Dominion.
IX. And We do hereby reserve to Ourselves, Our heirs and successors,
full power and authority from time to time to revoke, alter or amend
these Our Letters- Patent as to Us or them shall seem meet.
X. And We do further direct and enjoin that these Our Letters -Patent
shall be read and proclaimed at such place or places as Our said Gov-
ernor-General shall think fit within Our said Dominion of Canada.
In Witness whereof We have caused tliese our Letters to be made
Patent. Witness Ourself at Westminster, the Fifth day of October, in
the Forty-second Year of Our Reign.
By Warrant under the Queen's Sign-Manual.
' C. EOMILLY.
APPENDIX III.
DRAFT OF INSTRUCTIONS
Po,sse(i under the Ihnjal Shin-Nanual and Siijnet to the Goveniar-
General of the Dominion of Camuhi.
Dated 5th October, 1878,
VICTORIA R.
Instructions to Our Governor-General hi and over Our Dominion of
Canada, or, in his absence, to Our Lieutenant-Governor or the Officer
for the time being administering the Government of Our said
Dominion,
Given at our Court at Balmoral, this Fifth day of October, 1878, in
the Forty-second year of Our Reign.
Whereas by certain Letters-Patent bearing even date herewith, We
have constituted, ordered, and declared that there shall be a Governor-
General (hereinafter called Our said Governor-General) in and over Our
Dominion of Canada (hereinafter called Our said Dominion), and We
have thereby authorized and commanded Our said Governor-Genciral to
do and execute in due manner all things that shall belong to his said
command, and to the trust We have reposed in him, according to tho
several powers and authorities granted or appointed him by virtue of the
said Letters-Patent, and of such Commission as may be issued to him
under Our Sign Manual and Signet, and according to such Instructions
as may from time to time be given to him, under Our Sign-Manual and
Signet, or by Our Order in Our Privy Council, or, by Us through One of
Our Principal Secretaries of State, and to such Laws as are or shall
hereafter be in force in Our said Dominion ;
Now, therefore. We do, by these. Our Instructions, under Our Sign-
Manual and Signet, declare Our pleasure to be that Our said Governor-
General for the time being shall, with all due solemnity, cause Our
Commission, under Our Sign-Manual and Signet, appointing Our said
Governor-General for the time being, to be read and published in the
pretance of the Chief Justice for the time being, or other Judge of the
Supreme Court of Our said Dominion, and of the members of the Privy
■Council in Our said Dominion:
084 APPENDIX.
And We do further declare Our pleasure to be that Our said Governor-
General, and every other Officer appointed to administer the Government
of Our said Dominion, shall tak6 the Oath of Allegiance in the form
provided by an Act passed in the Session holden in the thirty-first and
thirty-second years of Our Keign, intituled : " An Act to Amend the Law
relating to Promissory Oaths ;" and likewise that he or they shall take the
usual Oath for the due execution of the Office of Our Governor-General in
and over Our said Dominion, and for the due and impartial administration
of justice; which Oaths the said Chief Justice for the time being, of Our
said Dominion, or, in his absence, or in the event of his being otherwise
incapacitated, any Judge of the Supreme Court of Our said Dominion
shall, and he is hereby required to tender and administer unto him or
them.
II. And We do authorize and require Our said Governor-General
from time to time, by himself or by any other person to be authorized by
Iiim in that behalf, to administer to ail and to every persons or person
as he shall think fit, who shall hold any office or place of trust or profit
in Our said Dominion, the paid Oath of Allegiance, together with such
other Oath or Oaths as may from time to time, be prescribed by any
Laws or Statutes in that behalf made and provided.
III. And We do require Our said Governor-General to communicate
forthwith to the Privy Council for Our said Dominion these Our Instruc-
tions, and likewise all such others from time to time as he shall find con
venient for Our service to be imparted to them.
IV. Our said Governor-General is to take care that all laws assented
to by him in Our name, or reserved for the signification of Our pleasure
thereon, shall, when transmitted by him, be fairly abstracted in the-
margins, and be accompanied, in i^uch cases as may seem to him neces-
sary, with such explanatory observations as may be required to exhibit
the reasons and occasions for proposing such Laws ; and he shall also
transmit fair copies of the Journals and Minutes of the proceedini fi of
the Parliament of Our said Dominion, which he is to require from the
clerks, or other proper officers in that behalf, of the said Parliament.
V. And We do further authorize and empower Our said Governor-
General, as he shall see occasion, in Our name and on Our behalf, when
any crime has been committed for which the offender may be tried
within Our said Dominion, to grant a pardon to any accomplice not being
the actual perpetrator of such crime, who shall give such information as.
shall lead to the conviction of the principal offender ; and further, to grant
to any offender convicted of any crime in any Court, or before any Judge,
Justice, or Magistrate, within Our said Dominion, a pardon, either free
or subject to lawful conditions, or any respite of the execution of the
sentence of any such offender, for such period as to Our said Governor-
General may seem fit, and to remit any fines, penalties, or forfeitures-
APPENDIX. 685
which may become due and jjayable to Us. Provided always, that Our
said Governor- General shall not in any case, except where the offence has
been of a political nature, make it a condition of any pardon or re-
mission of sentence that the offender shall be banished from or shall
absent himself from Our said Dominion. And We do hereby direct and
enjoin that Our said Governor-General shall not pardon or reprieve any
such offender without first receiving in capital cases the advice of the
Privy Council for Our said Dominion, and in other cases the advice of
one, at least, of his Ministers ; and in any case in which such pardon or
reprieve might directly aft'ect the interests of Our Empire, or of any-
country or place beyond the jurisdiction of the Government of Our said
Dominion, Our said Governor- Generai shall, before deciding as to either
pardon or reprieve, take those interests specially into his own personal
consideration in conjunction with such advice as aforesaid.
VI. And whereas great prejudice may happen to Our service and to-
the security of Our said Dominion by the absence of Our said Governor-
General, he shall not, upon any pretence whatever, quit Our said
Dominion without having first obtained leave from Us for so doing undei'
Our Sign-Manual and Signet, or through one of Our Principal Secretariea
of State.
V.R.
APPENDIX IV.
QUEBEC CONFERENCE RESOLUTIONS, 1864.
1. The best interests and present and future prosperity of British
North America will be promoted by a federal union, under the Crown of
Great Britain, provided such union can be effected on principles just to
the several Provinces.
2. In the federation of the British North American Provinces, the
system of Government best adapted under existing circumstances to pro-
tect tlie diversified interests in the several Provinces, and secure efficiency,
harmony and permanency in the working of the union, would be a general
Government, charged with matters of common interest to the whole
country ; and Local Governments for each of the Canadas, and for the
Provinces of Nova Scotia, New Brunswick, and Prince Edward Island,
charged with the control of local matters in their respective sections ;
provision being made for the admission into the union, on equitable
terms, of Newfoundland, the North- West Territory, British Columbia,
and Vancouver.
3. In framing a constitution for the general Government, the Confer-
ence, with a view to the perpetuation of our connection with the mother
country, and to the promotion of the best interests of the people of these
Provinces, desire to follow the model of the British constitution so far
as our circumstances will permit.
4. The Executive authority or government shall be vested in the
Sovereign of the United Kingdom of Great Britain and Ireland, and be
administered according to the well-understood principles of tlie British
constitution, by the Sovereign personally, or by the representative of the
Sovereign duly authorized.
5. The Sovereign or Efepresentative of the Sovereign shall be Com-
mander in Chief of the land and naval militia forces.
6. There shall be a General Legislature or Parliament for the
federated Provinces, composed of a Legislative Council and a House of
Commons.
7. For the purpose of forming Ihe Legislative Council, the federated
Provinces shall be considered as consisting of three divisions: Ist, Upper
APPENDIX. 687"
Canada, 2nd, Lower Canada, 3rd, Nova Scotia, New Brunswick, and
Prince Edward Island ; each division with an equal representation in
the Legislative Council.
8. Upper Canada shall be represented in the Legislative Council by
24 members, Lower Canada by 24 members, and the three maritime^
Provinces by 24 members, of which Nova Scotia shall have 10, New
Brunswick 10, and Prince Edward Island 4 members.
9. The Colony of Newfoundland shall be entitled to enter the pro-
posed union, with a representation in the Legislative Council of 4
members.
10. The North-West Territory, British Columbia and Vancouver
shall be admitted into the union on such terms and conditions as the
Parliament of the federated Provinces shall deem equitable, and as shall
receive the assent of Her Majesty ; and, in the case of the Province of
British Columbia or Vancouver, as shall be agreed to by the Legislature
of such Province.
11. The members of the Legislative Council shall be appointed by the
Crown under the great seal of the general government, and shall hold
office during life ; if any Legislative Councillor shall, for two consecutive
sessions of Parliament, fail to give his attendance in the said Council,
his seat shall thereby become vacant.
12. The members of the Legislative Council shall be British subjects
by birth or naturalization, of the full age of thirty years, shall possess a
continuous real property qualification of four thousand dollars over and
above all incumbrances, and shall be and continue worth that sum over
and above their debts and liabilities, but in the case of Newfoundland
and Prince Edward Island the property may be either real or personal.
13. If any question shall arise as to the qualification of a Legislative
Councillor, the same shall be determined by the Council.
14. The first selection of the members of the Legislative Council shall
be made, except as regards Prince Edward Island, from the Legislative
Councils of the various Provinces, so far as a sufficient number be
found qualified and willing to serve ; such members shall be appointed
by the Crown at the recommendation of the general executive Govern-
ment, upon the nomination of the respective local Governments, and in
such nomination due regard shall be had to the claims of the members of
the Legislative Council of the opposition in each Province, so that all
political parties may as nearly as possible be fairly represented.
15. The Speaker of the Legislative Council (unless otherwise provided
by Parliament) shall be appointed by the Crown from among the mem-
bers of the Legislative Council, and shall hold office during pleasure, and
shall only be entitled to a casting vote on an equality of votes.
(>38 APPENDIX.
16. Each of the twenty-four Legislative Councillors representing
Lower Canada in the Legislative Council of the general Legislature,
Ethall be appointed to represent one of the twenty-four electoral divisions
mentioned in Schedule A of chapter first of the Consolidated Statutes of
tJanada, and such Councillor shall reside or possess his qualification in
the division he is appointed to represent.
17. The basis of representation in the House of Commons shall be
population, as determined by the official census every ten years ; and the
number of members at first shall be 194, distributed as follows : —
Upper Canada 82
Lower Canada 05
Nova Scotia 19
New Brunswick 15
Newfoundland 8
Prince Edward Island 5
18. Until the official census of 1871 has been made up, there shall be
no change in the number of representatives from the several sections.
19. Immediately after the completion of the census of 1871, and im-
mediately after every decennial census thereafter, the representation
from each section in the House of Commons shall be readjusted on the
basis of population.
20. For the purpose of such re-adjustments, Lower Canada shall
always be assigned sixty-five members, and each of the other sections
shall at each re-adjustment receive, for the ten years then next succeed-
ing, the number of members to which it will be entitled on the same
ratio of representation to population as Lower Canada will enjoy accord-
ing to the census last taken by having sixty-five members.
21. No reduction shall be made in the number of members returned
"by any section, unless its population shall have decreased, relatively to
the population of the whole Union, to the extent of five per centum.
22. In computing at each decennial period the number of members
to which each section is entitled, no fractional parts shall be considered,
iinless when exceeding one-half the number entitling to a member, in
which case a member shall be given for each such fractional part.
23. The Legislature of each Province shall divide such Province into
the proper number of constituencies, and define the boundaries of each
of them.
24. The local Legislature of each Province may, from time to time,
alter the electoral districts for the purposes of representation in such
local Legislature, and distribute' the representatives to which the Prov-
ince is entitled in such local Legislature, in any manner such Legislature
may see fit.
APPENDIX. O.Sf)
25. The number of members may at any time be increased by tlie
general Parliament,— regard being had to the proportionate rights then
existing.
20. Until provisions are made by the General Parliament, all the laws
■which, at the date of the proclamation constituting the Union, are in
force in the I'rovinces respectively, relating to the (jualitication and dis-
qualification of any person to be elected, or to sit or vote as a member
of the Assembly in the said Provinces respectively ; and relating to the
qualification or disqualification of voters and to the oaths to be taken
by voters, and to returning officers and their powers and duties,— and
relating to the proceedings at elections, and to the period during which
such elections may be continued, — and relating to the trial of controverted
elections, and the proceedings incident thei'eto, — and relating to the
vacating of scats of members, and to the issuing and execution of new
writs, in case of any seat being vacated otherwise than by a dissolution,
— shall respectively apply to elections of members to serve in the House
of Commons, for places situate in those Provinces i*espectively.
27. Every House of Commons shall continue for five years from the
day of the return of the writs choosing the same, and no longer; subject,
nevertheless, to be sooner prorogued or dissolved by the Governor.
28. There shall be a session of the general Parliament once, at least,
in every year, so that a period of twelve calendar months shall not inter-
vene between the last sitting of the general Parliament in one <!)ession,
and the first sitting thereof in the next session.
29. The general Parliament shall have power to make laws for the
peace, welfare, and good government of the federated provinces (saving
the sovereignty of England), and especially laws respecting the following
subjects : —
(1) The public debt and property.
(2) The regulation of trade and commerce.
(3) The imposition or regulation of duties of customs on imports and
exports,— except on exports of timber, logs, masts, spars, deals
and sawn lumber from New Brunswick, and of coal and other
minerals from Nova Scotia.
(4) The imposition or regulation of excise duties.
(5) The raising of money by all or any other modes or systems of
taxation.
(6) The borrowing of money on the public credit. . .
^7) Postal service.
(8) Lines of steam or other ships, railways, canals and other works,
connecting any two or more of the Provinces together or ex-
tending beyond the limits of any Province.
OtO APPENDIX.
(0) Lines of steamships between the federated provinces and other
countries.
(10) Telegraphic communication and the incorporation of telegraphic
companies.
(11) All such works as shall, although lying wholly within any Pro-
vince be specially declared by the Acts authorizing them to be
for the general advantage.
(12) The census.
(18) Militia — military and naval service and defence.
(14) Beacons, buoys and light houses.
(15) Navigation and shipping.
(16) Quarantine.
(17) Sea-coast and island fisheries.
(18) Ferries between any province and a foreign country, or between
any two provinces.
(19) Currency and coinage.
(20) Banking — incorporation of banks, and the issue of paper money.
(21) Savings banks.
(22) Weights and measures.
(23) Bills of exchange and promissory notes.
(24) Interest.
(25) Legal tender.
(26) Bankruptcy and insolvency.
(27) Patents of invention and discovbry.
(28) Copyrights.
(29) Indians and lands reserved for the Indians.
(30) Naturalization and aliens.
(31) Marriage and divorce.
(32) The criminal law, excepting the constitution of courts of criminal
jurisdiction, but including the procedure in criminal matters.
(33) Rendering uniform all or any of the laws relative to property and
civil rights in Upper Canada, Nova Scotia, New Brunswick,
Newfoundland, and Prince Edward Island, and rendering
uniform the procedure of all or any of the courts in these Pro-
vinces ; but any statute for this purpose shall have no force or
authority in any Province until sanctioned by the Legislature
thereof.
(34) The establishment of a general Court of Appeal for the federated
Provinces.
(35) Immigration.
(36) Agriculture.
APPENDIX. 641
^87) And generally respecting all matters of a general cliaracter, not
specially and exclusively reserved for the local Governments
and Legislatures.
30. The general Government and Parliament shall have all powers
necessary or proper for performing the obligations of the federated Pro-
vinces, as part of tho British Empire, to foreign countries arising under
treaties between Great Britain and such countries.
31. The general Parliament may also, from time to time, establish
additional courts, and the general Government may appoint judges and
officers thereof, when the same shall appear necessary or for the public
advantage, in order to the due execution of the laws of Parliament.
32. All courts, judges and officers of the several Provinces shall aid,
assist and obey the general Government in the exercise of its rights and
powera, and for such purposes shall be held to be courts, judges and
officers of the general Government.
33. The general Government shall appoint and pay the judges of the
Superior Courts in each Province, and of the County Courts in Upper
-Canada, and Parliament shall fix their salaries.
34. Until the consolidation of the laws of Upper Canada, New Bruns-
wick, Nova Scotia, Newfoundland and Prince Edward Island, the
judges of these Provinces appointed by the general Government shall be
selected from their respective bars.
35. The judges of the courts of Lower Canada shall be selected from
the bar of Lower Canada.
36. The judges of the Court of Admiralty now receiving salaries
bhall be paid by the general Government.
37. The judges of the Superior Courts shall hold their offices during
good behaviour, and shall be removable only on the address of both
Houses of Parliament.
LOCAL GOVERNMENT.
38. For each of the Provinces there shall be an executive officer,
styled the Lieutenant-Governor, who shall be appointed by the Governor-
General in Council, under the Great Seal of the federated Provinces,
during pleasure ; such pleasure not to be exercised before the expiration
of the first five years, except for cause ; such cause to be communicated
in writing to the Lieutenant-Governor immediately after the exercise of
the pleasure as aforesaid, and also by message to both Houses of Parlia-
ment, within the first week of the first session afterwards.
39. The Lieutenant-Governor of each Province shaP be paid by the
general Government.
Can. Con. — 41
642 APPENDIX.
40. In undertakinfj to pay the salaries of the Lieutenant-Governors^
the Conference does not desire to prejudice the claim of Prince Edward
Island upon the Imperial Government for the amount now paid for the
salary of the Lieutenant-Governor thereof.
4L The local Government and Legislature of each Province shall be
constructed in such manner as the existing Legislature of such Province
shall provide.
42. The local Legislatures shall have power to alter or amend their
constitution from time to time.
43. The local Legislatures shall have power to make laws respecting
the following subjects : —
(1) Direct taxation, and in New Brunswick the imposition of duties
on the export of timber, logs, masts, spars, deals and sawn
lumber ; and in Nova Scotia, on coals and other minerals.
(2) Borrowing money on the credit of the Province.
(3) The establishment and tenure of local offices, and the appoint-
ment and payment of local officers.
(4) Agriculture.
(5) Immigration.
(6) Education ; saving the rights and privileges which the Protestant
or Catholic minority in both Canadas may possess as to their
denominational schools, at the time when the union goes into
operation.
(7) The sale and management of public lands excepting lands belong-
ing to the general Government.
(8) Sea-coast and inland fisheries.
(9) The establishment, maintenance and management of peniten-
tiaries, and of public and reformatory prisons.
(10) The establishment, maintenance and management of hospitals,
asylums, charities and eleemosynary institutions.
(11) Municipal institutions.
(12) Shop, saloon, tavern, auctioneer and other licenses.
(13) Local \vorks.
(14) The incorporation of private or local companies, except such a»
relate to matters assigned to the general Parliament.
(15) Property and civil rights, excepting those portions thereof
assigned to the general Parliament.
(16) Inflicting punishment by fine, penalties, imprisonment or other-
wise, for the breach of laws passed in relation to any subject
within their jurisdiction.
APPENDIX. 643
(17) Tht admiiiistration of justice, including Jtlie constitution, main-
tenance Tand organization of the courts,— both of civil and
criminal jurisdiction, and including also tlie procedure in civil
matters.
(18) And generally all matters "of a private or local nature, not
assigned to the general Parliament.
44. The power of I'espiting, reprievin'^, and pardoning prisoners con-
victed of crimes, and of commuting and remitting of sentences in whole or
in part which belongs of right to the Crown, shall be administered by
the Lieutenant-Governor of each Province in Council, subject to any in-
structions he may, from time to time, receive from the general Govern-
ment, and subject to any provisions that may be made in this behalf by
the general Parliament.
MI8CELLANK0US.
45. In regard to all subjects over which jurisdiction belongs to both
the general and local Legislatures, the laws of the general Parliament
shall control and supersede those made by the local Legislature, and the
latter shall be void so far as they are repugnant to or inconsistent with,
the former,
46. Both the English and French languages may be employed in the
general Parliament and in its proceedings, and in the local Legislature of
Lower Canada, and also in the Federal courts, and in the courts of
Lower Canada.
47. No lands or property belonging to the general or local Govern-
ments shall be liable to taxation.
48. All bills for appropriating any part of the public revenue, or for
imposing any new tax or impost, shall originate in the House of Com-
mons or House of Assembly, as the case may be.
49. The House of Commons or House of Assembly shall not originate
or pass any vote, resolution, address or bill for the appropriation of any
part of the public revenue, or of any tax or impost to any purpose, not
first recommended by message of the Governor-General or the Lieuten-
ant-Governor, as the case may be, during the session in which such vote,
resolution, address or bill is passed.
50. Any bill of the general Parliament may be reserved in the usual
manner for Her Majesty's assent, and any bill of the local Legislatures
may, in like manner, be reserved for the consideration of the Governor-
General.
51. Any bill passed by the general Parliament shall be subject to dis-
allowance by Her Majesty within two years, as in the case of bills passed
by the Legislatures of the said Provinces hitherto ; and, in like manner,.
()44 APPENDIX.
any bill passed by a local Legislature shall be subject to disallowance by
the Governor-General within one year after the passing thereof.
52. The seat of Government of the federated Provinces shall be
Ottawa, subject to the Royal prerogative.
53. Subject to any future action of the respective local Governments,
the seat of the local Government in Upper Canada shall be Toronto ; of
Lower Canada, Quebec ; and the seats of the local Governments in the
■other Provinces shall be as at present.
PKOPEUTY AND LIABILITIES.
54. All stocks, cash, bankers' balances and securities for money be-
longing to each Province at the time of the Union, except as hereinafter
mentioned, shall belong to the general Government.
55. The following public works and property of each Province shall
belong to the general Government, to wit : —
(1) Canals.
(2) Public harbours.
(3) Light houses and piers.
(4) Steamboats, dredges and public vessels. '
(5) River and lake improvements.
(G) Railway and railway stocks, mortgages and other debts due by
railway companies.
{7) Military roads.
(8) Custom houses, post offices and other public buildings, except
such as may be set aside by the general Government for the use
of the local Legislatures and Governments.
(9) Property transferred by the Imperial Government and known as
ordnance property.
(10) Armories, drill sheds, military clothing and munitions of war ;
and
(^11) Lands set apart for public purposes.
56. All lands, mines, minerals and royalties vested in Her Majesty in
the Provinces of Upper Canada, Lower Canada, Nova Scotia, New
Brunswick and Prince Edward Island, for the use of such Provinces,
shall belong to the local Government of the territory in which the same
•are so situate ; subject to any trusts that may exist in respect to any
of such lands or to any interest of other persons in respect of the same.
67. All sums due from purchasers or lessees of such lands, mines or
minerals at the time of the Union, shall also belong to the local Govern-
ments.
APPENDIX. 645
58. All assets connected with sach portions of the public debt of any
Province as are assumed by the local Gov'>'*nment8 shall also belong
to those Governments respectively.
59. The several Provinces shall retain all other public property
therein, subject to the right of the general Government to assume any
lands or public property required for fortifications or the defence of the
country.
60. The general Government shall assume all the debts and liabilities
of each Province.
61. The debt of Canada, not specially assumed by Upper and Lower
Canada respectively, shall not exceed, at the time of tlie Union, $62,500,-
000; Nova Scotia shall enter the Union with a debt not exceeding
$8,000,000 ; and New Brunswick with a debt not exceedinj^ $7,000,000.
62. In case Nova Scotia or New Brunswick do not incur liabilities
beyond those for which their Governments are now bound, and which
shall make their debts at the date of union less than $8,000,000 and
$7,000,000 respectively, they shall be entitled to interest at five per cent,
on the amount not so incurred, in like manner as is hereinafter pro-
vided for Newfoundland and Prince Edward Island ; the foregoing
resolution being in no respect intended to limit the powers given to th©
respective Governments of those Provinces, by Legisl itive authority,,
but only to limit the maximum amount of charge to be assumed by the-
general Government ; provided always, that the powers so conferred by the
respective Legislatures shall be exercised within five years from this
date, or the same shall then lapse.
6.S. Newfoundland and Prince Edward Island, not having incurred
debts equal to those of the other Provinces, shall be entitled to receive,
by half-yearly payments, in advance, from the general Government, the
interest at five per cent, on the difference between the actual amount of
their respective debts at the time of the Union, and the average amount
of indebtedness per head^of the population of Canada,' Nova Scotia and
New Brunswick.
64. In consideration of the trasfer to the general Parliament of the
powers of taxation, an annual grant in aid of each Province shall be
made, equal to eighty cents per head of the population, aa established by
the census of 1861 ; the population of Newfoundland being estimated at
130,000. Such aid shall be in full settlement of all future demands upon
the general Government for local purposes, and shall be paid half-yearly
in advance to each Province.
65. The position of New Brunswick being such as to entail large im-
mediate charges upon her local revenues, it is agreed that for the period
of ten years, from the time when the Union takes effect, an additional
64« APPENDIX.
allowance of 963,000 per annum shall be made to that Province. But
that 80 long as the liability of that Province remains under 17,000,000, a
deduction equal to the interest of such deliciencjf shall be made from the
«Ga,000.
66. In consideration of the surrender to the general Government, by
Newfoundland, of all its rights in mines and minerals, and of all the un-
granted and unoccupied lands of the Crown, it is agreed that the sum of
$150,000 shall each year be paid to that Province, by semi-annual pay-
ments ; provided that that Colony shall retain the right of opening, con-
structing and controlling roads and bridges through any of the said
lands, subject to any laws which the general Parliament may pass i
respect of the same.
67. All engagements that may, before the Union, be entered into with
the Imperial Government for the defence of the country, shall be assumed
toy the general Government.
68. The general Government shall secure, without delay, the com-
pletion of the Intercolonial Railway from Riviere du Loup, through New
Brunswick, to Truro in Nova Scotia.
69. The communications with the North -Western Territory, and the
improvements required for the development of the trade of the great west
witli the seaboard, are regarded by this conference as subjects of the
highest impol'tance to the federated Provinces, and shall be prosecuted
at the earliest possible period that the state of the finances will permit.
70. The sanction of the Imperial and local Parliaments shall be
sought for the union of the Provinces, on the principles adopted by the
Conference.
71. That Her Majesty the Queen be solicited to determine the rank
And name of the federated Provinces.
72. The proceedings of the Conference shall be authenticated by the
■signatures of the delegates, and submitted by each delegation to its own
Government ; and the Chairman is authorized to submit a copy to the
Governor-General for transmission to the Secretary of State for the
Colonies.
INDEX.
GENERAL INDEX.
(Note. — On pp. 204 and 205, we have placed side by side, for con-
venience of reference and comparison, sections 91 and 92 of
. the B. N. A. Act, containing an enumeration of the various
subjects committed to the parliament of Canada and the
provincial legislatures, respectively. By reference to the
head lines adopted throughout chapter XII. any given sub-
section of section 91 or 92 can be quickly found.)
A.
ADMINISTRATION OF JUSTICi:— .Sir- Judicial System
ADMINISTRATOR—
of Dominion government, in absence, etc., of Governor-General, 25S'
(see Letters Patent in Appendix)
of Provincial government in absence, etc., of Lieut.-Governor, 321
{See Deputy.)
ADMISSION OF OTHER COLONIES OF B. N. A., 545-6
{See Part IV.)
AGRICULTURE. 512
zVLIENS — See Naturalization and Aliens
APPOINTMENT TO OFFICE—
powers of Governor-General in relation to, 105, 166-8
federal officers — See Offices and Officers
provincial " — '* •'
{See also the various offices.)
APPROPRIATION AND TAX BILLS—
must originate in Commons, 298
on recommendation of Crown, 298
provincial legislatures, 3-41
•650 INDEX.
APPROPRIATION, POWER OF—
importance of, in securing responsible f^ovemment, 35, 37
results of colonial , stem, 37
concession of, to pre-Confedoration provinces, 39, 40, 350, 525
" tenure-of office " question thei'eby solved, 38, 40, 435
of parliament of Canada over Cons. Rev. Fund, 517
of provincial legislatures over provincial, 524
ASSEMBLYS, EARLY— See Piie-Con federation PnovixcES
ASSENT TO BILLS—
of Parliament of Canada, 147, 299
of provincial legislatures, 341
contrary to instructions, 148
{See Colonial Laws Validity Act)
ATTORNEY-GENERAL—
position of provincial, 311, 402
B.
B. N. A. ACT, imi—See pp. 241-546
limitation of preamble to " general " government only, 3, 242
Dicey's criticism of, 3, 172
constrnctivs clauses compared with " Constitutional Acts " for other
colonies— same tyjie, 52, 54
scheme of, could not have been effected, except by Act of Parlia-
ment, 242
truly federal, 43, 47, 245, 423
Division of the Field — See chapter X.
for legislative purposes, fixes division for executive, 199
body of pre-existing laws divided, 200, 410, 535
exhaustive, 201, 345
line of division enforced by courts, 11, 193, 202
principles enunciated in earlier decisions of Supreme Court, 20fi
rejected by Privy Council, 207
certain general rules discussed, 210, 219
sections 91 and 92 to be read together, 210
other Imperial Acts in pari materia, 212, 357, 461
true nature of enactment to be considered, 212
possibility of power being abused, no reason for denying its
existence, 213, 386, 434
subjects in one aspect may fall within section 91, in another
within section 92 ; 213, 467, 484-5
concurrent powers, 214 —See Concurrent Powers.
jjreaumption for validity, 21 •
INDEX. (Jol
B. N. A. ACT, imi— Continued.
Quebec Re&olutiona— liow far to be utilizerl, 219
United States decisions — how far useful, 220
{See PnK-CoNFKDKiiATioN PuoviNCEs, Phovincial Constitutions,
Pahliament of Canada, etc., etc.)
BAGEHOT—
on the fusion of lej^islative and executive departments in England, 1')
on the House of Lords, 208
BICAMERAL FORM OF LEGISLATURE, 326
(See Senate)
BILLS — See Assent to Bills, Rkseuved Bills
BREWERS— .St'<? Liquor Traffic
BRITISH CONSTITUTION—
compared with that of United States, 5, et seij.
federal idea, in Imperial aspect of, 5, 8, 250
upheld by " Conventions," 7
common to both United States and, 12
supremacy of law " " " 12, 14
" literary theory " of division of power^in, 14, 29
Bagehot combats, 15
embodied in United States system, 17
executive responsibility to parliament the essential feature ff, 1(5
in Canada, 22
difference, in this respect in United States system, 12, 20
(.See Cabinet, Division of Power, Conventions of the Constitu-
tion, Federalism, Rule of Law, etc.)
BRITISH COLONY— Sec Colony
BRITISH COLUMBIA—
order in Council admitting to Union, 004
provincial constitution, 012, 014,
English law in — See England, Law of
BRITISH GOVERNMENT— See Lmperial Executive Authority
BRITISH LAW— See England
BRITISH PARLIAMENT— See Imperial Parliament
C.
CABINET—
in England, 15
connects legislative and executive departments, 15, 334
United States system, 12, 20
G52 INDEX.
CABINET— C'oHNH/u'rf.
British syatem in CanaJn, 23, 334
in the provinces, 60, 51, 334
in the pre-Confederation provinces, 41
{See Pbivy Councii. fou Canaka, Executivk Council)
CA.NADA-
constitution of, compared with British and United States, 2, 20
general view, 1
truly federal, 43, 47, 245, 423
similar in principle to that of^United Kingdom, 2, 21
(See B.N. A. Act)
CANADA (Old)—
severed by B. N. A. Act, 247
argument founded on clauses relating to, 46
legislative power of parliament of, GO, et seq.
statutory powers of governors, etc., vested in both Governor-
General and Lieut.-Governors of Ontario and Quebec, 256, 31&
(See Phe-Confedeuation Pkovinces)
CAPE BRETON, 27
CAPITALS — See Seats of Government
CENSUS, 248
CHINESE — See Natuiialization and Aliens
COLONY—
federalism in colonial system, 5, 8, 250
primd facie British statutes not operative in, 7, 57, 185
(See Colonial Laws Validity Act)
comparison of Constitutional Acts for the colonies, 52, 54
results of our stutns as a, Part II., 54, et seq.
legislative power in a — See Colonial Legislative Power
COLONIAL LAWS VALIDITY ACT, 1865— (28 & 29 Vic. c. 63— S^e
Act in Appendix)
canon as to extension of Acts of British Parliament to colonies, 7,
57, 186
"repugnancy" clauses, 59, 379
assent to Bills contrary to " instructions," 148
power of colonial legislatures to alter constitution of legislature*
280, 327, 422, 014
legislate as to procedure, etc., ib.
proof of colonial laws, 195
earlier Acts along same line, 63, 64, 421
INDEX. ' 653
COLONIAL LKGI8LATIVE POWER—
supreme within limits of subjects and area, 177, et »fii., 194
principle applicable to both Dominion unci Provincial le^'ishi-
tures, IHI-H, 1J)4, 201-2, .124
of parliament of Canada over N. W, Territories, IH'A, 347, 554-5
subject to 80verei<^nty of Eni;Iand, 18;^-5, 1<,)2, 215
limitations in respect of subject-matter, 7, 74
military matters, 'Al^-S)
navigation, 381
copyright, 403
aliens, 400
territorial limits, 185, et »eq.
Canadian authorities, 188
a question of jurisdiction, 108
for the determination of courts of law, 11, 193, 202
division of the field in Canada— .SVe B. N. A. Act
in reference to " prerogatives " — See Puerooativeh
(See Parliament of Canada, PiioviNciAii Leoislatciies)
COLONIAL SYSTEM— .S>e Pue-Confedeiiation Provinces, Taxation
COMMONS— Sfe House of Commons
COMPANY—
power of parliament of Canada in reference to incorporation of,
353, 449
(See Notes to B. N, A. Act, s. 92, ss. 10 and 11)
Dominion, how far subject to provincial law, 353, 453, et xeq., 4(54
•
CONCURRENT POWERS—
question discussed, 214-7, 407, 480, 484
in relation to insolvency legislation, 216, 392
liquor traffic, 216
banks, etc., 215
bills of lading, 875
agriculture and immigration, 512
CONTINUATION OF LAWS, ETC., EXISTING AT UNION, 200,
634, 5bd—See B. N. A. Act
CONVENTIONS OF THE CONSTITUTION—
federalism in colonial system, upheld by, 7
in relation to legislation by Imperial parliament for Canada, 66
executive responsibility to parliament of United Eing-
• dom, 16
same principle in pre-Confederated provinces, 41
applies to Dominion executive, 42, 320
and to provincial executive, 51, 320
'how far based on legal sanction, 16 (n)
054 1X11EX.
COURTS OF LAW-
eiiforcetnont by, of legal limitations upon both leginhitivo and
exocutivo action, 11, 22.H
legal limitatioHH upon Imperial executive
authority, 11
legal limitations upon colonial legiHJative
authority, 11, HW, 202
intoriiational comitj' as rocognizud by, 22 If)
jurisdiction of, territorially and otherwise, 225
(Sec Judicial System of Canada)
CRIMINAL LAW, 407, 418—
meaning of term in Canadian jurisprudonco limited, 40.S, 478, .7 xeq
common law crimos assigned to Dominion parliament, 410
pre-Confodenition laws, how divided, 410
•'procedurn," 2:«r», 415
ditlicult to distinguish from "organization,"' 410-8, 408
constitution of courts, 408
(See Penal Laws ok Phovinceh, Judicial System)
CROWN—
of England, succession to, 244
power of Imperial parliament over, 134, 244
colonial legislature no power over, 184, 245
{See Prerooatives of the Cuown)
D.
DENOMINATIONAL SCHOOLS— SVe Separate Schools
DEPUTY GOVERNOR-GENERAL, 258
Lieut.-Governor, power to appoint, 321
DICEY (Prof. A. V.)—
his criticism of B. N. A. Act, 3
on the supremacy of parliament, 16
power of disallowance, 172
position of Colonial legislatures, 174 (n)
on federalism, 175
DIRECT TAXATION— See B. N. A. Act, sec. 92, s-s. 2
What is? 425, et $eq.
provincial powers of taxation limited to, 431
{See Licenses.)
DISALLOWANCE—
of Acts of parliament of Canada, 146, et seq.
" conventional " limits, 146, 174
provisions of B. N. A. Act, 147-9, 299
INDEX. 055
DlHXLUmANCE- Continued.
of Acta of provincial letjiHlaturea, 171, 342
after liipMo of yuar, nothiuf^ but Imp. Act can affect, 843
renponHibility for, to Parliament 23
powei' of, not intenrled to obviate neoosHity for resort to
courts, 172. 342. 31(7
noboarin^j on (piestion of validity, //*.
DIVISION OF POWER—
betweon lej^iHlative and executive departments, 11, et »vq,
" litorai-y theory " as to, in Knjiland, 14, 29 . '
Haf{ehoton, Ih
embodied in United States Hystem, 17
carried out in early ^'overnment of colonies, 31
(Sec BuiTisH CoNHTiTUXioN, Uni'ied States Conhtitijtiox)
under a federal system
expression criticized, 21, 4.'>, 51, 257
DIVISION OF THE FIELD-(chapter IX.)
in Canada
(See B. N. A. Act, Parliament of Canada, Provinciai- Leg.sla-
TUUES.
DROIT ADMINISTRATIF -
in France and Switzerland, 14
DOMINION EXECUTIVE-248, et tcq.
responsibility to parliament for disallowance of provincial Acts, 23
appointment and removal c* Lieut. -Governors— See Lieut. -Governor
relations to Lieut.-Governors, 307-8, .309, 320 '• "
(See Cabinet, Governor-General, Privy Council for Canada)
E.
EDUCATION— 489, et seq. • '
ELECTIONS—
pre-Confederation laws as to, continued, 284, 335, 619
to House of Commons, 283, 291
power of Dominion parliament to legislate respecting, 289
Dominion and provincial systems dissevered, 286
voters at, 286
Revising officers, 286
not subject to supervision of provincial courts, 240, 286
(See Judicial System.)
right to vote, not a civil right within B. N. A. Act, a. 92 (s-s..
13), 286-7
'656 INDEX.
ELECTIONS— CoHtiHwerf.
controverted elections, trial of, 288
not part of "the administration of justice," 287
transferred to courts, 288-290
not subject to review in P. C, 289
to provincial assemblies, 385
voters, 286
controverted elections, 288
to municipal councils, 445
controverted elections, provincial Jej^islature may legislate as to,
445
EMPLOYERS' LIABILITY ACTS—
power of provincial legislature to pass, 375
ENGLAND, LAW OF—
how far introduced into provinces, 75-128
N. W. Territories, 580-2
Manitoba, 597-601
British Columbia, 615-6
operative only in absence of Canadian legislation, 77
Nova Scotia decisions, 77-92
statutes creating charge in favor of Crown, 78
in curtailment of prerogative, 87
how colonial legislation affects the question, 88
certain statutes recognized without question, 90
Statute of Uses, but not of Enrolment, 90
Magna Charta, 90
Statute of Staples, 90
Partition Acts of Henry VIII., 90
Fraudulent Conveyances, 90
review of, 91
New Brunswick decisions, 92-94
Statute of Uses and Enrolment, 92
Mortmain, 93
other statutes, 93
review, 94 •
•Ontario, 94-128
English law introduced by Canadian Enactment, 95, 96, 127, 128
difference between " civil " and " criminal " law, 96-7, 122
certain Acts recognized without question, 97
statutes as to apprentices, 98
review, 100
certiorari, 100
Mortmain Acts, 101, et seq.
Marriage Acts, ] 16
review, 119
INDEX. 657
ENGLAND, LAW OF— Continued.
Acts of local application in Eng. not intrclnced, 120
criminal laws, 122, et seq.
general review of Ontario cases, 126
as to prerogatives, 139
(See Table of Imperial Statutes)
ESCHEATS, 528
EVIDENCE—
taking of, for use before foreign courts, 346
powers of Dominion and provincial legislatures, 471-5
" EXCLUSIVE "—
term in section 91 B. N. A. Act, not intended as a renunciation by
Imperial parliament of its legislative supremacy, ()7, 37;*
refers to relations between Dominion and provinces, 67, 350, 379
{See Imperial Parliament)
EXECUTIVE AUTHORITY—
subordinate to legislature, 12, 46, 137, 144
and legislative, co-extensive, ib., 199, 302, 437
contention to the contrary noticed, 45, 301
limitations upon, enforced by courts, 11, 202
in provinces, 45, 49-51, 301
{See Liect.-Governok)
unity of, throughout the Empire, 249, 303
in Canada vested in the Queen, 248
in reference to our judicial system, anomalous position of, 470
(See Imperial Executive Authority, Dominion Executive)
EXECUTIVE COUNCIL—
Ontario and Quebec, 310
Nova Scotia and New Brunswick, 313
North-West Territories, 568
Manitoba, 591
British Columbia, 612, 614
Prince Edward Island, 623
liability of members of, 312
EXECUTIVE RESPONSIBILITY—
to electorate through parliament, the British principle, 16
" " " Canadian " 22
*• directly, the United States principle, 17
lack of, to congress, of United States executive, 18
growth of principles, of in pre-confederated provinces, 29-40
Can. Con.— 42
65S INDEX.
EXECUTIVE RESPONSIBILITY -CoH^HMCrf.
secured by concesRion of control of revenue, 35, 40, 330, 525
statutes relating to, 40
" ten ure-of -office," clespatcheH, etc., 40, 41
(See Ai'i'Boi'BUTioN, Bbii'ish Constitution, Cabinet, Conventions)
F.
FACTORY ACTS—
power of pvovinoial legislature to pass, 375
FEDERALISM-
common to both Britisli and United States systems, 12
in British Imperial syslein, 5, et xeq.
rests on " conventions," 7, 10, 250
growth of, 8
in United States system, the basis, 8, 43.
upheld by law, 7
> in Cant^'iian system, the basis, 43, 47, 245, 281, 423
involves continuation of parties to /«•(/«»", 47, 241, 423
V. legislative union, 44 (st',- Uxitaiuan)
opinion may vary as to position of dividing line, 44
full governmental power necessary for each division, 45-6
(SceB. N. A. Act)
FEDERAL OFFICERS— .SVe Offices and Officers
FEDERAL COURTS— See Judicial System
FINANCIAL ARRANGEMENTS, 519, et seq., 530, 594, C07, Gt 0
FRANCE -
droit admitmtratif in, 14
FRANCHISE— See Elections
FREE TRADE—
interprovinoial, 623, 530
FRENCH LANGUAGE—
in debates, etc., of parliament of Canada, 539
Quebec legislature, 539
in courts, 539
in Manitoba, 593
in N.-W. Territories, 679
INDEX. 659
GAME LAWS—
power of a provincial le<»islature to puss, 414, 480, 488
GOVERNOR-GENERAL— chapter VIII.
powers of, defined and limited by commission, 150
no immunity from being impleaded, 152, Ki'i
in EnKlisli com-ts, 152-5, KjO
in courts- of bis colony, 155, 1G2
oivilly, 155-9
crimiually, lbO-2
letters patent constitutini^ office, 162, et seq, (see Appendix)
powers in relation to appointments to office, I(i5-G
parliament, 1(35-108
pardon, lOG
disallowance of provincial Acts, 342
(See Disallowance)
dual position of, 250
Acts under advice of Dominion cabinet in matters committed to
parliament of Canada, 250
powers in relation to Lieutenant-Governors, 251, 308, 320
not sole representative of the Queen in Canada, 254-5 (see Lixute-
NANT-GoVKRNOn)
invested with all statutory powers of governors, etc., in precon-
federated provinces, so far as exerciseable in federal govern-
ment, 48, 25G, 315
power of Dominion parliament to alter, etc., 257
salary of, 517
(See Administuator, Deputy, Pbeuogatives)
GREAT BRITAIN — See Buitisu Constitution, England, Imperial
Parliament
H.
HARBOURS, 530
HOUSE OF COMMONS OF CANADA—
constitution of, 282-300
membership, 282
representation of provinces in, 282, 294
redistribution, 294
electoral districts in each province, 297
660 INDEX.
HOUSE OF COMMONS OF CANADA— Continued.
elections — See Elections
speaker, 291 — Spkaker
quorum, 293 — Quordm
voting, 29d — Voting
duration of, 293
cannot be altered by Dominion parliament, 293
money votes must originate in, 298 — See Appropriation am> Tax
Bills
{See Parliament of Canada)
HOUSE OF LORDS—
functions of, 258
compared with United States senate, 238
senate of Canada, 2<)8-271
{See Senate)
I.
IMMIGRATION, 512
IMPERIAL EXECUTIVE AUTHORITY—
in relation to Canada, limited, 11, 141-3, 253
disallowance of Dominion legislation, 145-9, 174
{Gee Prerogatives)
IMPERIAL PARLIAMENT—
its dual nature, 7, 55
legislates, primd facie, for United Kingdom only, 7, 185
Acts of, do not prinui facie extend to colonies, 7, 185
no legal limits to legislative pdwer of, 11, 55, 186— See Exclusive
"conventional " limits as to colonies, 7-9, 66, 74
{See Colonial Legislative Power)
colonial legislature cannot a£Fect Acts of, of express application to
colony, 60, et seq.
repeal of Act by, repeals in colony, 69, et seq.
general legislation by, how far introduced into Canada— See Exu-
LAND, Law of
distinction between, and Acts of express application, 58, 75
time limit, 58
when do Acts of, extend to a colony— See Colonial Laws Valimty
Act
(See Prerogatives, Privileges) •
IMPERIAL STATUTES— See England (Law of), Imperial Parliament
INDEX. 661
IMPLIED POWERS, 9, 221, 348—
doctrine of, how far applicable iu Canada, 348-9
IMPRISONMENT FOR DEBT, 394, 476
INDIGENT DEBTORS, 39G, 476— See Bankuuptcy and Insolvencv,
B.N. A. Act, B. 91, 8-8.21
J.
JUDGES-
appointment of, etc., 512, et seq.—See Judicial System
JUDICIAL SYSTEM OF CANADA-.SW also CounT8
Canadian Courts, at times, practically administer foreign law, 224-.')
courts enforce observance of dividing line between Dominion Par-
liament and provincial legislatures, 172, 223, 342
federal courts administer provincial law, and rice vers(f, 227, 230
power of Dominion parliament to establish, 229, 230.
384, 514
jurisdiction determined by line of division between
Dominion parliament and provincial legislatures,
229, 515
provincial courts no power to supervise, 240
provincial courts, pre-Confederation, continued, 227-9
jurisdiction of, does not depend on line of division
between Dominion parliament and provincial
legislatures, 230, 238, 470
power of provincial legislature to establish new,
238, 470
power of provincial legislature to appoint judicial
officers. 238-9, 470-1
territorial jurisdiction of courts, 225, ct x-'q.
vice admiralty courts, 227
duties may be imposed on courts, etc., in Canada by authority other
than that which created the court, 230
by Dominion parliament on vice-admiralty courts, 231, 384
on provincial courts, 232
by provincial legislature on federal judges, 232-4
scheme of B. N. A. Act illogical, 234, 468, 515
procedure — an essential part of certain legislation, 235-7
maritime law, 236
patent law, 402
insolvency law, 237
election law, 237-8, 200
different meanings of term, 234-7
{Sec Chimixal Law, Peval Laws of PnoviNCEi, Evidence)
JUSTICES OF THE PEACi: — SVt- .Judicial 8ystk:,i
662 INDEX.
L.
LANDS— )§<•<> Public Lands
LAW — See Bulk of Law
LEGISLATIVE POWER—
supreme over executive, 12, 137, 144
through financial necessities of executive, 21) —See AprRoi'HiATioN
both in British and United States systems, 14
and executive co-extcnsive, 12, 46, 137, 144, 437.
close connection in England, 15— See Cabinet.
lack of sympathetic connection in United States, 14, 17, 334
limitations upon, enforced by courts, 11, 202 — See Codrts of Law
in colonies, part of fedoral idea, 20
(See B. K. A. Ac Colonial Legislative Power, Executive)
Authority, Parliament of Canada, Provincial Legislatures
LEGISLATIVE UNION— -See Unitarian, Federalism
LEX ET CONSUETODO PARLIAMENTI -St,; Privileges
not carried into colonies, 263
LIEUT.-GOVERNOR-
a link in the chain of federal connection, 48
appointment of, 48. 300, 30(i
tenure of office, 251, 308
removal of, 251, 30.S-1>
" conventional " rule in Letellier case, ib.
what constitutes "cause," 309
deputy, power to appoint, 321 — See Administrator
invested with all statutory powers of governors, etc., prior to Con-
federation so far as exerciseable in provincial government,
48, 313-9
invested with all powers necessary to executive government of pro-
vime, 49, 303
represents the Queen, 303-6, 325
for purposes of executive government, 303-4
legislation, 306, 325
how far he may act without " advice," 319-20
subject to " instructions " of Goyernor-General, 304-5,
relations of Dominion executive to, 307-8, 309, 320
Dominion parliament no power to legislate as to, 309, 419
his position compared with that of Governor-General, 303-5
LICENSES, 445— See Liquor Traffic
direct or indirect taxation ? 430, 447
INDEX. cm
LIQUOR TRAFFIC—
cases reviewed, 359, et xeq.
power of provincial legislature to prohibit, 366-72
" LITERARY THEORY "-S.c Division of Poweb
LOWER CANADA-5^e Quebec. Pi»e-Confederation PnoviNCEs
M.
MANITOBA— *
historical sketch as to admission, 549-53
MARRIAGE, 407, 459 {nee England, Law of)
MILITARY MATTERS_.St'« Colonial Leoislative Poweu
supreme command of militia in the Queen, 259
committed'to Dominion parliament, ;}78-9
MONEY VOTES— ,SV' AiriiontiATioN and Tax Bills
MORTMAIN ACTS-Sc'c Englani., Law of-Companies
MUNICIPAL INSTITUTIONS, 439-45
N.
NATURALIZATION AND ALIENS, 400
cases in British Columbia, ()1G
NEW BRUNSWICK—
bgislative and executive authority in, continued by B. N. A Act
50, 5-'. 313, 388
early constitution of, 27-.S><. Puk-Conkei.eiiation Provinces
introduction of Englisli law into, 92-4— Sre England, Law of
NORTH-WEST TEBRITORIES-
admission of, to Canada, historical sketch, 549, ct geq.
constitutional changes, 555
present constitution, 5()2, et scq.
representation in parliament of Canada, 271, 283
le^'islative supremacy of parliament of Canada ovar. 183, 347, 554-5
introduction of English law into, 5^1— See England, Law of
004 INDEX.
NOVA SCOTIA—
early consUtution of,' 26, 40 — See Pre-Confedebation Provinces
introduction of English law into, 77-92 — See England, Law of
legislative and executive authority in, continued by B. N. A. Act,
50, 52, 313, 338
NUISANCES—
power of provincial legislature to prohibit, etc*, 361, 378, 487
, o.
OATHS—
to be taken by senators, etc., 532
OFFICES AND OFFICERS—
federal, power of Dominion parliament over, 380
Governor-General in relation to, 165, 166, et Kcq.
provincial legislature to tax, 380, 436
provincial, po'^er of provincial legislatures over, 435
can provincial officers be appointed to execute Dominion
legislation? 436
ONTARIO—
1 Jgislature, 324-320
constitution, 324
membership, 320
executive council, 310
introduction of English law into, 04-128 — See England, Law of
(See PRE-CoNFEnERAXioN Provinces)
P.
PARLIAMENT-
no special signilicance attached to term, 261
PARLIAMENT, SUPREMACY OF—
Dicey on the, 16
principle fully operative in Canada, 22, 174 (h)
(See Leoislaiive Power)
PARLIAMENT OF CANADA— (Se^ note at beginning of this Index)
constitution of, 260, et seq.
cannot alter its own, 281, 422-3
summoning of, etc., 165, 168-70
(.S'ce HocseHof Commons, Senate)
INDEX. 665
PARLIAMENT OF CANADA— Continued.
legislative power of, 204, 343, 420— {See note at beginnin({ of Index)
may legislate as parliamentary procedure, 280 — See Colonial
Laws Validity Act
limited power of legislation as to "privileges," 264 — See Privi-
LEOKS
limited to general legislation, 21t, 351, 892, 464, 488
private bills, 352 — See Companies
reiiduum with, 844-5, 462, 485
" peace, order and good government," 347, 484
over N. W. Territories, 183, 347, 554-5
disallowance of Acts of — See Disallowance
PARLIAMENT OF UNITED KINGDOM— See Impekial Parliament
PARLIAMENTARY PROCEDURE— See Colonial Laws Validity Act,
Privileoes
PENAL LAWS OF PROVINCES, 478, et seq.—
diversity of nomenclature, 474
provincial legislature full power over procedure, 471-4
how distinguished from " criminal " law, 470
power to pass a general law, 481
appropriation of fines, 482
remission of penalties, etc., 482
POLICE MAGISTRATES—
power to appoint, 238 — See Judicial System
" POLICE " POWERS, 487
POWER OF APPROPRIATION— See Appkopkiation
POWER, DIVISION OF— .See Division of Power
PRE-CONFEDERATION PROVINCES-
Maritime provinces,
Nova Scotia, 26. 40
Prince Edward Island, 27
New Brunswick, 27
Cape Breton, 27
general treatment, 28, et setj., 40
Quebec, 27
(Old) Canada, 28, 34
general treatment, 34, 41
commissions of early governors, 2r-32
government by prerogative in, 30 — See PiiEiiooATivES
assemblies in, 26, et seq.
their functions, legislative, 30
(iii() INDEX.
PUK-CONPEDERATION PROVINCES-CoHti/iM^i.
" responsible government " in, growth of, 39-40
(See Ai'PKoniiATioN, Powkr or— Exkcutive Rkhpomhihii.itt)
type of organization in, 47
what became of their conatitutions, 48, et $eq.
continuation of executive authority, 4H-51, HIH
legislative authority, 132, 8B8
division of assetH, etc., 52-H, 510, et »eq,
laws of England in — See England, Laws of
PRE H0GATIVE8 OF THE CROWN-St-c chapter VI.
in connection with early government of colonies, 80
extent of operation in colonies, 187, et teq,
same rule applies to le.v prerogativa as to other branches of
En^lis'i law, 189
otTect of establishment of representative assembly in colonies, 80,
140, 24'i
power of colonial legislature over, 35, 189, 253
no power over certain, 253
one executive magistrate, the British idea, 130
invested by the common law with " prerogatives," 181, 134
limited by the common law, 184
no power to alter law, 181
protected in exorcise of, by being a branch of parliament, 81,
132. 145
parliament may legislate as to, 182, 184, 185, 187, 258
secured control of, through power over finances, 81
express words or irresistible inference required to take away, 142
classification of, 184-G
in Canada, under B. N. A. Act, 142, 258
disallowance of colonial Aots, li'i-d —See Disallowanck
commissions of Oyer and Terminer, 259
Queen's Counsel case, 143 (n), HI?
osi'.licats, 528
royalties, 529-30
PRESUMPTION—
in favor of validity, 217
(See Legislative Pcweu, ExtcuTivr. Kehponshuhiy) "
PRINCE EDWARD ISLAND—
early constitution, 27 — See Pue-Confhdeuation Puovincks
admission of, to Union, 617
PRIVATE BILLS— iec Parliament OF Canai>a
PRIVILEGES—
of parliament of Canada, 261, et seq.
B. N. A. Act amended, 262
INDEX. 067
PRIVILEGES -Continued. -
legislative power in relation to, limited, 2B4
{See Parliament or Canada)
of provincial legislatures, 826, et seq.
legislative power in relation to, plenary, 826-7
{See Colonial Laws^Validity Act)
PRIVY COUNCIL FOR CANADA—
constitution of, 50-1, 255
appointment of members, 167, '^5r>
PROCEDURE— A!fe Jitdicial Syhtkm, Chiminal Law, Pknal Law, etc.
PROHIBITION— See Liqdob Traffic
PROVINCIAL CONSTITUTIONS, 300-343
executive power, .HOO-324 — See ExEcrTivE Authority
Lieutenant-Governors — See Lieittenant-Governor
Executive Council -Sea Execittive Council, Oauinet
"executive power case" (Ont.), 305-6
legislative power — See Provincial Leuihlatures
range of, determines range of executive, 199, 305 — Sec Leoihla-
TivB Power
provincial autonomy, 301
{See Ontario, Qitkhec, etc.)
PROVINCIAL LEGISLATURES -.SVvMjote at begiiniing of tluB Index
disallowance of Acts of —See Disallowance
powers of, 205, 420-512 — See B. N. A. Act, Colonial Leuihlativk
Power
as to prerogatives — See Prerogatives
as to "privileges," etc.— .See Privileges, Colonial Laws Valimty
Act
to alter constitution, 420, et neq.
as to elections— See Elections
duration of. 336
speaker, quorum, voting— .SVe these titles
(.See Ontario, Quehec, Etc.)
PROVINCIAL 0FFICES-.SVe Offices anu Ofkickrh
PUBLIC HARBOURS, 530
PUBLIC LANDS— -
Indian reserves, 404
provincial legislative power, 437
assigned to provinces, 518, 528
Manitoba, 595, 601
British Columbia, 610
Prince Edward Island, ((21
exempt from taxation, 524, 531
OHS INDEX.
PUBLIC WORKS AND PROPERTY—
certain, asBi^fned to Dominion, 618, 530-1
remainder reserved to provinces, Ml
exempt from taxation, 524, 581
QUALIFICATION— .STi-rt the various offices
QUEBEC—
le^^islature, B20, et nq,
legislative council —
constitution of, B29
qualification, vacancies, etc , 3,S0-1
legislative assembly, B81
executive council, 310
QUEBEC RESOLUTIONS, 18G4—SVr Appendix
indicate a federal union, 45
how far may they be utilized, 45, '21J(
as to re-distribution, 295
QUEEN, THE—
executive head throughout the Empire, 130, 252, 304
in Canada, 248, 252, 304
dual position occupied by, 'J50
commander-in-chief, 289
a branch of the parliament of Canada, 261
provincial legislatures, 300, 325, 341
QUEEN'S COUNSEL--143 (h), 317
QUORUM—
Senate of Canada, 279
House of Commons, 293
Quebec legislative council, 381
Ontario and Quebec le;;'slative assemblies, 337
RAILWAYS-See Company
RE-DISTRIBUTION—
of representation in parliament of Canada, 291
Quebec resolutions, 295
INDEX. 660
KE-DI8TRIBUTI0N— CoHt/»iMC</.
different from detlniug electoral districts, 297
parliament of Canada full control of both, 2<.)7-8
RliSERVED BILLS, 149, 298, 800
REPUGNANCY—
of colonial Acts to Imperial, &8, 379
{See Colonial Laws Validity Act)
of ordinances of North-West assembly to Dominion legislation,
570, 582
RESIDUUM OF POWER— See also Division of Poweu—
Canadian and United States systems contrasted, 44
expression criticized, 45
{See Parliament of Canada)
RESPONSIBIE GOVERNMENT— See Executive Responsibility
REVENUE—
power to appropriate — See Appbupbiation
provisions of B. N. A. Act, 510, et seq.
ROYALTIES, 518, 529-30
RULE OF LAW—
common to both British and United States systems, 12, 14
{See Parliament, Ucpbemacy of)
a
SEATS OF GOVERNMENT—
of Dominion, 260
of provinces, S23
SENATE OF CANADA, 268-81
compared with House of Lords and United States, 208-70
no judicial functions, 270
except as to status of senators, 278 -.
no executive functions, 270
has failed to answer the end of its creation, 270-1
principle of equal representation in, abandoned, 271
Ontario, Quebec and Maritime provinces, 272,
peculiar provision as to Quebec, 271
qualification of senators, 273
summons to senators, 274
670 ^ INDEX.
SENATE OF CANADA- t'on<inMed.
possible addition to, of six members, 275
provision j^actically effete, 276
number of senators, 276
no maximum, 277
tenure of office, 2:59, 277
vacating; of seat in, 277
question determined by senate, 278
speaker, quorum, voting — See these titles
senators ineligible for election to Commons, 283
SEPARATE SCHOOLS, 489, et seq.
remedial legislation by parliament of Canada, 495, 508
SOVEREIGN — See Queen, Crown, Prerogatives
SPEAKER—
of senate of Canada, 279
of Quebec executive council, 330
of House of Commons, 291
position compared with that of, in England and United States.
292
deputy speaker, 293
of provincial assemblies, 337
STATUTES— .See Index to Statutes, p. xv
SUPREMACY OF LAW— .See Rule of Law
SUPREME COURT OF CANADA, 514, 516
provincial legislature no power to limit appeals to, 610
SWITZERLAND—
droit admimstratif in, 14
T.
TAXATION -
colonial system, 35, et seq.
result of, 37
{See Appropriation.)
powers of Dominion and provincial legislatures limited to purpo=e»
of those governments respectively, 377
parliament of Canada, 376
provincial legislatures, 424
public lands and property exempt from, 524, 531
(Sec Direct Taxation.) * " "
INDEX. (j7 ]
TENURE OP OFFICE-See Appropriation, Poweu of, Offices
TERRITORIAL OPERATION OF STATUTES -
of Imperial parliament, 7, 185
of colonial legislatures, 185, et teq.
TERRITORIAL REVENUES—
assif^ned to provinces, 518, 528
TREATY OBLIGATIONS—
parliament of Canada may legislate for performing, 538
power limited by reason of Imperial legislation, 538-9
u.
UNIFORMITY-
provision for future, in laws of Ontario, Nova Scotia and New
Brunswick, 511
UNITED STATES—
constitution of, compared with British and Canadian, 5, '20
distribution of legislative power in, as compared with Canada 41 ■•
220-1
power of con,'res3 to determine line of division, 9
how far dacisions in courts of, may be utilized, 220-2
{See British Constitution, Fedkhamsm)
UNITARIAN FORM OF GOVERNMENT, 13-
V. federal, 44, 444
VALIDITY—
presumption in favor of, 217
a principle of interpretation, 217
VOTERS— .See Elections
VOTING—
in senate of Canada, 281
in House of Commons, 293
Quebec legislative council, 331
provincial assemblies, 337
VETO — See Disallowance
672 INDEX.
w.
WORKMEN'S COMPENSATION FOR INJURIES ]ACT-
how far federal railway subject to provisions of, 458
Y.
YEARLY SESSIONS—
parliament of Canada, 267
Ontario and Quabec, 337
New Brunswick and Nova Scotia, 337
O^